In re Ellis ( 1907 )

The opinion of the court was delivered by

Porter, J.:

Briefs have been filed and oral arguments made on behalf of the petitioner and by the attorney-general and Mr. Mikesell representing the state, and also by the county attorney of Wilson county on behalf of the board of county commissioners. The situation presented is anomalous, for the court has practically been importuned by those representing both sides of the controversy to find some way to order the petitioner’s discharge. The board of county commissioners apparently desires to be relieved of the responsibility of the situation and to obtain a decision which will in some manner have the effect to release the county from liability to Mr. Mikesell.

It is contended by the petitioner that section 2476 of the Géneral Statutes of 1901 is unconstitutional. This act authorizes the taxing of $25 as attorney’s fees' for each count upon which a conviction is had in this class of cases, and declares that the county shall be liable therefor to the attorney-general or his assistant where the same is not paid by the convicted person within one month after his release from jail. In this contention he is heartily joined by the attorney for the board of county commissioners. The petitioner is held for the payment of these costs, and manifestly can in this proceeding raise the question of whether they can be lawfully taxed against him; but whether the county can be compelled to pay them to Mr. Mike-sell after the petitioner’s release, if he should be released, is not involved here and is no concern of the petitioner. The board of county commissioners is not a party to this proceeding, nor is Mr. Mikesell.

The objection to the validity of the section is that the title of the act is too narrow to include the taxing of such costs. The section is an amendment to the prohibitory liquor law of 1885, and is section 5 of chapter 165 of the Laws of 1887 (Gen. Stat. 1901, § 2476). The title to this act was assailed upon practically the same grounds in The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, and upheld. In that case it was said: “A provision intended to insure the prosecution of offenses against an act is as plainly adapted to the enforcement of its purpose as is one prescribing a penalty.” (Page 177.) We must therefore hold against the petitioner’s claim that these costs are not lawfully taxed against him.

The. principal contention of the petitioner is that the refusal of the board to order his release unless he shall pay the costs, when his inability ever to pay has been established and conceded by the board, is in violation of section 9 of the bill of rights of the constitution, which provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” (Gen. Stat. 1901, § 91.)

It was decided in In re Boyd, Petitioner, 34 Kan. 570, 9 Pac. 240, that imprisonment for the non-payment of costs is no part of the punishment, and in the same case it was held that imprisonment under such circumstances is not imprisonment for debt. It is urged that the present case differs from that because the board has found that the petitioner is unable to pay the costs and has announced the intention of continuing the refusal to' release him although it will have the effect to keep him confined for the remainder of his life, and the case of Ex parte Tuicher, 69 Iowa, 393, 28 N. W. 655, is relied upon. In that case the supreme court of Iowa said:

“It is true that the imprisonment is but a mode of enforcing the payment of the fine and costs; but if the convicted person is unable to pay, then the imprisonment becomes punishment, and possibly within the prohibition of section 17 of article 1 of the constitution, which provides that cruel and unusual punishment shall not be inflicted.” (Page 396.)

Reliance is also placed upon some expressions in the opinion in the case of The State v. Looker, 54 Kan. 227, 38 Pac. 288, where the same question was raised, in respect, however, to the validity of the judgment and sentence. It was argued that the sentence was indefinite ; that if a person convicted is unable to pay the fine and costs he might be imprisoned during his natural life, and if there is no authority for his discharge there is no limitation of the duration of his imprisonment. It was insisted that if an indefinite sentence may not be imposed nor excessive nor unusual punishment inflicted, a law which has the effect to impose such penalty should be held to be void. The court in the opinion declared that chapter 199 of the Laws of 1889 was void, because, in attempting to amend chapter 117 of the. Laws of 1871, providing for the discharge of prisoners unable to pay the costs, the legislature in the title to the act provided for amending chapter 147 in place of 117. In the opinion it was said by Mr. Justice Johnston: “A plausible argument.to sustain this view was made in behalf of the defendant, and there would be great force' in his contention if chapter 199 of the Laws of 1889 could be treated as a valid law.” (Page 229.) As the case was decided expressly upon the proposition that the law was void, the expressions which are relied upon are obiter.

In The State v. White, 44 Kan. 514, 25 Pac. 33, the section of the bill of rights here involved was under consideration, and it was said by Mr. Justice Valentine that the provision “probably, however, relates to the kind of punishment to be inflicted, and not to its duration.” (Page 520.)

But it is unnecessary to decide whether imprisonment for the non-payment of costs, where the prisoner is unable to pay them, might not under some circumstances amount to cruel and unusual punishment, for, notwithstanding the threats of the board — if threats they can be termed — to keep the petitioner confined for the remainder of his life, we would have no right to assume that the present or some future board will not deal justly in the matter and order him released when satisfied of his inability to pay the costs. Some criticism of the present board has been indulged in by counsel for the state, and the members have been charged with a disregard of the claims of humanity and justice in their persistence in refusing to order the petitioner released.' The matter has been before the board a number of times, and numerous and various resolutions have been adopted to bring about an adjustment of the costs so that the same will not fall upon the county; but the members have placed themselves on record several times as recognizirig that justice and humanity require his release. . The difficulty appears to be that the board has never been able to see over and beyond the $1300. Doubtless it would not hesitate to order the expenditure of as large an amount to build'a bridge over a creek and save a few taxpayers some slight inconvenience in travel, but the expenditure of $1300 of the county’s money to uphold and enforce the criminal laws of the county seems to it to be money thrown away. In this era of law enforcement most people would regard the sum as insignificant when added to the taxes of a large and populous county and compared to the advantage which must accrue to the community in vindicating law and order and suppressing lawlessness.

The certificate of the honorable judge who has so long presided over the district court is a severe condemnation of the jail and its conditions and surroundings. Jails, are never desirable places in which to remain, but the dictates of humanity demand that some consideration should be given to the comfort, and especially to the health, of those compelled to occupy them. As communities become more enlightened and prosperous the tendency is in favor of bettering the condition of all classes of unfortunate persons who are-committed to the care of the public. It must be obvious, however, that we cannot order the petitioner released on account of the condition of the jail. To do so would require us on similar applications to order the release of all prisoners confined there.

The authority of the board to discharge the petitioner is conferred by section 5698 of the General Statutes of 1901, which reads as follows:

“Any person imprisoned for failure to pay any fine or costs may be discharged from imprisonment by the board of commissioners of the county where conviction took place, on satisfactory propf to them that said person is unable to pay the same.”

The act gives the board power in its discretion to discharge him, but it is not mandatory. An action of mandamus would not lie to compel the board to act.

Having decided that the costs taxed against the petitioner are authorized by law, that under the circumstances it cannot be said that his imprisonment for failure to pay.them amounts to a violation of the bill of rights and is cruel or unusual punishment, and that the condition of the county jail is not a ground upon which we may order his release, our responsibility ends. The board of county commissioners alone has authority to discharge the petitioner. The law and the official oaths of the members of the board impose duties and responsibilities upon them which can neither be avoided at will nor shared with others. The writ is denied. '