Acker v. Adamson ( 1940 )

Erwin Acker, the plaintiff herein, was complained against under the Uniform Illegitimacy Act, Chapter 295, Laws of 1923 (SDC 37.21). The jury returned a verdict against him. Judgment was entered upon the verdict and as a part of this judgment it was ordered that the said Acker give security by bond with sureties for the payment of the judgment, and in the default of such security that he be committed to jail. The bond was not furnished as required by the judgment, and on December 1st, 1938, Acker was committed to the county jail. He remained in jail until the first day of May, 1939, when he commenced these present proceedings in habeas corpus directed against the sheriff and state's attorney of Minnehaha County. Hearing was had before the circuit court and the court found that the said Acker was unable to comply with the judgment and furnish the security ordered and, upon such finding, the court ordered his release from jail. The defendants have appealed.

[1, 2] Section 23, Chapter 295, Laws of 1923 (SDC 37.2123) provides, as follows: "The Court may require the father to give security, by bond with sureties, for the payment of the judgment. In default of such security, when required, the Court may commit him to jail. After one year the person so committed may be discharged in accordance with the law relating to the discharge of insolvent debtors, but his liability to pay the judgment shall not be thereby affected."

It was under this provision of the law that Acker was committed, and it is respondent's principal contention here that commitment thereunder was unlawful for the reason that the said section of the law is unconstitutional in that it constitutes imprisonment for debt in contravention of Article 6, Section 15, Constitution of South Dakota, and further that if the said section is otherwise constitutional it contravenes Section 23 of Article 6, Constitution of South Dakota, which prohibits the infliction of cruel punishment. Respondent's contention that the statute constitutes an imprisonment for debt finds some support in the case of State ex rel. Bissell v. Devore, 225 Iowa 815,281 N.W. 740, 118 A.L.R. 1104. However, it appears that the South Dakota Constitution differs materially from that of the state of Iowa. Our constitutional provision is, as follows: "No person shall be imprisoned for debt arising out of or founded upon a contract." Article 6, § 15.

The Iowa Constitution provides: "No person shall be imprisoned for debt in any civil action." Article 1, § 19.

This distinction was noted by the Indiana court in the case of Lower v. Wallick, 25 Ind. 68, wherein the Indiana court said: "It will hardly be pretended that the liability under that act is a debt created by contract, either express or implied. The obligation of the father to maintain his children is founded in nature, and not in contract."

A great weight of authority is that liability under the Uniform Illegitimacy Act does not constitute a debt within the meaning of the constitutional provision against imprisonment for debt. See Annotation 118 A.L.R. 1109. The reasoning of the North Dakota court in the recent case of State v. Hollinger, 287 N.W. 225, 227, finds support, we believe, both in reason and authority. The North Dakota court said: "The duty of a father to support his illegitimate child is not dependent upon contract. The relation of debtor and creditor does not exist between the father and the mother, between the father and the State, or between the father and his child. The obligation of the father to provide for his child in such case rests upon a foundation more elemental than that upon which a contract rests. It is a moral obligation which he owes both to society and to the child, and the Legislature has wide powers in fixing the extent of the legal obligation that results, and it has power to prescribe the method by which that duty may be enforced, subject only to the limitation upon legislative power fixed by the Constitution. The Legislature may, if it so desires, prescribe that the obligation shall be enforced by a criminal action, or by a civil action, or by an action neither wholly criminal nor wholly civil, but having features and incidents of each. For as was well said by the great Chief Justice: `Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.' McCulloch v. Maryland, 4 Wheat 316, 421, 4 L.Ed. 579."

We hold, therefore, that the liability imposed under the Uniform Illegitimacy Act does not constitute a debt within the meaning of the constitutional provision against the imprisonment for debt arising out of contract, and that there was no violation of this provision in the enactment of the said Section 23, Chapter 295, Laws of 1923 (SDC 37.2123). Neither do we believe that the enactment of this section constitutes cruel punishment within the constitutional inhibition. The imprisonment is for the purpose of coercing the father to give the required security, but assuming that such imprisonment might be considered punishment within the constitutional provision, nevertheless, the statute specifically provides that after being committed one year the person committed may be discharged in accordance with the laws relating to the discharge of insolvent debtors. Whether the court has authority to discharge the committed person prior to the expiration of the year upon the showing of complete inability to comply with the judgment, we need not now determine for we are satisfied that the limitations upon the imprisonment contained in the paragraph of said Section 23, which we have quoted, and the succeeding paragraph of that section, must refute any contention that the law is in contravention of the constitutional provision relating to cruel punishment. Cf. 7 Am. Jur., Bastards, § 133.

[3] It has been suggested that the law under which Acker was imprisoned infringes upon the inherent power of the court to commit for contempt. We do not agree. Contempt must find its basis in the willful or contumacious refusal to comply with an order of the court. Nash-Finch Co. v. Raich, 66 S.D. 521,286 N.W. 326. The statute under which the respondent was committed makes no reference to the willful or contumacious refusal to furnish security, but provides that, upon the mere default to furnish security, the father of the child may be committed. Quite obviously, the legislative method adopted for the enforcement of the requirement that a bond for support be furnished differs materially in its nature from the power of the court to commit for contempt for the failure to furnish such a bond. It might well be that within the purview of its inherent powers, the court in a bastardy proceeding, in addition to the means of enforcement provided by the legislature, could commit as for contempt for the failure to furnish a bond ordered to be given for the payment of the judgment if the essentials of contempt are present. However, in this case we need not so decide because Acker was committed under the provisions of the legislative enactment.

[4, 5] It is elementary that the legislative power of state legislatures is unlimited except as limited by the State or Federal Constitutions. State ex rel. Wagner v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L.R.A., N.S., 206, Ann. Cas. 1916B, 860. We are unaware of any constitutional provision other than those here discussed which would limit the authority of the legislature to coerce the payment of the liability determined under the provisions of the Uniform Illegitimacy Act, and it follows therefore that the commitment of this plaintiff under the provisions of that act was, in our opinion, lawful.

[6-8] We consider now the nature of the proceeding which is habeas corpus. This proceeding constitutes a collateral attack on the judgment and the writ in this respect deals only with such radical defects as render the proceeding or judgment absolutely void. SDC 37.5504(1); State ex rel. Anderson v. Jameson, 51 S.D. 540, 215 N.W. 697. Whether a judgment is absolutely void depends, no doubt, upon whether the court had jurisdiction to act. However, this jurisdiction is not dependent entirely upon whether the court had the parties properly before it and had the general power to act in the illegitimacy proceeding. But jurisdiction in this respect goes to the further question of whether the court had the power to render the particular judgment which it did render. In re Taber, 13 S.D. 62, 82 N.W. 398; Reddin v. Frick, 54 S.D. 277, 223 N.W. 50. From what we have said above it appears that, in our opinion, the court was acting within its jurisdiction in rendering the judgment that was rendered. The proceedings under the illegitimacy act were in all respects regular and in conformity with the statute. Even conceding for the purposes of this opinion that under the statute it might be within the authority of the trial court in a proper proceeding to release the defendant upon a showing of complete inability to comply with the judgment before the year prescribed by the statute has expired, nevertheless, such issue cannot be raised in habeas corpus. Whether the defendant would be subject to release before the expiration of the year, if he is so subject, in any event must be dependent upon the sound judicial discretion of the trial court. This discretion should be exercised by the trial court in a proper proceeding. Whether the defendant should be released in such a proceeding would not be a test for determining the validity of the judgment under which he was committed.

[9] SDC 37.5504(2) provides that the writ should be granted "Where, though the original imprisonment was lawful, yet by some act, omission, or event, which has subsequently taken place, the party has become entitled to his discharge." This subdivision is not applicable to the present situation. The original imprisonment here was lawful, and if Acker was subject to release prior to the statutory year, he was so subject only when the trial court in the exercise of its discretion in a proper proceeding so determined, which event has not taken place.

The judgment appealed from is reversed.

SMITH, P.J., and POLLEY and ROBERTS, JJ., concur.

WARREN, J., dissents.