Durham v. State ( 1891 )

LüRton, J.

Durham, under an indictment for murder, was convicted of an assault and battery. Judgment was thereupon entered on this verdict that he be confined in the county work-house at hard labor for three months, and that he pay a fine of fifty dollars and cost of prosecution. The fine and costs were at once secured, and execution ordered to issue- for same. A transcript of the record, together with a petition for writ of error and supersedeas, was presented to a member of this Court, who ordered writs to issue as pi’ayed for. It is now insisted that the Circuit Judge had no power to impose a sentence of imprisonment with hard labor under this verdict, and that, having secured the fine and costs, the petitioner is entitled to be discharged. The conviction is for a misdemeanor at common law, and the power of the Circuit Judge to punish hy a fine not. exceeding fifty dollars, where the fine is not fixed by the jury, and by imprisonment in the county jail not exceeding one year is not denied. Wickham v. State, 7 Cold., 526; Atchison v. State, 13 Lea, 275.

But it is very earnestly urged that hard labor cannot be imposed as a part of such sentence. By § 6259 M. & Y. edition of Code, it is enacted that: “In all cases where a person is, by law, liable to be imprisoned in the county jail for safe-keeping or punishment, confinement in the work-house, if one be provided, may, in the discretion of the Court or Justice, be substituted.”

A sentence to the work-house is a sentence to hard labor, whether expressly pronounced or not. It is conceded that if this provision of the Code is a valid and an existing law, that the judgment in this case was valid.

The first contention is that this law has, hy implication, been repealed by an Act passed in 1875, and entitled “An Act to require persons convicted of misdemeanors to work out the cost of conviction.”

Eii’st, it is said that the provision of the first section, providing that persons convicted of a misdemeanor “shall be confined in the county work-house after the term of his or her imprisonment, if any, has expired, until he work out his fine and cost,” is equivalent to saying that such person is not to be so confined therein for punishment or during his term of imprisonment, but only after his term has expired. This construction is too narrow, and leaves out of view the general scope and purpose of the law as indicated by the preceding and subsequent parts of the same section. What was the evil to be remedied? By §§ 5271 and 5272, and the Act of 1859-60 amending those sections, a person Convicted of a misdemeanor whose term of imprisonment had expired could obtain his release, though he • had not paid the cost of his prosecution or the fine imposed, by taking an oath of insolvency. ISTow, the first section of this Act repeals the former legislation by which such misdemeanants had been enabled to avoid the payment of fine and costs, and in the same sentence enacts that he shall be confined in the county work-house “ after the term of his or her imprisonment, if any, has expired until he work out his fine and costs.” It is clear therefore that this language is not a prohibition upon confinement for'punishment, but a prohibition upon any discharge, although the imprisonment has expired, “ until he has worked out his fine and costs.” The section giving power to confine for punishment in the work-house in lieu of the county jail, is not referred to in this section, or any other of the Act of 1875, and the subject of confinement for punishment is - nowhere in the Act alluded to. The whole scope and purpose of the Act was to prevent the release and discharge of misdemeanants until they had paid such fine and costs as had been imposed. This subject is the only one indicated by the title, and the provisions of the Act concerning the establishment and regulation of work-houses are germane to the subject indicated by the title.

It is next urged that this section is a provision found in the article of the Code of 1858 concerning “houses of correction,” and' that inasmuch as the Act of 1875 deals with the same subject by providing for such places of detention, and for the regulation of inmates, that therefore the later legislation operates to repeal by implication, not only the provisions of the old law concerning the establishment of such work-houses and their management, but also to repeal such parts of the old statute as defined the persons who should be subject to confinement therein, and that ■ we must look alone to the later Act to see under what circumstances and for what purposes confinement may be imposed in such institutions. We have already seen that the new legislation does not, in terms, repeal any of *the sections constituting the old article on work-houses.' Reither does it profess'to be a revision of the legislation on that or any other subject, and contains no clause repealing legislation- in conflict.

The reasoning upon which repeals by implication is' rested is well stated in the very late work of Mr. Sutherland on Statutory Construction, as follows: “An implied repeal results from some enactment the terms and necessary operation of which cannot be harmonized with the -terms and necessary effect of an earlier Act. In such case the later law prevails-as the last expression of the legislative will; therefore the former law is constructively repealed, since it cannot be supposed that the law-making power intends to enforce laws which are contradictions. The repugnancy beips; ascertained; the later Act or provision in date or position 'has full force, and displaces by repeal whatever in the precedent law is inconsistent with it.” Sec. 188.

But by a very familiar and universal rule, repeals by implication are not favored. The repug-nancy between two statutes must be very plain and incapable of reconciliation. Frazier v. Railroad, 88 Tenn., 140.

How far is the Act of 1875 repugnant to or inconsistent with the provisions of Article IV. of Chapter 7, relating to the safe-keeping of criminals? A comparison of the two Acts will demonstrate that the later Act does not cover or embrace all of the provisions covered- by the old law. The titles, to begin with, are by no means identical. Under the article in the Code several subjects are embraced which might well have been the subject of separate articles or Acts.

First. — The article empowers County Courts and’ municipal corporations to buy lands, and erect buildings thereon proper and necessary for a work-Rouse; and authority is given to appoint persons to manage sucR houses, and to make rules for. the government of the inmates.

Second. — Punishment in excess of hard labor is expressly forbidden.

Third. — The article provides that when an inmate is confined for safe-keeping only, that his earnings should be paid over to him upon his discharge; but that if confined for punishment, his earnings should go to the county, unless he have wife or children, in which case one-half should be paid over to such wife or children.

Up to this point the legislation of the Act of 1875 may fairly be said to cover and embrace the legislation in this article. The article, in some particulars, was vague and defective in those provisions relating to the ascertainment of the inmate’s earnings when he had a wife and children, and in not plainly prescribing who was to pay one-half of the earnings of such an inmate to his wife or children. This defect was, however, probably remedied by the provision authorizing County Courts to make regulations concerning the management of the inmates.

But the Code did not stop with providing for the establishment and regulation of such workhouses. It weut much further, and defined the classes of persons who might be confined therein. These provisions were for the detention therein: (1) Of vagrants required to find sureties for good behavior; (2) of persons liable to confinement in the county jail for safe-keeping only; (3) of persons liable to be confined in the county jail for punishment.

The Act of 1875 adds to these . classes persons sentenced to pay fine and costs, such confinement to last until fine and costs had been worked out.

As to the confinement of the three classes subject by the Code article to detention in the workhouse, the Act of 1875 is silent. It did not therefore cover or embrace all of the provisions of the old law, and, under the well-settled rules of construction concerning repeals by implication, the provisions of the old Act not covered by the provisions of the later Act, are unaffected and still in force. Although there may be two Acts upon the same subject, yet the rule is to give' effect to both if possible. When, however, the later Act covers all of the provisions of the older Act, and embraces new provisions plainly showing that it was intended to substitute the new system or regulations for the older, then it will operate as -a repeal of the former. This is the full extent of the doctrine as stated by Judge Meld in the case of United States v. Tyneu, 11 Wall., 88. The rule as ' stated by Mr. Sutherland is: “ When a new law covers the whole subject-matter of an old -one, adds new offenses and prescribes different penalties for those enumerated in the old law, then such former law is repealed by implication.” To this he adds that “the effect would probably be that of revision and repeal, though no new offenses were added; it is enough that the new statute embraces all the provisions of previous statutes on the same subject which are intended to have force.” Sutherland Stat. Con., Sec. 143.

The later Act does not cover all of the provisions of the older law, and the very important provisions of the old Act concerning the persons liable to confinement therein are still in -force and unaffected by the new legislation. As an illustration of the conservatism of this Court in declaring repeals by implication, the case of Cate v. The State is in point. It also is an important instance of the survival of a part of an old Act, notwithstanding subsequent legislation upon the same subject largely affecting and changing parts of the old law. There a statute fixed a tax on the exercise of a certain privilege, and a penalty for exercising it without a license. A subsequent Act changed the tax and provided a summary remedy for its collection, but was silent as to the penalty. It was held that both Acts should stand together, in so far as the penalty was concerned, inasmuch as there was no necessary repugnancy between the Acts with reference to this feature. '' 3 Sneed, 120.

An effort has been made to narrow the scope of the Code article by arguments addressed to the constitutionality of the provisions concerning confinement at hard labor of persons held only for safe-keeping. This provision is certainly subject to grave objections; and when a case arises where one detained only for safe-keeping has been compelled against Ms will to do hard labor, -the matter will have that degree of consideration which the gravity of the constitutional question involved demands. It is enough to say that no such question is now before us. Neither can we assume that the Legislature of 1875 deemed it unnecessary to expressly repeal the provisions involving this question because of its supposed, , unconstitutionality. If those provisions were ever valid, they were unaffected by the Act of 1875. So the provisions -concerning persons held for punishment, if ever valid, were not repealed by that Act. That this section was not repealed by the later Act was expressly held by a unanimous Court in the case of Eaton v. State, reported in 15 Lea, 200. The question was directly passed upon, and a work-house sentence approved and affirmed. The decision, we think, was sound, and the case ought to be followed.

The objection that this provision is obnoxious-to the Constitution remains to be considered. The provision supposed to prevent such legislation is the eighth section of the Bill of Bights, providing that no one shall be “ deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land.”

"Where the conviction is for a misdemeanor, and the punishment is not prescribed by statute, the trial Judge may punish by a fine not exceeding fifty dollars, and imprisonment not éxceeding one year, either or both in his discretion. .This is well settled, and does not violate any constitutional privilege. Atchison v. State, 13 Lea, 275; 7 Cold., 726.

Thus, a wide discretion is reposed in the Magistrate, and he is enabled to graduate punishment with some regard to the circumstances of the particular case. That this discretion as to the nature and duration of punishment may be committed to a Judge without violation of the constitutional proviso above quoted, is due to the fact that at the common law the kind and extent of punishment, in the absence of a Statute prescribing the punishment, was left to the trial Judge.. So the ancient statutes prescribing punishments very frequently fixed a limit and permitted the Judge, within such limit, to determine the punishment. In either case there is no violation of the right of trial by jury. . The guilt of the defendant has been determined by a jury, and the law attaches to the verdict the punishment prescribed by the Judge if within the limits prescribed by law. Statutes prescribing imprisonment for felony not to exceed a certain number of years, and with or without hard labor, in the discretion of the Court, are by no means unusual, and we have been unable to find any authority questioning the validity of such statutes. It is not easy to ' understand why a Judge may, in his discretion, inflict im-pi’isonment not exceeding one year, and yet may not be empowered to add labor as a part of the sentence. Hard labor is not an unusual or a cruel punishment. Purvear v. Mass., 5 Wall., 475.

Statutes requiring a sentence of bard labor, or authorizing 'the requirement of labor as a means of discipline by the officers of institutions where persons are confined for punishment, have never been questioned. Teideman Pub. Pol., Sec. 35. That it may be imposed by a jury is not now challenged. But if, upon a verdict of guilty, the law attaches hard labor as a consequence of such imprisonment as the Court may lawfully impose, then hard labor becomes a part of the verdict, and is an incident. That it may or may not be imposed by the Court, in his discretion, cannot be any more objectionable than that he may or may not impose imprisonment.

Under an Act of Congress, a person convicted of a Federal offense may be imprisoned in any State penitentiary selected by the Court. By another Act, the convict so imprisoned in a State institution was subjected to the State authority, and to all the rules and regulations governing State convicts. Under an Act of Congress one Karstendick was convicted of an offense punishable by confinement in a penitentiary. He was ordered to be incarcerated in the penitentiary of "West Virginia, where hard labor was required of all inmates as a' rule of the institution. Upon a writ of habeas corpus the Supreme Court of the United States held that the trial Court might, in its discretion, have the sentence executed in a prison where such labor was required, although hard labor was no part of the judgment required by law under the Act upon which he had been convicted.

With reference to this discretion resulting from the Acts of Congress allowing a Court to execute its sentence in any of many prison houses, the Chief Justice said: “Thus a wide range of punishment is given, and the Courts are left at liberty to graduate their sentences so as to meet the ever varying circumstances of the cases which come before them.” Ex parte Karstendick, 93 U. S., 399. This doctrine was again approved in re Mills, 135 U. S., 266.

The Federal Constitution contains the same provisions with respect to the protection of life, liberty, and property, and in regard to right of trial by jury, as are contained in our own Constitution.

The imposition of labor as a means of discipline and a measure of" health is neither cruel or unusual. It operates, when rightly regulated, as a mitigation rather than an aggravation of the punishment involved in imprisonment. It is not in itself disgraceful or degrading, but beneficial and humane. The misdemeanant may be disgraced and degraded by his punishment, but he cannot ascribe his degradation to his labor. To a certain degree it compels crime to support itself, and in many ways the power to require convicts to labor is a valuable addition to the forces of law and order. The fact that it may be imposed, in the discretion of the Court, operates to widen the power of graduating sentences to % meet the merits of particular cases. If a wider discretion were reposed in Criminal Judges, in regard to the kind and duration of punishment, it might not be the worse for society.

The writ of error and supersedeas must he dismissed, and a procedendo issued requiring execution of the sentence imposed.