In re Salhus

247 N.W. 401, 63 N.D. 238

• Court: North Dakota Supreme Court
• Decided: March 20, 1933
• Docket: File No. Cr. 100
• Status: Published

Opinions

Burke, J.

Tbis is an application for a writ of babeas corpus. It appears, from tbe petition and tbe state concedes, tbat petitioner was on tbe 13tb day of December, 1932, sentenced by a justice of tbe peace to serve thirty days in jail, pay a fine of one hundred dollars and costs amounting to four dollars and fifty cents and to serve one day for each two dollars of said fine in case of default in tbe payment of tbe fine. Tbe petitioner served tbe full thirty days of tbe jail sentence and then made an application to tbe judge of tbe district court of Burleigh oounty for a writ of habeas corpus which was denied and thereupon be petitioned tbis court for a writ.

Tbis involves tbe construction of § 9151, Compiled Laws 1913, which reads as follows: “When tbe defendant is convicted by tbe court or by a verdict of ‘guilty’ or a verdict ‘for tbe state’ which docs not .also find tbe defendant not guilty, tbe court shall render judgment tbat be be punished by a fine or by imprisonment in tbe county jail or by both fine and imprisonment, specifying tbe amount of tbe fine or time of imprisonment. A judgment of fine only may also direct that the defendant he imprisoned until the same is satisfied.” (The italics are ours.)

In tbe Revised Code of 1811 the law reads, § 126: “When tbe defendant pleads guilty and is convicted, either by tbe court or by a jury, tbe court must render judgment thereon of fine or imprisonment, or both.” Section 127: “A judgment tbat tbe defendant pay a fine may also direct tbat be be imprisoned until tbe fine is satisfied, in tbe proportion of one day’s imprisonment for each two dollars of tbe fine.” These sections of tbe Revised Code of 1877 are §§ 6167 and 6168 Compiled Laws of Dakota Territory 1887.

In 1893 tbe legislature passed an act entitled “An act providing for tbe compilation, revision and codification of tbe laws of North Dakota.” ■Chapter 74 of tbe Session Laws of 1893. Tbe commission appointed under tbis act prepared and submitted to tbe legislature in 1895 a new, complete justice code which was duly approved and passed by the legislature. The title of the bill is as follows: “This act shall be known as the justices’ code of the state of North Dakota” and the act includes §§ 6618 to 6793 inclusive, Revised Code 1895.

In compiling, revising and codifying the existing laws of the state, the commission took §§ 6167 and 6168 of the Compiled Laws of 1887 made.one section out of the two and made certain changes therein. One of the changes was to insert the word “only.” This must be presumed to have been done intentionally and the legislature must be presumed to have approved and passed the bill with the intention that ■the word “only” should be given its usual ordinary meaning.

. According to Webster “only” means exclusively, solely, merely, for no other purpose, at no other time, in no other wise. “Only” in the sentence “A judgment for fine only may direct that he be imprisoned until the fine is satisfied,” limits the authority of the justice of the peace, to imprison for fine, to cases where the punishment inflicted is a fine only and in no other case. If the judgment is for fine and imprisonment, there is no jurisdiction to impose imprisonment in satisfaction of the fine and the defendant is entitled to liberty when the jail sentence is served. See Dowagiac Mfg. Co. v. Mahon, 13 N. D. 516, 101 N: W. 903.

The word “only” in the judiciary act (Act Cong. March 3, 1887, chap. 373, § 1, 24 Stat. at L. 552, as amended by Act Cong. August 13, 1888, chap. 866, § 1, 25 Stat. at L. 433), providing that, where jurisdiction is founded “only” on the fact of diversity of citizenship, suit may be brought in the district of the residence of either the plaintiff or defendant, is equivalent to “solely.” Whittaker v. Illinois C. R. Co. (C. C.) 176 Fed. 130, 131; Cound v. Atchison, T. & S. F. R. Co. (C. C.) 173 Fed. 527; McCormick Harvesting Mach. Co. v. Walthers, 134 U. S. 41, 33 L. ed. 833, 10 S. Ct. 485; People v. Fair, 48 Cal. 137; Fisher v. Essex Bank, 5 Gray, 373; Alder v. Schmidt, 10 N. Y. Leg. Obs. 363; Uncas Nat. Bank v. Superior, 115 Wis. 340, 91 N. W. 1004; Lee v. Chillicothe Branch (C. C.) 1 Biss. 325, Fed. Cas. No. 8,187.

The word “only,” as used in Code Civ. Proc. § 1780, providing that an action may be maintained against a foreign corporation by a nonresident “in one of the following cases only,” is inserted as a word of restriction, and implies a general jurisdiction, purposely narrowed and restrained. Chambers v. Feron & B. Co. 56 N. Y. Supp. 338 (citing Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457, 12 L.R.A. 237).

“Only,” as used in the Constitution provides that tbe Supreme Court shall have appellate jurisdiction only, coupled with the other words employed, plainly indicates a purpose 'to render the court’s primary and principal powers appellate. People v. Richmond, 16 Colo. 274, 26 Pac. 929, 933.

Judicial Code, § 51 (U. S. C. title 28, § 112) provides that a suit between citizens of different states, where the only ground of jurisdiction is diversity of citizenship, shall be brought only in the district of the residence of either the plaintiff or the defendant, requires that a suit against a Federal Reserve Bank shall be brought in the district of its habitat; the word “only” meaning “exclusive,” “nothing more.” Bacon v. Federal Reserve Bank (D. C.) 289 Fed. 513-519.

In the instant case the justice of the peace having sentenced the petitioner to both fine and imprisonment and also to further imprisonment in case the fine was not paid, that part of the judgment imposing imprisonment to satisfy the fine is void and it appearing that petitioner has served the jail sentence he is entitled to his liberty and the writ will issue.

Nuessle, Ch. J., and Birdzell and Buhe, JJ., concur.