State ex rel. Hero ( 1884 )

DISSENTING- Opinion.

Bermudez, (!. J.

It is indisputably settled in the jurisprudence of this State that, in matters of 7tabeas corpus, this Court has no jurisdiction, unless in cases in which an appeal lies. State ex rel. Geele; State ex rel. Wood, 30 A. 450, 672; 32 A. 1225; State ex rel. Brown; State ex rel. O’Mally, O. B. 56, fol. 661, 695; 28 A. 82, O. B. 53, p. 44; p. 279, etc.; 35 A. p. —, etc.

It is also unquestionably finally determined that, in cases of certio-rari, where the remedy is invoked as auxiliary to relief and habeas corpus, this Court has likewise no power to revise the proceedings where it has no jurisdiction over the main matter — that is, the habeas corpus application. Same authorities, specially those of Brown and O’Mally.

It is, besides, established by adjudicated and unassailed precedents, that in original and independent cases of eertiormú instituted to test the validity of proceedings in unappealable cases, this Court will not inquire into the intrinsic, but merely into the extrinsic, correctness of the proceedings attacked; in other words, that its investigation is to be restricted to matters of form and not of substance. Same cases and others referred to in those of Brown and O’Mally.

In matters of contempt, this Court has decided that it will not interfere whether the complaint appear in the shape of an application for habeas corpus, or prohibition, or certiorari; in the first instance, because the matter is not appealable; i,n the second, because it is not the proper remedy; in the third, whenever the proceedings appear to have been regularly conducted, unless in cases of manifest usurpation of power and consequent abuse of authority, and unless the commitment is in-yalid on its face. Same cases, etc.

In a case of contempt, where the act done had been charged to have been committed out of the presence of the court, where the offender had been sentenced without a hearing, this Court has annulled the proceeding, for the reason that, in the particular instance, a rule should have been issued and the offender should have been tried contradictorily, allowed to introduce evidence and have himself represented by counsel. State ex rel. DeBuys, 32 A. 1256.

In an anterior case a witness, imprisoned for contempt for refusing to answer a question which the court had ordered him to answer, applied for a certiorari but was denied the relief sought.

The court there held that the writ is limited to cases where it appears on the face of the record that the proceedings are absolutely null.

The court took occasion to say that, if there had been abuse or even error in the exercise of the judicial power conferred upon the district judge and if the relator were a sufferer thereby, and even if the law provided him no redress, his case would merely illustrate the inevitable imperfections of all human devices to secure an infallible administration of justice and flawless protection of rights. * * * Mere error in the decision of questions properly submitted to their determination (inferior courts) and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.”

The relief asked was denied. State ex rel. Wintz, 32 A. 1225.

In another case in which the power of the court to issue an injunction had been questioned, this Court held that, as there was no warrant in law authorizing the court to issue the writ, although provisionally, a disregard of its prohibition could not be treated as a contempt and the offenders were released. State ex rel. Livesey, 35 A. 741.

So that it is clearly established that whenever the proceedings to punish for a contempt appear to have been regularly conducted and the commitment is in proper form, this Court will not interfere, unless in cases of evident hardship and oppression.

In the present instance it is manifest that this Court has no jurisdiction as far as the habeas corpus application is concerned. The certiorari proceeding having been invoked as an ancillary proceeding to that for a habeas corpus should likewise be non coram judice, under the maxim that the accessory follows the principal.

But were it not so, taking the application for a certiorari before the court to be an independent, as those in the DeBuys and Livesey cases, it is glaring that tlie relator was proceeded against by rule, that he was allowed to adduce evidence and otherwise to be contradictorily heard, that the commitment shows on its face these contradictory proceedings and that after such trial he was found guilty of contempt’and was condemned to imprisonment.

Before such proceedings the court should pause, and mindful of the importance of the exercise of the power of punishing for contempt, which is inherent as a matter of necessity in all courts, no abuse of authority or oppression appearing, the court should decline to interpose its authority to annul the proceeding to release the offender.

But it is contended that the commitment sets forth a state of facts which, even if true, would not justify a punishing for contempt, and it is pointedly claimed that where a court directs a party not connected with the suit to deliver to a sheriff property in his possession, but to which no claim whatever is set up, and such party refuses thus to deliver the property, this is not contempt and the recreant party cannot be punished for such refusal to obey, because the court has no power to enforce obedience to its orders in that manner.

Now, in order to establish that theory, a parallel is sought to be established by punishment for contempt, and judgments final and exec-utory directing the delivery of property by a party to a suit to the other, and it is insisted that because the law provides in what manner such judgments are to be enforced and executed, resort to punishment for contempt cannot be had a fortiori against persons who are not parties to the suit and who cannot be placed in drwiori casu.

There is no parity between the cases,- either in their nature or in their character.

Judgments to deliver property are in favor of parties litigant, they are rendered in a civil matter, and their enforcement and execution are specially provided for.

Decrees or orders under which are issued commitments to punish for contempt are in vindication, not of the rights of litigants, but of the authority of the State, represented by a judicial officer. They are quasi criminal. They concern the well-being and good order of society and are the only mode in which the authority of courts can be made to be respected.

If the doctrine is recognized, that refusal to deliver property to the executive officer of the court, when a special order is made therefor, cannot be punished, when the refusal emanates from due not a party to the suit, and that such order to deliver can only be enforced against such party in the same manner that, a judgment for delivery of property against a party to tile suit, can he, then let it be said that the administration of justice may become a farce and a mockery.

There can be no doubt that the property in question must be considered as property in the custody of the law, belonging as it does to a succession; that the court haying found that it was in the possession of the relator, who, claiming no' title to it and, therefore, without warrant, refused to deliver it to its executive officer, it was a clear case of contempt. State vs. Start, 7 Iowa, 501; Hull vs. Thomas, 3 Edw. 236; Williams vs. Durnelle, 51 Cal. 442; Smethurts Case, 2 Sandf. 724; People ex rel. vs. Brown, 4 Paige, 405; Noe vs. Gibson, 7 Paige, 513; Wells on Jurisdiction, p. 177, sec, 178; Hurd on Habeas Corpus, 7.

While it cannot be denied that in the exercise of our supervisory powers, we may, by certiorari, inquire into the validity of a commitment for contempt, it is likewise indisputable that where the commitment was issued after a contradictory xiroceeding and shows on its face that the facts found constitute justification for the punishment, this Court shall and cannot interfere. Commonwealth vs. Newton, 1 Grant’s Cases, 453; Willamson vs. Lewis, 39 Penn. St. 30; Ex parte Perry, 2 Daly, N. Y. 530; Maryland ex parte Maulsly, 13 Maryl. 621.

The district judge was right in setting forth the facts found by him. It is the duty of the inferior courts always so to do, in order that the superior court may be fully advised as to the rightfulness of the commitment, for, otherwise, it would bo in the power of such courts, by making a general warrant of commitment, to deprive the higher court of its right to review. Hurd on Habeas Corpus, pp. 414, 415, note.

Considering, therefore, that the commitment in this case was issued by a competent court, that the proceedings were regularly instituted, contradictorily conducted and determined; that the lower court had the power to punish for contempt, for the omission, failure or refusal to do the act which it thought should be done, namely: the delivery to the sheriff, of personal property belonging to a succession, in the custody of the court, to which, the relator raised no title and which the court found was in his possession when the rule for contempt was tried and decided, I think that £he application for relief should be dismissed.

Manning, J. I concur with the Chief Justice.

Rehearing refused.