Androscoggin & Kennebec Railroad v. Androscoggin Railroad , 49 Me. 392 ( 1862 )

The.opinion of the Court was drawn up by

Kent, J.

The first fact to be considered, is, that the complainants filed their bill in the county of Kennebec, and that a subpoena was duly issued from the clerk of that county. The bill having been thus filed in that county,, the Court in that county had jurisdiction, and all matters, interlocutory or otherwise, in relation thereto, must be heard and determined there, except such matters as by statute or by the rules of Court may be passed upon by a Court in another county, or by a single Judge at chambers, or in vacation.

The next fact is, that, after the above proceedings, the complainants applied to this Court, then sitting in Somerset county, for an injunction to restrain the respondents from changing the guage of their road, by removing the rails and placing them nearer to each other. After notice and hearing, an injunction was granted by the Chief Justice, then presiding alone in that county. The injunction was issued as having been ordered by the Court, and is signed by the clerk, and bears the teste of the Chief Justice. It is objected that the Court in Somerset had no power to act,- that the statute contemplates only the action of a Judge at chambers, and not the action of a Court in another county. The provision is found in c. 77, § 10 of R. S. It gives power to the Court, generally, to issue " writs of injunction in cases of equity jurisdiction, and when specially authorized by statute,” and it further provides, that "a Justice of the Court may issue them in term time or in vacation.” There are other provisions in the statutes authorizing the Court, sitting in any county, to act in reference to cases pending or instituted in any other county — as in libels for divorce, c. 60, § 3 ; and in petitions for partition, c. 88, § 4. In these cases the power is given to the Court sitting in any other county. In cases of nuisance, it is provided that "any Court of record, before which an indictment, complaint, or action for a nuisance is pending, may, in any county, issue an injunction to stay or prevent such nuisance, and make such orders and decrees, for enforcing or dissolving it, as justice and equity require.”

Although the law, in reference to granting injunctions, seems to contemplate that the act ordinarily will be done by a Justice out of Court, when not done by the Court in session in the county where the case is pending, yet we are not prepared to say, that where it is granted by a Judge, when sitting in Court in another county, and as an act of the Court, it is necessarily void. It is none the less the act of the Judge. It is that, with the formal certificate of the clerk, that it was done" in open Court. The decree of the Judge, without any other certificate than his own at chambers, would be binding. It may be upheld as his act, although done in Court.

But it is clear that, if done in open Court, in another county, it can have no greater power or effect than if issued by a Judge at chambers. It derives its power and efficacy from its being the act of a Justice of the Court; not from its being an order of a Court in session.

If we regard the injunction in this case as having been duly issued, it follows, that, by this act, the Judge had performed his duty and exhausted the power given him as a Judge out of Court, in relation to issuing an injunction.

But if that injunction is disregarded, and the respondents refuse or neglect to obey it, what is the remedy ? Such negleet or refusal may be, and usually is, a contempt of Court, for which the parties may be held and punished. The power in the Court to "punish contempts committed against its authority, by fine and imprisonment, or either,” is expressly given by statute, c. 77, § 7.

There are two kinds of contempt recognized by the authorities and by the practice of the courts. Criminal con-tempts are those committed in the immediate view and presence of the Court, such as insulting language, or acts of violence, which interrupt the regular proceedings in courts. This class of contempts may and should be punished summarily, and by the order of the presiding Judge, or the Court, after such hearing, at once, as the Court may deem just and necessary.

There is another class of contempts, which are in a sense constructive, and arise from matters not transpiring in Court, but in reference to failures to comply with the orders and decrees issued by the Court and to be performed elsewhere. Such refusals or failures are undoubtedly contempts, as actual as those committed in open Court, and liable-to be punished under the same law. But the process to bring parties into Court, and the time given for a hearing by our rules, are different from the summary process in case of a criminal contempt before the Court.

The exact question raised on this part of the case is, whether a single Judge presiding in a Court in another county, which has issued an injunction, can, on a motion or rule, setting forth a contempt by refusal or neglect on the part of the respondents, filed with him, or in that Court, after a notice and hearing, proceed to adjudge the parties in contempt, as a final judgment.

The writ of injunction issued in this case was addressed to the sheriffs of the several counties in the State, and the officer serving it was, by the precept, commanded to make return thereof, and of his proceedings, "to our next Court where the bill is pending.” The writ was dated September 28, 1861.

On the 3d of October thereafter, the complainants in the original bill made a motion, by filing in writing a rule or application, addressed to this Court then holden at Norridgewock, in and for the county of Somerset, setting forth refusal on the part of the respondents to obey the injunction, and acts on their part in direct violation of the injunction and in contempt of the Court, praying that, after an opportunity to be heard, they may be adjudged by said Court to be guilty of contempt, — and that a writ of attachment may immediately issue to arrest them, and' that they be imprisoned until otherwise ordered.

The Court in Somerset ordered notice to be given, and on the day fixed, the parties appeared. The respondents filed a motion to dismiss the process for contempt, on the ground that neither the Judge presiding, nor the Court sitting in the county of Somerset, had jurisdiction of the matter. This motion was overruled. The respondents put in their answers to the charge of contempt, and, after a hearing, the Chief Justice presiding adjudged the corporation and certain of the respondents named, severally, in contempt. No sentence was passed. To all of such rulings, proceedings and adjudications, the respondents except, and these exceptions were duly allowed, so far as they are subject to exceptions.

Whatever doubts may be entertained as to a general right to except to the rulings and adjudications of the Court in matters of contempt, where the jurisdiction is unquestioned, we have no doubt that an exception may be taken on the question of jurisdiction, where it is distinctly raised and adjudicated upon as a matter of law. Scruton v. Moulton, 45 Maine, 417; R. S., c. 77, § 27.

The writ of injunction having been served, was, we assume, returned according to its precept, to the Court in Kennebec. What provision is to be found in the statutes or rules of Court as to proceedings — in case of a contempt in refusing or neglecting to obey the injunction? This is evidently a new matter, and requiring new action on the part of the complainants. The rule of the Court, " for practice in chancery,” points out plainly the course of proceedings. That rule is this :—

Rule 28. — "Contempts in refusing or neglecting to obey any decree, decision, direction or order of the Court, or of a member of it, when a remedy is not provided by statute, may be punished by an attachment, issued on a rule filed therefor by the counsel of the party injured, and notice thereof given, to which a response may be filed within ten days and notice given. The moving counsel may file a reply, and transmit copies to a member of the Court for decision, who may order a writ of attachment, returnable to the next term, on which the party will be bailable, and the same proceedings may take place as provided in case of attachment, by Rule 4, and a new writ may issue in term time, on which he will not be bailable, but may be imprisoned until he comply, or until the further order of Court.”

This rule evidently contemplates that the rule, answer and rejoinders, should all be in the county where the bill is pending. It gives no jurisdiction to the Court in session in any other county. It gives no special jurisdiction to the Judge who may have issued it in chambers, in relation to matters afterwards. As we have seen, when he had issued it his special authority in relation thereto ceased and terminated. 1 The writ was returnable to the county where the bill was pending. If disregarded, the complainant or party aggrieved might move to bring the parties before the Court for a contempt. But the Court might not be in session in that county. The rule, therefore, allows action, (after certain papers are filed,) by a single Judge out of Court — not necessarily the Judge who* issued the injunction. What power is given to the Judge to whom the copies are, by the rule, to be transmitted? He is not to determine the question of contempt, or to adjudicate thereon. He may issue a writ of attachment, returnable to the next term, on which the party will be bailable. It is simply a process to hold . the person to answer before the Court in the county where the original process is pending, at its next term. The attachment is only a process to bring the party into Court, and is necessary in this class of contempts. Jackson v. Smith, 5 Johns., 115.

The rule and statute give full power to the Court, " in term time,” to proceed against the parties found guilty. "Term time,” means during the term of the Court in the county where the case is pending.

It is urged that this rule will not give a remedy sufficiently early to prevent, in some cases, great wrong and mischief. We are not now called upon to express an opinion on this point. It is sufficient that it is the rule of the Court, applicable to the case before us, and we are not at liberty to disregard it.

We have been referred to the statute concerning nuisances, before quoted, as sufficient authority for the Court in Somerset to issue the injunction, and to make orders and decrees for enforcing it.

The bill in this case does not charge that the acts complained of were a nuisance. It in substance alleges that the respondents intended to break up the connection then existing between the railroads, and to alter the guage of their road, whereby an injury would arise to the complainants. This the bill complains of. as a violation of the rights of the orators, and in contravention of the agreement between the parties, under the provisions of their respective charters. It is clear that it is not a bill of which the Court could take jurisdiction as "a case of nuisance,” and therefore the special statute, before referred to, which is limited to cases of nuisance, cannot apply.

Upon a careful consideration of this case, as it is presented to us, we are unable to find any authority in the Court sitting in Somerset county, or in the Judge who was then presiding in that Court, to determine the question of contempt, and to adjudge that the respondents were in contempt.

The parties may have waived their right to have time allowed them to answer, by answering without claiming the delay given by the rule. But they did object to the jurisdiction before answering.

We, of course, have formed no opinion on the merits of the'case, as set forth in the original bill. Nor are we called upon to express any opinion as to the facts, and whether they amount to a contempt or not. The exceptions state that much evidence was introduced which is not reported. Nor are we called upon to determine how far the decision of the Judge on the facts, is conclusive, or open to exceptions, in cases where the jurisdiction is unquestioned.

The entry must be — Exceptions sustained, and the proceedings of the Court in Somerset county, in this case, (after the issue and service of the injunction,) on the matter charging contempt, and the adjudication thereon, that the respondents, the Androscoggin Railroad Company, and Otis, Lane and Dyer, are severally in contempt, were coram non judice and void. This without prejudice. ..

Rice, Appleton, Cutting, Davis and Walton, JJ,, concurred.