State Ex Rel. Malone v. District Court of Sixth Judicial District , 52 Nev. 270 ( 1930 )

At the outset we desire to point out that we are not attempting to make the order of determination of the state engineer the order of the district court, and are not attempting to confer judicial powers upon the state engineer. Relator only asked in the lower court, and is here only asking, that the court apply the rule of law that is in force throughout the United States and that has been passed upon by the supreme court of this state. That rule is that, where property in a pending action is placed in the custody of the law, any interference with the court officer or officers in charge of the property in the discharge of their duties is an interference with the possession of the law itself and is punishable as a contempt of the court in which the action is pending. This rule is well stated in the case of In Re Reese, 107 Fed. 942, and has been consistently upheld by the United States Supreme Court in the following cases: Davis v. Gray, 21 L.Ed. 447; Wiswell v. Sampson, 14 L.Ed. 328. There are contained in volumes 39 A.L.R. at p. 1, and 48 A.L.R. at p. 241, extensive notes covering this point as far as such actions relate to receivers. As pointed out in the supreme court decisions above noted, this rule is not applied to cases of receivers alone, but is also applied to sequestrators and in cases where a trustee in bankruptcy takes possession of the bankrupt's property. See Moore v. Billings, 80 P. 422. Our own court has passed upon this same question in the case of State v. Second Judicial District Court,228 P. 617.

Were the water commissioners, in distributing the waters of the Humboldt River, acting as officers of the court? The statute, sec. 36 1/2 of chap. 140, Stats. 1913, as amended, Stats. 1927, c. 192, specifically states that said officers shall at all times be deemed to be officers of the court in distributing water under and pursuant to the order of determination; thus, the legislature itself has here supplied, in no uncertain language, the first element necessary to bring contemnors within the rule above stated.

Did the alleged contemnors unlawfully interfere with the water commissioners? Certainly there can be no question raised but what this element is present. The demurrer filed in the lower court admitted the interference; the demurrer and motion to discharge the writ, filed to the petition in this proceeding, admit the interference with the water commissioners in performing their duties.

The third element necessary to be established is that the Humboldt River stream system was within the custody of the law within the meaning of that term, as used in the rule stated. This phrase, "custody of the law," or custodia legis, is defined in Rothschild v. Harsbrouck, 65 Fed. 286, as "involving the actual dominion over some objecting thing by the court." Again referring to sec. 36 1/2 of the water law, as amended, we find that the legislature expressly placed the supervision and control of the distribution of water of streams under adjudication within the district court. It would be hard to conceive how the legislature could have used any stronger language in tending to place "actual dominion" of a stream system within the hands of the court. And there could have been no object whatever in making the water commissioners officers of the court in distributing the waters and placing the supervision and control of such distribution with the court unless it was intended by the legislature to place the stream system in the custody of the law. Relator maintains that the proceeding resolves itself into three questions, and then proceeds to answer these three questions in the affirmative. In this we take issue.

First, the water commissioners were not acting as officers of the court, for the reason that the court had made no order in the premises.

Second, as to the interference with the water commissioners, we take it that, for the purpose of this proceeding, the allegations contained in the petition must be considered as true. In this connection we must note, however, that the acts of the water commissioners were being done pursuant to the state engineer's order of determination and not pursuant to any decree of court.

Third, the Humboldt River stream system cannot be considered in the custody of the law at the time of the alleged contempt. It is true that section 36 1/2 of the water law provides that, after the filing of the order of determination in the district court, the distribution of the water shall be under the supervision and control of the district court, but until that supervision and control have been exercised no custody has attached. The jurisdiction is there, it is true, but it has not yet been exercised.

We do not, however, agree that the proposition resolves itself into the answering of those three questions. Our position is that the question before the court resolves itself into the query: Did the alleged contemnors do any of the acts defined as a contempt by section 5394 of the Revised Laws — more particularly (since this is the only section that could apply) did the alleged contemnors disobey or resist any lawful writ, order, rule, or process issued by the court or judge at chambers? It is admitted by relator that they did not.

OPINION This is an original proceeding in mandamus to compel the respondent to assume jurisdiction in a contempt proceeding in which he had refused to proceed on the ground that he had no jurisdiction.

We do not deem it necessary to state the allegations of the petition in detail, as the only question involved is the interpretation of one section of our water law.

The state engineer, pursuant to proceedings theretofore had, filed with the clerk of the Sixth judicial district court in and for Humboldt County his order of determination of the relative rights of the water appropriators of the Humboldt River stream system and its tributaries.

Thereafter, the honorable George A. Bartlett, district judge, entered upon a hearing of said matter preliminary to making a decree therein.

Thereafter, one J.A. Miller and one Albert Quill were, pursuant to statute (Water Law sec. 52, as amended by Stats. 1915, p. 382, sec. 11), appointed water commissioners to distribute the water of said river in accordance with the order of determination of the state engineer. After they had entered upon the performance of their duties as such water commissioners, and in pursuance thereof had constructed a dam for the diversion of water, W.W. Whitacre and Emeterio Plaza, in defiance of their authority, destroyed said dam, whereupon contempt proceedings were initiated against them. The honorable Frank T. Dunn was called in to hear the same. Objection was made to his proceeding upon the ground that he was without jurisdiction in that it was not charged that the contemnors had violated any order of court. The respondent, being of the opinion that the objection was well founded, declined to proceed further in the matter.

Section 38 of the water law as amended (Stats. 1915, pp. 381, 382, sec. 8), provides that from and after the filing of the order of determination, evidence, and transcript with the clerk, as aforesaid, and during the time the hearing of said order is pending, the water of the stream system shall be distributed in accordance with the terms of said order of determination.

While no order had been made by the court as to the adjudication of the matter, or as to the distribution of the waters of said stream system, it is contended by the attorney-general that the water commissioners were officers of the court, and the action of the contemnors constituted contempt. In support of this contention, reliance is had upon section 36 1/2 of the water law, as amended (Stats. 1927, p. 337), which reads:

"From and after the filing of the order of determination in the district court the distribution of water by the state engineer or by any of his assistants or by the water commissioners or their assistants shall, at all times, be under the supervision and control of the district court, and said officers and each of them shall, at all times, be deemed to be officers of the court in distributing water under and pursuant to the order of determination or under and pursuant to decree of the court."

Counsel for respondent insist that no contempt was charged in the complaint, since there is no allegation of a violation of any of the provisions of section 5394, Rev. Laws, which provides that certain acts shall constitute contempt of court.

1. All constitutional courts have inherent power to punish for contempt any act which tends to impede, embarrass, or obstruct them, or their officers, in the discharge of their duties. There is no dissent from this rule. The courts are unanimous in so declaring. 13 C.J. 46.

This leads us to inquire what could have been the purpose and intent of the legislature in thus amending the water law? To our mind it is very clear. There is no room for a difference of opinion. It means exactly what it says, that is, that from the time of the filing of the order of determination in the clerk's office the water shall be distributed by those charged with that responsibility, in accordance with the terms of the order, and that such officials shall be officers of the court, and that such distribution shall be under the supervision and control of the court.

Such is the plain language of the statute; it needs no interpretation. If the language was somewhat uncertain, it would be so construed as to give it effect rather than to nullify it.

The water commissioners having been officers of the court, in the discharge of their official duties, and having been interfered with in the discharge of those duties, by Whitacre and Plaza, were the latter guilty of contempt? It may be safely stated as a general rule that any interference with an officer of the court in the discharge of his official duties constitutes contempt.

2. The mere bringing of a suit against a receiver without permission of court constitutes contempt in many jurisdictions, and it is a universal rule that the interference with an officer of a court in the performance of his official duties constitutes contempt of court.

Calling attention to a pending suit, by a litigant, and discussing it in the presence of the jurors who may have to try the case, is a contempt of court. Baker v. State, 82 Ga. 776,9 S.E. 743, 4 L.R.A. 128, 14 Am. St. Rep. 192.

It is contempt of court to intimidate a witness to prevent his appearance and giving testimony. McCarthy v. State, 89 Tenn. 543,15 S.W. 736.

It has been held that one who induces a person who has knowledge of a crime to leave the jurisdiction, even though no charge has been filed and no grand jury impaneled, is guilty of obstructing justice and hence subject to punishment for contempt. Com. v. Berry, 141 Ky. 477, 133 S.W. 212, 33 L.R.A. (N.S.) 976, Ann. Cas. 1912c, 516.

In Ingles v. McMillan, Judge, 5 Okla. Cr. 130, 113 P. 998,1003, 45 L.R.A. (N.S.) 511, it was held that "to attempt to converse with or influence a judge with reference to a matter pending before him is an act of gross contempt," and that parties guilty of it should be made examples of by all judges, saying that: "This is necessary to maintain the dignity of the courts and to protect the reputation of the judges."

The case of Welter v. Jacobson, 7 N.D. 32, 73 N.W. 65, 66 Am. St. Rep. 632, was one in which it was held that it was a contempt of court to replevy property from a sheriff who held it pursuant to a writ of replevin, since the property was in custodia legis.

A flood of authorities of a similar character might be cited.

The theory upon which it is held that one who interferes with the possession of a receiver is in contempt of court is that the possession of the receiver is the possession of the court, since the receiver is an officer of the court. 23 R.C.L. p. 64.

3. Pursuant to the statute in question the officers whose efforts in the distribution of the water of the Humboldt River was interfered with were officers of the court, under whose supervision and control it was being distributed. This being so, if the reasoning in the above cases is good law, as we think it is, there can be no doubt but that the section of the statute quoted and the allegations in the complaint are ample to confer jurisdiction upon the respondent to hear and determine the question of the guilt of the contemnors.

4. Pursuant to the statute quoted, from and after the filing of the order of determination with the clerk of the court by the state engineer, the water of the Humboldt River stream system, during the irrigation season, was in custodia legis. Such was clearly the intention of the statute.

Holding these views, it follows that the writ must issue as prayed.

It is so ordered.