Ex Parte Rust , 38 Tex. 344 ( 1873 )

Walker, J.

It is a matter of personal regret] to the members of this court that our jurisdiction should have been twice invoked to relieve the relators from the restraint of their personal liberty.

Looking at the record filed in this case, we ’learn that on the third day of May, 1872, the relators were condemned to pay a fine of one hundred dollars each, in punishment of an alleged contempt of the District Court, presided over by the Hon. Henry Maney. And we are judicially informed that in default of payment of the fines so assessed against the relators, they were severally committed to the custody of the sheriff of Guadalupe county.

The relators made their complaint to this court, and prayed for a writ of habeas corpus on the ground of an illegal imprisonment. They were brought before us, and on examination had before this court they were discharged on the ground that there was no District Court sitting in Guadalupe county on the third day of May, 1872, and that all proceedings purporting to be had before the District Court of said Guadalupe county, of that date, were null and void.

It now appears that on a day in term, to-wit, the tenth day of June, 1872, the following proceedings were had in the District Court of Guadalupe county, to-wit:

“Ex Parte John Ireland.

“John Ireland, Esq., having been required, on the third day of June, A. D. 1872, to appear before the District Court of Guadalupe county on Monday the tenth day of June, A. D. 1872, to show cause, if any he had, why he should not be fined, as he had been before, in the sum of one hundred dollars for contempt of the District Court of Guadalupe county, shown in and by a brief filed in cause No. 1987, and styled John Ireland v. John F. Gordon; and cause Ho. 1988, styled A. W. Dibrell et al. v. John F. Gordon, sheriff; and cause No. 1994, styled P. W. Hardeman et al. v. John F. Gordon, sheriff Guadalupe county, on the second day of May, 1872; and having on this, the tenth day of June, A. D. 1872, filed his answer, and it appearing to the court, after hearing his answer and testimony adduced in support thereof, that said John Ireland, Esq., is in contempt of this court; therefore it is ordered, adjudged and decreed by the court, that said John Ireland, Esq., be committed to the custody of the sheriff of Guadalupe county, there to remain until he shall have paid the fine of one hundred dollars adjudged against him on the second day of May, A. D. 1872, and now adjudged against him, and all costs in this behalf incurred.”

Thus it will be seen that the proceedings of May 3 are made the foundation of the subsequent proceeding of June 3, 1872. But this court, on the ninth day of May, 1872, declared the proceedings of May 3 void, and issued the following mandate :

“The State of Texas

“To the District Court of Guadalupe County, and John F. Cordon, Sheriff of said County, greeting:

“Before our Supreme Court, on the ninth day of May, 1872, the applicants, upon petition for habeas corpus, in the case Ex parte John Ireland, W. P. H. Douglass, John P. White, W. M. Rust, W. E. Goodrich, W. H. Burgess and Alex. Henderson, to revise or reverse your judgment in relation to said parties was determined, and therein our Supreme Court made its order in these words:

“ ‘Ho. 1085. This day came the sheriff of Guadalupe county, in obedience to the writ awarded in this cause, and brought with him the prisoners, John Ireland, W. P. H. Douglass, John P. White, W. M. Rust, W. E. Goodrich, W. H. Burgess and Alex. Henderson, and having made his return writ, George F. Moore and W. M. Walton, Esquires, appeared in behalf of the applicants, and B. Trigg, Esquire, District Attorney Twenty- seventh Judicial District, appeared in behalf of the State; and the petition of the appellants, the writ and return, with the evidence introduced, having been .submitted to the court, because it appears to this court that said applicants are illegally restrained of their liberty ; it is ordered by the court, that they be discharged from the custody of the sheriff of Guadalupe county, and that they be restored to their liberty; and this decision be certified below for observance.’

“ Wherefore we command you to observe the order of our said Supreme Court in this behalf, and in all things to have it duly recognized, obeyed and executed.

“Witness the Hon. Lemuel D. Evans, Presid[seal] ing Judge of our said Supreme Court, with the seal thereof annexed, at Austin, this ninth day of May, A. D. 1872.

“ W. P. De Normandie, Clerk.”

The proceeding of June 10 then is a proceeding to compel the payment of a fine which this court had previously declared void, and is in violation of the mandate of this court.

Had the relators continued in contempt of the District Court, and been properly cited to purge themselves of the contempt, their answers under oath might have purged the contempt. (See The State v. Coulter et al., Wright’s S. C. Rep. of Ohio, p. 421.)

It may not be improper here for us to say that we do not regard it as our province to set at naught the judgments of the District Courts for any other cause than legal irregularities.

We believe it to be the true practice, when a person is charged with a contempt of court, that before any final punishment should be assessed against him, a citation should issue containing substantially the matter charged against him, and calling on him to show cause why he should not be punished for the alleged contempt. This rule, however, should not interfere with the right of the court to order the arrest or fine of persons for misbehavior, by act or word, in the presence of the court, or so near thereto as to obstruct or interfere with the administration of justice.

Had the offensive paper alluded to as a brief been upon the files of the court at the commencement of this proceeding, it might have been regarded as a gross contempt of the court, and have formed the basis of a proceeding de novo to punish the relators for such contempt; but such appears not to have been the fact, nor was this a proceeding de novo to punish for a contempt actually-committed against the court. But it was a proceeding to enforce, by the penalty of imprisonment, the payment of a void judgment, and is therefore void.

The relators will be discharged from custody, but we deem it only proper to condemn them to pay the costs of this proceeding in this court.

Relators discharged.

On the twenty-sixth day of June, 1872, a writ of habeas corpus was again issued by L. D. Evans, C. J., on the application of Wm. M. Rust and the other attorneys, alleging that they were illegally restrained of their liberty by the sheriff of Guadalupe county.

The return of the sheriff to this writ is voluminous. It shows the following facts: On the eighteenth day of June, 1872, upon order of Judge Maney, the District Court of Guadalupe county being in session, scire facias was issued and served on the attorneys who had signed the brief or note of May 2, 1872, requiring them “to appear forthwith and show cause why they should not each be fined in the sum of one hundred dollars for a contempt of the said District Court of Guadalupe county, committed by reason of a certain brief or paper, offensive to said court in its language and terms, and now on the files of this court in causes,” etc.— “being in words and figures following, to-wit: ” * * * *• * *

The parties excepted in the District Court to the sufficiency of the writ of scire facias, because: 1. The writ did not allege or disclose the contempt with which the respondents were charged.

2. It nowhere alleged that respondents wrote, signed, or in any manner sanctioned the paper complained of, or that they had any connection with the execution or filing of the same.

3. Because it was indefinite, uncertain and insufficient, and failed wholly in complying with the legal requirements to set forth substantially the matter charged against them.

They plead, in bar to the proceédings, the fact that executions had issued and were then levied on property advertised for sale to pay a fine of one hundred dollars on each of them, formerly imposed for the same contempt alleged in the scire facias; also, the judgment of this court of the fourteenth of June, 1872.

In their answers they denied, under oath, that they had ever been guilty of a contempt of “the District Court of Guadalupe county,” as charged; and also denied that the brief or paper referred to was ever intended to be used in the District Court of Guadalupe county in term time; that no brief or paper such as the one referred to in the scire facias was then on file, or was on file when the order for the scire facias was made, or had been on file since the beginning of the term; that if any such paper had been on file since the term began, then the same had been formally withdrawn from the files by an instrument of writing signed by respondents — except Ireland — in the following words:

“John Ireland v. 1987 John F. Gordon.

Suit pending in District Court of Guadalupe county.

“Whereas, in the above entitled cause, and also in A. W. Dibrell et als. v. John F. Gordon, sheriff, No. 1988; and also in 1994, P. W. Hardeman et al. v. John F. Gordon, sheriff of Guadalupe county (all suits pending in the District Court of Guadalupe county, Texas), we, the undersigned, together with John Ireland and W. M. Rust, attorneys for the parties plaintiffs, did, on the second day of May, 1872, hand to the deputy district clerk of Guadalupe county a paper, document, or brief, upon which he endorsed ‘filed,’ and placed the same among the papers in said causes; and whereas said paper, document, or brief, has fully accomplished and subserved the purposes for which it was intended, save that of satisfying the judge of the correctness of the legal position therein maintained; and whereas said paper, document, or brief, is a private paper belonging to us, the undersigned, and in no legitimate way a paper belonging to, or part of the records in said causes: now, therefore, we do hereby withdraw said paper, document, or brief, from the files and records of the causes above named.

“Alex. Hexdebsox, Attorney.

“ Johh P. White, Attorney.

“W. P. H. Douglass, Attorney.

“W. E. Goodeich, Attorney.

“W. H. Buegess, Attorney.”

The return of the sheriff further stated, that after the respondents had answered in the District Court, touching the alleged contempt, they were each, on the twenty-fifth day of June, 1872, fined in the sum of one hundred dollars by said court (the Hon. Henry Maney presiding), and were committed to the custody of said sheriff until said fine was paid.

On the hearing in the Supreme Court the attorneys -filed, under oath, a statement that the paper styled a brief, of date May 2, was not filed by them, but by the order of the Hon. Henry Maney, District Judge of Guadalupe county, seven days after the service was made on them of the rule issued, and in opposition to their objection to its being so filed.

They further stated, that the obnoxious paper complained of was not copied from the original paper styled a brief, signed by them, but from a newspaper, the editor of which copied it from another newspaper, and they did not know whether it was a correct copy of a paper once signed by them or not.

Hancock & West, and Terrell & Walker, for relators.

1. By the statute of the State regulating proceedings under writs of habeas corpus, this court takes original jurisdiction of the case and passes on all pertinent matter that may be presented, irrespective of former adjudication by another tribunal. (See act of 1857 regulating habeas corpus; Paschal’s Digest, p. 489, Art. 2631; Id., p. 489, Note 703; Id., p. 491, Art. 2648.) .This last article contains the only limitation on the power of the court to discharge, and that is after indictment found.

2. The respondents, by their sworn answers, purged themselves of any supposed conterapt, and thereby divested the court of any power or jurisdiction to punish therefor. (2 Cooley’s Blackstone, p. 287; Adams v. Haskel, 6 Cal. R., p. 316; case of Austin et als., 5 Rawle R., 203; 2 Gall. R., p. 312 ; 63 North Carolina R., p. 408; 8 Ohio State R., p.; Ex parte Neel, 4 English R., p. 269; Ex parte Norton, 10 Mich., p. 208; Ex parte Curtin, 3 Minn., p.; Ex parte Jenkins, 2 Wal. Jr., p. 536 or 587 ; Ex parte Rowe, 7 Cal. R., p. 181; State v. Starte, 7 Iowa, p. 50 or 803.)

3. Even libels on the judge of a court as a man and officer, though published in a newspaper, are not punishable as contempt. (Dunham v. The State, 6 Clark, Iowa, p. 245.)

4. An order of court inflicting punishment for contempt should state the facts on which it is founded. (Ex parte Field, 1 Cal. R., p. 187; Ex parte Rowe, 7 Cal. R., p. 175.)

5. By the statute (Paschal’s Digest, p. 344, Art. 1409) contempt may be punished by a fine not exceeding one hundred dollars, and by imprisonment, in the discretion of the judge, not exceeding three days. The respondents have now been in custody ten days. (Paschal’s Digest, p. 567, Note 802; State Constitution, Bill of Bights, § 15; Coughlin v. Ehlert, 39 Mo. R., 285.)

Walker, J. — The case of Jordan v. The State was decided prior to the enactment of our statute regulating proceedings in habeas corpus. (Art. 2631, Paschal’s Digest.)

Our Supreme Court was probably governed by the decisions in New York and Pennsylvania, in the decision of the case.

An issue is now made up, upon the return, in which the return may be controverted or avoided by new matter. By the common law, the return was conclusive until new matter was alleged in avoidance. By our statute the return is considered as controverted, whether new matter be alleged or not; and the rigHtys of the applicant are thus enlarged.

It becomes the duty of the court to examine the case de novo.

A case of this kind is quasi criminal, and the strictness of pleading in criminal cases applies to it; whatever issues of law or fact are presented are to be tried by the court de novo. (Hurd, Hab. Corp., 299.)

There is no doubt but courts of justice have inherent power to punish contempts of their- rules and orders, or any disturbance of their deliberations; yet nice questions have arisen as to the power of appellate courts, in revising the action of inferior tribunals in punishing for contempt.

Under our statute there can be no material difference in the power of the appellate court, whether the case comes before it on appeal, or by habeas corpus. The law was correctly laid down in our former opinion in this case, and we now proceed to inquire whether the rule as laid down has been pursued.

The rule against the relators in this case is a rule to show cause why they should not be fined for a contempt of the District Court of Guadalupe county — for what ? “By reason of a certain brief or paper, offensive to said court, in its language and terms, now on file in this court,” etc., etc. Then follows what purports to be a copy of the “offensive brief or paper;” but the citation nowhere charges that the relators, or any of them, wrote, signed, or filed the offensive brief or paper.

There is no cause of contempt then set out, and this citation is the writ to which the relators were bound to answer. Theyjjexcepted to its sufficiency and answered. They might have rested upon their exception, for they are charged with no contempt, and there was nothing for them to answer.

But let us examine this paper for a moment in the light of the history it has made for itself. Certain causes were to be argued before the Hon. Henry Maney, at chambers, on the second day of May, 1872. These causes presented questions concerning the validity of a public law, about which an intense excitement had grown up and existed throughout the State. Before the argument the Hon. Henry Maney attended a political meeting and presided over its deliberations. At this meeting the questions involved and pending in his court were discussed, and resolutions passed denouncing not only the opinions but the persons who entertained opinions antagonistic to the views and opinions of the meeting.

It seems the president of the meeting continued throughout to occupy the chair, and entered no dissent to the passage of the resolutions.

These resolutions were conclusive against the views and opinions which the relators, no doubt, intended to present to his honor on the argument of their causes. Seeing, as it would appear, their causes prejudged at the hustings, we may suppose they wrote the paper which has become the gravamen of their offense; and this is a paper of not very distinctive character. It is somewhat difficult to tell whether it was intended as a brief, to be filed in the causes set for argument, or whether it was merely a letter addressed to the judge, giving reasons why the relators would not appear before him to argue their causes. There is no doubt-they were incensed at the conduct of the judge. They thought he had soiled the ermine by dabbling in party politics at the very time and touching the very questions which they were going to argue before him, and which they had a right to argufe to an unprejudiced mind, free from bias and preconceived opinion. They considered themselves offended, and, as they say, without a compromise of professional dignity, they could not appear before him to argue questions prejudged from the stump which should only be considered from the bench.

Doubtless the relators intended to snub the judge; they would give him a Roland for his Oliver. This does appear to be about the manner in which matters proceeded until the judge commenced proceedings against the relators for a contempt of his court.

Twice before we have discharged these relators from arrest and imprisonment growing out of this offensive paper.

And now the relators deny, under oath, that they ever intended the said paper to be used for any purpose in the District Court of Gruadalupe county. They virtually confess some connection with the paper in their answers, but these answers being under oath, if not contradicted by the paper itself or other evidence, must be taken as true. It is a fact well known to this court that it is not the customary practice for attorneys to appear by brief in the District Courts, and if the paper referred to is to be regarded as a brief, there is nothing repugnant to truth in the supposition set forth in the answers that the paper was not intended to be used in the District Court. Truth and reason compel us to regard it rather in the light of a notice to the district judge, assigning reasons why the relators would not appear before him at his chambers on the second of May to argue their causes. We do not propose to- shield the relators from the charge of professional impropriety, yet it does appear to us that the whole proceeding in the commencement is to be regarded rather as a quarrel between the judge and attorneys out of court, on the hustings, through the newspapers and other public channels, rather than as a proceeding properly connected with the business of the District Court of Guadalupe county.

Whilst we would uphold in every proper case the dignity of the courts, with even jealous care, we do not propose to give aid or sanction to any proceeding under the sacred name of justice which has purely for its object and end the carrying out of personal or political quarrels. The high dignity of courts must be respected on the one hand and the rights of the citizen on the other. The judicial office must neither be degraded by the bar nor prostituted by the bench. If persons have private quarrels they must not avail themselves of official standing or position to gratify or avenge them.

A very noticeable fact in the proceeding now before us is to be considered.

At the time the citations were issued against the relators “ the offensive brief or paper” was not actually on the files of the District Court of Guadalupe county. It is a fact known to us that the paper complained of had been brought into this court and offered in evidence by the district attorney on a former hearing in this case, and now it appears that copies of the paper are placed upon the files by order of the district judge as a basis for this proceeding, and about the same time the relators file a paper in the District Court of Guadalupe county formally withdrawing the “offensive brief,” and claiming it as a private paper not belonging to the records. This they had a right to do, unless the judge considered the paper his private property, which he appears to have done, so far at least as to withdraw it from the files and place it in the possession of the district attorney of Travis county, where it is last heard from. If the judge had a right to regard the paper as his private property, the relators nevertheless had a right to withdraw and disclaim anything it might contain offensive to the feelings of the judge or the dignity of the court.

We wish this case disposed of now and forever. We cannot fail to discover the quo animo of parties, and that it is but an attempt to gratify personal ill-will, through the power and agency of the courts on the one hand, aggravated and urged on by newspaper comments and ill-timed resentment on the other.

' So far as this court is concerned it cannot give sanction to any such proceeding. The relators are discharged.

Relators discharged.