Ex Parte Ellerd ( 1913 )

While I do not think a fair statement of the facts would justify a contempt punishment if imposed within statutory authority, and that the majority opinion states more conclusions of the writer of that opinion than the facts as contained in the record would justify, I do not care to discuss that phase of the case particularly. I am clearly of the opinion this case on the facts does not present one in which a contempt punishment ought to have been inflicted.

The court fined applicant $250. The statute limits the authority of the district judge or court to the imposition of fine at not more than $100, and may impose as much as three days imprisonment in jail for contempt. As the court did not undertake to imprison in this case that phase of the statute will not be discussed, except as incidentally it may arise. My brother Prendergast concedes that the judgment is clearly erroneous and in direct violation of the statute. He further concedes that the limit of judicial authority is fixed by the statute at a fine of $100, and any amount of fine above the sum of $100 is clearly unauthorized and can not be enforced in contempt proceedings. But applicant, however, is remanded by the majority opinion to custody until he pays the $100, upon the theory that the judgment is separable, and that by paying $100 he can then be released of the remaining $150. I do not understand such to be the law or such to be the authority vested in this court. There is no difference between my brethren and myself on the proposition that a fine of more than $100 can not be imposed. They agree with me that that is the limit so far as the amount of the fine is concerned. They decide, however, that this court can make the judgment of the trial court separable, selecting part of the $250 imposed as a fine and when that is paid the court under such showing would remit the remaining $150 on the theory that it was in excess of statutory authority. To that extent it would be vacating the judgment of the District Court and this court would in such case be entering a judgment that the trial court did not enter, and of which he alone had jurisdiction to enter. This court is not sitting as an original court so far as the contempt is concerned but only as a reviewing court under writ of habeas corpus in this instance of the action of that court. We, therefore, can not enter an original judgment in the case. I do not understand why my brethren should arbitrarily select the sum of $100, unless it be found in the fact that that was the extreme limit of the statute. If we have the power to remit a portion of it, or to make the judgment separable and put what we deem proper in it, why not place less than $100, — why not go to the lower amount of even $1? If this court has authority to change the judgment of the trial court, it would be absolute in that respect, and could substitute any amount it sees proper, and would in that event become absolute and autocratic. This court, as I understand it, has no authority whatever to impose any fine upon applicant. He was not in contempt of this court. If in contempt at all, he was in contempt of the trial court. That court or judge should impose a punishment only when he is authorized by law to do so and in the amount authorized by law. This court could not impose a punishment for contempt where that contempt was of another court. That judge fixed the punishment and did so in an amount that is admitted to be illegal. This court has fixed one supposed to be within the statute, but not fixed by the trial court, and not for contempt of this court, but contempt of another court. It would hardly be necessary to state this court is directly without authority to fix any amount of punishment for contempt of another court, or its proceedings. That is beyond the jurisdiction of this court, and my brethren so hold in their opinion, because they decide that the judgment was illegal and beyond the authority of the trial court. They have, therefore, assumed authority not conferred by the Constitution, by the statute, nor inherent in this court. The authority of this court in this case in this matter is merely and only revisory. If the judgment is violative of the statute or Constitution, this court can only discharge for the alleged violation if the judgment of the trial court is erroneous and void. Ex parte Morgan, 48 Tex.Crim. Rep.; Ex parte Kearby, 35 Tex. Crim. 531; Ex parte Kearby, 35 Tex.Crim. Rep.; Ex parte Tinsley, 37 Tex.Crim. Rep.. In the Morgan case it was held that in assessing a fine at $300 the court was in error and the judgment void, placing the decision on the limitation set forth in the statute. So it was said in Ex parte Kearby, supra. In Kearby's case the opinion says: "Article 262, Revised Civil Statutes, authorizes courts to punish ``attorneys-at-law for misbehavior or contempt, by fine or imprisonment.' It is true there is no limitation in this article, but article 1101 limits the extent of the power of the district judge in this respect, and says, ``that he shall be authorized to punish persons guilty of contempt by fine not exceeding $100, and by imprisonment not exceeding three days.' This clearly applies to all persons, and creates a limitation upon the district court to punish anyone to a greater extent." There is not a decision in Texas that has been called to my attention which holds otherwise. This is the rule established by the statute and followed in all decisions in this State. The rule seems to be that where the statute or Constitution puts a limitation, that ends the power of the courts, and its authority. The rule is thus laid down in 9 Cyc., 58: "If the statute limits the duration of imprisonment or the amount of the fine, the punishment may conform to such limitation, but can not exceed it." Supporting this proposition the note cites Cole v. Egan, 52 Conn. 219; Ex parte Edwards,11 Fla. 174; Swafford v. Berong, 84 Ga. 65; Cobb v. Black,34 Ga. 162; Stewart v. State, 140 Ind. 7; In re Millington,24 Kan. 214. Without further collating cases, the same rule is announced in Kentucky, Louisiana, Michigan, Montana, New York, North Carolina, Ohio, Tennessee, Texas, Utah, Washington, Wisconsin, England, and by the decisions of the Supreme Court of the United States. This is the rule in Texas by all the authorities. In re Graham, 138 U.S. 461, 11 Sup.Ct. Rep., 363, the rule was thus laid down: "The general rule that a judgment rendered by a court in a criminal case must conform strictly to the statute and that any variation from its provisions either in the character or the extent of punishment inflicted renders the judgment absolutely void." Se also Ex parte Krastendick, 93 U.S. 396; In re Mills,135 U.S. 263; U.S. v. Pridgeon, 153 U.S. 48; Weens v. U.S.,217 U.S. 349. Again, the rule is clearly laid down that a judgment in criminal cases must conform strictly to the provisions of the statute prescribing punishment, and a variation therefrom will render the judgment void. See the same authorities already cited, and in addition, 15 Am. Eng. Ency. of Law, p. 170, and notes. I also cite Nielsen, Petitioner, 131 U.S. 176; In re Johnson, 46 Fed. Rep., 477; Harmon v. U.S., 50 Red. Rep., 922; In re Christian, 82 Fed. Rep., 199; Ex parte Kelly, 65 Cal. 134; Ex parte Bulger, 60 Cal. 438; In re Bonner, 151 U.S. 242; In re Coy, 127 U.S. 731; Ex parte Rowland, 104 U.S. 604. Such is the rule in Texas as shown by the statutes and decisions in the history of the State. Ex parte Morgan, 48 Tex.Crim. Rep.; Ex parte Kearby, 35 Tex.Crim. Rep.; Ex parte Kearby, 35 Tex.Crim. Rep., and cases previously cited. It is laid down in 15 Am. Eng. Ency. of Law, p. 170: "That even where a court has jurisdiction of the offense charged and of the person of the accused, it may so far transcend its powers in assessing penalty for the offense by imposing a punishment of a character different from that prescribed by law or otherwise, that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on which the sentence was entered was valid and correct, and in such case the accused may be discharged on habeas corpus." This cites many of the cases already quoted and cited. And it has been held that an excessive judgment is one that the court did not have power to render and is therefore void. Ex Parte Kearby, supra; Ex parte Morgan, supra, and other cases cited. These are cases decided by this court. See also Ex parte Cox, 32 Pac. Rep., 197. The case of Ex parte Degener, 30 Texas Crim. App., 566, has been followed by every decision announced by this court since its rendition, until this particular case made the exception. This court has also laid down the rule, after reviewing the authorities, and the old rule which had been in vogue theretofore, as follows: Jurisdiction is of two kinds: first, of the person; second, of the subject matter; and the further proposition announced, that where the court had jurisdiction of the person and of the subject matter, it must have the further power to render the particular judgment which was rendered on the facts and law of the case. That courts of general jurisdiction or superior courts have what is termed inherent power to punish for contempt, may be granted as a correct general proposition, but that power is subject to constitutional provisions and it seems as well the power of the Legislature to regulate such power. I do not care to enter into a discussion of that particular phase of the subject. This power may not be prohibited, but it may be regulated. In Texas the Legislature does regulate and prescribe the rule for the District Courts, and limits its power to fine for contempt to $100, and may in addition add imprisonment not to exceed three days. It has also prescribed and regulated punishment with reference to county and justice courts. Therefore, the rule is the correct one in this State, that where the statute limits the duration of imprisonment or the amount of the fine, the punishment must conform to such limitation, "but can not exceed it." In the case in hand the trial court assessed a punishment of $250; the statute limits to $100. In the Morgan case, 48 Tex. Crim. 108, the court imposed a fine of $300; the statute limited to $100. In the Kearby case the court imposed no fine, but placed him in jail until he apologized; the statute limited the punishment to $100 and three days in jail. In both instances this court discharged the contemner because the judgment was void. In the Kearby case, supra, the order was made without limitation as to the extent of the punishment, but confined itself practically to the will and pleasure of the court making it, dependent upon an apology on the part of the contemner.

These are some of the reasons why I can not agree with the opinion of my brethren. I am clearly of the opinion under the law and under the statute and our decisions, that applicant is entitled to his discharge. If the trial court desires to punish and has authority to do so, and a case arises where he deems it necessary to punish for contempt, he must conform that punishment to the statutory law of the State, and until that law has been changed it must govern the decisions of the courts. This court nor the trial courts would have authority to substitute their will or ideas of those matters for that of legislative enactment. This court is not clothed with authority to enter a judgment here against a party that was not entered in the court below; nor has it the authority to remit any of the punishment imposed by the trial court. If the trial court had the authority to punish for $250, then that part of his judgment would be legal. If he did not have that authority, then it would be beyond his jurisdiction to enter the order he did enter, and this court can not substitute any other order or judgment either directly or indirectly in the place of the judgment entered by the trial judge by a remission of a portion of the judgment so as to bring the trial judge's order within the statutory limit of $100. This court did not and can not enter the judgment nor impose the punishment. The trial court must do that. If he acted independent of the statute his judgment would be unauthorized, illegal and void for want of authority to enter such judgment, and having no authority to enter such judgment, it would be void. See cases already cited.

It will be noticed that the district judge was not exercising his authority to punish for contempt under and by virtue of the terms of the statute which limits the punishment as already indicated. This statute was ignored, and his action was based on a different proposition, and one entirely outside the statute. Had he been following this statute he would have limited the punishment not in excess of $100. He as judge either really knew what the statute was or is, or is supposed to have known its contents as well as the construction placed upon it not only by this court but the limit the Legislature had placed upon it. There is no other conclusion, as I understand the law, but that the judge acted outside and in excess of authority beyond the statute, and that his action in this matter was not based upon the statute, but was an assumed power clearly illegal and void.

Another distinction may be noticed. The punishment imposed by the trial judge was for disobedience of an order or supposed order. He was not undertaking to enforce the order of the court but was only punishing for its infraction. All the authorities make the distinction between the enforcement of the judgment or order of the court and a punishment for the infraction or disobedience of the order. To illustrate: a witness is brought before the court and is required to testify. This he refuses to do. The court may put him in jail until he agrees to testify, and he may in addition fine him $100, and also place him in jail three days for contempt, even after he has agreed to testify, as a punishment. Under the first proposition the witness may be kept in jail until he agrees to testify. Under the second proposition he can discharge the punishment by paying $100 or whatever the judge may legally impose, and serve his time in jail not to exceed three days, and be discharged. My brethren seem to have lost sight of the fact that these two propositions are clearly and distinctly marked by law and the decisions. Ex parte Tinsley, supra. In the Tinsley case Tinsley refused to produce some books in a civil suit which were in his possession, which were deemed necessary or thought to be so by the trial court for the protection of the rights of others involved in the litigation. The court placed him in jail until he should produce the books. Tinsley refused, and resorted to writ of habeas corpus. He was remanded upon the theory that he must produce the books, and that the court had a right to have his orders obeyed, and have the books produced. That was in the nature of a continuing contempt. It was also stated in the Tinsley case, in order that there might be no confusion about this matter, that the court could as well have punished Tinsley by fine, but inasmuch as he did not do that, that question did not arise. But the distinction was drawn between the two character of cases, and the different character of punishments, and both propositions were asserted as being the law under appropriate circumstances. The facts in this case and the opinion of my brethren as well make it evident that this was not a continuing offense; at least the court did not so hold and did not punish or attempt to punish upon that theory. He was simply imposing a fine for disobedience of his order. It is unnecessary to go further into this matter. The proposition is so plain the legal profession and bench of the State will understand it, and perhaps it was even unnecessary to write what I have written or say what I have said.

For the above reasons I most respectfully dissent from the conclusion reached by my brethren. I am clearly of the opinion the applicant, first, has not committed contempt, and, second, that the judgment of the trial court was clearly erroneous and in excess of what the punishment authorized by law ought to be, and the writ of habeas corpus was the proper remedy, and he ought to be discharged from custody.