State v. Johnson

Habt, J.,

delivered the following concurring opinion :

Concurring in the opinion just delivered, I desire to state, though it may he nothing new, the subjects being all so ably treated by the Chief Justice, that I do not understand the Constitution as abrogating the statute which authorized one of the Justices of this Court to order a stay of proceedings in case of an appeal from an interlocutory order of the Circuit Court.

In the system of governments, provided for by the Constitution of the United States, when a new State Constitution is made, it is to be construed and understood as being made in reference to and in approval of long existing statutes, unless it expressly annuls or changes them.

The making the order for a stay of proceedings as specific and comprehensive as the nature and circumstances of the case seem to require, is a necessary consequence of the present statutory authority to make the order.

In a proceeding like this, very carefully and guardedly authorized by statute, the order is for the purpose of having the appeal from the interlocutory' order of the Circuit Court operate as a supersedeas.

The orders granting preliminary injunctions and appointing Receivers, made by the Circuit Courts, are interlocutory orders.

A supersedeas in a case like this is not simply a dead-lock and nothing more—great would be the injury to enterprise and scandal to the law if it were. It is a living operative authority intended to accomplish some good end in the case to which it applied. It necessarily supersedes the operation of the interlocutory order appealed from in all its stages and restores the thing operated upon, or else it is a mockery, .and the statute authorizing it never had any of the effect which it was intended to have. An appeal taken from a final decree in a certain time and manner prescribed by law, is a supersedeas without any order of any Judge to make it so; but, being taken from a final decree, of course can, as a supersedeas, accomplish little more than to stay execution ; but taken from an interlocutory order, is not and should not be in all cases necessarily so confined or limited. The whole benefit and primary object of the statute of 1852 would entirely fail under such a limiting construction.

The order for a stay of proceedings may be extensive enough to reach and affect all the proceedings affecting those appealed from, and the precept or process in pursuance of the order may be issued from the office of the Clerk of the Court, where the Justice making the order sits as Judge,. under the seal of the court, for this course secures the enforcing of the statute. When he so orders, and it issues out of the Clerk’s office with the seal of the court attached, it becomes the process or writ of the court, and as such must be respected and obeyed. If there is any error in it, disobedience or defiance is not the proper way to correct the error. LTo officer of this or of the Circuits Court whose acts it purports to control or direct, can with impunity disregard or disobey its commands.

If this court corruptly errs, the Legislature that represents-the highest power, the people, ¡who have prescribed what their Legislature as well as their courts may do, may apply the corrective.

The only question now here is, lias the writ of supersedeas been obeyed ? The Receiver answers substantially that he is not guilty of contempt in not obeying it, because he says that the writ was not ordered and issued by lawful authority. This is no answer, except as an avowal of disregard, and coming from a subordinate officer of the Circuit Court is, to say the least, very improper.

Whether that writ is regular or not, is no concern of his any more than the validity of an order would be to a master or of any writ to a sheriff. It concerns the party to the suit, who has had abundant time and opportunity to raise that question before this court by motion, and has not done so. The Receiver admits that he has not obeyed the writ, and presents a question which for him is out of place, and which is no excuse. Thus the affidavit of non-obedience, Vpon which the attachment was ordered, is. fully sustained and proved of record to he true. There is nothing left for this court to do hut to punish the contempt of its process and enforce obedience thereto, or else continue to be contemned and despised. There is no canse or reason for even some leniency. This is the first time in the history of' Florida that the process of this tribunal has been by an officer of a court intentionally disregarded and the act deliberately avowed by him in open court. It is to he hoped that it will be tbe last. Whatever some men may choose to think of others as men, tbe irribtmal must be everywhere respected by at least implicit obedience to its process. Without this, the fabric of jurisprudence, erected by the experience of ages, the best constituted safe-guard of human rights, must fall. Great, beneficial and beautiful as it is, it is a delicate structure, and cannot maintain its usefulness tinder frequent shocks of disrespect. It has its enemies, as is patent in this case, so also has everything that is beautiful and .good.