Ex Parte Duncan

This is an original application for the writ of habeas corpus. Relator was appointed one of five attorneys to examine an applicant for admission to practice law. The order appointing this committee was entered on March 16th. The order failed to designate any time when the examination should occur. On the 16th of March, relator being in the court room, the presiding judge asked him if he could serve upon the committee, and was informed, if it did not occur at night, he could do so, but if at night it would be impossible for him to attend by reason of the fact that he lived remote from the court house, and could not leave his wife alone at night. The district clerk states the judge then informed relator that he would appoint him anyway, and if he could attend to do so, and, if not, "of course I will excuse you." On the night of the 20th of March all of the committee failed to attend except Hon. Cone Johnson. The judge fined the absent attorneys $25 each, and ordered the clerk to issue attachment. These orders were not entered of record, but the attachment was issued, and the next morning was served upon relator, Duncan, in his office by two deputy sheriffs, who immediately escorted him to the court room, where he took a seat in front of the judge's stand. A few minutes afterwards Judge Russell, the district judge, took the bench, and said, "Gentlemen, proceed with the examination." Relator arose and said, "I decline to serve on this committee." The judge replied, "Judge Duncan, I can not excuse you;" to which relator replied: "I can not help that. I will not serve. I told the court at the time of my appointment that I could not serve on an examination committee to meet at night, and gave the court my reasons for it. Now, I have been arrested at my office this morning and brought over here under arrest by officers, under the order of this court, for failing to be present last night. I have always treated this court as a gentleman, and I expect to be treated or must be treated by the court as a gentleman, if not as a member of the bar." The court replied, "I will not sit here and allow you to reprimand the court, and I will fine you if you do not desist from it." "I then took my seat, saying, ``Well, if you fine me, and I have the money to pay the fine, I can pay it; if not, I will have to go to jail.'" The court then said, "Mr. Clerk, enter a fine of $50 against Judge Duncan for contempt of court." It is shown by the evidence that it has never been the practice at that court, or in that district, for the judge to compel members of the bar to serve on such examining committees, and never before, in the knowledge of witnesses, was a fine assessed against, or an attachment issued for, a member of such committee who failed to attend; that the custom was either to postpone on account of the absence of one or more of the committee, or proceed with the examination by the appointment of other members of the bar. Relator further states that he had no intimation in any way from the judge at any time, after stating his reasons for not being able to attend the meeting of the committee at night, that he would still be expected to attend or be fined or attached; and that he had no notice or knowledge, or any reason to suspect, until the morning of the 21st, that he was fined, or was to be fined or arrested, and that the facts recited in the judgment of contempt rendered against him were placed there without his knowledge, and that he had no opportunity to see that the facts were correctly stated in the judgment; that it was wholly ex parte, and was prepared entirely under the direction of the trial judge.

This case involves and turns upon the question of jurisdiction. If the jurisdiction of the court properly attached to the person of the relator and the subject matter of the contempt, and the facts showed contempt, then this writ should be refused, and the relator remanded. Article 256, Revised Civil Statutes, provides: "During the term of the District Court, upon application in writing of any person desiring to obtain a permanent license to practice as an attorney and counsellor at law in the courts of this State, the court shall, as soon as convenient, appoint a committee of three or more practicing attorneys of good standing, and set a day for the examination of the applicant, on which day the committee so appointed shall in open court proceed to examine the applicant; and if they or a majority of them and the court are satisfied of his legal qualification, a report of that fact shall be made." The district courts of this State being courts of record, every order made by such court must be entered of record. Upon the presentation of the application it becomes the duty of the court to appoint a committee, naming them; and this appointment, together with the day appointed, must appear from the records to have been made as any other judicial order must so appear. Until this has been done and the members of such committee have been notified, the court has no power to compel any member of the committee to proceed with the examination of such applicant. The question then presented is, did the court have the power to issue the attachment to compel the appearance of the relator? If it did, it must be held relator was in contempt and the court had the power to punish not only for disobedience of its order originally made, but to enforce its orders subsequently made by fine or imprisonment, and to punish for refractory conduct on the part of the relator. If, on the other hand, it had no power to compel the attendance of the relator by the attachment as issued, then the appearance of the relator being an enforced appearance, without sanction of law, the court had no power to punish, by either arrest under the writ of attachment or for the subsequent acts of relator while in such duress in questioning or demanding in a respectful manner the right of the court in ordering his arrest, or in seeking to compel him to serve on the committee. It is conceded from the evidence before us that the application to be examined for license to practice as an attorney and counsellor at law was filed by an applicant, in which application was made for a committee of practicing attorneys for the purpose of examination. That on the 16th of March an order was made and entered of record on the minutes of the court appointing relator and four other attorneys as such committee. But from this order, which is also in evidence, it is observed that no day was set or mentioned when the examination should occur. However, on the morning of the 16th of March, while relator was in the court room, the district judge inquired of him as to whether he could serve on said committee on the 20th of March. He replied, "I could not serve on any committee to examine an applicant at night; that I could not come down town at night, on account of living so far out, as my wife would be left alone should I leave." To this relator testifies that he heard no reply, but is sure that the district judge did not dissent. The district clerk, however, states that the judge replied to relator, "Well, judge, I will put you on (or leave you on), as it might be that you can come down; and, if not, of course I will excuse you." These facts are undisputed. Neither the order of the court, as made of record, nor the request of the judge to relator to be present and take part in the examination, can form the basis for this proceeding in contempt. The order, to have been the subject of disobedience, must have been complete and perfect within itself. It was not complete. No attorney, from an inspection of the order, could say, without aid from other evidence, at what time the examination would be held, and, as no time was fixed by it for the examination, it can not be said that relator in any way disobeyed such order. True, taken in connection with the oral statement of the judge, relator might have known that the examination would be held at 8 p.m. on the 20th of March, but in cases of this kind this is not sufficient. It is the disobedience of the order of the court as rendered and recorded which must constitute the basis of this proceeding. Stress is laid upon this from the fact that it is this order which is claimed to have first been disobeyed, and which gave rise to the subsequent proceedings. Nor can it be said, assuming that it is within the power or province of the judge to aid a recorded order by oral statements aliunde such record, that the request of the judge to relator Duncan was in any sense such order or command, or so regarded by the judge at the time, as to be the subject of disobedience so as to form the basis of a contempt proceeding. It was at most a mere request, and evidently so understood at the time by the judge, relator, and the district clerk; and the manner in which the judge informed relator Duncan, if he could not comply with it, would form the basis of relator's belief that he was excused from attendance. Where the court seeks to punish either by fine, arrest, or imprisonment for the disobedience of an order or command, such order or command must carry with it no uncertainty and must not be susceptible of different meanings or constructions, but must be in the form of a command; and when tested by itself must speak definitely the meaning and purpose of the court in ordering. There being no such order as relator was required to obey, and there being nothing in his conduct remotely bringing him within contempt, the action of the judge in ordering the writ of attachment was absolutely void and without jurisdiction. His arrest was for no offense, either actual or constructive. The court, so far as relator was concerned, was without jurisdiction as to the subject matter or person, and had no authority to impose the fine of $25 originally imposed, whether entered of record or not.

But it is contended that the court rightfully punished relator by a fine of $50 when brouqht before the court in arrest by virtue of the writ of attachment on the 21st of March; that here the contempt was committed in the presence of the court by words spoken by relator and from his manner; and that the facts recited in the judgment were conclusive. The writ of attachment being void because issued without authority, the court at no time rightfully obtained jurisdiction over his person; his presence in the court room was illegally enforced, and he had the right in a respectful manner and by decorous language in the presence of the court to protest against the unlawful arrest and seizure of his person, and while thus in duress to refuse to serve upon the committee. If the original order was not sufficient to require obedience, certainly no illegal arrest under such order would add weight, strength, certainty, or validity to it; and if the court had no power to render the particular judgment against relator, in aid of which the writ of attachment was issued, certainly the jurisdiction of the court could not be so enlarged when the jurisdiction was originally wanting. There is nothing in evidence before this court, outside the facts recited in the judgment entered on the 21st of March, which shows that relator made use of any language in any way discourteous or which could have been, under the circumstances, construed in any other way than an indignant protest of an unoffending citizen against the unlawful arrest and humiliation to which he had been subjected, without legal authority; nor was his manner offensive or discourteous, but upon the contrary all the evidence (the facts recited in the judgment excepted) show that neither his language nor manner was in any respect offensive, such as to form the basis for the proceeding in contempt. A judgment which is void is conclusive of nothing, and may be the subject of inquiry in a collateral proceeding. The recited facts therein are not binding in any way, nor for any purpose. Nor can the court make contempt of that which is not contempt (Church on Habeas Corpus, section 152), and every attempt to do so would be in excess of authority or jurisdiction, as much so as if the court had no authority or power to punish for contempt, either in relation to the person or subject matter. There must be contempt in order to justify punishment for the offense. "There are three essential elements necessary to render conviction valid. These are, that the court may have jurisdiction over the subject matter, the person of the defendant, and the authority to render the particular judgment. If either of these essential elements is lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas corpus." Ex Parte Degener, 30 Texas Crim. App., 566; Ex Parte Taylor, 34 Tex.Crim. Rep.; Ex Parte Tinsley, 37 Tex.Crim. Rep.; Ex Parte Kearby and Hawkins, 35 Tex.Crim. Rep.; Ex. Parte Kearby, 35 Tex. Crim. 634; Brown on Jur., secs. 109, 110; Ex Parte Lake, 37 Tex. Crim. 656.

"Some of the older authorities regard jurisdiction of the matter and the prisoner sufficient to give the court jurisdiction to pronounce the judgment which could not be successfully assailed by this writ. The rule now, supported by high and abundant authority and excellent reason, is that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment. The judgment is not conclusive upon the question of the authority of the court to render it. That, as well as any other matter which would render the proceedings void, is open to inquiry." 7 Am. and Eng. Enc. of Law, 2 ed., p. 36; People v. Lipscomb, 60 N.Y. 559; People v. Oyer and Term. Ct., 101 N.Y. 245, 54 Am. Rep., 691; Ex Parte Degener, 30 Texas Crim. App., 566; Holman v. Austin, 34 Tex. 668 [34 Tex. 668]; Ex Parte Fisk, 113 U.S. 713.

Jurisdiction of the person and subject matter are not alone conclusive, but the authority of the court to render the particular judgment is the subject of inquiry; and if, upon a review of the whole record, it appears that a judgment unwarranted by law was entered, the party thus placed in contempt will be released under the writ of habeas corpus. Same authorities. Among other jurisdictional defects is also found the following: the infliction of punishment in excess of that allowed by law. Ex Parte Edwards, 11 Fla. 174; Haines v. Haines,35 Mich. 138; People v. Lipscomb, 60 N.Y. 559; Matter of Patterson, 99 N.C. 467; Matter of Walker, 82 N.C. 908; Commonwealth v. Newton, 1 Grant's Cas. (Pa.), 453; In re Pierce,44 Wis. 411. As also where the commitment is for an indefinite time. Ex Parte Kearby and Hawkins, 35 Tex.Crim. Rep.; Yoxleyski's case, 1 Salk., 351; Rex v. James, 5 B. Ald., 891, 7 E.C.L., 292; Cramantie v. Bladen, 85 N.C. 211; Matter of Hammel, 9 R.L., 248; In re Leach, 51 Vt. 630; People v. Pirfenbrink, 96 Ill. 68; State v. Myers, 44 Iowa 580; Bickley v. Commonwealth, 2 J.J. Marsh (Ky.), 575; Ex Parte Alexander, 2 Am. L. Reg., 44; Matter of Watson, 3 Lans. (N.Y.), 408; Commonwealth v. Roberts, 4 Pa. L., 126.

If the judgment is not conclusive upon the question of the authority of the court to render it when the facts are not therein recited, then the recitation or partial recitation of the facts in such judgment, and upon which it is predicated, will not add anything more to its sanctity than if unrecited, and such judgment is as much the subject of attack as if such facts were entirely omitted. If the unrecited facts would not or do not authorize the particular judgment rendered, then the mere recitation of the same facts in the judgment will not make it valid, nor add strength or vitality to it. If the judgment is void, in either event, it is the subject of inquiry in a habeas corpus proceeding; and it must be void to be so attacked. Authorities supra.

In Parker's case, 35 Texas Criminal Reports, 12, this question was expressly decided. The judgment in that case recited as a fact that the court adjourned on May 14, 1892, and it was attacked on habeas corpus on the ground that this recitation was false, in that the court as a matter of fact did not adjourn on May 14th, but did adjourn after 12 o'clock at night of said day, which rendered the judgment void, because said court by law was necessarily terminated at midnight of said day. The contention was that the verdict was returned into court after 12 o'clock at night, and on this issue the case was tried by this court. If the verdict was returned after 12 o'clock at night, it was void, because, as stated above, the term of the court had necessarily terminated at the hour of midnight, and before the verdict was rendered. The recitation of fact in the judgment, if true, constituted the verdict a legal one, and the judgment valid. It was contended in that case, as it is in this, that the recitation of the fact in the judgment was conclusive, and not subject to attack in the habeas corpus proceeding. This court, however, held otherwise, and that it was permissible "to go behind the record, and probe into the very truth of the matter," etc. Judge Henderson, delivering the opinion of the court, uses this language: "Notwithstanding the recital in the judgment in this case, we hold that it is competent, under the writ of habeas corpus, to go behind the record, and probe into the very truth of the matter, as to whether an act purporting to have been done during the term was in fact done during the time recited by the record." See, also, Ex Parte Juneman, 28 Texas Criminal Appeals, 488; White's Annotated Code of Criminal Procedure, section 98, sub-sections 6, 7; also sections 130 and 131 — for collated authorities, as well as the authorities cited supra. After hearing the facts in that case, the court sustained the judgment of the trial court. The Parker case, then, is authority for the further proposition that we will hear the facts on controverted issues of this character, and where there is a conflict in the evidence, which may or may not support the judgment, and there is sufficient evidence to support the judgment, that we will not disturb the ruling of the trial court. The writer did not participate in the decision of the Parker case, as will be seen by the report of that case. That case is decisive against the State's contention that the recitation of the facts in the judgment is conclusive, and can not be attacked on habeas corpus, and that case but follows the unbroken line of decisions in this State since Ex Parte Degener, supra. The same rule obtains as to orders, etc., of the court. See Ex Parte Lake, 37 Tex. Crim. 656.

The order appointing relator one of the committee to examine the applicant for license to practice law was invalid, for reasons already stated, and was therefore nonenforcible. The fine of $25 sought to be imposed was equally invalid, for reasons already given. Ex Parte Kearby, supra. The warrant by which he was arrested and brought into court was also void for want of authority for its issuance, there being no valid judgment or order for its support. Hence the refusal to act on the committee was not contempt. Relator had the right to protest against the illegal arrest, under the circumstances, and the mere fact that he may have exhibited anger or indignation at the unwarranted arrest did not constitute contempt. We wish to say that the power of the court is official — judicial, and not personal — and the relations of court and attorney are correlative. Courts may, will, and should enforce judicial power and functions when necessary; yet this must be done in a manner sanctioned by law, and in consonance with judicial dignity, and with due regard to the rights of parties to be affected. Attorneys are bound and will be held to obey legal orders of courts, yet the court should invoke its judicial authority under the law and in obedience thereto. The relationship of courts and attorneys, bench and bar, are reciprocal, and each, in their proper sphere, is clothed with powers, rights, and privileges which are to be recognized and respected by the other. These relations should be recognized and respected alike by bench and bar, and, being carefully kept in view and followed as rules of action and conduct, will avoid friction. The judgment, being void, should be set aside, and the relator discharged; and it is so ordered.

Relator discharged.

April 30, 1901.