177 Ga. 514 | Ga. | 1933
Lead Opinion
Margaret G. Brooks filed a petition for the writ of habeas corpus against T. O. Sturdivant as chief of police of the City of Atlanta, and A. L. Poole as chief of detectives thereof, alleging that she was being unlawfully held as prisoner by the defendants, under an order of the recorder’s court of the City of Atlanta, in which the plaintiff was adjudged to be in contempt o£ court, but in which the judge of the recorder’s court exceeded his powers as to the amount of punishment inflicted. The petition alleged that the plaintiff testified as a witness in a case which was being tried in the recorder’s court, “and that thereafter during the trial of said case the Hon. John L. Cone, judge presiding, adjudged your petitioner guilty of contempt of court, and immediately sentenced your petitioner to serve twenty days in the City of Atlanta prison.” It was averred in the petition that the power of the recorder in a matter of contempt is the same as that of a justice
The allegations of fact as contained in the petition were accepted as true upon the trial. The following ordinances of the City of Atlanta were introduced in evidence:
“Section 841. Contempt of Court, while sitting — Penalty. Any person, who during the sitting of police court, or during a session of the council or general council, or board of aldermen, shall be guilty of a contempt of court, or of council, or refuses to abide by any sentence or order of said court or council aforesaid, shall be fined in a sum not exceeding $50 and costs, or confinement in the station house, or both, as shall seem expedient or proper under the circumstances.”
“ Section 843. Penalty when not otherwise provided. For violation of any ordinance, or section of an ordinance, for which no particular penalty has been prescribed, the court may impose, in its discretion, any fine not exceeding $100 and costs, or imprisonment not exceeding thirty days in the calaboose, or on the public works of the city.”
• Although it appears that the plaintiff was guilty of some act of contempt while testifying as a witness, the exact nature of the contempt is not otherwise more specifically shown by the record in this court. The only assignment of error in the bill of exceptions is that to the judgment remanding the plaintiff to the defendants’ custody the “plaintiff then and there excepted and now excepts and assigns the same as error on the ground that the recorder of the police court of the City of Atlanta has no authority to sentence for contempt of court for a longer period than five hours, or a five-dollar fine, or both.”
The defendants moved to dismiss the writ of error, on the ground that since the rendition of the judgment refusing the writ of habeas corpus the plaintiff has been released from custody, and is no longer being detained as a prisoner by the defendants or any other person. In response to this motion the plaintiff submitted affi
The motion to dismiss the writ of error is denied. The present case is distinguished by its facts from Stark v. Hamilton, 149 Ga. 44 (99 S. E. 40, 5 A. L. R. 1041), and Samuels v. Lanford, 149 Ga. 167 (99 S. E. 532).
The charter of the City of Atlanta not only fails to confer any express authority upon the recorder’s court to punish for contempt, but contains no reference whatever to the subject of con-tempts. It is provided by the Civil Code, § 4644, however, that “every court has power to preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings,” and “to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” Under these provisions, the recorder’s court of the City of Atlanta has authority to punish for a contempt committed in its presence, even though such court may not be a court of record.
In Kingsbery v. Ryan, 92 Ga. 108 (5), 118 (17 S. E. 689), it was said: “The duration of punishment, when not regulated by statute, is subject to the sound discretion of the court, or the presiding judge.” Since there is no statute which limits the power of the recorder of the City of Atlanta in a contempt case, the character and extent of the punishment must be determined by the presiding judge, in the exercise of a sound discretion. The punishment can not be cruel, unusual, or excessive, but must be reasonable in view of the particular facts and circumstances. Civil Code (1910), § 6365; Farnham v. Colman, 19 So. Dak. 342 (103 N. W. 161, 1 L. R. A. (N. S.) 1135, 117 Am. St. R. 944); 13 C. J. 92, § 140; Oswald on Contempt of Court, 237. By the Civil Code, § 4679, par. 2, it is provided that justices of the peace shall have power “to fine not more than five dollars, or imprison not more than five hours, any person guilty of a contempt of court.” This section is of statutory origin, and refers only to justice’s courts. We can not agree that the limitation as to punishing for contempts, as thus stated, was intended by the General Assembly to be applicable as a matter of law to other courts than those referred to therein. An
The charter of the City of Atlanta provides for the trial of offenders against the ordinances of the city, and authorizes the recorder’s court to impose such penalties for violations thereof as may be prescribed by ordinance, not to exceed a fine of $500, and imprisonment and labor upon the public works for not longer than •thirty days, for each offense. Ga. L. 1874, p. 116, §§ 5, 141, 143. This provision does not purport to deal with the subject of con-tempts, and there is no other provision of the charter which more nearly approaches that subject. In the Swafford case it was stated that under the* charter of the Town of Clayton no fine inflicted by the town council could exceed $20, and this amount was apparently considered by the court as the standard of punishment which might be imposed for a contempt of the town council in its capacity as a court. But in view of the language of the charter of the City of Atlanta, and the great disparity of the punishment therein authorized as compared with that which might have been imposed under the charter of the Town of Clayton, we can not apply the same construction to the charter of the City of Atlanta upon this question.
The constitution provides that the power of the courts to punish for contempts shall be limiied by legislative acts (Civil Code of 1910, § 6376); and while the duty of the legislature in this-regard
The questions presented in the instant case were not involved in
Judgment reversed.
Dissenting Opinion
dissenting. Since there is no statute prescribing the punishment which may be imposed by the recorder of the City of Atlanta for a contempt of court, the character and extent of such punishment must be determined by the recorder in the exercise of a sound legal discretion, and can not be unreasonable or excessive. It can not be said as a matter of law, however, that the recorder has no authority to punish for a contempt of court by imprisonment for a period longer than five hours, or by a fine of more than $5, or both, as is true of justices of the peace. The assignment of error contained in the bill of exceptions raises no other question; and since the only assignment of error made by the plaintiff in error is not well taken, the judgment should be affirmed. Kingsbery v. Ryan, supra.