Lead Opinion
This сase has been certified to this court by the St. Louis Court of Appeals for the reason that a constitutional question, to-wit, the validity of section 1617 of the Revised Statutes of Missouri of 1899, is necessarily involved in the judgment rendered by the circuit court of the city of St. Louis.
It appears from the abstract of the record that the appellant, Edward J. Gildersleeve, had been enjoined on the 12th day of July, 1903, by the circuit court of the city of St. Louis from buying, selling, dealing in or soliciting the purchase or sale of any mileage passenger tickets or any part thereof, or the return coupon thereof or any part thereof, or any excursion passenger ticket or any part thereof, at that time or thereafter issued or sold, or which might thereafter be issued or sold, by the plaintiff for passage over its railroad, or issued by any other railroad for use over plaintiff’s road, or any part thereof, where such ticket was sold, or where it appeared upon such ticket, coupon of return ticket, that the same was issued or sold, belоw the regular schedule rate, under a contract with the original purchaser, entered upon the said ticket and signed by such original purchaser, that such ticket was non-transferable and void in the hands of any other person than the original purchaser, and also from soliciting, aiding and encouraging or procuring any person other than the original purchaser of such ticket to use or attempt to use the same for passage on any train or trains of the plaintiff. And that after-wards a citation had issued out of the said circuit court on the first day of October, 1904, against the said defendant, Edward J. Gildersleeve, commanding him to
It appears that said citation had been duly served upon the said Gildersleeve on the first day of October, 1904, and the said matter coming on for hearing on the 19th of October, 1904, and the court having heard the evidence and duly considered the same, adjudged thе said Gildersleeve guilty of contempt, in that he had violated the said injunctive order, and by its judgment adjudged that he be committed to and imprisoned in the common jail in the city of St. Louis for a period of fifteen days from the 29th day of October, 1904, to the 13th day of November, 1904, and that he pay the costs of the said proceedings. Within four days the said Gildersleeve filed his motion for a new trial, which was overruled and he excepted and appealed to the St. Louis Court of Appeals, and that court has certified the same to this court.
Two other cases, to-wit, The Chicago & Alton Railway Co. v. Gildersleeve, and the Chicago, Burlington & Quincy Railway Co. v. Gildersleeve, were submitted along with this ease and involve the same question. In the Chicago & Alton case the fine imposed for the contempt was three hundred dollars, and in the Chicago, Burlington & Quincy Railway case the sentence was thirty days in jail.
I. But one question is raised on these appeals by the defendant, to-wit, that the circuit court in each of said cases exceeded its lawful powers as defined by section 1617, Bevised Statutes 1899', which is in these words: “Punishment for contempt may be by fine or imprisonmеnt in the jail of the county where the court may be sitting, or both, in the discretion of the court; but the fine in no case shall exceed the sum of fifty dollars nor the imprisonment ten days; and where any person shall be committed to prison for
The learned counsel for the appellant, Gilder-sleeve, goes to the root of the matter by insisting that the circuit court of this State has not and never had any inherent common law jurisdiction, but is subject to legislative control and its powers are such, and such only, as the Legislature shall see fit- to prescribe.
Article three of the Constitution of Missouri (1875) provides: “The powers' of the government shall be divided into three distinct departments — the legislative, exеcutive and judicial — each of which shall he confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted. ’ ’
Article 6, section 22, creating circuit courts, is as follows: “The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all’ civil eases not otherwise provided for; and such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may he provided by law. It shall hold its terms at such times and places in each county as may he by law directed; but at least two terms shall he held every year in each county.”
Article 6, section 27, creating the circuit court of the city of St. Louis, is as follows: “The circuit court
The circuit court of the city of St. Louis, like all other circuit courts in the State, is to all intents and purposes a court of general jurisdiction, and has been so often adjudged to he such that it would he a waste of time to cite decisions to that effect. As late as In Re Clark,
The Supreme Court of Indiana, in Little v. State,
In State ex inf. v. Shepherd, 177 Mo. l. c. 234, this court, in discussing section 1616, R. S. 1899, said: “If the Legislature had power to abridge or impair the power of this court to punish for contempt, then the defendant in this case could not he held liable. But if the Legislature had no such power, then the section of the statutes quoted is unconstitutional and not binding upon the court. It has already been pointed out in paragraph two of this opinion that the power of this court to punish contempts is inherent, and that statutes which attempt to confer such power have always been treated as conferring no new power, but as simply declaratory of the common law power that already belonged to every court of record. The law is well settled, both in England and America, that the Legislature has no power to take away, abridge, impair, limit, or regulate the power of courts of record to punish for contempts. [Rapalje on Contempts, sec. 11; 7 Am. and Eng. Ency. Law(2 Ed.), 33; Arnold v. Commonwealth,
In commenting upon the Shepherd case, in In Re Clark, supra, among other things it was said: “This court [in that case] in effect ruled that a constitutional court may go to the common law for its inherent power to punish all contempts recognized as such at the common law; and to the extent that the statute clipped such power it was unconstitutional. That holding was right; but that case did not hold in judgment and, hence, is no authority for'the proposition that those parts of the statute declarative of the common law were invalid as unconstitutional.”
As this whole question was so exhaustively discussed and treated in State ex inf. v. Shepherd,
While our brethren cite numerous cases in which the courts of last resort in our sister States have announced the rule of comity for which they contend and in which those courts have recognized a certain amount of legislative control over the subject of contempt of courts, in view of the provision in our own Constitution, which makes the judicial power of this State coordinate with that of the legislative department and forbids either to encroach upon the powers of the other, It seems to us that the conclusion reached on this subject in State ex inf. v. Shepherd, supra, is not only logical but unanswerable, and it is from no want of respect to the Legislature that this court maintains the power which the people in the organic law have conferred upon if. The Constitution is the supreme law for the Legislature and the court alike, and in declaring any act of the Legislature unconstitutional this court does not proceed upon any theory of superiority over the Legislature, but simply adjudges that it will follow the organic law, which creates both the Legislature and the court, and is alike binding upon each.
In regard to the Act of Congress restricting the power of the courts of the United States in the punishment of contempts and intended to deprive them of the authority to treat out-door publications of any character as such (4 U. S. Stats. at Large, p. 487, approved March 2nd, 1831), it was said in U. S. v.
.Much stress is laid upon the provision that unless this court shall recognize the prоvision of the statute upon which the defendant relies in this case as constitutional then the power of the court to punish for contempt is unlimited. A fear is expressed that the courts will exercise that power in an arbitrary and oppressive manner. This contention is not new. In Neel v. State, 4 Eng. (Ark.) l. c. 263, Mr. Justice Scott responded to this proposition as follows: “The right to punish for contempts, in a summary manner, has been long admitted as inherent in all courts of justice and in legislative assemblies, founded upon great principles, which are coeval, and must be co-existent, with the administration of justice in every country — the power of self-protection. And it is only where this right has been claimed to a greater extent than this, and the foundation sought to be laid for extensive classes of con-tempts, not legitimately and necessarily sustained by these great principles, that it has been contested. It is a branch of the common law brought from the mother country and sanctioned by our Constitution. The discretion involved in the power is necessarily, in a great measure, arbitrary and undefinable, and yet the experience of ages has demonstrated that it is compatible with civil liberty and auxiliary to the purest ends of justice, and to the proper exercise of the legislative
And so in U. S. v. Hudson,
Our conclusion is that the Legislature, in prohibiting the courts from imposing a fine in any case which should exceed fifty dollars and in limiting the imprisonment for contempt to ten days, exceeded its constitutional powers, and therefore such limitations were unconstitutional and void, and the judgment of the circuit court in this case was not in excess of its jurisdiction and must be and is affirmed.
Dissenting Opinion
DISSENTING OPINION.
Prepared on assignment as a principal opinion, it failed to receivе the concurrence of a majority of my brethren, and the .case was reassigned to my learned brother Gantt. Something of substance, I think, is to he said against the conclusion reached by him, which justifies resubmitting this opinion as a, dissenting one.
Gildersleeve was sentenced by the circuit court of St. Louis to the common jail for thirty days as a result of a trial in a contempt proceeding. The citation was issued in a civil suit then pending. He was charged with an “out of doors” or constructive contempt in violating a preliminary order of injunction issued by said court, and which injunction forbade the sale of certain kinds of railroad tickets as a ticket broker or “scalper.”
On appeal to the St. Louis Court of Appeals, the cause was transferred to this court on a constitutional point arising on the whole case, viz.-. By Revised Statutes 1899, section 1617, in providing for the punishment of contemners (found guilty under preceding sections) by fine or imprisonment in the county jail, or both, in the discretion of the court, it is ordained as follows: “But the fine in no case shall excеed the sum of fifty dollars nor the imprisonment ten days. . .”
It will be seen at a glance that if that statute be a valid and constitutional limitation on the power of a circuit court in Missouri, then the judgment appealed from, being in excess of the power of the court, is bad. To the contrary, if the statute be unconstitutional in that regard and if the circuit court could go to the common law for the limitation, if any, on its power in
It is not deemed useful to enter upon a general exposition of the reasons underlying the right to punish contemners. That field is a fruitful and inviting one for judicial exploration and eloquence, and, we may add, dicta. It has been explored more than once by this court and much has been written — e. g., in Ex parte Crenshaw,
The philosophy lying at the root of the right of a court of justice to punish contempts is well stated by Judge Dade to be (Commonwealth v. Dandridge,
“In this country we know no privileges but such, as exist for the public good; many such privileges we have; from those which appertain to the Legislature •itself even down to such as belong to the lowest executive officer. Those which surround the administration of justice belong to the same order. Courts, their officers, and process, are shielded from invasion and insult, not from imaginary sanctity in the institutions themselves, or the persons of those who compose them (as in the political and ecclesiastical establishments of another hemisphere), but solely for the purpose of giving them due weight and authority, and to enable those who administer them to discharge their functions with impartiality, fidelity and effect. This is the true test of every privilege not granted hv statute, and is the spirit of every one (not merely private) which is so secured. The political character of the judiciary, and the tendency of the .duties which are devolved upon it, have rendered it necessary to invest it with a considerable share of these privileges. It is confessedly the weakest branch of all governments,*187 wielding neither wealth, force, nor patronage. Its duties consist in adjusting and settling the contested rights of individuals, in сontrolling their turbulence, and punishing their crimes. These duties are often of a severe and rigorous character, and they are generally to he discharged in almost immediate contact with those on whom they act; their exercise will frequently elicit the'angry passions, or excite unworthy and sinister attempts to bias or avert their operation; and where there is little real power, and no patronage, a certain degree of external dignity may have been considered necessary to supersede a too frequent resort to the actual powers of the courts. ’ ’
In Respublica v. Oswald,
“Some doubts were suggested, whether, even a contempt of the court was punishable by attachment; but not only my brethren and myself, but likewise all the judges of England, think that without this power no court could possibly exist. Nay, that no contempt could indeed be committed against us, we should be so truly contemptible. The law upon the subject is of immemorial antiquity, and there is not any period when it can be said to have ceased, or discontinued. On this point, therefore, wе entertain no doubt."
Indeed, so manifest is it that the stream of justice must be kept.pure from contamination at its source, and that the judge of a court, jurors, witnesses and officers should be shielded from the humiliation of insult, the terror of violence or itching desires or sinister attempts to improperly influence the one or the other— that the majesty of the administration of law should find its prototype in the gravity and dignity of a courtroom free from the belittlement of contemptuous inde-corum — and that trials should be conducted and the decrees, orders and judgments of the courts of a free people should be carried into execution without molesta
But the question presented here is different and deeper. It is this: May the lawmaker make a rule reasonably regulating the discretion of constitutional courts in administering punishment for contempt?
Attending to that question, it may be said that legislation of that character is believed to exist in. every State in the Union and finds a place in the acts of Congress and in those of the British Parliament. The Federal act owes its origin to an early Missouri event of historical significance. Judge Peck, presiding in the District Court of the United States for the District of Missouri, in 1826, decided an important land case. Mr. Lawless, an attorney in the case, published a criticism of the oрinion, not impugning the motives or charging corruption upon the judge, but discussing the correctness of his decision and pointing out its errors. This publication was treated by Judge Peck as a libel, and its author was punished for contempt of court. Mr. Lawless, not content, took the matter to the House of Representatives. Judge Peck was impeached, subsequently tried in the Senate, and acquitted by a vote of 21 to 22. The public discussion of the law and nature of contempts, incident to the trial, doubtless led to the
The idea dominating that character of legislation is (to borrow the quaint and pointed phrase of Coke) that the punishment of a citizen shall not be measured “by the crooked cord of the discretion of the judges,” hut shall he “measured by the golden metewand of the law” — the obsolete word, “metewand,” meaning, we take it, a statutory footrule, yardstick or measuring rod.
In this connection it may not he amiss to recall Lord Camden’s oft-quoted, sour yet keen and graphic characterization of uncontrolled judicial discretion, when Chief Justice of the Court of Common Pleas in the trial of Hindson and Kersey, viz.': “The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable.” [See editor’s note to Proceedings against R.
Speaking to a point somewhat kindred, Judge Taft in City of Detroit v. Railroad,
In determining the question of the unconstitutionality of the statute under review care should he taken to steadily keep in mind the precept that our Legisla
Some veneration, some efficacy withal, is due the statute in hand because of its age. It has been the law of Missouri for three-fourths of a century. During that time Missouri grew from a pioneer State into a great commonwealth; during that time a civil war was waged, the passions of men were lashed into a crest of fury, but through it all its courts of justice, under that statutory limitation of power, deserved and preserved the respect of the citizen and their own self-respect; during that time it was not thought necessary to the public weal that the judiciary should be free to exercise unlimited and unregulated power to punish by their fiat, summarily, without jury, without change of venue and (in some cases) without right of appeal, a citizen for contempt by an unlimited fine or an unlimited jail sentence. T'o the contrary, they accepted the statute as a reasonable limitation, and the joints of the machine of checks and counterchecks under the three co-ordinate branches of State government worked without jar or friction;
Because of a tendency in some courts to comment upon the doubtful propriety and legality of legislative enactments limiting the power of constitutional courts to punish for contempt, at least three States have put in their organic law a provision granting such power to the Legislature, to-wit, Georgia, Louisiana and, lately, Virginia. In other States no such constitutional grant of power is given lawmakers and yet despite that fact
No doubt is entertained of the legislative power to regulate where the court in question is the creature of the Legislature and not of the Constitution. This doctrine has been applied to the Act of Congress regulating punishment for contempts in Federal courts. {Ex parte Robinson,
It is contended, in effect, that the Shepherd case declared the whole body of statutory enactments regulating contempt in courts of record unconstitutional and void. That is no new contention. It was made once before in this court in In re Clark, supra. In answer to that large and drastic proposition it was there said:
“We may digress far enough to point out that it is insisted by him (the circuit attorney) that the scope, effect and purpose of State ex inf. v. Shepherd,177 Mo. 205 , was to strike down as unconstitutional the whole body of the written law on the subject of con-tempts. [R. S. 1899, sec. 1616, et seq.] But we do not so read that case. The statute (sec. 1616) enumerates certain forms of contempt and provides that in their*192 punishment courts have power to punish the acts enumerated, ‘and no other.’ The contempt charged in the Shepherd case did not come within those enumerated by that statute. The. precise question held in judgment in that case, therefore, was this: Was the statute preclusive, or had this court as a creation of the Constitution the inherent power at common law, of which it may not he shorn by statute, to punish as at common law for contempts known to the common law but on which the statute is silent? The broad language used in the case, measured by recognized canons of construction, must he read in the light of the case and facts held in judgment. This court, in effect, ruled that a constitutional court may go to the common law for its inherent power to punish all contempts, recognized as such at the common law; and to the extent that the statute clipped such power, it was unconstitutional. That holding was right, but that case did not hold in judgment and, hence, is no authority for the proposition that those parts of the statute declarative of the common law were invalid as unconstitutional.”
In Koerner v. Car Co.,
“The maxim of stare decisis applies only to decisions on рoints arising and decided in causes; it has been held not to extend to reasoning, .illustrations and references in opinions. The precedent includes the conclusions only upon questions which the case contained, and which were decided. ‘ The members of a court, ’ says Downey, C. J., ‘often agree in a decision, but differ decidedly as to the reasons or principles by which their minds have been led to a common conclusion. It is, therefore, the conclusion only, and not the process by which it has been reached, which is the decision of the court, and which has the force of pre*193 cedent in other cases. The reasoning adopted, the analogies and illustrations presented in real or supposed cases, in an opinion, may be used as argument in other cases, but not as authority. In these the whole court may concur, or they may not. So of the principle concurred in, and laid down as governing the point in judgment, so far as it goes or seems to go beyond the case under consideration.’ ”
Applying those рrinciples to the Shepherd case, it will be seen that the proposition held in judgment was not that all the statutes regulating procedure in contempt were unconstitutional, but that the schedule of acts which go to constitute contempt under the statute did not cover the whole ground — that that part of the statute declaring the acts scheduled in the law “and no other ’ ’ should be deemed contempts was unconstitutional and void, and that the Supreme Court could go to the common law to ascertain other acts constituting contempt and punish for those acts as at common law. So construed, the Shepherd case has been approved twice since and is in line with the great weight of authority elsewhere.
There seems to be an impression abroad that if we sustain the statute on contempts, limiting the quantum of punishment, it will result that courts of equity and law will be shorn of their power to specifically enforce their rules, orders, judgments and decrees rendered necessary in rounding out justice. To illustrate: A is ordered to depоsit valuable securities in court or turn them over to a receiver, or not to negotiate given negotiable instruments pending a suit affecting them. A refuses to obey the order, rule or judgment. In that condition of things, it has been said that A would willingly pay a small fine of $50 or be subjected to a short term of incarceration of ten days in the county jail rather than obey the order of the court. But the
It will thus he seen that the Legislature wisely left an unimpaired and unfettered power in courts to enforce civil remedies and rights where the rules, orders, judgments and decrees of the court made in that behalf are contumaciously disobeyed, by imprisonment until obeyed. That is the interpretation placed upon the statute by this court in Ex Parte Crenshaw, supra.
Not only so, but by section 1621, Revised Statutes 1899, as by original act regulating contempts, it is provided that notwithstanding the punishment for contempt by the court, if the act constituting the contempt be indictable, the party charged may be indicted and punished, the court being required to take into consideration, in punishing under the indictment, the punishment before inflicted.
We look in vain, then, into the statute for any legislative intent to impair the dignity of courts of justice or to strip them of their inherent constitutional power to punish for contempt, except on the point rightly decided in the Shepherd case.
Our statutes, therefore, if unconstitutional in other respects must be held so only because they put limita
The general doctrine seems to be that “a statute, which limits the amount of the fine, or term of impria-onment which the courts may impose, does not deprive' them of their power to enforce affirmatively their orders or to enforce any decree, whether affirmative or otherwise, which may be passed upon the final hearing of a cause.” [Rapalje on Contempts, sec. 11.]
State v. Morrill,
In accord with that pronouncement, the Supreme Court of Indiana held “that the Legislature may regulate the practice in proceedings against persons for an alleged contempt.” [Cheadle v. State, 110 Ind. l. c. 309.]
The language of that learned court in Hawkins v„. State,
In Mahoney v. State, 33 Ind. App. l. c. 658-9, it was held that: “While it is not necessary to look after any statute to ascertain whether a particular act does or does not constitute contempt, still, the Legislature may, within limits, regulate the procedure in such cases.”
In State ex rel. v. Miesen, 98 Minn. l. c. 20, it was held that: “While Legislature cannot take away from courts created by the Constitution the inherent right to punish contempts, yet it may regulate, within reasonable limits, the exercise of the power.”
In Carter v. Commonwealth,
It will be observed that the Virginia court holds that the phrase “inherent power” did not mean at common law a power entirely beyond legislative control. This is of significance, because the principal opinion in this case treats the power (because inherent) as entirely beyond, and independent of, such control. In this connection it is suggestive to note that in the mother country, the ancient seat of the common law, it has been assumed that the power is not an arbitrary and unregulated one. Statutes have been passed by the British Parliament from time to time regulating the
It must not be overlooked either that if it be conceded, by way of hypothesis, that the power to punish was unbridled at common law and that the lawmaking power could not regulate it a whit, then we come face to face with the proposition that it is not the whole body of the common law that was adoptеd in this State, but only that portion of it not repugnant to or inconsistent with the Constitution of the United States, or of this State, “or the statute laws in force for the time being.” [R. S. 1899, sec. 4151.]
On the last head, I do not hesitate to say that the unregulated, arbitrary, whimsical power to fine or imprison for contempt, a power that will not brook a mere temperate and reasonable control, is contrary to the genius of our institutions and the policy of our Constitution and statutes.
In Arnold v. Commonwealth, 80 Ky. l. c. 302, it was said: “While the right to punish is with the court, we are not prepared to say that it is not subject in some degree to legislative control; but, on the contrary, we are inclined to adjudge that a mere arbitrary discretion on the part.of the judge may be limited; but an attempt by legislation to deprive the courts of the inherent power of protection against assaults and indignities would be disregarded.”
In State v. Frew, 24 W. Va. l. c. 458, it is said, after a most exhaustive review of the authorities: “Therefore courts will tolerate the regulation of the power, so that the Legislature does not by such regulation substantially destroy the efficiency of the court. The courts must have just enough power and will exercise it for their own protection, and they want and demand no more. Whether or not the Legislature in its regulation has left sufficient power for the purpose, the court,
In other cases it has been cautiously held that the power to regulate within reasonable bounds to the extent that the regulation does not touch to the quick the dignity of courts and cripple the exercise of judicial functions, was well enough. In other cases regulating statutes have been enforced, as of course, under the doctrine of comity and to beat down all apparent judicial antagonism to the fair and reasonable exercise of legislative power. For example, in In re Ida Louisa Pierce,
So delicate is the subject of contempt that courts have been unable to hold an even and uniform voice in dealing with it. Cases may be found that apparently repudiate any legislative approach toward the control of the exercise of the. power of punishment, however reasonable it be.
But the doctrine of Chief Justice John Marshall in the great case of Gibbons v. Ogden,
To sum up: Prom an examination of many cases, well-reasoned and well-bedded in principle, the following propositions lying between two extremes may be deduced as sound doctrine:
(a) First. A constitutional court of common law power may not be shorn of the right to punish for contempt by a statutory enactment. That power, in its essence, is ingrained in such a court and becomes a part of its very being.
(b) Second. Either as a matter of comity, or of right, the lawmaker may (within reason) somewhat regulate that power so that an arbitrary judicial discretion may not run riot, rampant and wanton. And herein it must be kept in mind that a judge on the bench is, after all, but a human being, and has frailties inseparable from humanity. Therefore, when called to punish for contempt it not infrequently happens that he is smarting under such sense of personal humilia*201 tion, indignation or other master emotion, that, at least, a mote of prejudice may he assumed as in his eye.
(c) Third. The statute under review is a reasonable regulation, in nowise hostile to the inherent power to punish for contempt.
(d) That the power'to regulate does not in all cases nor in this case mean the power to destroy. To regulate a court is not to destroy it.
Finally, let us look at the effect of holding that the arbitrary power of punishment cannot be gently limited (or, if the phrase be preferred, gently tempered) by legislative enactment in a constitutional court. The Constitution does not limit it. Among other things it provides (Art. VI, sec. 1) “That the judicial power of the State as to matters of law and equity. . . shall be vested in a Supreme Court, . . circuit courts, criminal courts, probate courts, county courts and mw nicipal corporation courts.” All the aforesaid .courts are constitutional courts, and, therefore, not the creature of mere statute. In some of such constitutional courts there is no requirement of law that the individuals acting as judges should be learned in the law. They are taken from unprofessional ranks. Their legal judgment is not rendered sure, steady and staid by a study and comprehension of the principles of jurisprudence. Is it not a startling proposition to announce that thel citizens of this State are subject to an unbridled power m all such tribunals to summarily fine them in any sum, however large, and imprison them for any term, however long, for contempt? And yet to that complexion we must come if we go to the extreme of holding that a constitutional court may not be controlled by some known, fixed and reasonable rule of written law on the matter.
It is my opinion that the courts of Missouri need no such show of autocratic power. That they, in the future, as in the past, may more surely build their dignity and usefulness solidly on the intelligent respect
The judgment should be reversed and the cause remanded for further proceedings below.