*1 III v. N. L. W. W. Deramus, (Jack) Thornton, Honorable Al.
Et A-7593. 1960. February No. Decided Rehearing April Overruled (333 824) 2d Series *2 Thie, Clinton, Reeves, Denison, W. A. M. E. M. W. all of Touchstone, Moody Jacobsen, Dallas, O. 0. of Dan and Jake Austin, of for relator. both Turner, Rodgers, Winn, Terry, W. Scurlock & James Left-
wick, George Terry Rodgers, Dallas, all of for S. and James R. respondents. opinion
Mr. Justice the Culver delivered the of Court. application Brothers, temporary injunction On of a Neuhoff granted County was in the 44th Judicial District Dallas Court of restraining in 1956 Railroad thе Missouri-Kansas-Texas Com- pany Texas, together agents, officers, of servants with its and blocking obstructing employees willfully Alamo Street City one in the Dallas more than minutes time for five permitting by or car stand on and across that their trains sto Appeals Missouri- affirmed. intersection. The Court of Civil Neuhoff, Ry. n.r.e. Texas of Texas Kansas-Texas Co. v. [156 690]. Brothers, through 26, 1959, its January Presi- Neuhoff On charging complaint that the
dent, and Missouri- filed an affidavit officers, Company Texas and certain Railroad Kansas-Texas Deramus, Company, namely, N. agents employees W. willfully had Company others violated the President causing blocking permitting and injunctive order periods separate for crossing occasions oh 86 Alamo Street hour, an more than on occasion one varying minutes from six July 16, 19.58, January 2 to and that during period of from were, therefore, agents in con- officers and its railroad tempt accordingly hearing of court. a Notice was issued and crossing had. The Court found that had been blocked during period excess of five minutes on 86 different occasions alleged. adjudged relator, Deramus, “acting as He in- dividually and officer of the Missouri-Kansas-Texas Rail- * ** knowingly, willfully road of Texas” “did knowledge judg- with full in violation of the order and County, ment of the 44th District of Dallas Judicial Court Texas, permit crossing City and cause the Alamo Street Dallas, Texas, standing period train blocked for Court, therefore, of time excess of five minutes.” The held Deramus, relator, of court each and every separate one of the set forth above and distinct acts.1 punishment The Court fixed his at a fine of and confine- $50.00 county jail period days ment three for each and *3 alleged violation, every separate totaling a fine in sum of $4,000.00 days. and confinement for 240 The relator was further paid until fully ordered confined such time as he had the fine assessed, together all judgment with of costs court. In that George, Superintendent Court also found officials R. B. Eugene Franklin, Superintendent District and North Texas of Terminals, charged guilty separate the Dallas tions, as on 80 viola- $800.00, jail and assessed each fine of and a sentence days. operating employees guilty of 160 were Certain also held punishment of was assessed as follows: E. E. guilty violation, day jail; Cook one fined and one in $5.00 Davenport violation, guilty day F. of one V. fined and one $5.00 violations, jail; days in Huffaker C. B. four fine and four $20.00 violations, jail; Morgan fine, days in two G. W. two in $10.00 violation, jail; day jail; $5.00 R. Peters one fine and one Railey violation, day jail. $5.00 G. one fine and one W. Addi- tionally, Missouri-Kansas-Texas Railroad of Texas separate each all was held in for of the 80 viola- $8,000.00. a fine of and assessed tions imprison- provided in decree conclusion that the fine and against all hereby ment assessed each and “shall be and is sus- period days immediately pended succeeding the date judgment.” of this Judge conference with the
In an informal of the 44th Dis- Chambers, Court, prior judgment, trict rendition coun- parties inquirеd being present, judge for all as sel to the begin required grade length of time construction of why explanation is furnished was convicted of 1.—No 80 violations proven. said were of all 86 as the Court established and instead separation crossing, including drawing at the Alamo plans preliminary and other and was told that it matters probably would take about three months. The then stated get that he probably days would allow 120 the construction way. under Preliminary judgment to announcement of the the cоurt
spoke part as follows from the bench: “I have reached a conclusion here I which believe and which hope up I will clear the situation out a thorn there has been in the side years. of Neuhoff and the railroad for several It oc- curs to me that it would interest the railroad and cooperate to Neuhoff to with one another in order that * * * might situation impress upon you be remedied. I want to - - this idea suspended the convictions here have been days. This has been done because the court has been assured length officers railroad that within that time finally underpass construction which work will in an result place begun. this will have This court has no desire to vindic- tive upholding judg- about this matter. I am interested in Court, Court, ment of the all courts.” underpass began Actual construction on the days within 120 being from the prose- date of the and has and is diligence. cuted with No further action was taken in this cause 19, 1959, Judge until November when the informed the rail- following attorney road’s that he has set the *4 November 27th relator, Deramus, as the date the all when and that others had adjudged contempt present were to been be and court re- sentences, commitments, their fines ceive both aas result judgment 13, April entered of the theretofore on 1959. This oc- days entry judgment after the of that curred some 216 suspension and the granted days. had for been 120 granted peti- Thereafter we the motion for leave the to file relator, Deramus, mandamus in behalf the fоr writ tion Judge the 44th District Court praying that be ordered expunge contempt judgment said to vacate and commanded and against contempt proceedings. and to dismiss that the writ of mandamus contends is The relator available here and that the circumstances the alternate him under inadequate. only, corpus inadequate, is It is remedy of habeas confinement, his arrest and it would necessitate says, because application for until his relief could temporarily, leаst 498
presented Court, stigma to this thereby entailing pro- of this cedure. But that would every true in case of this nature. Had Judge suspended District not judgment normal followed, course would remedy adopted have and the by the relator necessarily application could have corpus. writ of habeas 1 Even logic so there is considerable in relator’s contention ample supporting authority jurisdictions.2 from other We uniformly have State, however, validity held in this judgment of a only collatеrally can be attacked by way corpus. of habeas Recent decisions to effect Tims, are: Tims 995, ref.; Wagner v. 204 2d S.W. wr. er. v. Warnasch, 156 Texas 890; 295 2d Ex R. B. Parte
Arapis,
Texas
In fact, however, view of the fully that the has case been argued, briefed and аnd that the entire statement of con- facts sisting 1,000 pages of more than of evidence adduced on the hearing here, we it inappropriate, deem not consid- ering case, express the unusual facts this to our views on validity the of this order in only so far it affects relator, the Deramus. following
3 contemptuous testimony is all of the upon relied to show injunctive violation of injunc- the order. Writ of granted 1956; tion was in became President of the Railway Company Texas, Missouri-K. & T. of all railway system, the knowledge thereby charging branches with him injunction. the He been in Dallas at various times, though City to shown have the on the occa- any blocking crossing; sions of of the he has discussed generally railway problems George, the with Mr. Division Su- George perintendent, and that Mr. was evasive his answers as discussed; to matters that as President of the railroad the authority power prevent relator blockings because, had to correct and respondent says, so this sort of manageriаl power position occupied is inherent rela- tor; personal responsibility that he admits for railroad traffic operations switching point across Alamo Street and at that for grade reason he has commenced construction of a separation; George had discussion with Mr. that he in 1957 employed prevent could be with reference blocking means crossing. Alamo If inference could be drawn that discussion it would seem be officers endeavoring comрly with the were order. In no way as a construed willful intention to could it be violate the merely injunction. can be said that it because the relator Unless system, T. personally M. K entire & President is responsible blocking crossing every for each occasions, against then case different him must of the 80 one fact that on 16 of Incidentally, these 80 it is occasions fall. according six minutes crossing blocked to the *6 employed by op- witness Neuhoff Brothers to check railroad Manager, point. erations at this The Vice-President and General sys- Dallas, Superintendent who lived in tem, and for the entire Additionally, contempt. were not cited there was Division, Superintendent chain of of the Northern George, Terminal, Superintendent Mr. and the Dallas of the Franklin, employees. Mr. as well as and various other officials attempt by No was made Neuhoff Brothers to fix the and duties responsibilities these It is in mind officials. to be borne thing company it is one to hold the railroad for the acts liable agents employees, quite and it is another to hold the Presi- of dent responsible agents employees. for the acts of these and employee respon- President himself is and his duties and regulations bylaws sibilities are determined of the company, subject control, least, some extent Company. say of the Directors To the President of this Company Louis, Missouri, general headquarters with St. imply direction of the affairs of the does not that he is charg-eable personally operation with all details of the by any proof It the road. knowledge shown relator had alleged 1958, these violations in much less that willfully knowingly Only ten violated order. viola- against employees performing were found train tions the actual yard operations. approxi- The record shows that there are crossing mately movements over the in each Alamo Street during period, 57,000 period than of these 24-hour more blockings 16, January July occurred from 1958 to which supervised the President all these would For have movements crossing. daily required all attention at the Alamo have of his following posted The record shows that the bulletin for the actually operation guidance train un- of those movements Superintendent January on instructions from the Division der January 7, 1958, again re-posted on re-issued and January 1959: on Street,
“January 7, 1957, 7, Alamo bulletin No. must not longer than under circumstances be blocked five minutes switching crossing. Arrangements performing over this when drag to either shove back or forward thi‘s must be made over every crossing, practicable, minutes, is most five whichever re- switching, sight gardless delay whether automobiles are in together doubling crossing trains over this hose or not. When air test all cases in order for to be made without used will be crossing.” blocking the any showing an entire absence this bulletin There good was not issued faith, certainly indicating a lack of in- tentional and willful part violation of the order on the officials of Company. *7 Respondent relies Genecov, on Ex 476, Parte 143 Texas 186 225, 2d 1099, 160 urging, apparently, A.L.R. in that be-
cause the relator is the President
Company
of this
that
is
he
ipso
guilty
facto
of willful
respondent’s
violation. Attached to
answer is a
copy
certified
judgment
of
in that
charged
case. It was
that Roosth and
Production
Genecov
Com-
pany,
corporation, acting
by
through
officers, agents,
its
servants
employees,
A.
acting
Roosth,
S. Genecov and Sam
individually
agents
and as officers and
company,
of that
with
contempt of the
particular
Court
in 36
violations
Company
the in-
junctive order. The order
restrained the
and it em-
ployees
discharging
by seepage
otherwise,
or
salt water
polluting
or other
substances into certain
appears
streams.
It
officers,
one of
Roosth,
Sam
guilty
was found not
any
alleged,
of the 36 acts
but that
and Genecov
adjudged guilty
were
of violations. What the evidence revealed
participation
as to Genecov’s
responsibility
or
shown,
is not
but
questiоn
no
was raised as to the want of evidence.
Contempt proceedings
generally
are
criminal in their nature
grow
they
whether
out of criminal or civil actions. It follows
proceedings
then that
should
nearly
prac-
conform as
ticable to those in criminal
Scott,
cases. Ex
Parte
133 Texas
Palmateer,
the evidence сontemptu- of some evidence punishment in the absence order *8 White, 126, 274 2d 154 Texas S.W. Ex Parte disobedience. ous 563, 85; Bethurum, 2d Ex 272 542; 153 Texas S.W. Ex Parte 140, 2d Morris, 215 598. Texas S.W. 147 Parte mandamus is denied. application for writ of 24, February Opinion delivered dissenting. Smith, Mr. Justice “wilfully” in the record is no evidence There manner, permitted any or caused “persistently,” other or in or crossing time. The tem- to be blocked Alamo Street 20, January did on 1956. Relator injunction issued porary company until June 1957. railroad President not becоme guilt, have the relator should no evidence there was Since against dis- proceedings him acquitted and the guilty person of vio- cannot be It is fundamental missed. lating any knowledge. parte Ex had no See which he order of 1000, cir- Stone, Rep. 1903. Under Crimp 72 S.W. Texas complete absence evi- here, shown as cumstances one of entered was “not to have dence, proper order conformed to the evidence. would have guilty.” an order Such respondent Procedure. The 301, Rules of Civil Texas Rule See judg- jurisdiction to render the or judge was without is ac- render such it did contempt which ment jurisdiction hold in this to so court cordingly This void. volume, Williams, parte Joy this Ex proceeding. See mandamus Henry, 6, 1960) ; parte 147 Ex (January 605, 314, 2d 330 S.W.
503
315,
Texas
588;
126,
parte White,
2d
Ex
S.W.
154 Texas
542;
parte Twedell,
214,
2d
Ex
S.W.
158 Texas
2d 834.
S.W.
It is true that
commonly
the above cases are what we
de-
nominate as
corpus cases, but,
my opinion,
habeas
the con-
expressed
clusions
in each of such cases leаds to the further
judge,
conclusion that
case,
where a
as in the instant
has de-
termined
ment,
judg-
to commit and fine a relator on a void
power
court has
to issue writs of mandamus and
prohibition
prevent
the enforcement of a void act.
Yett
See
Cook,
175,
843;
v.
(1925),
115 Texas
stitution a relevant said that mandamus would not merely lie to a correct erroneous or voidable order of a trial judge, but would lie to “correct” one which was void for lack power only way of judgment to enter. The to “correct” the void adequately paying $4,000 to relieve the relator from a fine of days county jail, and confinement of 240 is for this court statutory duty perform by entering its to constitutional a granting proper judgment prayed for, thereby the mandamus as judge proceeding prohibiting respondent the further to sentence relator. urged by respectfully respon- that the course
I submit the adopted by judge apparently majority dent view here go jail by seek corpus to and then relief the relator habеas that remedy judgment. a adequate person, from void an No is not labor, Twedell, as was parte a member in Ex he be whether president company, of a railroad Twedell, supra, or relator here, by for one minute should be humiliated incarceration corpus. pursuing by required when relief writ habeas requir- “long majority policy mentioned established” logic reason, go law, ing person jail to to has no basis Moreover, respectfully necessary. I is relief where immediate possibly respondent judge disagree statement with the judgment. The contemplates no enforcement fully to commit judge intends undisputed that evidence Therefore, it court. prevented this unless and fine relator respon- presumed the circumstances cannot under judgment his attempt enforce void judge will not dent contempt. compelling the mandamus issue its writ of should This court his void judge to vacate
respondent against relator. February
Opinion delivered REHEARING FOR ON MOTION opinion Court. delivered Culver Mr. Justice rehearing praying that our filed a motion Relator original mandamus original aside and set order be that, notwithstanding view says granted. this motion In attempt judge would not opinion that a expressed in our void, respon- had indicated to be which we order enforce and de- had revealed a fixed by public utterances judge dent jail. He further the relator to sentence intention termined corpus issued that a writ of habeas contentions reiterates his that his con- jail inadequate and placed in had after hе being rights impaired. are stitutional its denial of writ not consider In the the Court will event regarded as an prays this motion be of mandamus application writ be corpus and that a writ of habeas implied restraint and threats granted him from to free presently arrest. newspaper accounts a number of quotes from Relator impose jail part on the reported threats reveal upon opportunity and to insti first at the the relator sentence *10 in Missouri him arrested proceеdings to have extradition tute executing purpose of brought for the Dallas newspaper Copies these ar assessed. contempt heretofore . to the motion are attached ticles hearsay entirely place reports In the are first these actually judge in- cannot be considered as of what evidence said they it is to be probative tends to force do. Even if were of may not have possibly explanation respondent judge that the reply to the import In his decision. understood the full our pointed rehearing says: be out motion for “It should also Contempt as repeated to the Order that Relator’s reference can and support. a This is matter ‘void order’ without properly only Relator files properly in the event should heard be reading Corpus.” Application A our an for Writ Habeas certainly original our con- opinion indicate view would void, being support in the evidence was tempt without order say exрressly as much. not but we did misunderstanding may we now there no
In order be Deramus, relator, order that as to the hold imprisonment. support any not fine wholly void will very again presumption firm assert We attempt an order that judge to enforce belief that no trial will If confinement thereunder. and direct we have held to void history the first time it would be for this should occur jurisprudence far as we know. of Texas so according presume to the place 7 In the second we further case, that practice in this heretofore followed prior to danger arrest, certainly not relator is under no failure appear in his him of a court service on notice put to Admittedly would be con- respect that notice. making appearance, but is a an inconvenience siderable degree than difference. rather matter of present time is perceive rlator at the do not We gomay He and come whatever. of restraint character under as treated freely fit for this motion as he sees premature. corpus would be of habeas for a writ application will be overruled. The motion April
Opinion delivered