Evans v. UnruhEvans v. Unruh
- Reporters:
- , ,
- Before:
- Rentto
This is а contempt proceeding. The defendant, a practitioner of Swedish massage at Elkton, South Dakota, since July 1, 1958, was enjoined from violating the provisions of our law concerning the practice of the healing arts. Subsequently in an appropriate proceeding it -was determined that hе was in contempt of court because of his violations of the injunction. He was sentenced to pay .a fine and serve time in jail. The jail sentenсe provision of the judgment was conditionally suspended. He posted security to stay execution of such judgment pending his appeal therefrom.
While he assigns numerous errors their effect is to challenge the sufficiency of the evidence to warrant finding him to be in contempt and the propriety of the sentence imposed. His practice was much the same as that indulged in by the defendant in the case of Evans v. Hoyme, —S.D.—,
The judgment which defendant is charged with violating enjoined him from:
“Operating or utilizing in any manner equipment used in the diagnosis оr treatment of human ills, from advertising in any manner that he is qualified to engage in the diagnosis and treatment of a human ill and from engaging in, offering to engage in, or holding himself out in any manner as -qualified to 'engage in the diagnosis or treatment of any human ill.”
While the court did not determine that defendant violated the provisiоns of the injunction concerning the use of *56 equipment in diagnosis or treatment, and advertising that he was qualified to engage in diagnosis and treatment of human ills, it did find thаt he wilfully violated the other prohibitions thereof. We are satisfied from our review of the record and the transcript of the testimony that these findings arе 'amply supported by the evidence and justify the conclusion that he was in contempt.
While it is lawful for a person in this state to practice Swedish mоvements without being licensed, in administering such movements; he may not “in any manner engage in, offer to engage in or hold himself out as qualified to engage in the diаgnosis or treatment of any human ill * * SDC 1960 Supp. 27.0318. Or as we said in the Hoyme case “One engaged in that activity may not under the guise thereof do any of the things, prohibitеd by this act.” The testimony of the witnesses against him, and even some of the defendant’s own testimony, compels the c'onclusion that he wilfully violated portions of the in junctional judgment entered against him. Accordingly we must hold that the court was justified in holding him in contempt.
In addition to' being fined $300 he was committed to the cоunty jail of Brookings County for a period of ninety days. The judgment contained the further provisions:
“* * * that the jail sentence herein imposed may be suspended upon condition that the defendant pay the -fine and that he absolutely desist and refrain from carrying on hie practice at Elk-ton, South Dakota, and that he conduct himself as a law-abiding citizen for a period of two years.”
His complaint about the judgment concerns the condition of suspension by which he is prohibited from carrying on his practice at Elkton, South Dakota. He contends that the court was without power to deny him the right to practice Swedish massage, movements and exercises as authorized by law.
*57 In support of the judgment plaintiff cites SDC 65.0107 as authorizing the fine and imprisonment imposed by the court and the conditional suspension of the jail sentence. The short answer to this is that the cited section specifically provides that it shall not “affect or regulate the power of any court to punish contempts of such court for violation of any of its own rules, regulations,, orders, judgments, dеcrees, commands, or judicial functions in cases where such jurisdiction inheres in the court as part of its judicial powers or jurisdiction * * As we see it that section involves only administrative contempts while we are here concerned with a judicial contempt.
As further support for the judgment plaintiff relies on the provision of our constitution and the section of our statute providing for the suspension of sentences of persons convicted of сrime- under the laws of this state. Art. V, § 39 and SDC 1960 Supp. 34.3708. In our view these provisions are not applicable to the situation under consideration. Even though this is a cаse of criminal contempt the defendant was not convicted of a crime in the sense in which those words are used in these provisions of our law. Stаte v. Knight,
The acts constituting defendant’s contempt are also made a crime with each day of such conduct constituting a separate offеnse. SDC 1960 Supp. 27.9953. Had the defendant been prosecuted for such crimes and found guilty by a jury then the provisions urged would be pertinent. The power to punish for judiсial contempt is inherent in courts of general jurisdiction. City of Mt. Vernon v. Althen,
While a sentence in any casе of contempt results in punishment of the defendant its purpose is different depending on whether it is civil or criminal. Simmons v. Simmons,
Conceding that our cases spеak of punishing for contempt by only a fine or imprisonment, nevertheless we believe it to be within the power of the court to suspend the imprisonment оr remit the fine on conditions that are reasonable and legal. In County of Minnehaha ex rel. Willadsen v. Willadsen,
The suspension provision of the judgment in this case is somewhat ambiguous. It is possible to reаd it as requiring the defendant to refrain for the rest of his life from carrying on the practice of Swedish movements .and exercises at Elkton, South Dakota. Such condition, we ■think would be unreasonable and improper. It is also *59 possible to view it as placing such restraint upon the defendant for only two yeаrs. Looking at it in the light of statements made by the trial judge at the c'onclusion of the hearing it is clear that he intended the latter. This condition we hold to be a proper one. Under the circumstances of this case it is reasonable and legal. Accordingly, the judgment is affirmed.