3 Wyo. 396 | Wyo. | 1890
The petition for the writ of habeas corpus recites that Isaac Bergman, the petitioner,is a citizen of the United States of America, and of this state, and is restrained of his liberty by John A. Martin, as sheriff and jailer of the county of Laramie, at the jail of said county; that the pretense of such restraint, according to the best information of the petitioner, is by an order of commitment of the district court of the first judicial district, sitting within and for the county of Laramie, a copy of which order is attached to the petition; that the restraint and imprisonment of the petitioner is illegal, in this: (1) That the said district court was without jurisdiction in the premises; (2) that the said commitment was made in an alleged proceeding for contempt, which alleged contempt consisted in not obeying what is called a “ request” or “ order, ” which is attached to the petition, and in not obeying what is called a “further order, ” also attached to the petition; (3) that the said order of commitment was illegal, in this: that it is without limit; (4) that the said order of commitment is illegal, in this; that the said petitioner was held in contempt in matters which had not occurred at the time the said last-mentioned order was made returnable, and in which the petitioner had no hearing, and no opportunity to be .heard. The petition closes with the usual averments that the illegality of the imprisonment of the petitioner has not been adjudged upon a prior proceeding of the same character, and that the application for the writ has not-been made to, and refused by, any court or judge. The orders referred to are sufficiently set out in the answer and return of the said sheriff to the writ, and the substance of such answer and return is given in this opinion.
This court has been invested with original jurisdiction in habeas corpus by the constitution of this state. Section 3, art. 5, of the constitution of Wyoming. The supreme court of the territory of Wyoming also exercised this original jurisdiction, under the organic act of the territory and the acts of congress relating to habeas corpus. The proceedings and practice in babeas corpus set forth in chapter 1 of title 17 of the Revised Statutes of Wyoming appear to he applicable herein, and the petition and answer are drawn thereunder. Under the provisions of this statute, the writ-does notissue, as of course, upon the application. Sec. 1269, Rev.St., provides that “if, from the showing of the petitioner, the plaintiff would not be entitled to any relief, the court or judge may refuse the writ.” And section
Our examination of the petition, after a long and exhaustive argument, in which the sufficiency of the allegations of the petition were not raised, or even alluded to, except as to the legal effect thereof, shows the petition defective in many particulars. The allegation that the court is without jurisdiction does not state wherein either as to the person or the subject-riiatter of the pontempt proceedings, and in fact the whole petition is lacking in'sufficiency aiid perspicuity of statement. In order, however, to decide the question raised in the fourth allegation of the petition, we reluctantly granted the writ, as it appears impossible to determine, from the order or mittimus attached to the petition, that the hearing was had, and we prefer to err on the side of liberty, and to “spell out” vague and indefinite allegations, and ta order a hearing, in order that the whole record of the committing court may be reviewed, and that the important public questions raised in the argument of counsel may receive a careful and thorough consideration at our hands.
The answer and return of tne sheriff of Laramie county aver that he has now, and since the 17th of November, 1890, has had, the petitioner in his custody under and by virtue of certain orders and process of the district court of Laramie county, certified copies of which are appended to the answer and return. These papers were submitted in evidence, and constitute the record and proceedings of said court in this matter. The record discloses that the petitioner, Isaac Bergman, was probate judge of Laramie county on the 10th day of July, A. D. 1890, when the constitution of this state went into effect; that, as such judge and court, he had actual possession of the records, papers, and proceedings of the late probate court of Laramie county on that day, and has continued in such possession since that date; that the district court of said county, claiming that, by operation of the constitution, the same were transferred iu contemplation of law into the custody and possession of said court, on November 11, 1890, when Bergman was in said district court, required him, in open court, to deliver the records, papers, and proceedings of the late probate court of Laramie county to said district court, or show cause why he should not do so; that thereafter the court made an order requiring the sheriff of Laramie county to request and demand of said Bergman the said records, papers, and proceedings, finding that the same were in Bergman’s possession, and requiring him to turn over the same to the sheriff; that such order was served by the sheriff, who made said request, to which Bergman made no response, and did not turn over any books, papers, records, or proceedings to the sheriff; that thereafter the district court, finding these facts, and that Bergman was still in the actual possession of the probate records, and had been since July 10,1890, in the actual possession thereof, and had failed to turn over the same to the court, or its clerk or appointed officer, entered its order, and directed the service of a copy thereof on said Bergman, requiring him to appear on November 17, 1890, at an hour specified therein in said district court, and to there show cause why he should not be punished for his contempt of court in re
1. It is contended that the rule or order to show cause is a “process” of the court, and, as section 15 of article 5 of the constitution of this state provides that “the style of all process shall be ‘ The state of Wyoming,’” that the rule or order not being so styled was void. In the case of Wilson v. Territory, 1 Wyo. 155, the only reference in the opinion on this point is this brief sentence: “We further believe that the plaintiff' in error did not waive any of his rights in these proceedings, by appearance or otherwise.” But, in that case, the court below was held to be without jurisdiction, because it had issued an attachment for contempt agaiust Wilson for the purpose of showing cause why he should not be punished for contempt, without any evidence, by affidavit or otherwise, showing that a contempt of the court had been committed. Here the committing court had an affidavit and other evidence before it, and the proceedings are not similar. In the Wilson Case, the court acquired, or attempted to acquire, jurisdiction by its attachment; but in this case the district court for Laramie county acquired jurisdiction by the personal service of its order or rule, and by the voluntary submission of Bergman, who appeared, as the record discloses, both in person and by counsel, and the question of jurisdiction was not raised, and the validity of the rule or order to show cause was not questioned. The case cited by counsel for the petitioner establishes the rule. Dix v. Palmer, 5 How. Pr. 234. Whenever the defendant appears in a civil cause, he admits himself to be regularly in court, and hence all defects in the summons and its service, and even the total omission of any summons at all, become immaterial. This rule in civil causes, where the process has been irregular or defective, we apprehend would apply to criminal or quasi criminal cases; and, when a defendant appears and pleads to an indictment, he would not probably be heard to complain that the bench-warrant upon which he was arrested was not styled, or did not bear teste, in the name of the sovereignty.
2. We can hear, under the allegation of want of jurisdiction, objections to the power of the court to issue the several orders to turn over the papers and records of the late probate court of Laramie county, and its authority to punish for
The clause in section 19 of the schedule (article 21) of the constitution, “who may be in office at the time of the adoption of the constitution,” must mean such officers as are permitted to hold their respective offices by the terms of the constitution, and not such as are ousted by its provisions. Any other rule of construction would defeat the plain intent and meaning of the constitution. Under the territorial statutes, although the offices of probate judge and county treasurer were combined, and the probate judge was styled ex officio county treasurer, the intent and meaning of the various statutes
3. The district court being constructively in the possession of the records, papers, and proceedings of the la te probate court of Laramie county, the petitioner holds them subject to the order of the court, and as a custodian thereof. He- has no right to them in any other capacity. Until they are turned over to the district court, which is entitled to the jurisdiction and possession of them, his possession is but the possession of that court, and he becomes directly subject to the orders of that court, while the records remain in his possession, in regard to the same. He stands in the attitude of a custodian.of the records of a court, and he must produce them when called upon. On refusal to do so, he may be punished for contempt. A court of general jurisdiction must have the inherentpower to control its own records, upon which its existence depends, and which have been lodged in its jurisdiction and possession. It would be impossible for such a court to exercise its probate jurisdiction, lately exercised by its predecessor in probate matters, without access at all times to the records of the late probate court. Without actual possession thereof, the court would be thwarted at every step. It could not adjudicate upon pending cases, nor could it know judicially that such cases were in existence, or the status-thereof, without a consultation of the records of the late probate court forits county. We cannot imagine a more chaotic state of affairs than the spectacle presented of a superior court, having a jurisdiction and unable to exercise it, with litigants clamoring for relief and action, and no means for affording them relief, with its records in the hands of one who refuses to surrender them, and with no power to compel, by summary proceedings, their production, or to punish the contemnor, in case of a refusal. Such a condition of affairs would be extraordinary. The rights of infant heirs, the tender care of insane and incompetent wards, would be set at naught, and no means provided to conserve an estate, to prevent its spoliation, or to protect those ever under the watchful and jealous eye of a chancellor. Unless such a court has control of its records, and power to secure actual possession when it has constructive possession, thereof, by drastic measures, its jurisdiction cannot be exercised or enforced', and the very object for which it was created would be absolutely defeated by the whim or caprice of one who has actual possession of its records.
4. While mandamus may lie to reach the one withholding the records of probate matters, the court is not compelled to wait the slow motions of some litigant in its probate branch who desires relief. The court, being entitled to these records, and papers, and undoubtedly competent to reduce them to its own possession, may
5. The statutes of this state recognize the distinction between punitive and coercive contempts. Section 2602 of the Re vised Statutes provides that a witness refusing to be sworn to answer a question, or to subscribe to a deposition when lawfully ordered, may be imprisoned in the county jail, “there to remain” until he submits to be sworn, testifies, or gives liis deposition. Section 121 of the crimes act (Sess. Laws 1890, p. 144) provides that “whoever, having been duly served with a subpoena or citation, duly issued, refuses or willfully fails to obey the same, or secretes himself, or leaves the place of his residence to avoid being served with a subpoena issued, or that he has reason to believe will be issued for him, in any cause pending in any court, or in any matter before any legal authority, or, being present before any court or legal authority, and called upon to give testimony, refuses to take an oath or affirmation, or, being-sworn or affirmed, refuses to answer any question required by such court or authority to be answered, shall be fined not more than five hundred dollars, nor less than ten dollars, to which may be added imprisonment in the county jail not more than ninety days; but this section shall not prevent summary proceedings for contempt.” This section does not apply to the enforcement of an order of the court like the one under consideration, and it strictly and expressly provides that the section shall not prevent summary proceedings for contempt. An indictment setting forth the facts in this case could not be drawn under this section. There is absolutely nothing in our statute that regulates the proceedings in contempt cases, except those quoted above. One of the methods of punishment for civil and criminal contempts, disclosed by an examination of the authorities, is imprisonment to compel compliance by a party or witness with the requirements of an order or decree of court, (Rap. Contempt, § 180;) and so in 2 Bish. Grim. Law (7th Ed.) § 271, it is said: “When the proceeding is to enforce an order or to do a particular thing, the only escape for the defendant from perpetual imprisonment is, usually, to comply. ” In Williamson’s Case, 26 Pa. St. 9, Black, J., eloquently says: “Some complaint was made in the argument about the sentence being for an indefinite time. If this were erroneous, it would not avail here, since we have as little power to revise the judgment for that reason as lor any other. But it is not illegal, nor contrary to the usual rule in such cases. It means commitment until the party shall make proper submission. Regina v. Paty, 2 Ld. Rajrm. 1108; Yates’ Case, 4 Johns. 375. The law will not bargain with anybody to let its courts be defied, for a specified term of imprisonment. There are many who would gladly purchase the honors of martyrdom in a popular cause atalmost any given price, while others are deterred by a mere show of punishment. Each is detained until he finds himself willing to conform. This is merciful to the submissive, and not too severe upon the refractory. The petitioner, therefore, carries the key of his prison in his own pocket. He can come out when he will, by making terms with the court that sent him there. But, if he chooses to struggle for a triumph, — if nothing will content him but a clean victory or a clean defeat, — he cannot expect us to aid him. Our duties are of a widely different kind. They consist in discouraging, as much as in us lies, all such contests with the legal authorities of the country.” To the same effect is the opinion of Kent, C. J., in the Yates Case, quoted with approval in the Pennsylvania case, supra, where the question to be decided was the sufficiency of the return “that the prisoner was committed until tbefurther order of the court.” In Re Allen, 13 Blatchf. 275, it is held: “When the contempt consists of a violation of the order of court, and is a contempt not committed in its presence, and the statute does not prescribe the form of the order of commitment, the defendant may be imprisoned until he be discharged by order of the court, or until the further order of the court; ” citing and accepting the doctrine laid down by Kent, C. J., in the Yates Case. In Ex parte Sweeney, (Nev.) 1 Pac. Rep. 379,
6. The further objection is made that there can be no commitmentfor contempt, where the contemnor may be proceeded against by an indictment, and the following cases are quoted in support of this view: Baldwin v. State, 11 Ohio St. 681, and State v. Blackwell, 10 S. C. 37. These are strong cases, but we think that the court in eaqh case relied upon the peculiar statute of the jurisdiction. We have no statute at all that would reach this case, that we have been able to discover, with the assistance of the learned counsel, that provides any punishment in eases of contempt like the one under consideration. The great weight of authority, in the absence of direct statutory provision, is in the other direction. 1 Bish. Grim. Law, § 1067, and 2 Bish. Crim. Law, § 264, and the cases there cited. The only criminal statute providing punishment for contempt, and fixing a definite penalty, is section 121 of the crimes act, quoted above, and this expressly disclaims any attempt to curtail the power of the courts in this direction; hence authorities cited where statutory provisions regulate proceedings in contempt cases can have no weight with us. The common law prevails here, and is strengthened by our statutes, which run in the same line and in the same direction.
7.-It might be held that the contempt committed in the case before us was not a constructive contempt, but one committed in facie curiae, and the following cases would seem to sustain such a view: Ex parte Robinson, (Cal.) 12 Pac. Rep. 794;