24 Kan. 214 | Kan. | 1880
The opinion of the court was delivered by
On the 17th of May, 1880, the judge of the thirteenth judicial district caused an attachment to be issued against D. A. Millington, the editor and publisher of the Winfield Courier, for contempt, on account of certain articles published in said paper. The same day, Millington was arrested, and after a hearing, adjudged guilty and fined two hundred dollars. This order and judgment have been brought to our consideration both by habeas corpus and appeal. They are challenged on various grounds, and said to be not only erroneous, but absolutely void. It is claimed that if said Millington were guilty of a contempt, the punishment imposed is one beyond the power of the court to impose, and therefore void. Again, it is urged that the court had become adjourned by operation of law, and that therefore this entire proceeding was extrajudicial and void. Further, that the articles complained of did not constitute a contempt, and had no tendency to obstruct the administration of justice. And still further, that the answer of said Millington fully exonerated him.
It is obvious that some of these matters are not open for consideration in the habeas corpus proceeding. For in that, only questions of power, and not questions of error, are before us.
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation, or at chambers, as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders, and to punish for contempt in open court, or at chambers, by fine not to exceed one hundred dollars, and imprisonment, or either, and to assign not exceeding one attorney to prisoners who may be unable to employ counsel.”
The argument is, that as the constitution provides that the district courts shall have such jurisdiction as may be provided by law, (Const., art. 3, § 6,) and that as this is the only section in which the power of the court or judge to punish for contempt is named, it includes all the power vested in a court or a judge in matters of contempt.
We do not agree with counsel in these views. The plain language of the section is a grant of power to the judge, and not to the court, and the constitution provides that the several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law. (Const., art. 3, § 16.) The section all the way through grants power to the judge, and not to the court. It is true, it speaks of “contempt in open court or at chambers,” but it grants no power to the court; it simply provides what the judge may do in such cases. The prior section grants power to the court, and gives it “general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law)”. It may be conceded that the language of § 2 is not altogether apt or happy, but as we construe it, it contains only a grant of power to the judge in vacation in pursuance of said § 16 of the constitution, and gives to him a power at chambers to punish for a contempt committed in open court. Such is the plain reading of the language; and when we
A second proposition of counsel is, the district court of Cowley county, the county in which these proceedings were had, had become adjourned by operation of law, and therefore that this entire proceeding was extrajudicial and void. The facts are these: This proceeding was commenced and trial had on the 17th day of May, and judgment rendered on the 18th. The 17th was the day fixed by law for the commencement of the term of the district court in Sedgwick county, and in fact both on the 17th and 18th, and at the times these proceedings were had, the district court of that county was in session, a judge pro tem. having been elected in the absence of the regular judge. It also appears that the district court of Cowley county, which had been in session for some time, was on the 13th adjourned over the 14th and 15th, and to the 17th, the day for the commencement of the Sedgwick county term. Now upon these facts it is contended that two terms of the district court cannot be held in the same district on the same day, and that as the 17th was the day fixed by law for the commencement of the Sedgwick county court, the adjournment of the Cowley county court to that day was virtually an adjournment sine die; or at least, that the Cowley county court could not be held upon that day, or until some adjournment had been made of the Sedgwick county court. In the case of The State v. Montgomery, 8 Kas. 358, it
It follows from these considerations that the adjournment of the Cowley court to the 17th was void, and the proceedings on the 17th and 18th in that county were extrajudicial and void. There was no court then in session in that county. Habeas corpus will lie in such a case, and the petitioner is entitled to a discharge. Such is the order which must be entered in this case; and in the appeal, the order will be, that the judgment apparently rendered in court-time will be reversed, and the appellant discharged. The same order will be entered in the two cases of William Allison. Under these circumstances, it is unnecessary and probably improper for us to consider the other questions presented and discussed by counsel.