| Wis. | Jan 15, 1878
Lead Opinion
I. Within the rules of Attorney General v. The Railroad Companies, 35 Wis., 425; Attorney General v. Eau Claire, 37 id., 400; State ex rel. Wood v. Baker, 38 id., 71; and In re Semler, 41 id., 517, we think this is a proper case for the exercise of the original jurisdiction of this court. The interest of the state in the personal liberty of its citizens is primary and proximate, and to secure such liberty to each citizen entitled thereto is one of the most important pui-poses of government. “ All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men.” Const., art. I, sec. 1. It was said by this court in Sender’s case, that “ no rule should be adopted restricting the jurisdiction of this court over the writ of habeas corpus, which has ever been regarded as the best safeguard of personal liberty, except for the most weighty considerations. The plenary power of this court over the writ has frequently been asserted and exercised under the constitution, and has hitherto not been questioned.” (p. 522.)
In Attorney General v. Eau Claire this court took original
In State ex rel. Wood v. Baker we issued a writ of quo warranto, to inquire into the right of the relator to a county office, alleged to have been usurped by the defendant, because of the necessity of a speedy determination of.the right, and because the judge of the circuit court for the county was so situated in respect to the question that he was disqualified, in propriety if not in law, from sitting judicially in the case, and because we believed he would, for that reason, refuse to act in it.
The essential grounds, or many of them, upon which these judgments went, are present in this proceeding, and would be (although, perhaps, as to some of them in a qualified degree), if the case were considered with reference to the power of a court commissioner, as well as the circuit court, to issue the writ. ¥e regard the above cases as ample authority for the exercise of our original jurisdiction here. And we take this occasion to reaffirm the doctrine of the Sender case, that this com’t should never deny the writ of habeas eorqms, “ except for the most weighty considerations,” if the petition for the
These views render it unnecessary to consider whether the jurisdiction may not also be rested upon the general superintending control over all inferior courts, conferred upon this court by sec. 3,, art. YII of the constitution.
II. We now proceed to consider this application on the merits. The imprisonment alleged is by virtue of an order of the circuit court adjudging the petitioner in contempt for disobedience to the order of that court contained in the divorce judgment, awarding to the plaintiff in the divorce suit the care and custody of the child Lottie Alice Alter. In substance and form, the contempt proceedings were instituted and are prosecuted under eh. 149, R. S. 1858, entitled “ Of proceedings as for contempts,' to enforce civil remedies, and to protect the rights of parties in civil actions.” Unless they can be upheld by the provisions of that chapter, they are invalid.
The authority to commit the petitioner until she restore the child to the care and custody of her former husband, to whom such care and custody was awarded by the terms of the divorce judgment, must be found, if at all, in sec. 23 of ch. 149, which is as follows: “ When the misconduct complained of consists in the omission to perform some act or duty which is yet in the power of the defendant to perform, he shall he imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.” We must, therefore, ascertain the true meaning and effect of this section, in order to determine whether it has any application to a case like this. To do so intelligently, an examination of' the various statutes for the punishment of civil and criminal contempts is necessary.
Chapter 149 does not provide for the punishment of all cohtempts, but only of those specifically enumerated in sec. 1,
If, in a proceeding under ch. 149, the court shall adjudge the accused guilty of the misconduct specified in sec. 1, and sball fine or imprison him, or both, pursuant to sec. 20, the conviction and punishment are essentially as for a criminal contempt, and the fine goes to the school fund. It was so held in In re Murphey, 39 Wis., 286" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/in-re-murphey-6601969?utm_source=webapp" opinion_id="6601969">39 Wis., 286. The difference between the two chapters, in respect to criminal punishment for contempt, seems to be, that if the offense comes within the provisions of ch. 149, imprisonment may be imposed for a longer term than can lawfully be imposed under ch. 119.
Thus far we have considered these statutes with reference to criminal punishment alone. But by ch. 149 the court is authorized, in certain cases of conviction for contempt, to award the injured party compensation or indemnity for the loss
The distinction between a proceeding which results in criminal punishment under ch. 119, or sec. 20 of eh. 149, and one which results in awarding indemnity to the injured party, is manifest and substantial. One is criminal in its character, the other civil; one is prosecuted by the state outside the particular cause in which the offense was committed (if committed in the progress of a cause), the other is a proceeding in the cause in which the offense was committed, or ancillary to it; one results in punishment by fine, or imprisonment, or both, inflicted to vindicate the authority and dignity of the court, which the defendant has contemned; the other in adjudging the offender to pay a sum sufficient to indemnify the injured party for the loss he has sustained by the misconduct of the offender, and to satisfy his costs and expenses. In the one case, the fine goes to the school fund, in the other the indemnity goes to the injured party; and an appeal lies to this court from the order requiring payment of the indemnity, but not from the order imposing a fine or imprisonment. State ex rel. Chappel v. Giles, 10 Wis., 101" court="Wis." date_filed="1859-12-14" href="https://app.midpage.ai/document/state-ex-rel-chappell-v-giles-6597931?utm_source=webapp" opinion_id="6597931">10 Wis., 101; State ex rel. Mann v. Brophy, 38 id., 414; In re Murphey, supra.
Recause a conviction for contempt which results in the enforcement of a civil remedy by indemnity under section 21, is so essentially different from one which results in criminal punishment, the two proceedings cannot be blended in one. "Were this otherwise — were it competent for the court in the same order to punish a contempt criminally, and also to award
Eor the same reasons we cannot import the authority given in section 20, to imprison the offender (which is essentially criminal punishment), into section 21, which gives the civil remedy alone. To do so would be a gross violation of the rule which requires that such statutes shall be strictly construed. Section 21 does, not authorize the court to punish the offender by imprisonment, and it expressly prohibits the imposition of a fine. Ye conclude, therefore, that in cases where indemnity is awarded under section 21, imprisonment cannot be imposed as a part of the punishment. Undoubtedly, under chapter 149 and perhaps other statutes, the court may, in such a case, commit the offender for nonpayment of the indemnity.
'Whether the offender may be punished both civilly and criminally for the same contempt, wre do not determine. We only hold that he cannot be so punished in the same proceeding.
The foregoing observations upon the different statutes concerning contempts and the punishment therefor, have been extended to greater length than was intended; but the examination of these statutes seemed necessary in order to give construction to section 23 of ch. 149, under which the petitioner was committed to prison.
An important question is, whether section 23 is applicable to cases in which the contempt is criminally punished, or whether its operation is confined to cases in which a civil remedy may be enforced. Regarding the title of the chapter
Our chapter 149 is mainly copied from the statute of New York on the 'same subject. (2 E. S., 552, Part III, ch. YIII, title XIII, Edmonds5 ed.) Our sections 23 and 24 are exact transcripts of the New York statute. But section 21 of the New York statute, corresponding to our section 21, provides that, “ if any actual loss or injury shall be produced to any party by the misconduct alleged, a, fine shall be imposed sufficient to indemnify such party,” etc. Hence, under that statute, the use of the word fine in sections 23 and 24 is entirely consistent with the view that those sections relate only to the enforcement of civil remedies. We are of the opinion that the word as employed in our sections 23 and 24 (inadvertently, no doubt) means the indemnity of section 21, and nothing more. And we think further, that the remedy of those sections can only be obtained where the injured party has suffered loss or injury which, under proper circumstances, would entitle him to indemnity under section 21. To state the last proposition in another form, vre think that relief can only bo given tinder section 23 in cases where “an actual loss or injury has been produced to a party by the misconduct alleged.55
III. It is very clear that the “loss or injury55 of the statute is a pecuniary loss, or injury to rights for which compensation may be made in money; a loss or injury which would entitle the injured party to maintain an action against the offender to recover damages for his misconduct. This is made apjiarent
Can Fred. P. Alter maintain an action against the petitioner to recover damages for the abduction and detention of the child? We are clearly of the opinion that he cannot. No rights of property are involved in the care and custody of the child. No paternal rights are enforced by the order in that behalf. The child is the ward of the court, and the care and custody of her was given to her father, not because he is her father, but because the court deemed it for the best interests of the child that he should be her custodian for the time being. The order was made exclusively in the interest of the child and for her benefit, and not in the interest or for the benefit of her father. Besides, the order is temporary and provisional in its nature, and may be changed at any time in the discretion of the court, if the welfare of the child will be thereby promoted. To-day, the father is the custodian; to-morrow, such care and custody may be transferred to the mother. The relation with which we have to deal, between the child and her custodian, is not that of father and child, nor yet that of master and servant. It is more nearly like that of guardian of the person and ward. In that relation the guardian is not entitled to the services of the ward. Leech v. Agnew, 7 Barr, 21; Hurd on Habeas Corpus, 44.
It follows from these views that the misconduct for which the petitioner stands committed, has not produced a loss or injury to Fred. P. Alter for which he may be indemnified under section 21; and because it has not, the court could not lawfully commit the petitioner for a continuing contempt under section 2S.
IY. Thus far we have considered the question of the validity of the order under which the petitioner is imprisoned, just as we should have considered it were it before us on certiorari or appeal. Ye have reached the conclusion that the return oí
The general rule, as stated by Hurd, is, that “ a proceeding defective for irregularity, and one void for illegality, may be reversed upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus ” (p. 327). This rule has frequently been applied to cases before this court, -some of which are cited in /Semler’s Gase, 41 Wis., 523. “ Nothing will be investigated on habeas corpus except
j urisdictional defects, or illegality as some courts and authors term it; by which is meant the want of any legal authority for the detention and imprisonment.” By DixoN, O. J., in Be Crandall, 34 Wis., 179. And a remark of Mr. Hurd, that “ it would be illegal to sentence a man to imprisonment for a crime punishable by a pecuniary fine only,” is there quoted approvingly. Our statute provides, in effect, that a person brought up on habeas corpus, although in custody by virtue of civil process of a court legally constituted, or issued by an officer in the course of judicial proceedings before him authorized bylaw, shall be discharged “where the jurisdiction of such court or officer has been exceeded either as to matter, place, law or person; ” or “ where the process, although in proper form, has been issued in a case not allowed by law.” R. S. 1858, ch. 158, sec. 19, subdivisions 1 and 4 (Tay. Stats., 1796, § 20).
If our construction of the several statutes relating to con-tempts is-correct, it seems very clear that in this case the circuit court exceeded its jurisdiction both as to matter and law, when it attempted to enforce a civil remedy in a proceeding which could lawfully result in criminal punishment alone; and that the process of commitment, although in proper form
A broader range of inquiry on habeas corpus in a case where the imprisonment is for contempt than in other cases, has been suggested; and there are adjudications in the boohs which seem to sustain the suggestion. But it is quite sufficient for the exigencies of this case, to rest it upon the general rule above stated. "Whether the distinction exists, will be left for determination when a case shall arise which necessarily involves the question.
It must be held that the invalidity of the order under which the petitioner is imprisoned, is available on habeas corpus.
Y. It should have been said earlier in this opinion, that we think the order respecting the care and custody of the child, Lottie Alice Alter, is “a matter depending in the court,” within the meaning of chapter 149; and hence, a violation of that order may be punished as a contempt under the statute. This results from the fact that the court has continuing power over the matter, and may at any time during the minority of the child make any order in respect to her care and custody which her welfare may require.
Hpon the case made by the return of the sheriff, we conclude that the petitioner is illegally imprisoned. The demurrer to such return must therefore be sustained.
Dissenting Opinion
dissenting. I. I cannot bring myself to believe this a case for the exercise of the original jurisdiction of this court.
The imprisonment was under an order of the circuit court for contempt; in my judgment, a contempt of very gross
It may be that the circuit court erred in the proceeding under which the imprisonment was justified by the sheriff. If so, the imprisonment is a private wrong to the prisoner, purely personal to her; involving no public interest, no principle of more common interest to the state at large than any other error, of any circuit court, in any proceeding. It is a matter of purely private and personal right; as purely private and personal as the imprisonment of any individual in the state on proceedings for tort, crime or contempt. There is nothing in it of interest to any one except the parties to the litigation out of which it grew, or to give it the dignity of a public question.
It is far less a matter of public concern to the state at large than any case of quo warranto for local office, or arising on mandamus, injunction or certiorari, involving local public interest. These, in one aspect, concern the people at large; though this court has held that they do not so concern them as to justify the exercise of the original jurisdiction of this court. But the present case has no possible public aspect, except such as may be found in declamatory panegyric of the writ of habeas corpus, as distinguished from the other writs of which this court takes original jurisdiction, by one common grant, for one common purpose; a distinction not only not made in the constitution, but excluded by it.
I was necessarily absent from the court when lie Somier, 41 Wis., 516" court="Wis." date_filed="1877-01-15" href="https://app.midpage.ai/document/hyde-v-gleichman-6602240?utm_source=webapp" opinion_id="6602240">41 Wis., 516, was heard and decided; and, though my views were well understood, I was not present when the majority of the court considered the question of original jurisdiction, and
Many eulogies on the writ of habeas corpus have been uttered, and it is easy to utter them. But popular notions of. the sanctity of the writ should not enter into judicial determination of jurisdiction to issue it. In England, when the writ was introduced, and for long afterward, it was largely essential to personal liberty; though the courts and officers having jurisdiction of it were comparatively small in number. It may well be said to be essential to personal liberty in this country, in extraordinary times, .of military or other usurpation of power. Indeed it is, in all times, and in all countries where it prevails, though often abused, an important writ, which a free people will never consent to surrender or to see suspended without distrust and condemnation. But, in this country, in all ordinary times, it is a writ important to private, not to public liberty. And in this state it may be said to be a cheap and common writ; as readily obtained from courts and officers having jurisdiction of it throughout the state, as any other judicial process. In every circuit in the state there is one judge, and in every county there are at least one court, one judge and one or more court commissioners, with power to issue it. Jurisdiction of the writ, for the protection of private right, in Mr. Justice Cole’s words in Be Semler, “ as the best safeguard of personal liberty,” is sown broadcast throughout the state. And no prisoner, in ordinary circumstances, need go beyond his own vicinage to obtain it. Whenever the writ is issued by local courts or magistrates, proceedings under it may be reviewed in this court upon proper writ. But it is difficult to perceive — to me impossible— why original jurisdiction in this court is necessary, im
Doubtless this court can entertain original jurisdiction of the writ in a proper case. But it is not to be overlooked that the jurisdiction of this court of this writ is concurrent with its jurisdiction of mandamus, injunction, quo warranto, cer-tiorari and other original and remedial writs; all embraced, as already noticed, in one common grant, for one common purpose; all to proceed upon common principles; all subject to common limitation; the jurisdiction of each being coextensive and identical with jurisdiction of the rest. The ground of original jurisdiction of all the writs is essentially the same. The light, public or private, sufficient to put in motion original jurisdiction of any one of these writs, is sufficient to put in motion original jurisdiction of all of them. That is the constitution. Any distinction of the writ of habeas corpus from the othér writs has no warrant in the constitutional grant of jurisdiction; no warrant outside of a sympathetic imagination.
The nature and extent of the original jurisdiction of this court has not been always clearly understood or clearly defined But all the cases in this court from Attorney General v. Blossom, 1 Wis., 317" court="Wis." date_filed="1853-06-15" href="https://app.midpage.ai/document/attorney-general-v-blossom-6596957?utm_source=webapp" opinion_id="6596957">1 Wis., 317, down to Re Semler, 41 id., 516, recognize the common grant of all the writs, as a single jurisdiction by different writs, for common objects. After speaking of the several writs in detail in Attorney General v. Blossom, the late Mr. Justice Smith remarks: “These writs differ essentially, in their character and objects, from ordinary writs is
In cases of original jurisdiction, there is some confusion in the judgments of this court between Attorney General v. Blossom and Attorney General v. Railroad Companies, 35 Wis., 425" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/attorney-general-v-chicago--northwestern-railway-co-6601552?utm_source=webapp" opinion_id="6601552">35 Wis., 425; the court assuming or declining jurisdiction without any apparent general rule. Indeed, as has been said by eminent counsel at the bar, the original jurisdiction of this court, its objects and limits, were never fully considered or determined before Attorney General v. Railroad Companies. That was the first application to this court, in its original jurisdiction, for the writ of injunction. And the whole scope of original jurisdiction was forced upon the court, for the reason that injunction, unlike the other writs, was at the common law in no sense an original writ. It was argued at the bar that the writ of injunction gave to this court general equitable jurisdiction, in all cases, between all parties, where perpetual injunction is the relief sought. ^The court held, however, that “an original equitable jurisdiction, however restricted, of purely private causes, concerning private interests, between private persons, would -be wholly inconsistent with the manifest policy of the constitution to limit this court to appellate jurisdiction, superintending control over inferior courts, and original jurisdiction in certain causes publiei jwris, as is held
■“This view excludes jurisdiction of injunction in private suits, between private parties, proceeding on private right or wrong. In excluding them, we feel quite assured that we are only giving effect to the very purpose and limit of the constitution in the grant of jurisdiction. ... In our view, the jurisdiction of the writ is of a quasi prerogative wzút. The prerogative writs proper can issue only at the suit of the state, or the attorney general in the right of the state; and so it must be with the writ of injunction in its use as a quasi prerogative writ. All may go on the relation of a private person, and may involve private right. It is the duty of the court to confine the exereise of its original jurisdiction to questions qyublici juris?' These were not the words of the writer. They express the judgment of the court, “ ascertaining and defining the jurisdiction in question for the future guidance of the court and the profession, until our construction should be modified or changed by our successors.”
And it is added, by way of illustration, of the jurisdiction
And all this is said of the entire group of writs, habeas corpus included; necessarily said, because they are essentially inseparable in the grant of jurisdiction. That is settled by the constitution itself, which marries them together beyond the power of any court to divorce them. Ground of jurisdiction for one writ is ground of jurisdiction for all.
In Att'y Gen. v. Eau Claire, 37 Wis., 400" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/attorney-general-v-city-of-eau-claire-6601786?utm_source=webapp" opinion_id="6601786">37 Wis., 400, the state filed an information in this court to enjoin an obstruction of a public navigable river. The court assumed original jurisdiction on this ground:
“ "What are properly local highways, in the sense we have been considering, are generally within the limits of one municipality, existing under its authority, in charge of its officers. These may generally be left to the protection of local authorities and local jurisdictions. Public rivers are highways by no local authority; and are rarely, if ever, within the municipality or in charge of its officers. They are in charge of the state, and the state cannot abdicate its charge of them. That*434 charge is a duty to the federal government, and a trust for the whole people, not of the state only, but of the several states. An unauthorized encroachment upon any of them is a violation of the duty assumed by the state, in its aggregate and sovereign' character, to keep them forever open. Every such encroachment is &■yourpresture, which concerns the sovereign prerogative of the state, and the prerogative jurisdiction of this court. Original jurisdiction of such cases here is too manifest for-discussion.”
That case involved a question of illegal municipal taxation. And it was argued at the bar that that alone was ground of original jurisdiction here. But the court rejected it, saying: “In ordinary cases, this court will not extend its original jurisdiction to restraint of local, municipal taxation for alleged irregularity or want of authority.
“We assent to what was said by counsel for the information, of the nature of municipal corporations, and of their relations to the state, and of the part they play in the administration of the state. Of course every question of municipal taxation is jpubliei juris. But it is equally so whether it be raised by a tax-payei’, or by the municipality, or by the state. It is not enough to put in motion the original jurisdiction of this court, that the question is pilblioi juris/ it should be a question quod ad statum reipullioce pertinet; one ‘ affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.’ Attorney General v. Railroad Companies, 35 Wis., 425" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/attorney-general-v-chicago--northwestern-railway-co-6601552?utm_source=webapp" opinion_id="6601552">35 Wis., 425.
“ It was repeated in that case, as it had been held in Attorney General v. Blossom, 1 Wis., 317" court="Wis." date_filed="1853-06-15" href="https://app.midpage.ai/document/attorney-general-v-blossom-6596957?utm_source=webapp" opinion_id="6596957">1 Wis., 317, that £ this court takes the prerogative writs for prerogative jurisdiction, with power to put them only to prerogative uses proper.’ Prerogative writs often go in aid of private right, or of local public right. But the original jurisdiction of this court is not only limited to the prerogative writs, but is confined to prerogative causes. The word properly implies sovereign right. Jacob defines it
“ It was with these views that we declared the rule in Attorney General v. Railroad Companies, that all cases of original jurisdiction must proceed upon leave, showing prima fade (that the case is one of which it is proper for this court to take cognizance.’ And these were not altogether new views of the jurisdiction, as counsel seem disposed to think. As early as May v. Keep, 1 Chand., 285" court="Wis." date_filed="1849-06-15" href="https://app.midpage.ai/document/may-v-keep-6596611?utm_source=webapp" opinion_id="6596611">1 Chand., 285 (2 Pin., 301), approved in Hurlbut v. Wilcox, 19 Wis., 419" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/hurlbut-v-wilcox-6599367?utm_source=webapp" opinion_id="6599367">19 Wis., 419, this court refused a writ of certiorari, because the circuit court had jurisdiction. And though the writs in these cases appertained to the appellate jui’isdiction of the court, the reason applies equally to writs within the original jurisdiction. In cases of mcmdomus, the court made a rule in 21 Wis., 694, and enforced it in State v. Haben, 22 Wis., 101" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/state-ex-rel-board-of-education-v-haben-6599821?utm_source=webapp" opinion_id="6599821">22 Wis., 101, applying in terms to cases of original jurisdiction, that the writ should not issue here when there is ample remedy in the circuit court. And there have been several instances since of refusal to issue both writs.
“These cases rest, indeed, upon the concurrent jurisdiction of the circuit court. But the distinction is practically the same. In all cases of purely private or local interest, the jurisdiction of the circuit court is prima facie adequate. If it be inadequate in any case, it must generally be so because the interest in litigation is something more than private or local.”
These cases were followed by State v. Baker, 38 Wis., 71" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/state-ex-rel-wood-v-baker-6601821?utm_source=webapp" opinion_id="6601821">38 Wis., 71. I have since been sometimes inclined to doubt whether the court did well in assuming original jurisdiction in that case. Be that as it may, there is nothing in that case to support this. It went upon the inadequacy of jurisdiction in the proper circuit court; in fact, upon a surcease of local justice,
“These cases, involving title to county offices, would undoubtedly be within the rule forbidding the exercise of original jurisdiction of them here, in ordinary circumstances. And the question arises, whether there is any peculiarity affecting them which brings them within the exception. For it is obvious that the rule stated in Attorney General v. Eau Claire re^prves a discretion to the court to exercise original jurisdiction of such cases, when peculiar conditions bring them within the spirit and object of the jurisdiction, or render the jurisdiction of the circuit court inadequate.
“ Whether the conduct of the county canvassers, presently considered, raises a ‘ contingency requiring the interposition of this court,’ need not be determined. It was upon another ground that we gave leave to bring the cases here, and that we now sustain the exercise of original jurisdiction of them.
“When the leave was given, it appeared that the election and canvass involved in these cases were the same that were in question at the last term in State ex rel. McDill v. Board of State Canvassers, 36 Wis., 498" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/state-ex-rel-mcdill-v-board-of-state-canvassers--the-secretary-of-state-6601658?utm_source=webapp" opinion_id="6601658">36 Wis., 498, and that the distinguished gentleman who was the judge of the circuit court in which these cases must be brought, if not brought here, was directly interested in the questions involved in them-; his title to a high office depending more or less upon'them. The relators not unreasonably objected to bring their cases before him; and our high respect for him forced us to believe that he would object no less. He was, perhaps, disqualified in law, he was surely disqualified in propriety,'from sitting judicially in these cases; and we felt warranted in believing that he would refuse to act in them. The terms of office involved were brief and fast passing away. We thought then, and hold now, that we could not with judicial propriety subject*438 the relators, or the county whose officers de jure they claimed to be, to the partial denial of justice which would arise from the proper refusal of the learned judge of the circuit court to sit in these cases. For this peculiar cause, the jurisdiction of the circuit court was plainly inadequate. And, indeed, such an obstruction, so caused, of the justice which is a sovereign attribute; such a defeat, so caused, of timely effect of a constitutional election; such an interruption of an ordained and radical process by which the sovereignty acts, appear to us to concern the sovereign prerogative, to raise, in Fir. Justice Ssiitii’s words, a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state. For these reasons, we have no doubt of our duty, within the rule of Attorney General v. Eau Claire, to exercise original jurisdiction of these cases.”
This doctrine was again affirmed in State v. Doyle, 40 Wis., 175" court="Wis." date_filed="1876-08-15" href="https://app.midpage.ai/document/state-ex-rel-drake-v-doyle-6602068?utm_source=webapp" opinion_id="6602068">40 Wis., 175, in which the court thus defines the' grounds and limits of its original jurisdiction: “So far as the private right of the relator is concerned, it is now well settled that this court would not assume original jurisdiction to enforce it. Attorney General v. Railroad Cos., 35 Wis., 425" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/attorney-general-v-chicago--northwestern-railway-co-6601552?utm_source=webapp" opinion_id="6601552">35 Wis., 425; Attorney General v. Eau Claire, 37 id., 400; State v. Balter, 38 id., 71; State v. Supervisors, id., 554. But, as it is said in Attorney General v. Railroad Cos.: ‘ In a government like ours, public rights of the state, and private rights of citizens, often meet, and may well be involved in a single litigation. So it may be in the exercise of the original jurisdiction of the court.’ ‘ The prerogative writs can issue only at the suit of the state, or the attorney general in the right of the state.’ ‘ They may go on the relation of a private person, and may involve private right.’’ And the question before us is not upon the private right of the relator, and is independent of the accident that there is a relator in the case. The question on which the exercise of jurisdiction here must turn, is, whether the subject matter of the writ is one ‘ quod ad statum
The scope and object of the original jurisdiction of this court are very clearly limited and defined in these cases. The construction of the jurisdiction, essentially alike in all of them, though differently applied, was very solemnly considered and determined, and appears to me to be of too grave and weighty a character to give way to any sentimental view of the sanctity of the writ of habeas corpus, of which such plenary jurisdiction pervades every county in the state. And it is matter of profound surprise to me that this should be held a proper case for original jurisdiction within the rules of the cases cited; or that it should be considered that “the essential grounds, or many of them, upon which those cases went, are present in this.” I cannot understand how this could be gravely said, except in entire forgetfulness of the doctrine of those cases.
The only ground found in the opinion of the court, for bringing this within those cases, is thus stated in the opinion: “ The interest of the state in the personal liberty of its citizens is primary and proximate, .and to secure such liberty to each citizen entitled thereto is one of the most important purposes of government. ‘ All men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness. To secure these rights, governments are instituted among men.’ Const., art. I, sec. 1.” This appears to be a very cavalier disposition of a very grave question; perhaps the best of which the case admitted.
The interest of the state in the personal liberty, life, property and general welfare of each of its citizens is identical; equally primary and proximate. These personal rights of citizenship differ in importance to the citizen; but the duty of the state in protecting them is the same. It owes the same protection to property that it does to life and liberty, whatever their relative importance may be in a private sense. It owes all the protection it can give equally to all of them.
It seems to me, that the opinion confounds the personal freedom from restraint of each citizen, with the liberties of
The opinion of the court in this case appears to affirm the doctrine of Attorney General v. Railroad Companies, Attorney General v. Eau Claire, and State v. Baker, but it none the less undermines, no doubt inadvertently, the radical prin
The disregard of the opinion for the cases which it professes to follow, appears to me unaccountable. I regret it profoundly. It has been my ambition, since I have been honored with a place in this court, that, during the brief time I could expect to remain here, all the judgments of this court should rest upon fixed principles; should proceed upon general rules governing all cases, not upon particular rules framed for particular cases; that all should be in accord in principle, not vibrating to this side or that of a general principle, according to the particular view taken of each particular case. Mi-sera servitus, ubi jus vagum. Judicial authority is but an illusion when the rules of judicial decision are precarious and wavering. I can only hope that the judgment in the present case may not stand as a new precedent for wavering rules of decision.
Besides appellate and original jurisdiction, the constitution gives this court a general superintending control over all inferior courts. All the cases on the subject, from Attorney General v. Blossom down, recognize this power as a distinct jurisdiction. I know of no ease in which it has been defined, except some loose remarks in Attorney General v. Blossom. If the proceeding of the circuit court be as erroneous as is held in the opinion of the court, it may be that it might be reviewed upon this writ, under the power of superintending control over the circuit court. Upon that question I have
II. I cannot bring myself to believe that, in a court having jurisdiction of it, the writ of habeas corpus gives jurisdiction to review the proceedings of the circuit court in which the commitment was made.
Everything is presumed in favor of the judgment of a court having jurisdiction of the person and of the subject matter; especially of a court of general jurisdiction. The judgment of a court having jurisdiction of the person and of the subject matter, however erroneous, can not be impeached collaterally. Generally it can be reviewed only by a court having appellate jurisdiction, acting within such jurisdiction by direct appellate proceeding; though, in exceptional cases, such a judgment may be impeached in another court of coordinate jurisdiction, but only by direct proceeding taken to impeach it. Huebschman v. Baker, 7 Wis., 542" court="Wis." date_filed="1859-01-15" href="https://app.midpage.ai/document/huebschman-v-baker-6597733?utm_source=webapp" opinion_id="6597733">7 Wis., 542. The validity of erroneous judgments, while they stand unreversed, has been répeatedly affirmed by this court. The late case of Eaton v. Youngs, 36 Wis., 171" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/eaton-v-youngs-6601597?utm_source=webapp" opinion_id="6601597">36 Wis., 171, is a very strong one. The circuit court had given judgment of foreclosure and sale for the whole amount of a mortgage debt, before the greater part had become due, and personal judgment over for deficiency: a manifest injustice and abuse of jurisdiction. Some years subsequently, perceiving the error, the circuit court made an order vacating the judgment for deficiency. But, on appeal from that order, this court held that the circuit court had lost jurisdiction to vacate its own judgment, and held the judgment valid while it stood, saying: “ "We cannot, .on this appeal, inquire into the correctness of the judgment below. It is obvious that the court below had jurisdiction of the cause, and therefore to render the judgment. The judgment may be erroneous, but it is not void. This seems very plain. And it could be reviewed
This rule prevails in cases of habeas corpus, as in all others where judgments come collaterally in question. The broadest rule which can prevail on habeas corpus is that held on common-law certioriari. In the latter case, the rule is well settled in this court that the writ will not raise questions of abuse of jurisdiction, errors in law, “ errors, so to speak, which the court had jurisdiction to commit;” but only questions of jurisdiction of the person and of the subject matter. Varrell v. Church, 36 Wis., 318" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/varrell-v-church-6601622?utm_source=webapp" opinion_id="6601622">36 Wis., 318.
And this very rule is equally well settled as applied to writs of habeas corpus. Re Blair, 4 Wis., 522" court="Wis." date_filed="1856-06-15" href="https://app.midpage.ai/document/in-re-blair-6597380?utm_source=webapp" opinion_id="6597380">4 Wis., 522; Re O’Connor, 6 id., 288; Re Perry, 30 id., 268; Re Crandall, 34 id., 177; Re Semler, 41 id., 517. See Hauser v. State, 33 id., 678.
The opinion of the court in this case concedes jurisdiction in the circuit court of the person and of the subject matter; concedes the contempt of the prisoner; concedes the power of the circuit court to punish it; but proceeds arguendo to hold that the circuit court erred in the exercise of its jurisdiction. That question was not properly before the court in this proceeding.
In discussing the errors imputed to the circuit court, in the proceeding which led to the commitment of the prisoner, the opinion of the court appears to set out ■with a grave error. It seems to imply that the doctrine of contempt was invented, .and the power of courts to punish for it is a special power conferred, by statute; considering the statute as one creating
“£ The process of attachment for contempts must necessarily be as old as the laws themselves. For laws, without a compe-' tent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice, to suppress such con-tempts by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend.’ 4 Black. Com., 286.
“ The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. ' A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments or decrees against the recusant parties before it, would be a disgrace to the legislation and a stigma upon the age which invented it. In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this state, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating
“ Chancellor Kjmt, in the case of Yates, 4 Johns., 353, in concluding a review of the English cases on this subject, says: £The trust is given to the courts, not for themselves, but for the public, who are deeply interested in the preservation of this power in-its accustomed vigor.’....
“ £ Mr. Justice BlacestoNe pursued the same train of observation, and declared that all courts, by which he meant to include the two houses of parliament and the courts of Westminster Hall, £ could have no control in matters of contempt; that the sole adjudication of contempts, and the punishments thereof, belonged exclusively, and without interfering, to each respective court; that infinite confusion and disorder would follow if every court of the Hall should have power to examine the commitments of the other courts for contempts; that the judgments and commitments of each respective court, as to contempts, must be final and without control. It was a confidence that might, with perfect safety, be confided in the judges and the houses of parliament. That the objection, as to abusive consequences, proved too much, because it was applicable to all courts of dernier resort; and general convenience must always outweigh partial inconvenience.’_
“ Chancellor Kbst, after these citations, adds: £I have cited the opinions of other judges much at large, because I could not hope to improve upon the strength of their observa
“This decision, and the reasoning employed by the judges, is adopted and fully sanctioned by the supreme court of the United States in Ex parte Kearney, 7 Wheat., 38" court="SCOTUS" date_filed="1822-02-15" href="https://app.midpage.ai/document/ex-parte-kearney-85357?utm_source=webapp" opinion_id="85357">7 Wheat., 38, in an able opinion delivered by Judge Story.
“ These cases were also considered and reviewed by CoweN, J., in the supreme court of New York, and approved as declarative of the common law of England. He says, ‘ that it was-' agreed in the Mayor of London's Gase (Orosb_y), 3 Wilson, 188, that’in cases of commitment for contempt by the lords or commons, or by any other court of general jurisdiction, no other court had power to interfere and relieve by habeas corpus, or in any other way, because there was no appeal.’ BlaoK-stoNE, J., said, ‘the sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively, and' without interfering, to each respective court.’
“ ‘ The right of punishing contempts by summary conviction is inherent in all courts of justice and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law, adopted and sanctioned by our state constitution. The discretion involved in this power is in a great measure ai’bitrary and undefinable, and yet the experience of ages has demonstrated that it is perfectly compatible with, civil liberty, and auxiliary to the purest ends of justice.
“ ‘ The known existence of such a power prevents in a thous- and instances the necessity of exerting it, and its obvious liability to abuse is, perhaps, a strong reason- why it is so seldom transcended. This power extends not only to acts which
“So in Mississippi, the power of the courts to fine and imprison for contempt, as a necessary incident of judicial power, independent of statutory enactment, inherent in the very nature of their organization, and derived from the constitutional provision which gave them being, ess necessitate rei, has been repeatedly recognized by her judicial tribunals.”
And the court refers, amongst other cases, to Johnston v. Commonwealth, 1 Bibb, 508, and quotes from it this passage: “To this end, a power in courts of justice to suppress con-tempts and disobedience to their authority, by immediate punishment, is essentially necessary, and results from the first principles of judicial establishments. Laws are necessary to the good order of society. Courts are ordained by the laws as necessary for their due administration. Hence due respect for the courts of justice is as necessary as a regard for the laws themselves.”
So the supreme court of New Hampshire held in 1859: “ The authority to punish contempt is a necessary incident, inherent in the organization of all legislative bodies and of all courts of law or equity, independent of statute provisions.” State v. Matthews, 37 N. H., 450.
The constitution of the state, in creating this court and the circuit courts, as courts of record, vested in them esa vi termini this common-law power to punish for contempt; as an absolute and essential quality of superior courts, as much as the power to sit in judicial order, with open doors, in public session. I do not question that this power may be regulated by statute. But no statute could be effectual to take it away; no statutory regulation can be effectual so to abridge, impair
It is not my purpose to examine the statutes relating to contempts in detail, or to criticise their provisions by the standard of the common-law power inherent in courts by force of the constitution. It is proper to say, however, that I have no doubt of the power or wisdom of the legislature in extending the appellate power to judgments for contempt. This does not impair the power in the circuit courts, any more than appellate jurisdiction does any other judicial power, and goes far to prevent abuses. I shall content myself with following, as far as necessary, the discussion of the statutes in the opinion of the court.
The opinion, right or wrong in its conclusions, appears throughout as the opinion of a court exercising appellate jurisdiction, and reversing for error. It holds that the authority to commit the prisoner must be found, if at all, in sec. 23, ch. 149, R. S. 1858. I have already sufficiently indicated my opinion that the authority need not necessarily be found in that or any other section of the statute. But I will consider the opinion on its own premises, and assume that the section in question
The opinion of the court distinguishes between criminal contempts proper punished by fine, and contempts punished for recompense of the injured party; and holds that both may not be done in one proceeding. I doubt the correctness of this position; more especially because the opinion finds it necessary to the position, to emasculate the technical word fine in secs. 23 and 2é, ch. 149, and to make it read as civil indemnity to the injured party. This again is a question of statutory construction, on which this court and the circuit court differ; and if the circuit court were wrong, is pure error. The opinion does not hold that circuit courts cannot punish one and the same act as a criminal contempt by fine or imprisonment, and by awarding indemnity to the injured party. I have little doubt that they may. So the circuit court also appears to have held. And if both are improperly done in the same proceeding, that is an irregularity only; not a want or excess of jurisdiction. In a late case, it was held by this court
The distinction between mere error in the commitment of a prisoner, and want of jurisdiction to commit him, was sharply drawn in this court in Re Crandall, 34 Wis., 177" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/in-re-crandall-for-a-habeas-corpus-6601407?utm_source=webapp" opinion_id="6601407">34 Wis., 177. The prisoner was convicted of a simple assault, punishable by fine or imprisonment; but was punished by fine and imprisonment, as for an assault and battery; and at the time of his petition had served his term of imprisonment, and was detained only for nonpayment of the fine. The sentence obviously appears to have been erroneous, and beyond the authority of the court upon the actual conviction. The court had power to sentence to fine and imprisonment upon another conviction, but not on the conviction which was had. It erred in the sentence of the prisoner, by excess of punishment. The language of Dixon, C. J., happily illustrates the distinction of which I have been speaking. “ It is conceded that for mere error, no matter how flagrant, the remedy is not by writ of habeas corpus. Eor error the party imprisoned must prosecute his writ of error or certiorari. Nothing will be investigated on habeas corpus, except jurisdictional defects, or illegality as some courts and authors term it; by which is meant the want of any legal authority for the detention or imprisonment. The defect here complained of is not jurisdictional. It was at most mere error. There was authority of law expressly given by statute for the sentence pronounced by the. circuit court against the petitioner. We can best illustrate
That case appears to me quite parallel in principle with this. There the court declined to review the sentence on habeas corpus, because the court had jurisdiction to pronounce the sentence in a proper case, and had erred only in misapplying the statute which authorized it. And the court refused to review the proceeding, or to discharge the prisoner. Here the statutory jurisdiction of the court to confine this prisoner by such an order, in a proper case, is conceded; but the court assumes to review, on habeas corpus, the error of the circuit court in misapplying its power, and to discharge the prisoner for the misapplication. The two cases are clearly in conflict.
To the same effect is Re Perry, 30 Wis., 268" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/in-re-perry-6600941?utm_source=webapp" opinion_id="6600941">30 Wis., 268. The language of Mr. Justice LyoN in the latter case is not so pointed. But the opinion goes throughout upon the ground that no error of the commissioner in the exercise of his jurisdiction, once he
Mr. Justice Cole repeats the same doctrine in Re Semler, supra. ITis opinion concedes that the criminal information on which the prisoner -was detained, wras insufficient to sustain a conviction; in other words, insufficient to warrant any imprisonment whatever. The opinion concedes that the circuit court was therefore wrong in refusing to quash the information, adding: “But what follows? Manifestly this, that the circuit court gave a wrong decision where it clearly had jurisdiction, in holding a defective information good. The court committed an error, but there is no ground for saying that it acted without jurisdiction in rendering its decision... .It is a case of error, for which the petitioner can only have relief on writ of error, or some other appropriate process of review. He cannot have relief on a writ of habeas corpus, without making such writ perform all the office of a writ of error. This seems very obvious.”
It is inconceivable to me how the doctrine of these cases, apparently conclusive of this, should have been disregarded. But all authority seems to have given way to the exigencies of this case.
Here was, as the opinion concedes, a cause — although in judgment — pending in the circuit court, by force of the continuing power over it. Both of the parties were subject to the jurisdiction of the court over the judgment. One of them willfully violates the judgment, and is brought before the court to answer for the contempt. The opinion concedes the jurisdiction, and the duty of the circuit court to punish the contempt; but holds that it erred in applying a wrong section of the statute to the facts, and that the proceeding was irregular in providing for two things which should have been provided for in separate proceedings. And on these grounds a majority of the court holds that the proceeding was coram
This confounds jurisdiction and judgment; want of jurisdiction with erroneous judgment. Braoton long ago defined jurisdiction to be authority to judge or to declare the law between parties brought into court.
This view is distinctly affirmed by this court in Rasmussen v. McCabe, 43 Wis., 471. “ The affidavit on which the gar
And I can conceive of no judicial mistake more vicious than to confound error in judgment rendered with want of jurisdiction to render judgment. It is a far-reaching judicial heresy, giving every court a quasi appellate jurisdiction over every other, and tending to subvert the authority of all courts.
This is the radical error of the judgment in this case. Eor it holds, not only that this court, in the exercise of its original jurisdiction, but every court and magistrate in the state, having local jurisdiction of the writ of habeas corpus, can review such proceedings in the circuit courts, disregard their authority, and discharge their prisoners.
This is judicial disorder and misrule. I say it with profound deference to a -judgment sanctioned by all the other members of the court, but I owe it to my place to say it.
Eor, in issuing the writ of habeas corpus under its original jurisdiction, this court takes precisely the same measure of jurisdiction and power over the prisoner, and over the proceeding under which the prisoner is held, that every other
In Attorney General v. Railroad Companies, supra, this court lately issued a writ of injunction; and in State v. Doyle, supra, a writ of ma/ndarrms. The power of the court to issue both writs was denied. Had either of those writs been disobeyed, and had this court punished the contempt by imprisonment, the proper circuit court or judge, or court commissioner, would, according to the doctrine of this case, have taken jurisdiction, on habeas corpus, to review the proceedings here, and to discharge the prisoner of this court for imputed want of jurisdiction in those cases. At that time, I cannot doubt that such an interference with the authority of this court would have been itself held as contempt. But this court has now sanctioned that license in all courts and officers having local jurisdiction of the writ. For this reason, I was anxious that the writ should be rested on the superintending, rather than on the original, jurisdiction of this court. But the majority of the court, no doubt inadvertently, preferred to sow the seed of judicial disorder, which may yet ripen into a deplorable harvest.
I have endeavored to show that, on this point as well as on the other, the judgment in this case is in conflict with the principles of all the previous decisions of this court on the subject.
And there was nothing in the status of the prisoner to excuse it. She had had ample time to have sued out her writ of habeas corpus before a local court or magistrate, and —• if necessary • — -to have brought it here for review under the appellate jurisdiction of the court. So she had had ample time to have sued out the proper writ to bring the proceeding of the circuit court, which resulted in her imprisonment, before this court, under its appellate jurisdiction.
By the Court. — The demurrer to the return is sustained.