213 S.W.2d 983 | Ky. Ct. App. | 1948
Reversing.
This is the fourth time appellant has been before this court in connection with his right to practice dentistry without being licensed to do so. On February 7, 1927, appellant was enjoined from practicing dentistry in Whitley County, Ky. The validity of that injunction was upheld by this court in Jones v. Commonwealth,
The instant case started when on June 11, 1947, a rule was issued against appellant returnable September 29, 1947, at Williamsburg, Ky. to show cause why he should not be punished for contempt of court for violating the injunction of the Whitley Circuit Court issued on February 7, 1927, above referred to. After a hearing on October 17, 1947, appellant was adjudged guilty of contempt and his punishment fixed at a fine of $500. From that judgment, he prosecutes this appeal. *235
We think this contention is without merit. Assuming that there might be ground for such argument if this were a new case being brought now and an injunction were now being sought to prevent violation, it falls when we realize that the present action was brought to punish for contempt for violation of an injunction issued nearly twenty years ago and in effect since that time. The question before us is whether or not appellant has violated a binding injunction of a court, not what other remedy might be used against him for a subsequent violation of the law.
Nor do we think the rule was demurrable because, as contended by appellant, it did not set forth the particulars of the alleged violation or state when or where and in what manner appellant violated the injunction. He relies principally upon the case of French v. Commonwealth, 97 S.W. 427, 430, 30 Ky. Law Rep. 98, in which it was said: "It is not necessary that the rule should conform to the formalities of pleading as required where prosecution is proceeding by indictment, but only that the rule, as well as the information upon which it is based, should specifically state the facts constituting the contempt charged." *236
Other cases cited and relied on in this connection are Adams v. Gardner, Judge,
II. The main ground relied on by appellant for reversal is that the lower court erred in holding appellant guilty of contempt and fixing his punishment at $500 without intervention of a jury. It is his contention that the court's power to punish for contempt is limited by KRS
It is appellee's contention that KRS
The distinction between civil and criminal contempts appears to be well settled in this jurisdiction and the difference was very well stated in the old case of Wages v. Commonwealth, 13 Ky. Law Rep. 925, decided in 1892, in which it was said: "Civil contempts are those quasi contempts which consist in failure to do something which the contemnor is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are all acts in disrespect of the court or its process which obstruct the administration of justice, or tend to bring the court into disrepute."
The above definition of contempt from the Wages case was quoted with approval in the later cases of French v. Commonwealth, 97 S.W. 427, 30 Ky. Law Rep. 98; Gordon v. Commonwealth,
We think the original injunction issued against appellant in 1927 was "something which the contemnor was ordered by the court to do for the benefit of another party to the proceeding before the court" within the meaning of the above quotation from the Wages case supra. The "other party to the proceedings" was the Commonwealth of Kentucky acting in behalf of one of the arms of its government, the Board of Dental Examiners, and in furtherance of a wholesome public policy for the protection of its citizens. The purpose of the statute which forbids the practicing of dentistry without a license is not to create a crime but to protect the public and provide for the public welfare, and the injunctive process to prohibit its persistent violation was a proper remedy, Kentucky State Board of Dental Examiners v. Payne,
In support of its contention that the section being construed applies only to criminal contempts, appellees cite and rely on Rebhan v. Fuhrman,
However, the same judge who wrote the opinion in that case wrote the opinion twelve years later in the case of Richardson v. Commonwealth,
Appellant relies on the Richardson case, supra, for reversal of the judgment of the lower court, insists that the case at bar is on all fours with it and cannot be affirmed unless we overrule that case. In that case Richardson had been enjoined from maintaining a common nuisance by selling alcoholic liquors on his premises and *239 permitting dissolute crowds to assemble there. Subsequently a rule was issued against him to show cause why he should not be punished for contempt in disobeying the order of injunction. At the hearing on the rule he was adjudged guilty of contempt and his punishment fixed by the court at imprisonment for thirty days and a fine of $100 without the intervention of a jury. In reversing the case this court said:
" 'We have in this State no statute defining contempt. There is a statute limiting the power of the court as to the infliction of punishment for contempt, but, if in the opinion of the court the contempt is one demanding greater punishment than lies in its power to inflict, it may have a jury to hear the truth of the matter, and leave it to them to inflict such punishment as they may deem commensurate with the offense.'
"We adhere to the rule thus laid down. The Legislature may properly prescribe that the defendant shall have a trial by jury where a greater punishment is inflicted than indicated in the statute. While it is true there was no such limitation upon the power of the court at common law, it is within the legislative discretion to allow a trial by jury in such matters."
Appellee makes no effort to distinguish the Richardson case but insists that it is impliedly overruled by later cases inconsistent therewith, such as Gibson v. Rogers,
All the cases referred to immediately above, except the Gibson case, involved the question of the right of a court of equity to issue the injunction in the first place to stop the thing being complained of, not for punishment by the contempt process for violation of the injunction already granted, as in the case at bar. The violation which the injunctions sought to stop in the above cases was for various offenses — practicing dentistry without a license in the Payne case; violation of *240
the small loan act in the Grauman-Continental case; practicing law without a license in the Hobson-Kentucky Trust Co. case; operating a gambling house in the Goose case. The contention was made in each of those cases that injunction was not the proper remedy because there was adequate remedy at law for damages or, under the criminal law, by indictment. This court upheld the right of a chancellor to grant injunction in cases of this character even though there was an additional remedy that might have been followed, by criminal prosecution. Under the Payne case supra there could be no doubt of the power of the court below to grant an injunction forbidding appellant, whom the record shows to be a persistent violator, from practicing dentistry without a license. But neither the Payne case nor any of the other cases relied on by appellee are authority for the proposition that after the injunction is granted a court may punish a violation thereof in any manner except as provided in KRS
In the case of Gibson v. Rogers, supra, a rule was issued against Rogers to show cause why he should not be punished for contempt of court for violation of an injunction which had previously been issued against him by the same court for operating a quarry in such manner as to make it a nuisance. After hearing a part of the evidence the chancellor on his own motion transferred the case to the common law court for trial by jury on the question of whether the injunction had been violated. The jury answered the question in the negative. The transcript of the evidence taken before the jury was filed in the chancery court and a motion was made to set aside the verdict of the jury. This motion was overruled and the show cause rule which had been issued against Rogers was discharged. On appeal that judgment was affirmed by this court. There is some language in that opinion to the effect that neither party to a contempt proceeding is entitled to have the question of contempt submitted to the jury and that the chancellor should exercise an independent judgment and determine for himself whether there was a violation of his order. The case was affirmed on the ground that the chancellor exercised an independent judgment and had reached the conclusion that there had been no violation of the original injunction. We do not regard this case as authority *241
supporting the contention of appellee that in civil contempt cases a chancellor can inflict a greater punishment than that prescribed by KRS
But appellee contends that the section of the statute referred to was part of chapter 182, Acts of 1893, and that the title to the act was "An Act relating to crimes and punishments," and therefore it could not apply to proceedings for civil contempt since the title would not be sufficient to warrant such an application. We do not think this is conclusive. All contempt proceedings, whether civil or criminal, are quasi criminal in nature because there may be penalties inflicted thereunder. The statute under construction is plain on its face and makes no distinction in its application as between civil and criminal contempts and since the only direct authority we have holds the statute applicable to civil contempts, we are constrained to now so hold.
The judgment of the lower court is therefore reversed with directions to proceed in conformity herewith.
Judgment reversed.