People ex rel. Bristol v. Pearson

| Ill. | Dec 15, 1841

Lockwood, Justice,

delivered the opinion of the Court:

At the July term, 1839, of this Court, an alternative writ of mandamus was awarded to the judge pf the Seventh Judicial Circuit, and presiding judge of the Cook Circuit Court, requiring him to sign the bill of exceptions mentioned therein, or show cause to this Court, at the December term, 1839, why he did not sign the same. At the December term, 1839, it appearing that due service had been made of the alternative mandamus, and that the judge had refused to obey the writ, or show any good cause why he did not comply with its injunction, a peremptory mandamus was awarded.

At the June term, 1840, affidavits were read, showing that the writ of mandamus had been duly served upon the judge in open Court, by the attorney in the original suit, and that the judge had not only treated the writ contemptuously, by threatening to fine and imprison the attorney for .serving the writ, but actually caused him to appear and answer for a supposed contempt, in thus making such service. It also appeared that he had entirely disregarded the writ, and refused and neglected to make any return thereto. An attachment for this contempt was awarded at the June term aforesaid. During that term, the defendant was arrested on the attachment, and brought into Court, and admitted to bail. Interrogatories were thereupon filed, with the view of affording him an opportunity to purge himself of the contempt. To these interrogatories, answers were filed; after which, the Court heard the defendant, at great length, by able counsel, and with the view to give the defendant the benefit of a most mature and deliberate consideration of the case, as well as to ascertain whether the Court, in the previous steps it had taken, had acted in conformity to the well settled principles of law, as it regarded the rights and obligations of the judge, in the premises, as also to determine what was proper to be done for the protection of suitors in the courts of this State, so as to secure to them a faithful administration of justice.

After the argument, the cause was continued until the December term, 1840. At this term, the defendant came and suggested to the Court that he had resigned the office of judge of the Seventh Judicial Circuit of this State, and moved to be discharged from the attachment, because this Court had, by the act of resignation, been ousted of its jurisdiction, and had therefore no longer any compulsory power over him.

After a full hearing of the case on the part of the defendant, at that time, the cause was continued until the present term, with a view of affording the defendant an opportunity of a re-hearing before the Court, as now organized.

A re-argument at this term having been declined, and the case submitted, it becomes necessary to come to a final determination of the whole matter in controversy. This Court cannot, for a moment, entertain a doubt, but that it has jurisdiction to award a mandamus to a circuit judge; nor can they doubt that the facts of this case imperiously call upon them to exercise the power.

From an examination of the answers of the defendant to the interrogatories propounded to him, no satisfactory conclusion can be drawn, to exempt him from the charge, that his whole course, in his repeated refusals to obey the mandates of the Court, have unfortunately had their origin in a spirit of contumacy and resistance to the authority of the Court, or in a degree of ignorance not possible to be imputed to a person holding the important station of a judge of the Circuit Court.

The defendant seems, throughout, to seek to shelter himself upon the ground of a want of due service of the writs of mandamus, both alternative and peremptory, because they were served upon him in open Court, by the attorneys for the party, and not, as he contends they should have been, by the sheriff.

Be that as it may, when the writs were directed to him, and commanded him to do a particular act, or as in the case of the alternative mandamus, or to show cause why he refused to do the act, he should, at least from self respect, have complied, and not sought to shelter himself under a pretence that the sheriff was the only person who could lawfully serve the writ. When, however, the defendant had learnt, as he did by the decision in relation to the service of the alternative mandamus, ⁽¹⁾ that such a ground was not tenable, he should have yielded obedience to the peremptory mandamus. But what is his conduct on the occasion of the service of this writ ? An attempt to punish the attorney for serving the writ, and an utter disregard of the writ itself. Could this Court then hesitate, on the establishment of these facts, to award the attachment? It was demanded by every consideration of duty, and a due regard for the rights of suitors in courts of justice. It is now, however, contended, that whatever may have been the duty of the Court originally, in awarding the attachment, and coercing the defendant to sign the bill of exceptions, it has no longer jurisdiction over the person of the defendant, because he has ceased to occupy the judicial station, which he held when-attached. It is doubtless true, that the defendant, being no longer judge, cannot be coerced to do an official act, or exercise a judicial function, and for such reason we have directed in the cause, in which he has refused to sign the bill of exceptions, that the bill should be considered a part of the record, but still it does not follow, that because this Court cannot imprison the defendant until he shall sign the bill of exceptions, that it has no power to punish the defendant for his contempt of the law, in his refusal to obey the writ. This Court having jurisdiction over the defendant, while he was judge, to compel him to perform the required act, for the purpose of enabling it to do justice between the litigant parties, cannot be divested of the power to punish for the contempt, by the defendant’s resigning the office of judge. ■ The offence being complete while he was judge, and subject to the authority of the Court, no act of the party can release or bar the punishment. One object in punishing contempts by imprisonment, it is conceded, is to coerce the party to do the required act; but because this object cannot be obtained, it by no means follows that no punishment should be inflicted. Punishment looks to example, as well as suffering. Both those objects are still attainable. But inasmuch as the defendant cannot perform the required act, it is the duty of the Court, to enquire if the objects of the law cannot as well be accomplished without, as with imprisonment. Imprisonment is the extreme rigor of the law, and as in this case it cannot accomplish one of its main designs, this Court deems it proper only to impose a fine. In the just and necessary exercise of this power, it would have afforded the Court pleasure to have seen, in the case, any mitigating circumstances from which any reasonable inference could fairly be drawn, that the course the defendant has permitted himself to adopt throughout the whole of this protracted affair, had been the result of unintentional error and misconception. But when it is seen that the facts disclosed, show not only wilful contumacy, in the first instance, but when the defendant had been informed from the written opinion of the Court, on the application for the peremptory writ of mandamus, what was the true position in which he stood, to persist again, under a flimsy and virtually overruled pretext, to disobey the writ, shows an obstinate determination to resist the authority of the law, in utter disregard of the rights of the injured party, and of the duties of his station.

It is certainly matter of deep regret, that a case thus marked, should have called for the exercise of the summary powers of the Court, to inflict punishment on judicial delinquency. To pass it over lightly, would be a dereliction of duty. Every consideration of justice, and a sacred regard to the maintenance of the supremacy of the law, solemnly admonishes this Court, that those who violate its mandates, must expect a punishment to be inflicted commensurate to the wrong done; but more especially should it take care, that those, to whom is committed the sacred duty of the execution of the laws, do not escape, where they are themselves guilty of their infraction.

With these views before us, and in the discharge of a duty which we may not omit, it is considered that the defendant, John Pearson, is, and he is hereby adjudged to be, guilty of a high contempt, in refusing to obey the command of a writ of peremptory mandamus heretofore awarded by this Court, by the cause of Robert C. Bristol v. John F. Phillips, and duly served on him, and that for such his contempt aforesaid, it is adjudged and decreed that he pay to the people of this State, a fine of $100, and the costs of all the proceedings in relation to the writs of mandamus and attachment, and that the people have execution therefor.

Breese, Justice,

delivered the following separate opinion :

I did not hear any of the arguments in this cause, and consequently, am not prepared to express a definite opinion upon its merits. From the examination I have given the papers, I was inclined to the opinion, that the action of the defendant might be based on the ground of a misapprehension of his rights and duties as a judge of the Circuit Court, and not to a spirit of disobedience to the mandates of this Court. A just respect for the judicial tribunals of the country, acting within the line of their duty, requires that their decisions solemnly made should be regarded; if they are not, their usefulness will be greatly abridged, or wholly destroyed.

I do not doubt the power of this Court to award a peremptory mandamus to the Circuit Court, nor the duty of the Court to which it is sent to obey it. It is a just and necessary exercise of power, promotive alike of the ends of justice, and of the rights of suitors. If it is disobeyed, there is no alternative but the imposition of a fine or imprisonment. In adopting the former mode, under the circumstances of this case, the judge having resigned his office, since the attachment was issued, seems to be in harmony with acknowledged principles in such like cases.

Douglass, Justice, having been of counsel for the defendant, gave no opinion.

Judgment against defendant.

J. Young Scammon filed the following affidavit, and moved the Court to tax the costs in the cause:

“ The People, ex relatione Robert C. Bristol, v. John Pearson.

“ James M. Maxcy, being first duly sworn, doth depose and say, that he was, in the year eighteen hundred and forty, a deputy of Garret Elkin, who was then sheriff of Sangamon county. That at the June term, eighteen hundred and forty, a writ of attachment issued out of the Supreme Court of this State, directed to any and all sheriffs of all counties of the State of Illinois, against John Pearson, to answer for a contempt of said Supreme Court, in refusing to obey a peremptory writ of mandamus, issued out of the said Court, and to him directed and delivered; which writ of attachment was delivered to this deponent to execute. That this deponent went immediately in search of said Pearson, who was in the city of Springfield, on the day of the issuing of said writ. This deponent further saith, that although he went immediately in search of said Pearson, he was not able to find him within the county of Sangamon, but learned that he had covertly and secretly left the city, and was fleeing from the process of this Court, for the purpose of evading justice; and this deponent, conceiving that it was his duty to pursue the fugitive, hired a horse, and gave chase to said Pearson, and travelled six days before he was able to overtake him. That he overtook him in Clay county, and caused him to be arrested by the sheriff of said county of Clay, who delivered the prisoner to this affiant, for the purpose of bringing him to Springfield, to answer for his contempt to this Court. That this deponent brought said Pearson to Springfield, being engaged in the pursuit of said Pearson, and in bringing him back to this Court, ten days. That this deponent necessarily expended, for his expenses in pursuing said Pearson, and bringing him back to Court, the sum of twenty-eight dollars and seventy-five cents, and for horse hire, the sum of thirty-eight dollars. This deponent therefore prays this Court to direct the clerk of this Court to tax the amounts thus expended by him, for expenses and horse hire, with the costs in the above entitled cause.

“James M. Maxcy.

“ Sworn and subscribed, this 13th day of January, 184?, before me.

“E. Peck, C. S. C.”

The Court ordered, that the clerk tax in favor of the officer who served the writ of attachment, cents per mile, for 260 miles travel, in serving and returning the attachment, and the cost of the service thereof, as allowed by law.

(1) 3 Scam. 189.