5 Utah 531 | Utah | 1888
This is an application for a writ of prohibition. The applicant for the writ, Eli H. Pierce, was arrested npon a warrant issued by J. B. Carrington, a commissioner of this court, upon a charge of contempt of the commissioner’s court, in writing and having published in the Salt Lake Herald certain articles concerning said commissioner’s court. No copy of the articles has b.een furnished to us. Pierce was bound over to answer to said commissioner why he should not be punished as for contempt. Thereupon Pierce applied for the writ of prohibition to prevent said commissioner from proceeding.in the matter. An alternative writ was issued, and to'this the defendant, Car-rington, has demurred, and also filed his answer. The principal ground of the demurrer is that the writ does not state facts sufficient to constitute a cause of action. The arguments of counsel were made upon the demurrer and,
• It is said that the applicant has a complete remedy by way of appeal. An appeal could only be resorted to after judgment. It would not prevent the unjust proceeding prior thereto, the expense, vexation, and annoyance of trial and an appeal would subject the applicant to the necessity of taking all the preliminary steps therefor, giving undertaking, etc., or of going to jail if unable to give the appeal-bond ; and he would be required to follow the case into the district court, and take steps there for defence against the proceeding. When he. should reach the district court, he would find that he could not have the issues heard and determined there upon which he was tried and condemned by the commissioner. The only question there to be settled would be that the commissioner was acting without authority, and that the proceedings should be dismissed. Such would not be an adequate remedy for the vexations, expense, and probably damaging trial through which he had, against his will, been forced. It is said that the applicant has ample remedy by way of cer-■tiorari, but certiorari, like appeal, has no effect until after action has been had by the commissioner. A certiorari can only be issued when the inferior court “has exceeded” its jurisdiction. It looks to the past and not to the' future. It then would not prevent the illegal proceedings that should follow. The writ of prohibition is preventive, and not remedial, in its nature, and therefore is the appropriate writ to arrest the unauthorized proceeding, prior to judgment as well as after it, always, however, looking to the future, and not to the past.
Our attention is called to the fact that habeas corpus would be available. But it could avail nothing until after the party has been restrained of his liberty. In the pres-ent case that would take place after judgment, and when the person had been committed to prison. It would be neither a speedy nor adequate remedy. Therefore, neither
The next question for our consideration is whether the defendant, acting as a United States commissioner, had jurisdiction to punish for this alleged contempt. It is contended that the commissioner had the same power in the matter as a justice of the peace would have 'had, and that a justice of the peace had full power to punish for such contempt. A justice of the peace has no inherent power to commit for contempt. Queen v. Lefroy, 4 Moak, Eng. R., 134; Rhinehart v. Lance, 43 N. J. Law, 311, 39 Am. Rep., 59; Storey v. People, 79 Ill., 45, 22 Am. Rep. 158. And it is doubtful whether at common law, justices of the peace were accorded power to punish contempts, ex
“Disorderly, contemptuous, or insolent behavior toward the justice while holding court, tending to interrupt- the due course of the trial or other judicial proceeding.” This “behavior” must be “toward the justice” and it must be toward him “while holding court.” The jurisdiction of the justice, as we have seen, cannot be implied; and the rule being that he has no inherent or common law jurisdiction to punish contempts, except- when in his presence, it follows that the statute must provide in expreés terms that he could punish for acts committed out of his presence, or he cannot have such power. But this statute, in none of the subdivisions aforesaid, so provides. It follows that he does not have the power.
It is urged that the commissioner had the same jurisdiction as the commissioners of the circuit and district courts of the United States, and that such latter commissioner s have the power to punish such contempts, hence the former have the power also. We are referred to no authorities showing that* commissioners of the circuit and district courts of the United States have jurisdiction to punish contempts of this character committed out of their immediate presence. Such circuit and district courts have not, since 1831, had any such power, except, of course, in the enforcement of some order, judgment, or process. Rev. St. U. S., p. 137, sec. 725. They have no power to punish contempts committed by publications in newspapers; and we do not see how they could, except by an express act of Congress, grant to their commissioners greater power than
We think that the commissioner is in this matter acting outside of his jurisdiction, and that the writ of prohibition would be the proper remedy. The demurrer is overruled, and, as the case made by the answer would not change the result, the alternative writ is made absolute.