7 S.C. 235 | S.C. | 1876
The opinion of the Court was delivered by
Two separate appeals are brought before us in the above entitled case, both taken by the State from orders made by the Circuit Judge of the Sixth Circuit, at Columbia, in August, 1875, in an action pending in the Fifth Circuit. One of these orders vacates an order of arrest issued by the Clerk of the Court, and the other dismisses the summons and complaint in that action. The same question is raised as to the authority of the Circuit Judge of the Sixth Circuit to make orders within the Fifth Circuit which we have just passed upon in the case of Ex Parte N. G. Parker vs. The State of South Carolina, (6 S. C., 472). The point there ruled determines the question of authority against the power of the Circuit Judge who made the orders,and they must accordingly be set aside. The reasons assigned in the opinion of the case of Ex Parte Parker ion not considering the various questions passed upon by the Judge who made the orders in question is ground for confining the present decision to the question of judicial authority alone.
One feature of the appeal from the order vacating the order of arrest may properly be noticed, as involving general considerations, not entering into the merits of the case as it stands before the Cir
The fact that the order was made without notice is sufficient ground for setting aside, as a direct violation of the statute requiring notice to be given in such cases. The circumstance that it was not asked for on behalf of the party for whose benefit it was made cannot properly be passed without notice. It is a dangerous innovation, subversive of the conception of the proper limits of judicial authority entertained by our laws. As the idea of a government of laws emanating from a legislative representation distinct from the judicial body has obtained clearness and force, a concurrent tendency has developed to separate entirely the functions of the Judge and those of the advocate. Whatever may have been the practice at times when the liberty of the subject stood on no higher ground than a concession, either voluntary or extorted, of the dynastic head of government, at this day the judicial office has been so far simplified and purified, in theory at least, that the idea of a Judge initiating any proceeding for the vindication of any right, either public or private, is anomalous. The case of punishment for actual contempt, especially that committed in the presence of the Court, is exceptional, and authorizes the Court to notice violations of order and decorum committed in its presence and to initiate and apply a summary remedy. This power, although liable to abuse, is the result of the necessities of the case.
The sound theory of judicial action, based upon experience and reason, requires that the Judge shall remain passive until moved in the right of those interested in invoking the action of the Court. Remedies of all kinds, while granted by the Court in recognition of the right of the parties demanding them, are selected or sought for by the parties themselves as means of promoting their personal interests. So a Judge cannot properly initiate a remedy in behalf of any party, because he cannot properly represent the interests of the party for whose benefit such remedy is intended. It is a' mistaken idea that the Court has any personal or official interest in the mode in which its process is employed, or in the results attained through it. It is the party alone who is interested in the process issued in his behalf, and he is at liberty to take or decline all that the law intends for him by issuing in his behalf the process of the
The orders appealed from in each of the appeals in the above entitled action must be set aside and wholly vacated.
