Tyler v. Hamersley

44 Conn. 393 | Conn. | 1877

Lead Opinion

Hovey, J.

This writ of error is founded upon an adjudication of a contempt in refusing obedience to a peremptory writ of mandamus. The writ of mandamus was awarded and issued by the Superior Court sitting at Hartford, in accordance with advice given by this court, after a full .hearing and argument, upon a reservation. It was directed to the New Haven & Northampton Company, a railroad corporation created by the laws of this state, of which the plaintiffs in error were directors and officers, and commanded them forthwith and thereafter to stop their regular passenger and freight trains at the dépcit at Plantsville on their railroad, for the purpose of receiving and discharging passengers and freight. Before it was served a writ of error was brought to this court to reverse the judgment by which the mandamus was awarded. The writ of mandamus was afterwards served upon the railroad corporation, and the plaintiffs were duly informed thereof, and also had due notice of the contents of the writ. But they refused to obey its mandate, on the ground that counsel had advised them that it was superseded by a writ of error. Proceedings were then had in the Superior Court against the plaintiffs in error to enforce their obedience to the writ of mandamus, and upon those proceedings they were adjudged guilty of contempt and ordered to attached and committed to the county jail in Hartford, and to.be confined and imprisoned therein till discharged by order of the court or otherwise by due process of law. It was also adjudged that they should pay the costs of the proceedings, and that unless they should forthwith and within twenty days after notice of the order was served upon them, obey the writ of mandamus and make return of the same to the court, process should issue against them. Notice having been served upon them, they brought the present writ of error to this court. And the defendant in error moves that it be struck from the docket.

Upon, this motion the question which presents itself is, whether a writ of error will-lie upon an adjudication of a contempt. Writs of error may, by statute, be brought to this court upon judgments of the Superior Court, and such writs, in all cases in which they will lie at common law, are writs of right, unless the questions raised by the assignments of error have been already determined by this court upon a reservation. But at common law no writ of error lies except upon a judgment or an award in the nature of a judgment. Co. Litt., 288; 2 Tidd, 1062. It was accordingly held in the case of the City of London, 8 Co., 288, that upon a return to a habeas corpus no issue could be joined or a demurrer taken and that no writ of error would lie thereon. In the case of The King v. The Dean and Chapter of Trinity Chapel in Dublin, 1 Stra., 536, (S. C., 8 Mod., 27,) the doctrine of the case of the City of London was fully recognized. In the opinions given by the judges it was declared that error would not lie on the award of a procedendo or on the return of a rescue; and Eortescue, J., stated his belief that on a conviction for contempt error was never brought. In Groenwelt v. Burwell, 1 Salk., 144, (S. C., 1 Ld. Raym., 454,) Lord Holt, who gave the opinion, admitted it to be good law that no writ of error would lie upon the award of a fine and imprisonment for a contempt. These cases are sufficient to show that at common law adjudications of contempts by courts of competent jurisdiction are final and cannot be reviewed in a court of error. And the doctrine is strongly supported by numerous other authorities, English and American. Earl of Shaftsbury’s case, 2 St. Tri., 615; 1 Mod., 144; The Queen v. Paty et al., 2 Ld. Raym., 1105; The King v. Crosby, 3 Wils., 188; Carus Wilson’s case, 7 Ad. & El. N. S., (53 E. C. L.,) 984; Ex parte Fernandez, 10 Com. Bench, N. S., (100 E. C. L.,) 3 ; S.C., 6 Hurlst. & Norm., 717 ; Ex parte Pater, 5 Best & Smith, (117 E. C. L.,) 299 ; Ex parte Kearney, 7 Wheat., 38; State v. Towle, 42 N. Hamp., 540; Yates v. Lansing, 9 Johns., 395; 4 id., 317 ; In re Williamson, 26 Penn. St., 9; Ex parte Summers, 5 Ired., 149; State v. Woodfin, id , 199; State v. White, T. U. P. Charlt., 123 ; Gates v. McDaniel, 4 Stew. & Port., 69 ; Moore v. Clerk of Jessamine, Litt. Select Cas., 104; State v. Tipton, 1 Blackf., 166; Kernodle v. Cason, 25 Ind., 362; Clark v. The People, 1 Breese, 266 ; State v. Mott, 4 Jones Law, (N. C.,) 449 ; Johnston v. Commonwealth, 1 Bibb, 598; Ex parte Adams, 25 Miss., 883; Martin’s case, 5 Yerg., 456; Watson v. Williams, 36 Miss., 331; First Cong. Church v. Muscatine, 2 Clarke, (Iowa,) 69. If, therefore, the petition for the attachment in this case had been proceeded with and the adjudication complained of by the plaintiffs in error had been made in the form and according to the rules of the common law, we should feel compelled to strike the case from the docket, because, by those rules, there would have been no judgment or award in the nature of a judgment upon which a writ of error would lie. But the parties and the court proceeded with the petition as though it was an original suit, distinct from and independent of the proceedings upon which the peremptory mandamus was awarded, and accordingly, on the coming in of the return, the defendant in error formally demurred to the matters contained in it, and the court made the adjudication upon .the demurrer. In view of these circumstances, the counsel for the plaintiffs in error contended that the adjudication must be regarded and treated as a judgment, and that a writ of error lies upon it. And the claim is strongly supported by a decision of the Supreme Court of Vermont. In re Jesse Cooper, 32 Vt., 253. That case arose upon a habeas corpus. Cooper, the relator, had been fined by a justice of the peace for a contempt in his presence while holding á court and had been committed to jail for non-payment of the fine. He brought a habeas corpus before the county court to test the validity of his imprisonment. The jailor made a return, to which the relator demurred; and the county court decided that the imprisonment of the relqtor was not unlawful and remanded liim. The record was then brought before the Supreme Court for revision, and that court Held that as the return was demurred to and issue joined upon the demurrer, the decision could be revised on habeas corpus. The ground upon which this decision was mude is indeed technical, but it does not differ in that respect from the decision in the case of The King v. The Dean and Chapter of Trinity Chapel in Dublin. That case was twice argued before it was decided. Upon the first argument the judges were divided upon the question whether the award of a peremptory mandamus upon motion, and without pleadings or demurrer joined, was a judgment of which error could be predicated. The Chief Justice was in doubt about it. Eortescue, J., thought it hard to maintain that an award which did not contain the words “ ideo consideratum est,” was a judgment on which a writ of error would lie. Powis, J., seemed to be of the same opinion; and Eyre, J., thought that the award was a judgment on which error would lie because the writ recited that the return was held insufficient, uper quod consideratum fuit, quod fierit breve de peremptorie mandamus, tarn in complemento judidi quam in exeeutione ejusdem.” On the second argument all the judges agreed, but for different reasons mostly technical, that a writ of error would not lie. It was, however, admitted that if the mandamus had been awarded upon an issue joined, either of law or of fact, the result would have been different. With such a precedent as that case furnishes, the decision In re Jesse Cooper cannot well be discarded because of the technical character of the reasons assigned for it by the court. And while I would not adopt it as a rule of procedure and thus open the way to this court for writs of error in cases of contempts generally, because, in general, every court must be allowed to judge of its own contempts; yet where parties proceed as the parties proceeded in this case and try the question of contempt upon an issue of law tendered by the party moving in the proceeding, and the court decides the question upon that issue, the decision must be regarded and treated, not as an award merely, .but. as a judgment upon which a writ of error will lie. The motion to strike the case from the docket must, therefore, be denied.

This disposition of the motion of the defendant in error brings before us the proceedings in the court below and imposes upon us a delicate and important duty. In performing that duty the first question to be considered is, how are the rights of the plaintiffs in error affected hy the writ of error, and to what extent can the proceedings upon which the writ is founded be considered and reviewed in this court. The answer seems to me to be obvious. Brought here as this writ of error is by an unusual method of procedure and for the double purpose of staying execution and obtaining a revision of questions which are not ordinarily revisable in a court of error, it should give to the plaintiffs in error no right and secure to them no benefit or privilege to which they would not have been entitled, after commitment, upon a writ of habeas corpus. In the first place, the writ of error should not have the effect of staying execution upon the judgment. Should such an effect be given to it, parties guilty of the grossest and most aggravated contempts may set the courts at defiance, obstruct the regular course of justice, and suspend if not totally elude punishment at their own will and pleasure. Contempts are offences at common law against the court as an organ of public justice. The right of punish-, ing them is inherent in all courts and is essential for their protection and existence; From their very nature the punishment, to be effectual, must be immediate and peremptory, and not subject to suspension at the mere will of the offender. Sentences for contempts would amount to nothing if the offenders could supersede them by writs of error, and the authority of courts would be contemptible indeed if it-could be thus eluded and prostrated. 4 Bla. Comm., 286; 2 Sw. Dig., 358 ; Ex parte Maulsby, 18 Md., 625; Ex parte Summers, 5 Ired., 149; Johnston v. Commonwealth, 1 Bibb, 598.

In the second place, the proceedings upon which the judgment was rendered should not be reviewed except so far as may be necessary to determine whether the court in render-; ing the judgment acted within the sphere of its jurisdiction. Every court must of necessity possess the power to enforce obedience to its lawful orders and judgments, and punish con-tempts of all kinds against its authority. It is only when it acts without its jurisdiction that its proceedings in such cases ■ will be interfered with or questioned by a superior tribunal. The principle upon which courts proceed in such cases is clearly stated in the celebrated case of Burdett v. Abbot, 14 East, 1, 150, and the case of The People v. Sturtevant, 5 Seld., 263. In the former case Lord Ellenborough, in the course of an able and interesting opinion, observed that if a commitment appeared to be for a contempt of the House of Commons generally, he would neither in the case of that court or of any other superior court inquire further; but if it did not profess to commit for a contempt, but for some matter which could by no reasonable intendment be considered as a contempt of the court committing, but a ground of commitment palpably and evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, he would look at it and act upon it as justice might require, from whatever court it might profess to have proceeded. In the case of The People v. Sturtevant, the rule laid down by the court was that “ a party proceeded against for disobedience to an order or judgment is never allowed to allege as a defence for his misconduct that the court erred in its judgment. He must go further and make out that in point of law there was no order and no disobedience, by showing that the court had no right to judge between the parties on the subject.”

The question then arises whether the proceedings in the court below were within the jurisdiction of that court. The record shows that before those proceedings were commenced a writ'of error had been brought upon the judgment by which the writ of mandamus was awarded and was then pending in this court. And it was urged in argument by counsel for the plaintiffs in error that that writ of error was a supersedeas of the writ of mandamus and operated as a stay of all proceedings for the enforcement of that writ. If this claim is sustainable the court below had no jurisdiction of the proceedings in which the contempt was adjudicated, and its entire action, including the judgment rendered thereon, was coram non yudiee and therefore void. Kendall v. Wilkinson, 4 El. & Bl., 680. And it would follow as a necessary consequence that no obligation rested upon the plaintiffs in error or upon the corporation to which the writ of mandamus was directed, to stop their trains at Plantsville as the writ commanded; and their refusal to obey the mandate was an inhocent and a justifiable act. But the claim is entirely without foundation. It is undoubtedly a rule of the common law, well settled and established, that a writ of error after final judgment and' before execution executed is, in ordinary cases, a supersedeas of the execution from the timé of its allowance, and by our law it is a supersedeas from the daté of the service of the writ. But it is no supersedeas of a peremptory mandamus.In the first place, no return to such a writ is allowed, the courts exacting implicit obedience to its mandate ; and such obedience is required during the entire period that the judgment by which it was awarded remains in force and unreversed. High on Extr. Rem., § 567; Kaye v. Kean, 18 B. Monr., 839. In the second place, the judicial decisions in1 England and in this country, generally, expressly hold that' a writ of error does not operate as a supersedéas to stay the execution of a peremptory mandamus. Anonymous, 1 Vent., 266 ; Strode v. Palmer, Trin. T., 2 Geo. I; Lill. Ent., 248 ; The Dean and Chapter of Trinity Chapel in Dublin v. Dowgatt, 1 Peere Williams, 349; Wright v. Sharpe, 11 Mod., 175; Lord Montague v. Dudman, 2 Ves. Sr., 396; The People v. Steele, Edm. Sel. Cas., 505; 2 Barb., 554; Pinckney v. Henegan, 2 Strobh., 250. But we do not choose to rest our decision of this question upon these grounds alone. There is another reason which is perfectly conclusive in this case' why the writ of error cannot be allowed to operate as a supersedeas. A writ of error is never allowed to have that operation after the questions raised by the assignment of errors have‘been deteríninéd. Arnold v. Fuller, 1 Ohio, 458; Bishop of Ossory’s case, Cro. Jac., 534. See also Hartop v. Hislop, 1 Ld. Raym., 97, 98. In this case all the questions raised by the assigninent of errors had been determined by this court upon a reservation by the Superior Court, before the writ of error was brought. By thé rules of this court that determination settled and established the law of the casé and was final; and the judgment which followed in the Superior Court was as conclusive and as binding upon the parties as if it had been rendered originally by the Superior Court and afterwards affirmed on error by this court. Smith v. Lewis, 26 Conn., 110 ; Nichols v. Bridgeport, 27 id., 459 ; Fowler v. Bishop, 32 id., 199. The peremptory mandamus was, therefore, wholly unaffected by the writ of error and was in full force from the moment it was issued. The plaintiffs in error, as officers of the corporation to which the mandamus was directed, were bound tó see that the mandate was obeyed. They chose a different course, and in so doing were guilty of a gross contempt of the authority of the court. The reasons assigned in their behalf furnish no excuse for their misconduct, and cannot under the circumstances be received in palliation of their contempt.

There is no error in the judgment complained of, and it is affirmed.

In this opinion Carpenter, Pardee and Loomis, Js., concurred.

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Dissenting Opinion

Park, C. J.,

dissenting. The writ of mandamus was originally a strictly prerogative writ, and issued only in certain clear and unquestionable cases. No pleadings were allowed and no judgment was rendered, and consequently no foundation was laid for a writ of error. But in modern practice the proceeding by mandamus has substantially lost its prerogative character. Pleadings are allowed, judgments are rendered, and writ's of error are brought to try the validity of the judgments. In Kentucky v. Dennison, 24 Howard, 66, Chief Justice Taney says, “ It is equally well settled that a mandamus in modern practice is nothing more than an action at law between the parties.” In Gilman v. Bassett, 33 Conn., 298, Judge Butler says, “ Doubtless the writ was originally a prerogative one, but it has ceased to depend upon any prerogative power, and is now regarded in much the same light as other process.” See also High on Extraordinary Legal Remedies, 8.

It must be conceded that in other proceedings at the common law a writ of error is a supersedeas of the execution of the judgment upon which it is based. It is so in England; it is so in this state; and it is generally so in all the states of this country. It is unnecessary to cite authorities upon this subject, for it will be conceded.

Now if in modern practice writs of error will lie in cases of mandamus, why should they not operate in those cases in the same manner as in other actions, and suspend the execution of the judgments they call in question, pendentibus litibus ? Certainly there is as much cause for a suspension of the execution of the judgment in this form of action as in any other. A writ of error is the same in its nature in every respect whether the judgment it calls in question was rendered in one form of action or another. If in one form of action a writ of error, ipso facto, suspends the execution of the judgment, what reason can be given why it should not do so in another ?

A distinction is attempted to be made growing out of the fact that the judgment upon which the writ of error under consideration is based, was rendered in accordance with the advice of this court given upon a reservation of the case by the Superior Court for our advice ; and it is said that, however it may be in other cases of mandamus, the execution of a judgment thus rendered should not be stayed by a writ of error. This distinction applies as much to other actions at the common law where judgments are rendered under like circumstances, as to proceedings by mandamus. The claim seems to regard it as derogatory to the dignity of this court, and as conflicting with its decision, that a writ of error should stay the execution of a judgment rendered in accordance with its advice. But this court simply advised the court below in regard to the judgment which should be rendered. It never advised that court, (and never does,) to carry the judgment, when rendered, into immediate execution, whether a writ of error should be interposed or not. It is plain therefore that a suspension of the execution of the judgment can not conflict with the advice of this court. The object of this writ of error is to take the case to the Supreme Court of the United States for final adjudication-regarding the legality of the judgment; and why, if the case be one_that_falls within the jurisdiction of that court under the constitution, is it any more derogatory to the dignity of this court that the writ of error should stay the execution of the judgment till that court shall have an opportunity to hear the case, than it is to the dignity of the Superior Court that a writ of error to this court should stay the execution of a judgment rendered by it ? It seems to me far more in accord with the dignity of this court that parties should have full and untrammeled opportunity to resort to all the means afforded by the law and the constitution, to test the legality of any judgment rendered by it or rendered in accordance with its advice.

I am therefore unable to discover any substantial reason why this writ of error, or any other in cases of mandamus, should not have the same effect to suspend the execution of the judgment it calls in question, that it has in all other proceedings at the common law. In other cases at the common law it is considered unjust that the judgment should be carried into execution while process is pending to test its validity. The reason is obvious. The law gives to parties the right to review the decisions of the lower courts, and if the decisions are to be carried into effect before a review can be had the right would in many cases be worthless. Take, for instance, cases where a peremptory mandamus is issued to compel the guarantee of negotiable instruments, like the case of The New Haven, Middletown & Willimantic R. R. Co. v. The Town of Chatham, 42 Conn., 465, where the proceeding was brought to compel the town to guarantee forty thousand dollars of bonds belonging to the railroad company, what would the right of review have been worth in that case if the court below had erroneously granted the mandamus, and no stay of proceedings had been had ?

But it is said that a court would always order a stay of proceedings in cases where irreparable injury might accrue. The same might be said with equal propriety in all cases where a writ of error is unquestionably a supersedeas of the execution of the judgment, and why leave cases of this character to the discretion of the court any more than others,? In other cases the danger is that a court may err in its discretion. A judgment might appear to the court rendeiing it manifestly correct, in which case a stay of proceedings would he refused. The law therefore allows no discretion in the matter, hut makes the service of a writ of error suspend the execution of the judgment.

But the court rendering a judgment has no jurisdiction over a writ of error brought to review it. Writs of error are independent proceedings. They may be brought in vacation as well as during the session of the court. They are brought directly to the higher court, and the lower court can do nothing that will interfere in any way with its operation or effect. What jurisdiction has the Superior Court over this writ of error brought directly to this court to determine whether or not the execution of the judgment upon which it is based should be suspended ? If the writ ipso facto suspended proceedings in that court, there is no power known to the law by which the suspension can be vacated during the pendency of the proceeding except that vested by statute in the judges of the Supreme Court of Errors. Gen. Statutes, p. 452. This statute recognizes the fact that a writ of error suspends the execution of the judgment it calls in question in all cases whatsoever, and is tantamount to a direct declaration to that .effect; and by necessary intendment denies the right of any court or judge except those specified to vacate the suspension.

I might cite the long practice which has been pursued in the state in relation to proceedings by mandamus. A large number of cases of this character have come before this court within a few years, by motions in error, and by writs of error, and it is believed execution of the judgments has been stayed by them without exception, and without objection by counsel. I might also refer to the practice in relation to the analogous process of quo warranto, concerning which a similar procedure has been pursued, thus tending to show a common law of our own on the subject. But I do not care to discuss the matter further. I am of the opinion that the writ of error in the case of The State v. The New Haven & Northampton Company, was a supersedeas of the execution of the judgment rendered in that case, and consequently that the court below, had no jurisdiction of the contempt proceedings in this case. .

I think the judgment of contempt should be reversed.