Ex parte Bergman

• Decision Date: 25 November 1890
• Citation: 26 P. 914,3 Wyo. 396
• Parties: Ex parte BERGMAN
• Court: Wyoming Supreme Court

26 P. 914

3 Wyo. 396

Ex parte BERGMAN

Supreme Court of Wyoming

November 25, 1890

Isaac Bergman, being in custody of the sheriff of Laramie county by virtue of a commitment of the district court for contempt files his original petition for release on habeas corpus. Petition denied.

Petition remanded.

Walter R. Stoll and A. C. Campbell, for petitioner.

Willis Van Devanter and John M. Davidson, amici curiae.

GROESBECK C. J. CONAWAY, J., concurs. MERRELL, J., not having qualified, did not sit in this case.

OPINION

GROESBECK, C. J.

The petition for the writ of habeas corpus recites that Isaac Bergman, the petitioner, is a citizen of the United States of America, and of this state, and is restrained of his liberty by John A. Martin, as sheriff and jailer of the county of Laramie, at the jail of said county; that the pretense of such restraint, according to the best information of the petitioner, is by an order of commitment of the district court of the first judicial district, sitting within and for the county of Laramie, a copy of which order is attached to the petition; that the restraint and imprisonment of the petitioner is illegal, in this: (1) That the said district court was without jurisdiction in the premises; (2) that the said commitment was made in an alleged proceeding for contempt, which alleged contempt consisted in not obeying what is called a "request" or "order," which is attached to the petition, and in not obeying what is called a "further order," also attached to the petition; (3) that the said order of commitment was illegal, in this: that it is without limit; (4) that the said order of commitment is illegal, in this: that the said petitioner was held in contempt in matters which had not occurred at the time the said last-mentioned order was made returnable, and in which the petitioner had no hearing, and no opportunity to be heard. The petition closes with the usual averments that the illegality of the imprisonment of the petitioner has not been adjudged upon a prior proceeding of the same character, and that the application for the writ has not been made to, and refused by, any court or judge. The orders referred to are sufficiently set out in the answer and return of the said sheriff to the writ, and the substance of such answer and return is given in this opinion.

This court has been invested with original jurisdiction in habeas corpus by the constitution of this state. Section 3, art. 5, of the constitution of Wyoming. The supreme court of the territory of Wyoming also exercised this original jurisdiction, under the organic act of the territory and the acts of congress relating to habeas corpus. The proceedings and practice in habeas corpus set forth in chapter 1 of title 17 of the Revised Statutes of Wyoming appear to be applicable herein, and the petition and answer are drawn thereunder. Under the provisions of this statute, the writ does not issue, as of course, upon the application. Sec. 1269, Rev. St., provides that "if, from the showing of the petitioner, the plaintiff would not be entitled to any relief, the court or judge may refuse the writ." And section 1272 directs that, "if the writ is disallowed, the court or judge shall cause the reasons for said disallowance to be appended to the petition, and returned to the person applying for the writ." This is the rule under the common law, and is the practice uniformly followed by courts and judges upon application for the writ, unless the statute of the jurisdiction points out another method. The writ can only issue to one "entitled to it," and it should not be granted without inquiry. To allow the writ, without determining that the petitioner had made a prima facie case, would make it a mere ministerial act; and a clerk of a court or other ministerial officer might issue it as in case of mesne process, and as an ordinary writ. The right to the writ "is a right in a larger and more liberal sense, --a right to be delivered from all unlawful imprisonment." Until early in the present century, in England, the opinion prevailed that the court was bound in the first instance to issue the writ of habeas corpus as of course, without exercising its discretion, as to the grounds upon which the writ issued or moved. But it clearly appears that all the leading later decisions, both English and American, establish the rule that probable cause must first be shown to obtain the writ, whether it is granted at common law or under the statute; and this rule has been followed without interruption, in this country, in both federal and state courts, and is upheld, as a prominent author well terms it, "in a multitude of cases." Church, Hab. Corp. § 92, and the cases there cited.

Our examination of the petition, after a long and exhaustive argument, in which the sufficiency of the allegations of the petition were not raised, or even alluded to, except as to the legal effect thereof, shows the petition defective in many particulars. The allegation that the court is without jurisdiction does not state wherein either as to the person or the subject-matter of the contempt proceedings, and in fact the whole petition is lacking in sufficiency and perspicuity of statement. In order, however, to decide the question raised in the fourth allegation of the petition, we reluctantly granted the writ, as it appears impossible to determine, from the order or mittimus attached to the petition, that the hearing was had, and we prefer to err on the side of liberty, and to "spell out" vague and indefinite allegations, and to order a hearing, in order that the whole record of the committing court may be reviewed, and that the important public questions raised in the argument of counsel may receive a careful and thorough consideration at our hands.

The answer and return of the sheriff of Laramie county aver that he has now, and since the 17th of November, 1890, has had the petitioner in his custody under and by virtue of certain orders and process of the district court of Laramie county, certified copies of which are appended to the answer and return. These papers were submitted in evidence, and constitute the record and proceedings of said court in this matter. The record discloses that the petitioner, Isaac Bergman, was probate judge of Laramie county on the 10th day of July, A. D. 1890, when the constitution of this state went into effect; that, as such judge and court, he had actual possession of the records, papers, and proceedings of the late probate court of Laramie county on that day, and has continued in such possession since that date; that the district court of said county, claiming that, by operation of the constitution, the same were transferred in contemplation of law into the custody and possession of said court, on November 11, 1890, when Bergman was in said district court, required him, in open court, to deliver the records, papers, and proceedings of the late probate court of Laramie county to said district court, or show cause why he should not do so; that thereafter the court made an order requiring the sheriff of Laramie county to request and demand of said Bergman the said records, papers, and proceedings, finding that the same were in Bergman's possession, and requiring him to turn over the same to the sheriff; that such order was served by the sheriff, who made said request, to which Bergman made no response, and did not turn over any books, papers, records, or proceedings to the sheriff; that thereafter the district court, finding these facts, and that Bergman was still in the actual possession of the probate records, and had been since July 10, 1890, in the actual possession thereof, and had failed to turn over the same to the court, or its clerk or appointed officer, entered its order, and directed the service of a copy thereof on said Bergman, requiring him to appear on November 17, 1890, at an hour specified therein in said district court, and to there show cause why he should not be punished for his contempt of court in refusing to comply with its said order to turn over said probate records; that said rule to show cause was served on Bergman; that he appeared in person and by counsel on said 17th of November, in pursuance of the rule to show cause why he should not turn over said probate papers and records, and, being so present, did not state any cause in answer to the rule, but submitted the cause on the evidence before the court, and on the said rule; that the court determined and found that Bergman was in possession of the said records, books, and papers, and had been since the date aforesaid; that Bergman had failed and refused to deliver up the same; that, in the presence of Bergman, the court further found that it was entitled to the possession thereof, and that the same were the records of said court, and of right belonged to its custody; that the court then informed Bergman of its findings and decision, and again, in open court, requested Bergman to permit the court to take possession of said records, etc., and inquired of him whether or not he would permit the court to take possession thereof, whereto Bergman replied that he had heard the ruling of the court, and declined to make any other or further answer; that the second time, and directly thereafter, the court made the same request of Bergman, whereto Bergman made the same reply as at first; that the court then asked Bergman when he would permit the court to take possession of said records, or when he would deliver the same to the court or its officers, whereto Bergman answered that he could not say, and declined to make any further answer; that thereupon the court found Bergman willfully and contumaciously in contempt, and ordered and adjudged that he be committed to the common...