Ex Parte Ira Kirby et als.

• Citation: 100 W.Va. 70
• Decision Date: 06 October 1925
• Docket Number: (No. 5556)
• Court: Supreme Court of West Virginia
• Parties: Ex Parte Ira Kirby et als.

100 W.Va. 70

Ex Parte Ira Kirby et als.

(No. 5556)

Supreme Court of Appeals of West Virginia.

Submitted September 29, 1925.

Decided October 6, 1925.

1. Contempt If Order of Court Has Been Disobeyed, and Case is Urgent or Contempt Flagrant, Court May Issue Attachment Without Usual Antecedent Ride.

When an order of a court has been disobeyed and the case is urgent or the contempt flagrant, the court may issue an attachment in the first instance without the usual antecedent rule. (p. 72.)

(Contempt, 13 C. J. § 93).

2. Same One Detained in Contempt Proceeding} Who Has Made no Effort to Obtain Hearing Before Trial Court or Judge, is Not Entitled to Discharge in Habeas Corpus Proceedings for Delay.

One detained in a contempt proceeding, who has not made any effort to obtain a hearing before the trial court or judge, is not entitled to a discharge in Habeas Corpus on the ground of delay, (p. 76.)

(Contempt, 13 C. J. § 113).

3. Habeas Corpus Party Imprisoned Under Order of Judgment of Court Having Jurisdiction to Make Order Cannot be Discharged on Habeas Corpus, Regardless of Error Therein.

Point 3 of the syllabus in Ex Parte Mooney 26 W. Va. 36 applied, (p. 77.)

(Habeas Corpus, 29 C. J. § 19).

(Note: Parenthetical references by Editors, C. j. Cyc. Not part of syllabi.)

Original petition of Ira Kirby, Andy Workman, and others for a writ of habeas corpus to be directed to the Sheriff of Taylor County.

Andy Workman discharged; relief denied the other petitioners.

W. P. Samples and G. W. Ford, for petitioners. Robinson, Warder & Robinson, for respondents.

Hatcher, Judge:

Upon the petition of Ira Kirby and seventeen others, a writ of Habeas Corpus issued from this court to the sheriff of Taylor county requiring him to show cause why the petitioners are detained. The return of the sheriff states that he arrested and detains the petitioners by virtue of a writ of the circuit court of said county, dated Sept. 18, 1925, which directed him so to do. From that writ and the other exhibits in the case, it appears that a rule was issued on Sept, 2, 1925, by the judge of said circuit court in vacation, and served on thirteen of the petitioners, requiring them to appear before him on Nov. 9, 1925, that being the first day of the next regular term of said court, then to answer the alleged violation of an injunction order of the said judge; and that upon an affidavit charging seventeen of the petitioners with a subsequent violation of the injunction, another order was entered by said judge in vacation, on Sept, 18, 1925, directing an attachment to issue against seventeen of the petitioners. This attachment was also made returnable Nov. 9, 1925. The order provided that bail could be had by each of the contemnors in the sum of $500.00.

The petitioner Andy Workman, is not named in either the order of the court or the writ issued pursuant thereto by the clerk. The relief prayed for is therefore granted him.

Counsel for petitioners contend (1) that the attachment is virtually a commitment to jail without a hearing and is unlawful because it was not preceeded by a rule; and (2) that the circuit judge had the right to summarily try the petitioners in vacation, and the postponement of the hearing until Nov. 9, 1925, violated the constitutional right of the petitioners to a trial without unreasonable delay.

First. We are cited Ex Parte Mylius, 61 W. Va. 405; State v. Irwin, 30 W. Va. 421 and Morris v. Creel, 1 Va. Cases, 333, as decisions holding that a rule to show cause must be served before attachment issues. In those cases the petitioners, without a hearing, had severally been adjudged guilty of contempt and attachments had issued. So far as the holding of the court applied to the facts in each case, it was correct; but it does not apply to every contempt case. The history of contempt proceedings shows that the law concedes to judges and courts the inherent right and authority to issue an attachment in the first instance, without an antecedent rule, where the case is urgent or the contempt is flagrant. 13 C. J. par. 93, p. 68-69. In the case of Bex v. Earl Ferrers, 1 Burr 631, decided in 1758, the court of the King's Bench issued an attachment on an affidavit without a rule to show cause, against even so important a person in that day, as a peer of England, he, according to the affidavit, having disobeyed an order of the court. Thomas v. Cummins, 3 Penn. 1 decided in 1791, asseverated this authority in the following brief opinion:

"Mr. Sergeant pro quer, moved for a rule to show cause on the defendant why an attachment should not issue against him, upon an affidavit that a writ of estrepement had been served on him in this cause, and that he had afterwards declared he would go on committing waste, notwithstanding the power of the justices.

The court declared that they need not in such case give a rule to show cause, but upon such highly improper expressions would grant the attachment in the first instance, the defendant having set at naught the poAvers of the court; and the attachment w'as accordingly issued."

This right is reiterated in the more recent case of Pctrie v. People, 40 111. 334:

"Where the defendant in a suit in chancery for divorce neglects to obey an order therein to pay alimony pendente lite, an attachment may be issued against him for contempt, without any notice to him that an attachment would be asked, or any rule to show cause why it should not be issued."

While the usual practice in West Virginia is to issue a rule to show cause in the first instance, the right to issue an attachment without a rule, is stated in State v. Frew and Hart, 24 W. Va. 416.

"Where a contempt is not committed in open court, the usual course is to issue a rule to show cause why an attachment should not issue, though the attachment sometimes issues in the first instance."

This right is also distinctly recognized by the Legislature in section 27, ch. 147 of the Code, which limits the right of courts to punish for contempts in some cases, but leaves them untrammeled in case of "disobedience to any lawful process, judgment, decree or order of the said court, "

The injunction in this case had been issued for the purpose of allaying trouble in an industrial struggle. By reason of the gravity of the situation, a violation of that injunction demanded quick redress. A rule to show cause for a prior violation had already been served on thirteen of those attached. If they were guilty of a second and wilfull disobed- ience of the injunction, as the affidavit filed with the judge asserts, their contempt was indeed flagrant. The judge had the authority therefore, without a preceding rule, to direct the attachment of those named in his order. The attachment herein is merely the process of the court, and serves the same purpose as a warrant or other writ whereby an accused is apprehended and held for trial. The order directing the attachment does not purport to find the petitioners guilty, but extends to them an opportunity to be heard on Nov. 9th., wherein it is different from the cases of Ex parte Mylius and the other cases cited in which the circuit court had determined the guilt of the offenders without giving them a hearing.

Second. By virtue of section 27, chapter 147 of the Code, Petrie v. Buffington, 79 W. Va. 113, specifically declares that the judge of the circuit court may hear contempt cases in vacation:

"A judge of a circuit court has authority, in vacation of the court, to punish for a contempt for a disobedience to a lawful order of such court, "

Having the authority to try petitioners summarily, has the delay in this proceeding caused the lower court to lose its jurisdiction? We are mindful of the constitutional right of the accused to a trial without unreasonable delay. We are not unmindful that it is an outstanding principle of the common law that no man may be unreasonably detained in prison without a trial. Yet it is an equally well established principle that the peace and security of the people require that one who has become a menace thereto be detained upon a mere charge of crime. The law has harmonized these two principles by according to the State the right to hold in custody one accused of crime, upon the express guaranty of a speedy trial. What period betAween arrest and trial constitutes a speedy trial? What duration of time is unreasonable delay? The constitutions of the several states furnish no definition of these terms. Despite Magna Charta, the Petition of Rights, the Bill of Rights, and other English bulwarks of personal liberty, a prisoner might languish in jail under the common law, for so long as six months without a hearing. After describing the methods used to liberate prisoners, Blackstone says: "So that one way or other, the goals are in general cleared, and all offenders tried, punished or delivered twice in every year; a constitution of singular use and excellence," IV Blackstone, 270. The common law recognized, as the legislative bodies of the several states have done, that one accused of crime could not in most cases be given a trial immediately following the accusation. Unless the trial is to degenerate into a farce and the guilty go free, reasonable time in which to fairly prepare for the prosecution is imperative. So in most if not all jurisdictions, there are legislative enactments in aid of the constitutional provisions, giving to the state a definite period in which to arraign or bring to trial those charged with crime. These requirements vary with the several states. In our state one ...