Ex Parte Robertson

• Decision Date: 15 May 1889
• Citation: 11 S.W. 669
• Parties: <I>Ex parte</I> ROBERTSON.
• Court: Texas Court of Appeals

11 S.W. 669

Ex parte ROBERTSON.

Court of Appeals of Texas.

May 15, 1889.

Habeas corpus.

Carleton & Ruggles, for relator. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

In this case an original writ of habeas corpus was granted, returnable to this court, on the petition of applicant, alleging that he is illegally restrained of his liberty by the sheriff of Travis county, acting by virtue of a certain writ of commitment issued by one J. A. Stuart, a justice of the peace in and for precinct No. 3, of Travis county, Texas, on the 8th day of April, 1889; said order or writ of commitment being in words and figures as follows: "The State of Texas to the Sheriff of Travis county, Greeting: Whereas, a judgment was rendered by Mr. J. A. Stuart, a justice of the peace in precinct No. 3, in the county of Travis, adjudging W. M. Robertson guilty of contempt of court, and a fine of $39.19 was entered against said Robertson, and judgment was by me rendered on the 8th day of April, 1889, that the state of Texas recover of the said defendant, W. M. Robertson, the sum of thirty-nine and 19-100 dollars, the fine assessed by the court, and all costs, amounting to the further sum of 60-100 dollars, these are therefore to command you forthwith to take into custody and keep him, the said W. M. Robertson, until the above fine and costs are paid as provided by law. Herein fail not, but execute this warrant of commitment as the law directs, and fail not to return the same, with your indorsement thereon how it was executed. Given under my hand, at office, this the 8th day of April, 1889. J. A. STUART, Justice of the Peace, Prec. No. 3, Travis Co., Tex."

It is claimed that said commitment is illegal and unauthorized by law, and exceeds the limits within which our statute permits justices of the peace to fine in cases of contempt; the provision of the statute being that "they shall have power to punish any party guilty of a contempt of court by fine not to exceed twenty-five dollars, and by imprisonment not exceeding one day." Rev. St. art. 1541. If the fine imposed had been for a criminal contempt, this statute would have been applicable, and the objection would have been fatal to the proceeding. Such, however, does not appear to have been the nature of the proceeding.

It is shown that the applicant, Robertson, as constable, was fined by the justice for failing and refusing to execute and return according to law a writ of sequestration issued in a certain civil cause pending in the justice's court, wherein one A. A. Cooper was plaintiff, and one E. O. Sanford was defendant; that a motion was made against said constable by the plaintiff, Cooper, to have him fined for failing to execute said writ, upon the hearing of which the court adjudged him "guilty of a contempt of court for failing and refusing to execute and return said writ;" and that he "be fined in the sum of $39.19, which said sum, when collected, shall inure to the benefit of the said A. A. Cooper, the plaintiff in said cause;" and that the "said Robertson be committed to the county jail of Travis county, Tex., until the said sum of $39.19, together with all costs, is paid into this court." This was the judgment upon which the order and said writ of commitment set forth above were issued. The justice based his action upon the provisions of article 4539 of the Revised Statutes, which declares that, "if any constable shall fail or refuse to execute and return, according to law, any process, warrant, or precept to him lawfully directed and delivered, he shall be fined for a contempt on the motion of the party injured before the court from which such process, warrant, or precept issued, in any sum not less than ten dollars, nor more than one hundred, with costs, which fine shall be for the benefit of the party injured, and said constable shall have ten days' notice of such motion." It seems that all the requirements of this statute were substantially, if not literally, observed in the proceedings which resulted in the justice's judgment; but it is insisted for the applicant that, while it may be conceded that under this statute the justice had the authority to fine the constable, still the statute gives him no authority to commit him to jail as for a contempt until such fine and costs were paid.

Contempts are of two kinds, — civil and criminal. Civil contempts are those quasi contempts which consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party, to the proceeding before the court, while criminal contempts are all those acts in disrespect of the court, or of its process, or which obstruct the administration of justice, or tend to bring the court into disrepute, etc. Rap. Contempt, § 21. Contempts are also classified into direct and constructive contempts. Direct contempts are punishable summarily, while constructive contempts require a different and less summary process. We have already seen that for what may be termed "criminal" or "direct" contempts our statute above quoted (Rev. St. art. 1541) expressly provides that the party may be punished and imprisoned. The question here is, the statute (article 4539, Rev. St.) being silent as to imprisonment for constructive or civil contempts, can the court inflict imprisonment as part of the punishment for said character of contempts? Our supreme court, in the case of Edrington v. Pridham, 65 Tex. 612, which was a case involving civil or constructive contempt, says: "The proceeding for contempt can properly end only in a judgment of acquittal and discharge, or conviction and sentence. The punishment is by fine or imprisonment, or both. Rev. St. art. 1120; Rap. Contempt, § 128. The proceeding is generally regarded as a prosecution for an offense. Id. § 95; Passmore Williamson's Case, 26 Pa. St. 9. We find no authority for awarding in such proceeding, as a softer penalty, or as a means to the same end, a judgment in favor of the private prosecutor, for a sum of money to be collected by execution. In some jurisdictions, for contempt in civil cases, depriving a litigant of some right, the court is authorized by statute to require the offender to restore the status quo, or pay the damages, but the order is enforced by commitment. Robins v. Frazier, 5 Heisk. 100; In re Day, 34 Wis. 638."

In his able work on Contempts, Mr. Rapalje says: "An examination of the authorities, English and American, discloses five different kinds of imprisonment for civil and criminal contempts: (1)...