Ex parte Sweeney

• Decision Date: 14 August 1883
• Citation: 1 P. 379,18 Nev. 74
• Parties: Ex parte E. D. SWEENEY.
• Court: Nevada Supreme Court

1 P. 379

18 Nev. 74

Ex parte E. D. SWEENEY.

Supreme Court of Nevada

August 14, 1883

Under the statutes of this state no court or judge can impose a greater fine than $500, or imprisonment for more than five days, (or both such fine and imprisonment,) as a punishment, upon any person guilty of contempt. But a party may be committed to jail until the fine imposed is paid, as a means of enforcing its payment, as provided in the criminal practice act in relation to the method of enforcing fines.

At Chambers.

HAWLEY C.J.

Petitioner upon a regular hearing had, was adjudged guilty of contempt of court, for disobedience to the decree and injunction in the case of Phillips v. Welch, 11 Neb. 187, in appropriating more water than he was entitled to by said decree. For this contempt he was fined $500, and the commitment under which he is held declares that "if said fine be not paid forth with," the petitioner is to be "imprisoned in the county jail of Ormsby county *** for the space of two hundred and fifty days; that is to say, at the rate of one day for each and every sum of two dollars of said fine; and that for each day's imprisonment under this order defendant have credit upon the said fine for the sum of two dollars; and that defendant, if he so desire after having served out part of said period of imprisonment may be discharged from custody and set at liberty upon his paying to the said sheriff any balance remaining due of said fine, after crediting thereon the imprisonment which defendant shall have undergone as aforesaid, at the rate of two dollars per day for such imprisonment, and not otherwise."

Petitioner claims that the order for his imprisonment is absolutely void, and hence that he is illegally restrained of his liberty.

This statute relating to contempts and punishments, like other statutes relating to proceedings criminal in their nature, is to be strictly construed, and no interpretation should be given beyond its obvious meaning. The section upon which petitioner relies reads as follows: "In cases of contempt the punishment shall be by fine and imprisonment but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and sixty-nine." St. 1869, p. 267, § 473; 1 Comp. Laws, 1534. The exception referred to has no application to a case like this. This section is identical in its provisions with the statute of 1861. St. 1861, p. 389, § 440. At common law the power to punish for contempts was unlimited, dependent only upon the discretion of the court imposing the sentence.

Under the statutes of this state, by the section above quoted, the power of courts is limited as to the extent of the punishment. No court or judge can impose a greater fine than $500, or imprisonment for more than five days, (or both such fine and imprisonment,) as a punishment, upon any person adjudged guilty of contempt.

In the proceeding against petitioner no imprisonment was imposed as a punishment for the contempt, and the question to be determined, is, whether the provisions of the criminal practice act, or the act in relation to fines, as to the method of enforcing fines in criminal cases, applies. The criminal practice act in relation to the enforcement of judgments, provides that: "A judgment that the defendant pay a fine, may also direct that he be imprisonment until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every two dollars of the fine, or in that proportion." St. 1861, p. 483, § 448; 1 Comp. Laws, 2073.

The "act in relation to fines" provides, among other things, that the court in entering "a judgment, that the defendant in a criminal case pay a fine, *** shall by such judgment direct that if the judgment or any part thereof is not paid, the defendant be imprisoned one day for each two dollars of the judgment not paid." St. 1869, p. 96; 2 Comp. Laws, 3288.

These provisions, in my opinion, apply to all criminal cases of every kind and character, not otherwise specifically provided for,--to cases of contempt, when criminal, as well as to other misdemeanors. A contempt of the character of which petitioner was found guilty, is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding. Phillips v. Welch, supra; Whittem v. State, 36 Ind. 204; Cartwright's Case, 114 Mass. 239; Hill v. Crandall, 52 Ill. 73; Williamson's Case, 26 Pa. St. 19; B. & O. R. Co. v. City of Wheeling, 13 Grat. 57. The fine imposed, in such a case, is punitive, inflicted as punishments in other criminal cases are inflicted, for the public good, in order to secure obedience to lawful authority. The imprisonment is but a mode, which in this state is provided by a statute, for the enforcement of the fine. It is incident to the power given to the court to impose the fine, and it cannot be regarded in the light of punishment.

In Ex parte Bollig, the petitioner was convicted of a violation of a city ordinance, before a police magistrate was fined $23, and ordered to be imprisoned until the fine was paid. It was contended that the imprisonment was a punishment for the offense and that such punishment was prohibited by the constitution. The court, in discussing the question, said: "Power is given to the magistrate to assess a fine only on conviction. The language is, 'shall forfeit and pay the sum of twenty-five dollars.' This is the whole extent of the punishment, the assessment of a fine. The imprisonment, though connected in the sentence by the copulative conjunction 'and', is but a mode provided for collecting the fine. It is incident to the power to fine, and cannot, in our judgment, be regarded in the light of punishment. Paley, Com. 271. The constitution never designed to abridge the modes usually resorted to, and most generally pursued, to carry out the powers with which justices of the peace are vested. They have power to try a case and assess a fine on conviction. *** To collect...