Ex parte Whitmore

Decision Date12 January 1894
CourtUtah Supreme Court
PartiesEX PARTE GEORGE C. WHITMORE

APPLICATION for a writ of habeas corpus in the supreme court to review a conviction for contempt and an attempted appeal therefrom in the third district court, Hon. Charles S. Zane judge. The following further facts are stated in addition to what is stated in the opinion:

The suit of L. A. Scott Elliot v. George C. Whitmore and another was instituted to adjudicate water rights in a certain stream. The cause was tried before Hon. H. P. Henderson and a decree rendered adjudging defendants to be the owners of all the waters of the stream. This decree was reversed on appeal and reported at 8 Utah 253. The cause was remanded to take further evidence. Thereupon Hon. John W. Blackburn, judge made the order changing the venue. The cause was tried before Hon. J. H. Harris as referee, who reported his findings and recommendations for a decree to the court, where they were confirmed. The decree gave 67-150 of a cubic foot per second to the defendants and the remainder of the water to the plaintiff, and ordered a measuring box put into defendants' ditch which would be self regulating permitting 67-150 of a cubic foot per second to run along defendants' ditch and returning the rest of the water into the stream. The decree contained a perpetual injunction against the defendants taking more than their quantity of water, and a perpetual injunction against interfering with the measuring box. The defendant George C. Whitmore tore out the measuring box and was convicted of taking more than 67-150 of a cubic foot per second from the waters of the stream. He attempted to appeal from this conviction.

Petition for habeas corpus denied, and petitioner remanded.

Messrs. Brown and Henderson, for the applicant.

Mr. Charles S. Varian, against the application.

Messrs. Zane and Putnam also filed a brief against the application.

MINER, J. BARTCH, J., concurred. SMITH, J., dissented.

OPINION

MINER, J.:

The petitioner George C. Whitmore was adjudged guilty of a specific and willful contempt of the authority of the third district court in violating an injunction contained in a final decree in a case wherein one L. A. Scott Elliot was plaintiff and said George C. Whitmore and another were defendants.

Having been found guilty of such contempt, by the third district court, he was sentenced to pay to the people of the Territory of Utah a fine of $ 25 and the cost of the proceedings taxed at $ 159.80, and in default of the payment of said fine and costs, to be committed to the custody of the sheriff of Salt Lake county and be imprisoned in the county jail of said county one day for each dollar of fine, unless sooner discharged in due course of law. Whitmore refused to pay the fine and costs, but filed a bond securing payment of the fine and costs with a motion of appeal from the conviction and judgment of contempt, and now brings his writ of habeas corpus and asks to be released from imprisonment under such conviction; the principal grounds being: First, that his appeal supercedes the judgment and conviction; second, that said court had no jurisdiction to render the decree or punish for contempt because the said cause was first pending in the first district court, and that said court upon its own motion transferred said cause to the third district court without any authority therefor; third, that costs were illegally imposed as a penalty without authority of the statute.

We will first consider the question raised as to the jurisdiction of the court.

If the court had jurisdiction of the person of the defendant and of the subject matter out of which the alleged contempt arose, then the door for release by means of a writ of habeas corpus is closed, except it may be in cases where excess of jurisdiction is clearly apparent. Ex parte Whetstone, ante; Rapalge on Contempt, sec. 155, 157; Ex parte Terry, 128 U.S. 289, 32 L.Ed. 405, 9 S.Ct. 77; Ex parte Kearney, 20 U.S. 38, 7 Wheat. 38, 5 L.Ed. 391; Ex parte Taylor, 149 U.S. 164 at 180, 37 L.Ed. 689, 13 S.Ct. 785; Ex parte Frederich, 149 U.S. 70, 37 L.Ed. 653, 13 S.Ct. 793.

It appears that the first district court at Provo made an order in this case, December 27, 1892, which reads as follows: "In this case the court on its own motion orders that this case be transferred to the third district court at Salt Lake City for further proceedings."

On February 13, 1893, the third district court, by consent of the attorneys for the respective parties, ordered that the case be referred to J. H. Harris as sole referee to try all issues in the case and report findings of fact and conclusions of law to the third district court. In pursuance of such an order testimony was taken before such referee by the respective parties, and a decree was rendered upon such testimony and report so taken and filed. A motion for new trial was also made by the defendant, and at no time was any objection made to the jurisdiction of the court or to any of such proceedings.

Our statute authorizes the court to change the place of trial upon its own motion if the parties do not agree, but in that case the cause must be transferred to the nearest court. The presumption follows that the parties did not agree and that there was good cause known to the judge for transferring the cause to the third district court. C. L. 1888, sec. 3199. Emory v. Hardy, 94 N.C. 787; Cartwright v. Belmont, 58 Wis. 370, 17 N.W. 237; Mining Co. v. Mfg. Co., 4 Nev. 218.

It does not appear that any motion was made in the third district court to transfer the case. That court was not bound of its own motion to change the place of trial and the right of either party to try the case in the first district court was a right that they could waive. Mining Co. v. Mfg. Co., 4 Nev. 218; Watts v. White, 13 Cal. 321 at 321-4, sec. 3197, C. L. 1888; Vaughn v. Hixon, 50 Kan. 773, 32 P. 358; Solomon v. Norton, 2 Ariz. 100, 11 P. 108; R. R. Co. v. McBride, 141 U.S. 127, 35 L.Ed. 659, 11 S.Ct. 982.

The order changing the place of trial from the first district court was an appealable order, and if erroneous, an appeal was the proper remedy to correct it. C. L. secs. 3635, 3652; Clarke v. Lyon, 8 Nev. 181; Machine Co. v. Cole, 62 Cal. 311; Gage v. Downey, 79 Cal. 140, 21 P. 527.

We think the third district court had jurisdiction over the subject-matter of the suit and over the parties thereto.

It is also contended that the imposition of costs as a part of the punishment was illegal and that the court exceeded its jurisdiction in this respect and that the imprisonment is indefinite.

Sec. 5113, C. L. 1888, provides that a judgment that a defendant pay a fine may also provide that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every one dollar of fine.

Secs. 5258, 5259, 5260 and 5344, C. L. 1888, provides that costs may be assessed against the party where by law the courts are authorized to assess a fine, and the imprisonment cannot exceed one day for each dollar of fine and costs imposed.

Secs. 3026 and 3830, C. L. 1888, authorize the court to enforce its orders, and in case of contempt to impose a fine not exceeding two hundred dollars, or imprisonment for five days, or both such fine and imprisonment.

The contemnor was convicted of willfully and contemptuously violating an order, decree and injunction of the court in removing the measuring box placed in the channel of the stream for the purpose of measuring water and diverting the waters of the stream, in direct violation and disobedience of such injunctional order.

At common law the power to punish for contempt was unlimited, depending upon the discretion of the court imposing the sentence. Under the statutes of this Territory the power of the court to impose punishment is limited by the statute. The contempt charged against the contemnor and for which he was convicted was of a criminal character and the proceedings for its punishment is in the nature of a criminal proceeding, and the above provisions of the statute--in so far as applicable--apply to all other criminal cases not otherwise specially provided for, and to cases of contempt--when criminal--as well as to other misdemeanors.

The fine and costs imposed in such a case is inflicted for the public good in order to secure obedience to lawful authority; the order and sentence to imprisonment, one day for each dollar of fine and costs, in default of its payment, is but a mode provided by statute for the enforcement of the judgment. The power to enforce an order or judgment is incident to the power given to the court to impose it.

In this case the contempt consisted in doing a forbidden act that was not only injurious to the opposite party, but was a contemptuous violation of the express command of the court. The process was therefore criminal in its nature and the conviction was properly followed by the imposition of a fine and costs that did not exceed in amount the sum that the court was authorized to impose. The judgment that the contemnor be imprisoned one day for each dollar of fine and costs, was within the power of the court to impose and was not excessive or uncertain as to the period of imprisonment. Rapalje on Contempt, secs. 128, 129; Ex parte Sweeney, 18 Nev. 74, 1 P. 379; Fischer v. Hayes, 19 Blatchf. 13, 6 F. 63; Ex parte Crittendon, 7 P. C. L. J. 483; State v. Davis, 2 N.D. 461, 51 N.W. 942; Phillips v. Welch, 11 Nev. 187; People v. Reggel, 8 Utah 21, 28 P. 955.

The petitioner also contends that the commitment is illegal and void because it was issued after the petitioner, the defendant in the action, had appealed the case to the supreme court, and while said appeal was...

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