Guiraud v. Nevada Canal Co.

• Decision Date: 05 April 1926
• Docket Number: 11488.
• Citation: 245 P. 485,79 Colo. 289
• Parties: GUIRAUD v. NEVADA CANAL CO. et al.
• Court: Colorado Supreme Court

245 P. 485

79 Colo. 289

GUIRAUD v. NEVADA CANAL CO. et al.

No. 11488.

Supreme Court of Colorado, En Banc.

April 5, 1926

Rehearing Denied April 19, 1926.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Contempt proceeding by the Nevada Canal Company and others against Henry Guiraud. From a judgment punishing as for contempt defendant brings error and applies for supersedeas.

Supersedeas denied, and judgment affirmed.

Ponsford, Pender & Larwill, of Denver, and John M Boyle, of Fairplay, for plaintiff in error.

L. F. Twitchell, E. C. King, and J. H. Burkhardt, all of Denver, for defendants in error.

CAMPBELL J.

The plaintiff in error, Guiraud, was fined $200 and costs for contempt of the district court, in that he violated the orders of its injunction decree rendered in the action in which he was a defendant and one of the parties enjoined. He brings error. The petitioners or plaintiffs in this action, who were the owners of decreed senior water rights in water district No. 23 in division No. 1, were awarded a decree which commanded the water officials, who were defendants, to distribute to the users entitled thereto the water from the South Platte river in accordance with the decrees entered in that division, and enjoined the defendant ditch owners and water users therein from diverting water from the natural stream otherwise than in accordance with these decrees. The defendant ditch owners were also enjoined from interfering with the water officials in the distribution of the water in accordance with the decrees, and from using the water as against the prior appropriation and rights of the plaintiff ditch owners, and, unless permitted to do so by the water officials, from interfering in any manner with the headgates of the ditches therein after the same had come under the control and supervision of, or been adjusted by, the water officials or their successors in office. The water officials, whom the petition charged at least with neglect in that they did not attempt to distribute water in accordance with the decrees, were made parties defendant since they did not consent to become plaintiffs. It was the decree in this case that the respondent is charged with having violated. Such further facts as may be necessary to state will be found in the appropriate place in the opinion.

In response to the rule to show cause the respondent first filed a verified motion for a change of venue to the district court of Park county upon the ground that this contempt proceeding being in the nature of a criminal action, respondent is entitled to have the same tried by a jury in Park county where the offense, if any, was committed, and where he resided. This motion was denied. The respondent then filed a motion to quash the proceeding upon the ground that the affidavit did not state facts sufficient to justify the court in finding that an offense had been committed, and that the decree which it is alleged the respondent violated is too indefinite and uncertain and for that reason void and unenforceable. This motion to quash was denied, and the respondent refused to plead further and stood upon his motion, which is in the nature of a demurrer. The three assignments or error are: (1) That the court improperly denied his motion for change of venue. (2) The writ of injunction upon which the contempt proceedings are based is too broad and indefinite to be enforced. (3) The affidavit in support of the rule to show cause does not state sufficient facts to warrant a finding of contempt.

1. The district courts of this state are constitutional tribunals vested with jurisdiction as to all matters of law and equity. As such they have the inherent plenary power to protect and enforce their orders and to punish as for contempt violations thereof. The legislative branch of the government may not divest them of such power or by regulation seriously interfere with the courts in the exercise of such jurisdiction. It may provide reasonable regulations as to the procedure to be observed, but certainly, in the absence of such regulation, the courts, as to matters of contempt, may deal with them in the summary manner theretofore universally recognized. Wyatt v. People, 28 P. 961, 17 Colo. 252; State v. Shepherd, 76 S.W. 79, 177 Mo. 205, 99 Am.St.Rep. 624, where will be found an exhaustive discussion of this jurisdiction of constitutional courts. In Bloom v. People, 48 P. 519, 23 Colo. 416, a case of criminal contempt, we held that a defendant has no right to a change of venue. In the Sheperd Case it was held that the court alone in which a contempt is committed, or whose authority is defied, has power to punish or to entertain proceedings to that end, and no other court has any jurisdiction or power in such cases. In Rapalje on Contempts, § 13, the learned author states it to be the general rule that constitutional courts of record have exclusive control over charges for contempt, and only that court in which the contempt is committed or whose order is defied has power to punish or entertain proceedings to that end. At section 110 he says that statutory provisions relating to change of venue have no application to proceedings to punish contempts, unless such proceedings are expressly included, eo nomine, in the written law. Our statute with reference to change of venue does not, expressly or by necessary implication, but, on the contrary, by its silence, excludes contempt proceedings. Whatever may be said as to the power of the Legislature to regulate proceedings in contempt instituted in a court created by the Legislature, the principles above announced are to be applied to proceedings pending in constitutional courts.

But counsel for the respondent say that, though the contempt here is a constructive civil contempt, nevertheless, since the act charged against respondent constitutes a crime for which he is subject to punishment, the pending contempt proceeding therefore is in the nature of a criminal action, and, as our statute provides that in a criminal action he is entitled to a jury trial, he can be tried only in the county of Park where the contempt, if any, was committed, since section 16 of article 2 of our Bill of Rights gives to a defendant in criminal prosecutions the right to be tried by a jury in the county where the offense is committed. That section does not apply to contempt proceedings either of a civil or criminal nature. It does not apply to a criminal contempt as we held in the Bloom Case, supra; much less has a respondent in a civil contempt the right to have the matter determined in the county where he lives or where the offense was committed if the residence is other than the county of the court whose order is violated. None of the decisions relied upon by the respondent are in point under the facts of this case or under our Constitution and laws. Nichols v. State, 129 P. 673, 8 Okl. Cr. 550, held that any person accused of violating or disobeying, when not in the presence or hearing of the court or judge, and order of injunction or restraint made by the court or judge shall be entitled to a trial by jury in the county where the offense was committed, is based upon an express provision of the Oklahoma Constitution to that effect. We have no such constitutional or statutory provision in this state. The court was right in denying the change of venue.

2. If the writ of injunction upon which these proceedings is based is too broad and indefinite to be enforced, this respondent along with his associates in the action, who...