In re Dill

• Decision Date: 28 November 1884
• Citation: 5 P. 39,32 Kan. 668
• Parties: In the matter of the Petition of W. W. DILL, for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

5 P. 39

32 Kan. 668

In the matter of the Petition of W. W. DILL, for a Writ of Habeas Corpus

Supreme Court of Kansas

November 28, 1884

Original Proceedings in Habeas Corpus.

PETITION for a writ of habeas corpus, filed in this court May 1, 1884 by W. W. Dill against John Fisher, as sheriff and jailer of Sedgwick county. The material facts are stated in the opinion herein, filed November 28, 1884.

Hatton Ruggles & Parsons, for petitioner:

The only question to be considered by this court in this case is that of jurisdiction. Did the court below have jurisdiction of the subject-matter, or act, which it is claimed constitutes the contempt? Or, in other words, is the act done by the petitioner a contempt of court? The third subdivision of § 671 of the civil code limits the power of courts in this state to inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him upon habeas corpus, as follows:

"Third For any contempt of any court, officer, or body having authority to commit."

What then is the test of the jurisdiction or "authority to commit," as expressed in the statute just mentioned? Does it mean the right or power in the abstract to commit for contempt? Or does it refer to the act or acts which create the contempt, so that if the act or acts complained of do not in law constitute a contempt, there will be no jurisdiction or authority over the subject-matter? The latter is, we think, the true theory. If it is not, a court having general jurisdiction and inherent power to commit for contempt, also has jurisdiction and authority to say what act or acts constitute contempt; and this places in a court or judge a power which is not subject to review or correction by any court in any manner; and any person can be deprived of his liberty at the mere whim or caprice of the judge or court beyond any redress.

From an early day in the history of our country, the power of a court to judge, determine and punish contempts of its power and dignity has been subject to review by higher courts on habeas corpus, for the purpose of determining, as a jurisdictional question, whether or not the act done is in law a contempt, and if not to discharge the petitioner. We think such has been recognized as the true rule in this country and in England since the Bushnell Case, in 1677, reported in Vaughn's Report, 135. In that case the petitioner, being a juryman, was committed for contempt, for refusing to return a verdict of guilty, under the direction of the court, and was discharged for the reason that his refusal to return or consent to the finding of such a verdict is not a contempt.

(See Ex parte Summers, 5 Ired. 149, 153; The State v. Galloway, 5 Coldw. 326, 336; The State, ex rel., v. Seaton, 16 N.W. 736; Ex parte Hardy, S.Ct. Ala. [13 Cent. L. J. 50;] Tyler v. Connelly, S.Ct. Colo. [2 Pacific Rep.] 414; Hurd on Habeas Corpus, 405; 20 Am. Law Reg., N. S., 382, and cases cited.)

We think that the words "having authority to commit," as used in the third subdivision of § 671 of the code, in the light of the principle established by the foregoing authorities, should not be construed to mean the power or jurisdiction to commit for contempt in the abstract, but should be construed to mean the jurisdiction or having authority to commit with reference to the particular act or thing done and complained of, so that if the act or thing done does not, in law, constitute a contempt, the court or judge would be without authority -- jurisdiction to commit -- and the commitment void.

Do the facts that the petitioner failed to be present when the cases against him were called for trial, that his recognizances were forfeited, and that he subsequently returned and surrendered himself to his sureties, and was then by them turned over to the custody of the sheriff, and immediately entered into a new recognizance for his appearance at the next term of the court to answer the charges against him, constitute a contempt, and give the court jurisdiction -- authority to commit him for so doing? We think not. He did nothing but what the statutes of our state say he may do. We think it would be an outrage of the grossest kind to permit or authorize a person to do a certain thing, by statute, and then visit upon him summary punishment for contempt for so doing.

The forfeiting of a recognizance has never been held to be a contempt, and it cannot be, unless made so by statute. Our legislature has by express statute authorized courts and judges to punish for contempt, and in all cases where it has conferred such power, the courts already possessed such power inherent to their existence.

By §§ 152 and 156 of the criminal code the legislature has provided just what shall be done in case of a forfeited recognizance, but it has not authorized the court to punish for contempt for such forfeiture, as it has done in the matters named in the civil code.

The petitioner went to the bedside of his sister, whom he was informed by telegram was dangerously ill, and in obedience to summons, and not for the purpose of escaping from the trial of the cases against him, or the punishment in case he should be found guilty; for as soon as he returned he surrendered himself to his sureties, for the purpose of being himself surrendered to the sheriff. He was so surrendered, and then entered into a new recognizance for his appearance at the next term of court, thus voluntarily putting himself into the hands of the law, and not seeking to evade the law; and this, § 151 of the criminal code provides that he may do.

Only one case can be found in the books that touches upon the subject at all -- the case of Ingle v. The State, 8 Blackf. 574. In that case, "A., being indicted for an assault and battery, and bound by a recognizance to answer the charge, was advised by an attorney that if he (A.) could not procure a continuance of the cause on an affidavit, he then could escape and forfeit his recognizance, which would work a continuance of said cause until the next term at a trifling cost." Held, That the attorney was not for giving said advice guilty of a contempt of court. We are at a loss to see why this case, in principle, does not settle the case at bar. The duty and obligation of an attorney to the court are much greater than that of a defendant. By the best logic in the world, if the attorney was not guilty of contempt in advising his client that he could forfeit his recognizance and thus obtain a continuance of the case, his client would not be in contempt for so doing; for if such act on the part of the defendant was a contempt, the attorney advising it must surely be guilty of contempt as well.

To constitute a direct contempt of court there must be some disobedience of its process, or of some judgment, decree, or order; some open disrespect manifested to the court, or to some of its officers or judges, in its presence; or such disrespectful, noisy or tumultuous conduct in or near the court, as to bring the court or judge into disrespect, or which in some way tends to obstruct or impede the administration of justice; and to constitute a constructive contempt, something must be done, not in the presence of the court, its officers, or judge, that tends to bring the court, judge, or the administration of justice, into disrespect, or to obstruct the due administration of justice. The petitioner did none of these things. A recognizance in a criminal action is not an order, mandate, judgment or decree of court, nor is it entered into by virtue of an order of the court. It is simply a bond that a defendant is permitted to give, that he may be released from imprisonment, and this right is granted by our constitution and laws; he is not compelled to give it, but he simply may if he can and wishes. And the state having adopted such means as was thought best to prevent the abuse of the right, no other can be tacked on through punishment for contempt.

The various writers on this subject have entered more or less into detail of what acts do or do not constitute contempt, and seem in the aggregate to have covered the whole ground; but none of them have thought that the forfeiting of a recognizance in a criminal cause is such an offense. We call the attention of the court to some of them, as follows: Article on "Criminal Contempt," by Lyman D. Thompson, in Criminal Law Magazine for March, 1884, p. 173; article on "Contempt of Court," by Charles Chauncey, in 20 Am. Law. Reg., N. S., p. 81, et seq., p. 289, et seq.; 19 Cent. L. J. 73, note; 2 Bishop's Cr. Law (7th ed.), §§ 250-267; Wharton's Cr. Pl. and Pr. (8th ed.), § 949, et seq.; Barbour's Cr. Law (2d ed.), 249, 502; Harris's Cr. Law (Force), 88; Ex parte Wright, 65 Ind. 505, 509.

W. A. Johnston, attorney general, for respondent; Edwin A. Austin, of counsel:

The respondent contends that, it appearing by the record that the petitioner is in custody upon process issued on a final judgment of a court of competent jurisdiction, and that he is in custody for contempt of a court having authority to commit for contempt, the legality of the judgment or the final process is not open to inquiry, or for consideration in habeas corpus proceedings.

This court has repeatedly held that § 671 of the civil code means exactly what it says, and that in habeas corpus proceedings only questions of power, and not questions of error, can be considered. (Ex parte Nye, 8 Kan. 99; In re Goldsmith, 24 id. 757; In re Payson, 23 id. 757; In re Petty, 22 id. 447.)

With reference to the power of the district court to commit for contempt, and to fine the defendant in the manner and in the amount it did, we cite the case of In re Millington, Petitioner, 24 Kan. 214.

It is admitted in this case that the district court of ...