In re McCain

• Decision Date: 13 July 1896
• Citation: 68 N.W. 163,9 S.D. 57
• Parties: In re McCAIN.
• Court: South Dakota Supreme Court

9 S.D. 57

68 N.W. 163

In re McCAIN.

Supreme Court of South Dakota.

July 13, 1896.

Application of Anson J. McCain for a writ of habeas corpus, in custody under and by virtue of a commitment for contempt. Prisoner discharged.Levi McGee and Edmund Smith, for petitioner. Crawford & De Land, for sheriff. Horner & Stewart, for Joseph B. Gossage.

HANEY, J.

The petitioner, a member of the board of county commissioners in Pennington county, alleges that he is illegally deprived of his liberty by the sheriff of that county, and asks that he be discharged by an order of this court. From the sheriff's return it appears that he is held in custody under and by virtue of a commitment for contempt issued by the circuit court for an alleged violation of its peremptory writ of mandamus. The only question we have to consider is whether the court was authorized to issue such writ. If it was,-if the court had jurisdiction to make the mandate in question,-its action, however erroneous, cannot be reviewed in this proceeding; but, if the circuit court was without jurisdiction, it had no right in law to punish for any contempt of its unauthorized requirement. Ex parte Roland, 104 U. S. 604; Comp. Laws, § 7841.

It appears that Joseph B. Gossage, the Perkins Bros. Company, and others, filed bids with the board, of which the petitioner is a member, for the county printing, and for the furnishing of blanks, blank books, stationery, and supplies for the county offices for one year. These bids were considered by the board at its April meeting, and the contract for furnishing blanks, blank books, stationery, and general supplies was awarded to the Perkins Bros. Company. Thereupon Gossage, claiming to be the lowest responsible bidder for both the county printing and for the furnishing of supplies, applied to the circuit court for an alternative writ of mandamus requiring the board to accept his bids and award him the contracts. The members of the board appeared in response to the alternative writ, and such proceedings were had as resulted in the issuance of a peremptory writ requiring the commissioners to immediately award and let the contract for the county printing for one year, including the printing of the delinquent tax list, and the proceedings of the county commissioners, and all notices required by law to be published, to the said Joseph B. Gossage, and to immediately let and award the contract for the furnishing of the blanks, blank books, stationery, and supplies generally, for all the county offices for one year, to the said Joseph B. Gossage, and to execute such contracts in accordance with the bids of the said Gossage. This peremptory writ was duly served, and, upon a showing that the petitioner had willfully refused to obey it, he was found guilty of contempt, fined $100, and committed to the common jail of Pennington county until he should comply with the mandate of the court, and execute the contracts therein mentioned. Having been imprisoned under this order of commitment, the petitioner asks to be discharged from custody, alleging that his confinement is illegal. Numerous objections are made by him to various steps in the proceedings which resulted in the order of commitment. It is alleged that no judgment was ever rendered in the mandamus proceeding; that proper notice was not given the defendants therein; that the board was required by the peremptory writ to perform acts not required by law, and which are beyond the limits of their official duties,-especially in regard to the publication of the delinquent tax list. In the view we shall...