In Re Taber

• Decision Date: 29 March 1900
• Citation: 13 S.D. 62,82 N.W. 398
• Parties: IN THE MATTER OF THE APPLICATION OF E. J. TABER for a Writ of Habeas Corpus, Applicant and appellant.
• Court: South Dakota Supreme Court

13 S.D. 62

82 N.W. 398

IN THE MATTER OF THE

APPLICATION OF E. J. TABER

for a Writ of Habeas Corpus,

Applicant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. E. G. Smith, Judge

Affirmed

W. H. Lyon, C. O. Bailey, U. S. G. Cherry, C. P. Bates, T. H. Null

Attorneys for appellant.

Paul T. Wilkes, H. E. Judge, A. B. Kittredge

Attorneys for respondent.

Opinion filed March 29, 1900

HANEY, J.

Appellant moved in the court below to be discharged from custody, because it appears upon the face of the return that there is no sufficient cause for his detention. The motion was denied. It is alleged in the return that appellant is in custody by virtue of an order of commitment for contempt, made by the county court of Minnehaha county. The original order of commitment and a certificate under the hand of the county judge, reciting certain proceedings in his court, are attached to, and made part of, the return. It may be observed, in passing, that the original process should have been retained by the sheriff, and that the return, with its several exhibits, is nothing more than the sheriff’s pleading, but, for the purposes of the motion to discharge, all material facts recited therein are to be taken as true.

It appearing that appellant is in custody by virtue of process from a court legally constituted, he can be discharged only for one or more of the following causes:

“(1) When the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum or person.

(2) Where, though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge.

(3) Where the process is defective in some substantial form required by law.

(4) Where the process, though in proper form, has been issued in a case or under circumstances where the laws do not allow process or orders for imprisonment or arrest to issue.

(5) When, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the prisoner, under such process, is not the person empowered by law to detain him.

(6) Where the process appears to have [been] obtained by false pretense or bribery.

(7) Where there is no general law nor any judgment, order or decree of a court to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding.”

Comp. Laws, § 7841.

The scope of inquiry in this proceeding being thus clearly defined by the statute, there would seem to be little need of resorting to the case law of other states for the purpose of ascertaining to what extent contempt proceedings may be reviewed by the writ of habeas corpus. If the statute conflicted with the authorities, it would have to prevail. But it does not. It is in harmony with the modern American doctrine concerning the powers and duties of courts having authority to issue writs of habeas corpus. Some of the older authorities regarded jurisdiction of the matter and of the person sufficient to give the court jurisdiction to pronounce a judgment which could not be successfully assailed by this writ. The rule now supported by high and abundant authority and excellent reason is that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment The judgment is not conclusive upon the question of the authority of the court to render it. That, as well as any other matter which would render the proceeding void, is open to inquiry. 7 Am. & Eng. Enc. Law (2d Ed.) 36. There are three essential elements necessary to render a conviction valid. These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment or order. If either of these elements is lacking, the judgment or order is fatally defective.

Brown, Jur. §110. This view is sustained by an overwhelming weight of authority. It is expressed in our statute, and has been heretofore adopted by this court. In re McCain,(1896).

It appears from the sheriff’s return that appellant, as special administrator of an estate being administered in the county court, failed and refused, without way excuse, to comply with an order of that court requiring him to forthwith deliver to the administrator all papers, effects, and assets of such estate in his possession. Does the law, to use the language. of the statute, allow process or orders for imprisonment to issue under such circumstances? The statute expressly declares that when letters of administration have been granted the powers of the special administrator cease, and he must forthwith deliver to the administrator all the property and effects of the decedent in his hands. Comp. Laws, § 5749. Therefore the order which appellant disobeyed merely required the performance of a duty expressly enjoined by the law.. Undoubtedly the county court had power to make such an order provided there was an administrator to whom the property should have been delivered, and it must be presumed, for the purposes of this discussion, that there was a duly appointed and qualified administrator. Then, the important inquiry arises whether the law allows the enforcement of such order by an order of imprisonment. Manifestly there are many valid orders, judgments, and decrees of courts in this state which cannot he thus enforced or executed. This is the precise situation upon the facts alleged in the return: A special administrator refuses, without any excuse, to deliver the property of the estate to the administrator. Under the law and order of the county court, the latter is entitled to immediate possession. What is the remedy? Shall suit be brought upon the special administrator’s bond, shall an action for the recovery of specific personal property be commenced, or shall the special administrator be committed to jail until he complies with the order of the county court, and performs the duty imposed upon him by the statute? It is held in California, under statutes defining the incidental powers of courts, and regulating the procedure in contempt cases, which do not exist in this state, that obedience to such an order as the one here involved may be compelled by proceedings as for a con tempt. Ex parte Smith, 53 Cal. 204; Ex parte Cohn, 55 Cal. 193. Considering the order as interlocutory arid necessary to bring the proceeding to a final decree, it would seem that the probate court in Vermont would have power to enforce it by imprisonment. In re, Bingham, 32 Vt. 329. In Indiana an action on the official bond would seem to be the proper and only remedy. Swift v. State, 63 Ind. 81; Ex parte Wright, 65 Ind. 509. Other cases, more or less analogous to the one at bar, might be cited, but they would merely serve to show the substantial difference in the statutes of the several states on the subject of contempt. Hence, in ascertaining the powers of the county court in this state, it will be necessary to consult our own constitution and statutes in the light of recognized principles of law. If power exists to coerce obedience to this order of the county court, it exists by reason of the inherent powers of that court, and not by reason of any express statutory authority. The county court is a court of record created by the constitution. In all probate matters its proceedings are to be construed in the same manner, and with like intendments as the proceedings of courts of general jurisdiction, and to its records, orders, judgments, and decrees must be accorded the same force, effect and legal presumptions that are accorded to the records, orders, judgments, and decrees of circuit courts. Const. Art. 5, § 20; Comp. Laws, § 5651; Laws 1891, Chap. 4; Matson v. Swenson,(1894).

It is conclusively settled, by a long line of decisions, that at common law all courts of record have inherent power to punish criminal contempts. In the absence of a constitutional provision on the subject, the better opinion seems to be that such power cannot be limited or regulated by the legislature. Nor does the constitutional provision, that the trial of all crimes shall be by jury, take away the right. Rap. Contempt, §§ 1, 11. Where this power is inherent, and cannot be limited or regulated by legislation, statutes conferring the power in particular cases will not be construed as excluding it by implication in others. Nebraska Children’s Home Soc. v. State (Neb.) 78 N.W. 267. The county court in this state being a court of general jurisdiction, in respect to all probate matters, created by the constitution, it has inherent power to punish all criminal contempts, although the statutes designate particular cases in which it may compel obedience to its orders by proceedings as for a contempt.

It would be difficult, doubtless impracticable, to lay down a general rule by which, in all cases, to distinguish civil and criminal contempts, with one or the other of which every act of contempt must be classified, but substantially the main distinction is this: Civil contempts are those quasi contempts which consist in failing to do something which the contemner is ordered by the court to do for the benefit or advantage of another party to the proceeding before the court, while criminal contempts are all those acts in disrespect of the court, or of its process, or which obstruct the administration of justice, or tend to bring the court into disrepute, such as disorderly conduct, insulting behavior in the presence or immediate vicinity of the court, or acts of violence which interrupt its proceedings, and also disobedience or resistance of the process of the court, interference with property in the custody of the law, misconduct of officers of the court, and other acts of like character. Rap. Contempt, § 21.

Did appellant’s acts, as shown by the...