Leeman v. Vocelka
| Decision Date | 07 May 1948 |
| Docket Number | 32332. |
| Citation | 32 N.W.2d 274,149 Neb. 702 |
| Parties | LEEMAN, Mayor, et al. v. VOCELKA. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Contempts are either direct, those committed in the presence of the court while in session, or constructive, those committed out of the presence of the court.
2. Constructive contempts are classified as criminal or civil in character.
3. Constructive contempts instituted to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders, are criminal contempts which must be prosecuted by a separate action in the name of the State and by information.
4. Contempts instituted to preserve and enforce the rights of private parties to a suit and compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them entitled, are civil contempts which may be prosecuted in the original action by the affidavit of any party therein who is injuriously affected.
5. A court of equity cannot exercise jurisdiction over a matter which has been by statute expressly entrusted to another tribunal of adequate power to deal with it.
6. The acts of local governing bodies of cities and vilages in passing upon original applications for the renewal or revocation of licenses to sell alcoholic liquors at retail being quasi-judicial in character and by statute expressly entrusted to that tribunal, are not subject to collateral attack or reviewable by resort to an injunction suit.
7. If the court has no jurisdiction over the matter involved, or if it has exceeded its powers by granting an injunction in a matter beyond its jurisdiction, its injunction will be treated as void and defendants in such case cannot be punished for contempt because of its alleged violation.
E F. Fogarty, Edward Sklenicka, Einar Viren, James M. Paxson and Herbert Fitle, all of Omaha, for plaintiff in error.
B. J. Boyle, Eugene D. O'Sullivan, and White & Lipp, all of Omaha, for defendant in error.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and WESTERMARK, District Judge.
Plaintiff in error, hereinafter called defendant, was found guilty of contempt by the district court for Douglas County, and 'not as punishment, but as a token and demonstration that all people are amenable to the orders of the Court' defendant was sentenced to pay a fine of one dollar and costs, and to be confined momentarily in the custody of the sheriff and then be released, but upon failure to pay the fine and costs, he was ordered committed in lieu thereof. At the conclusion of the hearing, the trial court also castigated and reprimanded Edward F. Fogarty, the city attorney, for alleged misconduct in advising defendant as hereinafter set forth. Stay of execution was granted defendant, however, and his motion for new trial was overruled, whereupon he prosecuted error to this court. We exonerate the city attorney and reverse and dismiss the proceedings.
On March 3 or 4, 1947, defendant in error, hereinafter called plaintiff, filed with the city clerk of Omaha an application, together with a certified check and bona, as required by law, to obtain renewal of a Class 'C' or retail liquor license for the year May 1, 1947, to April 30, 1948. The application showed on its face that in August 1946, plaintiff had been cited before the Nebraska Liquor Control Commission and that his license had been suspended for sale of liquor on Sunday.
On April 1, 1947, the city council by resolution voted to renew some 195 Class 'C' licenses to named applicants therefor, who, as represented, had no violations charged against them. By oversight of the clerk, plaintiff's application was among that group, and his suspension was overlooked and not called to the city council's attention until after his appliation for a license had been improvidently approved and signed by defendant as mayor, countersigned by the chairman of the Liquor Control Commission 'as a matter of course' as provided by section 53-132, R.S.1943, and delivered to plaintiff. However, the license was, as prescribed on its face as well as under the law, not effective or to be effective as such until on and after May 1, 1947, and it was at all times as provided therein subject to the provisions of the Liquor Control Act and such rules and regulations as may have been or might thereafter be lawfully promulgated or adopted.
On April 23, 1947, after plaintiff's suspension had been called to its attention, the council, by motion, unanimously reconsidered its action approving the renewal of plaintiff's license, and set the matter down for hearing on April 29, 1947. Thereupon, plaintiff was duly notified personally and by mail of such action and proposed hearing. He was also personally requested by the clerk to surrender the license then in his possession, but as yet ineffective, which he refused to do.
On the morning of April 29, 1947, plaintiff filed an original action in the district court, seeking substantially among other things to enjoin the members of the city council as such from reconsidering or undertaking any action or holding any hearing, meeting, or proceeding initiated or designed to render ineffectual plaintiff's alleged license. The basis of plaintiff's action was that the council had no authority in law to lake such action.
Ex parte, without any notice or hearing, the trial court granted a supersedable temporary injunction as distinguished from a temporary restraining order, among other things thereby enjoining defendants as members of the city council from reconsidering and from holding, carrying on, or conducting any proceeding, hearing, or meeting to withdraw or otherwise attempt to cancel, rescind, or nullify plaintiff's license.
Although the sheriff was present in the council chamber on the morning of April 29, 1947, and had ample time and opportunity earlier to have served the process and order of injunction upon defendants, he made no effort to do so until the members of the council were in the midst of a regular session, and were holding a hearing upon the application of another for a liquor license. At that time, upon the advice of the city attorney that an injunction enjoining the city council from having a hearing in a matter involving a liquor license was void, and that the council was immune from service thereof while in regular session, defendant refused to give the sheriff permission to make service thereof as requested, and ordered him barred from the council chamber while in regular session. Thereafter, while the council was still in regular session, plaintiff's application was called up for hearing. Although plaintiff was present in the council chamber at that time, he made no response, and the council, after hearing, unanimously adopted a resolution denying him any license. Following adjournment of the council meeting, the process and order of injunction were duly served upon defendant members of the city council.
On April 30, 1947, an application, supported by affidavits, was filed by plaintiff in the original injunction suit, charging defendant and the other members of the city council with contempt of court. Whereupon the trial court issued an order to show cause. The defendants jointly and severally answered, denying generally and, insofar as important here, contending that they were immune from service at the time it was attempted and that the temporary injunction was void. Upon trial of the issues, defendant herein, the mayor, was found guilty, but all other defendants were dismissed or acquitted.
The charge of contempt is in two parts, and will be so treated in this opinion. The first charged in substance that defendants and each of them, with full knowledge of the import, contents, and restraints of the temporary injunction, willfully, deliberately, and contumaciously, and in wanton disregard of law, prevented delivery to the defendants of the process and order of injunction, and did hinder, delay, and unlawfully interfere with service thereof, and thereby did unlawfully and illegally attempt to and did obstruct the due administration of justice, all in contempt of court and its order and process.
The second charged that defendants and each of them, with full knowledge of the import, contents, and restraints of the temporary injunction, willfully, deliberately, and contumaciously disobeyed, flaunted, and violated the same, by reconsidering and having a hearing, withdrawing its approval and denying plaintiff's application for renewal of his license. It prayed that defendants be cited for contempt and punished; that they be directed to rescind their reconsideration and denial of plaintiff's license; and that they be required to give further security to obey the injunction.
It was said by this court in Maryott v. State, 124 Neb. 274, 246 N.W 343, 344: See, also, 17 C. J. S., ...
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