Levisa Stone Corp. v. Hays

• Decision Date: 14 June 1968
• Citation: 429 S.W.2d 413,33 A.L.R.2d 581
• Parties: LEVISA STONE CORPORATION, Petitioner, v. Hon, J. L. HAYS, Judge Letcher Circuit Court, Respondent.
• Court: Supreme Court of Kentucky

Page 413

429 S.W.2d 413

33 A.L.R.3d 581

LEVISA STONE CORPORATION, Petitioner, v.Hon, J. L. HAYS, Judge Letcher Circuit Court, Respondent.

Court of Appeals of Kentucky.

June 14, 1968.

Harry M. Caudill, Whitesburg, for petitioner.

John Cornett, Hogg & Cornett, Whitesburg, for respondent.

CLAY, Commissioner.

This is an original proceeding for a writ of prohibition to restrict respondent from enforcing a contempt order imposing a fine of $1,000 upon petitioner.

In two consolidated actions, by agreed judgments petitioner was enjoined from doing certain acts in connection with its quarrying operations which had caused damage to the plaintiffs in those actions.On a motion for a rule to show cause why petitioner should not be adjudged in contempt, a hearing was held and the Chancellor found the petitioner had repeatedly violated the injunctions, found petitioner in contempt of court, and ordered petitioner to pay a fine of $1,000 for which execution 'may' issue.

It is petitioner's contention that the respondent has violated KRS 432.260(1) which limits the punishment that may be imposed without the intervention of a jury, and in doing so has proceeded beyond its jurisdiction; that the remedy by appeal is inadequate because the contempt order cannot be superseded; and that it is being deprived of its property without due process of law.

Among other things, respondent questions the constitutionality of KRS 432.260(1).

Our extensive research into the law of contempt as set forth in our decided cases has led us into an almost incomprehensible maze of inconsistent theories, both procedural and substantive.¹We deem it appropriate to examine the subject in depth in an attempt to re-establish certain uniform governing principles.

At the threshold we are met with the problem of procedure in obtaining appellate review.KRS 21.060(1) provides that appeals may be taken to this court as a matter of right from all final orders and judgments of circuit courts in civil cases except '(c) Judgments punishing contempts'.From an early date this statute has been construed as relating to criminal contempts and not to civil contempts.Rebham v. Fuhrman, 139 Ky. 418, 50 S.W. 976, 21 Ky.Law Rep. 17;Adams v. Gardner, 176 Ky. 252, 195 S.W. 412, and cases cited therein;Allen v. Black Bus Lines, 291 Ky. 278, 164 S.W.2d 482;Local No. 181, etc. v. Miller, Ky., 240 S.W.2d 576;Teamsters Local U. No. 783 v. Coca-Cola Bottling Co., Ky., 418 S.W.2d 228.This court has also entertained appeals from orders of the trial court declining to punish for civil contempt.Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517;Gibson v. Rogers, 270 Ky. 159, 109 S.W.2d 402.

The accepted distinction between civil and criminal contempts is thus quoted in Jones v. Commonwealth, 308 Ky. 233, 213 S.W.2d 983, 985:

'Civil contempts are those quasi contempts which consist in failure to do something which the contemnor 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 acts in disrespect of the court or its process which obstruct the administration of justice, or tend to bring the court into disrepute.'

Some confusion has been created by opinions of this court which recognize a limited right of appeal from judgments punishing for criminal contempt on the ground the punishment was either 'illegally imposed' or was 'excessive'.French v. Commonwealth, 97 S.W. 427, 30 Ky. Law Rep. 98;Williams v. Howard, 270 Ky. 728, 110 S.W.2d 661;Lisanby v. Wilson, 280 Ky. 768, 134 S.W.2d 651, 653.In the first of these cases a jury had imposed a $5,000 fine, and in the other two the court entertained an original proceeding for a writ of prohibition.Since the judgment before us arises out of civil contempt, it is unnecessary for us to reconsider the soundness of the above three opinions, although we are inclined to the view that with respect to criminal contempts the statute means what it says ² and that the only proper avenue of appellate review, if any exists, is by an original proceeding in this court(as was initiated in the last two cases cited).However that may be, as we have heretofore consistently held, the statute does not deny the right of appeal from judgments punishing for civil contempts.

A question of jurisdictional amount under KRS 21.060 could be raised but in Allen v. Black Bus Lines, 291 Ky. 278, 164 S.W.2d 482, andCrook v. Schumann, 292 Ky. 750, 167 S.W.2d 836, it was held that jurisdictional amount limitation did not apply to contempt proceedings.It may be here observed that contempt proceedings are in a class by themselves and the many problems presented arise from attempts to apply ordinary rules of practice and procedure.Such proceedings, involving unique aspects, are in a special category and we shall so treat them.

The case before us is an original proceeding for a writ of prohibition.Ordinarily, if a party has a remedy by appeal, we will not entertain such a petition.S.W.2d 797;Swain v. Reid, Ky., 342 S.W.2d 797;Swain v. Reid, Ky., 34i S.W.2d 687.However, because of the confusing state of our law with respect to the significant questions here presented, in the exercise of our supervisory power under section 110 of the Kentucky Constitutionwe deem it appropriate to entertain this petition.SeeCommonwealth ex rel. Meredith v. Murphy, 295 Ky. 466, 174 S.W.2d 681;Brumfield v. Baxter, 307 Ky. 316, 210 S.W.2d 972;Schaetzley v. Wright, Ky., 271 S.W.2d 885;Harrod v. Meigs, Ky., 340 S.W.2d 601.

It may be noted here that one of the grounds for seeking relief in this original proceedings is that the remedy by appeal is inadequate because the contempt order cannot be superseded.The lack of a right to supersede such an order was alluded to in Lisanby v. Wilson, 280 Ky. 768, 134 S.W.2d 651;Marcum v. Commonwealth, 272 Ky. 1, 113 S.W.2d 462;andLocal No. 181, etc. v. Miller, Ky., 240 S.W.2d 576.In City of Newport v. Newport Light Co., 92 Ky. 445, 17 S.W. 435, such a judgment was superseded.We are aware of no valid reason why a judgment imposing a fine for civil contempt cannot be superseded.

It is true KRS 432.270 provides that 'A person committed to prison for contempt shall not be admitted to bail'.We construe this statute as applying to a person committed for criminal contempt.It was enacted in 1873 along with the predecessors to KRS 21.060(1)(heretofore discussed) and KRS 432.260(1)(hereinafter discussed), and it is apparent the legislature in writing these laws was consistently thinking in terms of criminal contempt.In any event, no statute or civil rule forbids superseding a judgment imposing a fine for civil contempt, and we do not conceive a public policy commands denial of such relief.(The purpose of summary imprisonment under KRS 432.260(1) does justify, as a matter of public policy, the denial of bail provided in KRS 432.270.)We therefore overrule those cases which declare a contempt order imposing a fine for civil contempt cannot be superseded.

Though we now hold the judgment under consideration could have been superseded and petitioner had a right of appeal, as before noted we deem it appropriate to consider the merits of the controversy.SeeLisanby v. Wilson, 280 Ky. 768, 134 S.W.2d 651.

This brings us to the principal statute involved, KRS 432.260(1), which provides:

'A court shall not impose a fine of more than thirty dollars or imprisonment for more than thirty hours for contempt without the intervention of a jury.'

For a great number of years an accepted theory was that this statute did not apply to civil contempts.In Rebham v. Fuhrman, 139 Ky. 418, 50 S.W. 976, 21 Ky.Law Rep. 17, it was held the statute'only applies to criminal proceedings for contempt'.³In Marcum v. Commonwealth, 272 Ky. 1, 113 S.W.2d 462, which involved a civil contempt, the statute was ignored.In Tucker v. Commonwealth, 299 Ky. 820, 187 S.W.2d 291, it was assumed that if the contempt was civil in nature, the statute did not apply.It has been held not to apply to cases of civil contempt where the punishment was coercive in character.Local No. 181, etc., v. Miller, Ky., 240 S.W.2d 576.

In Hall v. Hall, 246 Ky. 12, 54 S.W.2d 391, which involved criminal contempt, it was held the statute did not apply.In Jones v. Commonwealth, 308 Ky. 233, 213 S.W.2d 983, 987, it was explicitly held that this statute'applies to all contempts, whether civil or criminal * * *'.

After careful reconsideration of the question we are convinced that the earlier view of this court first expressed in Rebham v. Fuhrman, 139 Ky. 418, 50 S.W. 976, 21 Ky.Law Rep. 17, was sound and the statute applies only to criminal contempts.We give our reasons for this conclusion.

This statute had its origin in Chapter 29,General Statutes 1873, entitled 'Crimes and Punishments'(Article 27).While the legislature did not create the crime, it recognized that certain direct contempts constituted public offenses which could be punished summarily as a crime.A subsequent legislature, in Chapter 219, Article 5, Acts of 1893, recognized the right of an equity court to enforce its judgments 'according to the ancient practice of courts of chancellery'.(This is now KRS 426.430.)The enforcement of orders and judgments in equitable justiciable controversies falls within the civil contempt category.SeeRebham v. Fuhrman, 139 Ky. 418, 50 S.W. 976, 21 Ky.Law Rep. 17;Rudd v. Rudd, 184 Ky. 400, 214 S.W. 791;Hall v. Hall, 246 Ky. 12, 54 S.W.2d 391;Barrett v. Barrett, 287 Ky. 216, 152 S.W.2d 610;Local No. 181, etc. v. Miller, Ky., 240 S.W.2d 576.

It should be noted that KRS 432.260 is not the only statute fixing the degree of punishment for contempt.KRS 432.230 restricts the punishment of witnesses, jurors and officers of courts for certain specific contemptuous acts to a fine or 'not more than thirty dollars'.KRS 421.140 limits the punishment of witnesses for disobedience of a subpoena...