Nebraska Children's Home Soc. v. State

• Decision Date: 09 February 1899
• Citation: 78 N.W. 267,57 Neb. 765
• Parties: NEBRASKA CHILDREN'S HOME SOC. ET AL. v. STATE.
• Court: Nebraska Supreme Court

57 Neb. 765

78 N.W. 267

NEBRASKA CHILDREN'S HOME SOC. ET AL.

v.STATE.

Supreme Court of Nebraska.

Feb. 9, 1899.

Syllabus by the Court.

1. In a contempt proceeding based on the alleged violation of a judicial order, such order may be examined only with a view to ascertaining whether it was coram judice. No mere error or irregularity therein, or in the proceedings leading thereto, excuses its disobedience.

2. A writ of habeas corpus, allowed by competent authority, may not be disregarded because allowed on an insufficient petition. A writ so allowed is not therefore void.

3. Although our habeas corpus act requires a writ to be directed to the sheriff where the person charged with an unlawful restraint is not an officer charged with the custody of lawful prisoners, still, the court or judge in vacation, who has jurisdiction of the proceeding, may, when such writ proves unavailing to produce the prisoner, require, by order, any party to the proceeding who is shown to have control of the prisoner to produce his body.

4. The power to punish for contempt is incident to every judicial tribunal, derived from its very constitution, without any express statutory aid, and may generally be exercised only by that tribunal whose order has been violated or proceedings interfered with.

5. Contempt proceedings may be punitive merely, or they may be remedial, to compel obedience to an order for the time resisted.

6. Without determining the power in such a case to conduct purely punitive proceedings, held, that a judge in vacation, vested by law with jurisdiction to conduct certain proceedings, has the inherent power, incident to that jurisdiction, to hear and determine proceedings for contempt for the purpose of enforcing his orders in the principal matter.

7. The power to punish for contempt being restricted to the tribunal whose authority is defied, it is not error for a judge who, within his authority, has made an order in vacation, to refuse to transfer to another judge, for hearing, a proceeding in contempt based on the disobedience of such order.

8. If the terms of an information in contempt clearly show that the act complained of was willful, the information will not be held bad for the failure to use the word “willful.”

9. It is not necessary in a contempt proceeding that the defendant be formally arraigned.

10. Where a contempt proceeding is instituted by information and a rule to show cause, it is the duty of the defendant to file an answer if he desires to traverse the facts charged. Failing, on sufficient opportunity, to so do, the court may treat the facts alleged in the information as confessed.

11. Where the object of a contempt proceeding is to compel obedience to an order which may still be obeyed, it is not error to sentence the defendant to imprisonment until he shall obey such order, and, in addition, to impose a reasonable fine for past disobedience.

Error to district court, Douglas county; Scott, Judge.

Proceedings by the state of Nebraska against the Nebraska Children's Home Society, Louis D. Holmes, and Elmer P. Quivey for contempt. Judgment punishing for contempt, and defendants bring error. Affirmed.

Montgomery & Hall, for plaintiffs in error.

A. S. Churchill, for the State.

IRVINE, C.

June 20, 1898, there was presented to the Honorable Cunningham R. Scott, one of the judges of the Fourth judicial district, an application for a writ of habeas corpus. The application was made in Douglas county, and apparently while the district court of that county was in vacation. The application was by Benjamin F. Dodd and Annie E. Dodd, his wife, and was based on the unlawful restraint of four minor children of the petitioners by the Nebraska Children's Home Society, a corporation, and Elmer P. Quivey, its superintendent. Judge Scott allowed the writ, which accordingly issued. The sheriff returned that he had made service of the writ upon the society and upon Quivey; that he had demanded the children, and had met with refusal; that they were not found. The respondents answered, admitting that they had had the custody of the children, but alleging that they no longer had such custody. This return was, on motion, quashed, apparently for the reason that it failed to comply with that portion of section 371 of the Criminal Code which requires the respondent, if he has had the party in his custody or power or under restraint, and has transferred such custody or restraint to another, to “state particularly to whom, at what time, for what cause, and by what authority such transfer was made.” Thereupon an amended return was filed, which was deficient in the same respect, and was stricken from the files. Then the judge made an order reciting the proceedings, and requiring the respondents directly, at a time and place fixed, to produce the bodies of the children before the judge. They falling to do so, the present proceeding was begun by information against the Nebraska Children's Home Society, Louis D. Holmes, and Elmer P. Quivey, charging them with contempt of court in refusing to obey the order. A rule to show cause was made by the judge, and proceedings were had thereon, which resulted in adjudging the defendants guilty, fining Holmes and Quivey each $200, and sentencing them to be confined in jail until they should produce the bodies of the children. The three defendants, by separate petitions in error, bring the case here for review.

In addition to the foregoing statement, it may be said that the Nebraska Children's Home Society is a corporation whose object seems to be to obtain by contract the custody of children from their parents, and the providing for them of homes elsewhere by contracts of adoption; that the Dodds had undertaken by contract to so part with their children; and the object of the habeas corpus proceedings was to test the binding force of these contracts. In the voluminous briefs presented, many questions are argued. These fall into three classes: First, questions relating to the validity of the habeas corpus proceedings; second, questions relating to the power of the judge in the contempt proceedings; third, questions relating to the regularity of the contempt proceedings.

Preliminary to a discussion of the first group of questions, it may be said that the proceedings in the habeas corpus case are open to examination here only so far as to ascertain whether the judge in those proceedings was acting within his jurisdiction. If not, his orders were void, and no contempt could be committed by disregarding them. If, however, the order violated was one which the judge had authority to make, then the propriety of his making it, or the regularity of the proceedings leading up thereto, do not now concern us. No matter how erroneous that order may have been, no matter how irregular the proceedings leading thereto, such errors or irregularities cannot be urged as a defense or in extenuation of the violation of the order. The foregoing is a statement of law which has become elementary, and is rendered necessary only by the fact that counsel on both sides have seen fit to discuss at some length the question of the validity of the contracts out of which the habeas corpus proceedings grew, and other questions manifestly going only to the regularity, and not to the validity, of those proceedings.

It is charged that the application for a writ of habeas corpus was insufficient to authorize the judge to allow the writ. While the application in such case is the initiative proceeding, the validity of the writ does not depend on the sufficiency of the application. The issue of the writ is a judicial act. Where the application is in all respects sufficient, it is the duty of the judge to allow the writ; but it does not follow that the writ is void, and can be disregarded, if the judge, through mistake of law or from other cause, sees fit to allow it on an informal or insufficient petition. It has been held that the proper method of attacking the petition is by motion to quash the writ, and that insufficiency in the petition is waived, unless that remedy be resorted to. McGlennan v. Margowski, 90 Ind. 150. It follows that a defective petition is not, therefore, fatal to the jurisdiction. We need not enter into an extended discussion of the nature of the writ of habeas corpus, and the uniform policy of constitution, statutes, and decisions, to render it absolutely effective as a safeguard against unlawful restraint of the person; but, aside from mere technical considerations, a moment's attention to the subjects indicated must convince one that, when a judge sees fit to allow a writ, it must be obeyed, or resistance thereto made in the regular manner. Neither ministerial officer nor private citizen can be permitted to ignore its mandate because he may think the judge allowed it on insufficient grounds.

It is not seriously contended that the power to allow the writ of habeas corpus, to conduct a hearing, and adjudicate the rights of the prisoner, are not vested in a judge in vacation. But it is strenuously argued that the particular order, the disobedience of which is charged in the information for contempt, was of such a nature that it could not be made by a court, and was especially beyond the powers of a judge in vacation. On this question we are favored by counsel for the defendant in error with an elaborate discussion of the history of habeas corpus as a common-law writ and under the statute of Car. II., coupled with an able argument to show that by virtue of acts of congress the common-law powers of judges with regard thereto were carried into the territory of Nebraska, and that the writ and procedure thereunder according to English practice were thereby recognized and perpetuated by the state constitution. To decide the question before us, we do not find it necessary to examine into the soundness of this argument in its details, and to its full extent. It is true that in the habeas corpus act of the...