Nebraska Children's Home Society v. State
| Decision Date | 09 February 1899 |
| Docket Number | 10330 |
| Citation | 78 N.W. 267,57 Neb. 765 |
| Parties | NEBRASKA CHILDREN'S HOME SOCIETY ET AL. v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before SCOTT, J. Affirmed.
AFFIRMED.
Montgomery & Hall, for plaintiffs in error:
The petition for the writ in the habeas corpus proceeding was insufficient. (Church, Habeas Corpus secs. 89, 90, 112; Ex parte Nye, 8 Kan. 99; State v. Ensign, 13 Neb. 250.)
Even if the district judge was authorized to enter the order for the production of the children, he had no power to proceed in vacation to attach and punish the plaintiffs as for contempt of court.
The district judge erred in overruling the demurrer to the information. (Gandy v. State, 13 Neb. 445; Boyd v. State, 19 Neb. 128; Ludden v. State, 31 Neb. 429; Cooley v. State, 46 Neb. 603; Beckett v. State, 49 Neb. 210; Hawthorne, v. State, 45 Neb. 871; Hawes v. State, 46 Neb. 149.)
Arraignment is necessary. (Zimmerman v. State, 46 Neb. 13; Boyd v. State, 19 Neb. 128.)
A. S. Churchill, contra.
June 20, 1898, there was presented to the Hon. 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 failing 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 Charles 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 territory of Nebraska, substantially preserved still in chapter 34 of the Criminal Code, there is no express warrant for such orders as Judge Scott made in this case. Section 367 of the Criminal Code, being a portion of the chapter cited, prescribes the form of the writ in case of detention by persons not being officers charged with the custody of prisoners, and the writ thereby prescribed runs to the sheriff, commanding him to bring the body of the person in question before the judge, and to summon the person charged as detaining the prisoner to appear and show cause for the taking and detention. Such was the form of the writ in this case, and by recurrence to the statement with reference to the sheriff's return it will be found that the writ proved unavailing, through the inability of the sheriff to find the children and the refusal of the respondents to produce them. It certainly never could have been the intention of the legislature to deprive a court of all power to require the production of the prisoner except through the writ provided for in the section cited. An essential element of the remedy by habeas corpus is the power to compel the production of the body of the prisoner before the judge. It is this very feature which is embodied in the distinctive words which give the name to the writ. And while in certain cases courts have proceeded, generally by agreement of those concerned, without the actual production of the prisoner, this has always been because such production would be inconvenient, and the case was so shaped that the court was assured that its order would be...
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