Pass v. State

• Decision Date: 02 December 1944
• Citation: 184 S.W.2d 1,181 Tenn. 613
• Parties: PASS v. STATE.
• Court: Tennessee Supreme Court

184 S.W.2d 1

181 Tenn. 613

PASS v. STATE.

Supreme Court of Tennessee.

December 2, 1944

Error to Circuit Court, Shelby County; James J. Pleasants, Jr. Judge.

Proceeding by the State for attachment of the body of Joe Pass and his punishment for contempt of court in violating an injunction against illegal sale of intoxicating liquors. A decree adjudging defendant guilty of and sentencing him for contempt was affirmed by the Court of Appeals, and he brings certiorari.

Writ denied.

Robinson & Robinson and L. E. Gwinn, all of Memphis, for plaintiff in error.

Nat Tipton, Asst. Atty. Gen., William Gerber, Dist. Atty. Gen and Charles A. Rond and Preston Battle, Jr., Asst. Dist Attys. Gen., all of Memphis, for the State.

GAILOR Justice.

On February 16, 1943, under the provisions of the Nuisance Act, Code section 9324 et seq., a bill was filed in the name of the State on the relation of District Attorney General against Joe Pass and his wife, Maggie Pass, by which an injunction was sought to restrain them from the illegal sale of intoxicating liquors in Shelby County. Three days later a final decree was entered by consent of all parties, under which Defendants were perpetually enjoined from the illegal sale of intoxicating liquors in said county.

On June 1, 1943, pursuant to the terms and provisions of the Nuisance Act, a petition was filed supported by affidavit charging a violation of the injunction and praying an attachment of the body of Joe Pass, and his punishment for contempt of court. Citation on the petition was issued and served, and on June 7, after defendant had filed a sworn answer of denial, the court heard evidence and held that defendant, Joe Pass, was in contempt of court, sentencing him to serve 6 months in the county workhouse for the offense. From this judgment defendant prayed an appeal to the Supreme Court. We transferred the appeal to the Court of Appeals and that court affirmed the decree. The cause is again before us on petition for certiorari filed by the defendant.

The single question presented by the appeal and reiterated in the petition for certiorari is a determination whether on the citation for contempt defendant was entitled to a jury trial as a matter of right, and whether the denial of the right constituted reversible error. Defendant had demanded a jury in the sworn answer which he filed to the petition for citation and at the hearing of the cause, defendant's attorney renewed this demand. The trial judge denied the defendant a jury trial, and to this action of the court the defendant duly preserved his exceptions.

Defendant insists that because under the Nuisance Act (Code, § 9330) proceedings are to be had according to the forms of chancery court, the therefore, by section 10574 (which provides for juries in certain cases in chancery court), he was entitled to a jury trial. This is equivalent to an insistence that in any case (i. e. not under the Nuisance Act) of attachment for contempt for the violation of an injunction in the Chancery Court that the accused contemnor is entitled to a jury trial. This is not the law.

'The power to punish summarily by process of attachment, for contempts has been coeval with the existence of courts. Hasty thinkers, proceeding on false notions of liberty, have sometimes maintained, that this power is but little in harmony with the liberal institutions of England and America. But on the contrary, it is obvious that wherever the laws govern, and not the bayonets of the executive power, the courts must be armed with this summary authority in order to attain the ends of their institution. To courts of chancery it is indispensable.' Reese, J. Underwood's Case, 21 Tenn. 46, 49. (Emphasis ours.)

'To this head of summary proceedings may also be properly referred methods immemorially used by the superior courts of justice of punishing contempts by attachment and the subsequent proceedings thereon.' Blackstone Com., Book 4, Chapter 20, p. 283, Sharswood Ed.

'The whole process of a court of equity in the several stages of a cause, and finally to enforce its decrees, was, until the introduction of sequestrations, in the nature of a process for contempt, acting only in personam, and not in rem.' 2 Broom & Hadley's Commentaries, p. 567.

Jury trials are a comparatively recent innovation in the Chancery Court, but the authority of the Chancellor to punish for contempt is inherent in the office of Chancellor and as old as the court itself. Jury trials in chancery are not secured to the individual by constitutional guaranty. Miller v. Washington County, 143 Tenn. 488, 226 S.W. 199.

'The constitutional guaranty of trial by jury (Article 1, § 6), refers to common-law actions and not to suits of an equitable nature. (Citing cases.) * * *

'It is to be observed that section 10574 of the 1932 Code departs somewhat from section 4465 of the Code of 1858 providing for juries in chancery. Under the new Code a party is not entitled to a jury in chancery 'in cases involving complicated accounting, as to such accounting' and in cases 'elsewhere excepted by law or by the provisions of this Code.' So it is not every case in chancery in which a jury can be demanded, and the constitutional provision not applying to cases of an equitable nature, the chancellor has a much broader latitude in withdrawing issues from a jury than the circuit judge does in directing a verdict. ' Hunt v. Hunt, 169 Tenn. 1, 10, 80 S.W.2d 666, 669.

And a defendant was not entitled to a jury trial in contempt proceedings in any court at common law.

'The general rule is that a constitutional guaranty of jury trial does not apply to proceedings to punish for contempt of court whether in a court of law, a court of equity, a court having criminal jurisdiction, or other court. Punishment for contempt may be summary whether the contempt is direct or indirect, civil or criminal, whether the contempt consists in disobedience of an order of the court, insult, or in other conduct or omission, whether the acts constituting the contempt constitute also infractions of the criminal law, although of the grade of felony and whether imprisonment or fine is imposed or indemnity of an adverse party is decreed. Due process does not require a jury trial in such a proceeding.' 31 Am.Jur., sec. 31, p. 579; District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, 185; In re Debs, 158 U.S. 564, 565, 15 S.Ct. 900, 39 L.Ed. 1092.

'* * * For while it (the power to punish for contempt) is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and in absolutely essential to the performance of the duties imposed on them by law. * * *

'There has been general recognition of the fact that the courts are clothed with this power, and must be authorized...