State Ex Rel. Alderson v. Cunningham

• Decision Date: 25 March 1890
• Citation: 33 W.Va. 607,11 S.E. 76
• Court: West Virginia Supreme Court
• Parties: State ex rel. Alderson. v. Cunningham, Commissioner, etc.

11 S.E. 76

33 W.Va. 607

State ex rel. Alderson.

v.Cunningham, Commissioner, etc.

Supreme Court of Appeals of West Virginia.

March 25, 1890.

Contempt—Bill or Exceptions—Signing—Mandamus.

1. It is well settled that a contempt of court is a criminal offense, and the imposition of a fine for contempt is a judgment in a criminal case. Therefore the same principles of evidence apply as in other criminal trials, and the guilt of the respondent must be proved beyond a reasonable doubt.

2. Upon the petition of John D. Alderson, the present relator, a rule was ordered by this court against the county commissioners of Kanawha county to show cause why a mandamus should not be awarded to compel them to sign a bill of exceptions. They appeared and answered, and, the answer not being deemed sufficient cause, a peremptory mandamus issued, directing them to settle and sign said bill of exceptions in the manner therein prescribed. The relator subsequently filed his petition, charging that the respondent, who was a member and president of said commissioners, had violated the order, and refused obedience to the mandamus; and praying for a rule, which has been issued against the said respondent, to show cause why he should not be fined for contempt. Held, the peremptory writ having issued, its legality, and the authority to issue it, cannot now be questioned by the respondent, as the matter as to him is res judicata.

3. The respondent, in reply to the rule for contempt, replies that he did not sign the bill as presented, because it did not truly state the facts; nor did he sign the bill which the other commissioners settled and signed as the act of the board, for a similar reason; but that he did settle and sign the bill which accompanies his answer, and which he says does truly state the facts as they were proved or occurred. Held, this return is conclusive, and cannot be traversed by the state or the relator in this proceeding.

4. There is no rule of practice which prohibits the court or a judge from taking exceptions, instructions, and other pleadings to his office or library for the purpose of examining them, consulting authorities, and passing upon them. Before doing so, it is proper to hear counsel upon them; and, as to bills of exceptions, they may be settled and signed at any time during the term.

5. The writ directed the commissioners to settle and sign the bill "promptly, and with all convenient dispatch." It was issued Nevember 23d, and served November 26th. Respondent called thecommissioners together the 29th. and they adjourned from time to time until December 23d, when respondent completed and signed the bill accompanying his answer, and on the 27th the court or board signed the bill on which the relator obtained a writ of certiorari. In the mean time respondent had held the regular term of county court, and had been afflicted with personal indisposition and illness in his family. Held, that considerable discretion should be allowed to inferior tribunals in the discharge of judicial functions, and that, looking to the only object of a bill of exceptions which this court can consider, —viz., to perfect the record for an appeal, —there was no such delay here as ought to subject the respondent to fine or imprisonment by this court.

Snyder, P., dissenting.

(Syllabus by the Court.)

On rule to show cause why defendant should not be attached for contempt.

Brown & Jackson, for relator.

J. H. Ferguson, Abr. Burlew, and G. W. Patton, for defendant.

Lucas, J. On the 6th of November, 1888, at the general election held on that day, the rival candidates for the federal house of representatives from the third congressional district of this state were John D. Alderson and James H. McGinnis. There was a demand for a recount of the vote of Kanawha county, which is in said district, and the vote of several precincts became involved in controversy. The county commissioners, of whom the respondent in the present proceeding was one, acted, as the record discloses, in a very unusual and very arbitrary manner, and, upon a certiorari issued by the circuit court of Kanawha, the case was remanded to the lower tribunal, with instructions to proceed with counting the vote, to allow the parties to cross-examine witnesses, to introduce evidence, and to appear by counsel or in person. Mr. Alderson, taking the ground that the circuit court ought to have retained the case, and itself proceeded with the count, took an appeal to this court, and here the action of the circuit court was affirmed, and the cause remanded to the county court, to be there proceeded in as directed by the circuit court. See Alderson v. Commissioners, 32 W. Va. 454, 9 S. E. Rep. 863. The county court took the matter up again, and proceeded with the count, and, after reaching a conclusion, a bill of exceptions was presented to them by the counsel of Alderson, and they declined absolutely to sign it, or to take such steps in regard to modifying or correcting it as they should have done, in accordance with the rule laid down by this court in Poteet v. Commissioners, 30 W Va.58, 38. E. Rep. 97. Alderson thereupon, on the 15th day of November, 1889, applied to this court for a mandamus to compel the county commissioners to sign said bill of exceptions, and, after rule and answer, this court, on the 23d of November following, issued a peremptory mandamus directed to said commissioners, which, as its exact language is material to our present discussion, I here set out in full: "This day came again the parties by their attorneys, and the respondents here filed an amended answer to the rule heretofore issued, which said amended answer the petitioner excepted to; and this case was fully heard upon the petition and rule aforesaid, the answer and amended answer aforesaid, the exceptions thereto, and the arguments of counsel thereon; and the court, having maturely considered the same, is of opinion that the answer and amended answer aforesaid are insufficient, and that it was the duty of the commissioners of the county court of Kanawha county to settle and sign the bill of exceptions presented to them by the petitioner; that is to say, it was the duty of said commissioners to carefully examine the bill of exceptions, and, if they found that the statements and facts recited in it were correctly set forth, they should have signed the same; but, if they found that any one or more of the statements contained in the bill of exceptions were incorrect, they should have corrected the same in those respects only in which the statements were erroneous, but they should not have stricken from the bill of exceptions any statement or fact alleged in it if the same were true, no matter how impertinent or immaterial they may have considered such statement or fact to be, and the commissioners should have added to the bill of exceptions any omitted fact or statement which they deemed material, and, having thus settled the bill, it was their duty to sign the same. It is therefore ordered that a peremptory writ of mandam us do issue commanding John S. Cunningham, W. B. Calderwood, and Curtis H. Young, commissioners of the county-court of Kanawha county, promptly, and with all convenient dispatch, to settle in the manner hereinbefore set forth the bill of exceptions tendered by John D. Aider-son in the matter of the recount of the votes east in Kanawha county on the 6th day of November, 1889, for the office of representative of the third congressional district of West Virginia in the congress of the United States, and, having so settled said bill, to sign the same, and make it a part of the record of their proceedings. It is further ordered that the writ of mandamus aforesaid be made returnable on the first day of the next term of this court, and that service of an attested copy of this order shall be considered service of the said writ." This order was served, as appears by the return of the sheriff, on the 26th of November, three days after it was entered. It is charged by Alderson, the relator, that the respondent, the president of said board of commissioners, disobeyed said order; and upon a petition filed by him in this court on the 18th day of January, 1890, a rule has issued against John S. Cunningham, the respondent, to show cause, if any he can, why he should not be proceeded against for contempt of an order of this court. It is well settled that a contempt of court is a specific criminal offense, and that the imposition of a fine for contempt is a judgment in a criminal case. Fischer v. Hayes, 6 Fed. Rep. 68. Therefore the same rules of evidence and procedure apply. Id. 74. This is the view announced by this court in State v. Bridge Co., 16 W. Va. 864; Ruhl v. Ruhl, 24 W.Va. 279; Aider-son v. Commissioners, 32 W.Va. 640, 9 S. E. Rep. 868. It is important, therefore, for us to consider the exact nature and language of the charge as contained in the rule.

The offense is described as contempt of an order, and we must therefore consider the order. The twenty-seventh section of chapter 147 of the Code provides that courts, and judges thereof, may issue attachments for contempts, and punish them summarily, in case of disobedience of any person to any lawful process or order of the court. In reference to the interpretation of this section, we may consult the decision' of this court in State v. Bridge Co., supra, 865, pars. 5, 6, viz.: "In order to justify any punishment in such a case, the process of the court disobeyed must have been its lawful process. By its law-fid process is meant such process as the court had jurisdiction to issue. " And in delivering the opinion Judge Green, on pageS77, says: "It is settled by the authorities that, if this court had no jurisdiction to award this process, the parties cannot be punished for a contempt in disobeying it; for, in such a case, the order of this court granting the supersedeas might be treated as a mere nullity. " The respondent, in his amended answer,...