State ex rel. Chicago, Burlington & Quincy Railroad Co. v. Bland

• Court: Missouri Supreme Court
• Writing for the Court: LAMM, J.
• Citation: State ex rel. Chicago, Burlington & Quincy Railroad Co. v. Bland, 88 S.W. 28, 189 Mo. 197 (Mo. 1905)
• Decision Date: 01 June 1905
• Parties: THE STATE ex rel. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. SCHUBACH; THE STATE ex rel. CHICAGO & ALTON RAILWAY COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. GILDERSLEEVE; and THE STATE ex rel. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. GILDERSLEEVE

88 S.W. 28

189 Mo. 197

THE STATE ex rel. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. SCHUBACH; THE STATE ex rel. CHICAGO & ALTON RAILWAY COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. GILDERSLEEVE; and THE STATE ex rel. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. BLAND et al., Judges, in re Contempt Proceedings v. GILDERSLEEVE

Supreme Court of Missouri

June 1, 1905

Writ denied.

Edward S. Robert, Douglas W. Robert, Johnson, Allen & Richards McKeighan, Wood & Watts, Martin L. Clardy and J. M. Dickinson for relators.

(1) The power to punish for contempt is inherent in all superior courts of record. State ex inf. v. Shepherd, 177 Mo. 205; State ex rel. v. Ryan, 182 Mo. 349; In re Debs, 158 U.S. 594; Bessette v. W. B. Conkey Co., 194 U.S. 326; Anderson v. Dunn, 6 Wheat 226; Ex parte Kearney, 7 Wheat. 39; Hayes v Fischer, 102 U.S. 122; Ex parte Chetwood, 165 U.S. 443; Interstate Commerce Commission v. Brinson, 154 U.S 489; Cooper v. People (Colo.), 6 L.R.A. 430; Smith v. Speed (Okla.), 55 L.R.A. 402; Cossart v. State, 14 Ark. 538; Bean v. State, 22 Ark. 149; Railroad v. Williams (Fla.), 33 So. 991; In re Teitelbaum, 84 A.D. 351; State v. McKinnon, 8 Ore. 487. (2) At common law a commitment for contempt by a court having jurisdiction to order the commitment could not be revised or controlled by any other court, whether by appeal or writ of error, or by any extraordinary writ, such as certiorari, mandamus, habeas corpus, or in any manner whatever. State v. Schneider, 47 Mo.App. 671; Ex parte Goodin, 67 Mo. 646; Brass v. Crosby, 3 Wilson 188; State v. Lucksinger, 79 Mo.App. 293; Passmore-Williamson Case, 36 Pa. St. 20; New Orleans v. Steamship Co., 20 Wall. 387; Cossart v. State, 14 Ark. 538; Cooper v. People (Colo.), 6 L.R.A. 430; 7 Am. and Eng. Ency. Law (2 Ed.), 34; People v. Hockley, 24 N.Y. 75; Easton v. State, 39 Ala. 551; Larrabee v. Selby, 52 Cal. 506; Lockwood v. State, 1 Ind. 161; Durham v. State (Iowa), 6 Clark 246; Church v. Muscatine, 2 Iowa 69; Watson v. Thomas (Ky.), 6 Litt. 248; State v. Ouachita Parish, 31 La. Ann. 116; Phillips v. Welch, 12 Nev. 158; Crommer v. Dickmann, 180 Mo. 148; Kirk v. Milwaukee, etc., Co., 26 F. 501. (3) "The Legislature has no power to take away, abridge, impair, limit, or regulate the power of courts of record to punish for contempts." State ex inf. v. Shepherd, 177 Mo. 235; State ex rel. v. Ryan, 182 Mo. 349; Smith v. Speed (Okla.), 55 L.R.A. 402. (4) Contempts are civil or criminal. The contempt in the case at bar is criminal. Ex parte Crenshaw, 80 Mo. 447; State ex rel. v. Horner, 16 Mo.App. 195; State v. Chiles, 22 Wall. 157; 5 Crim. Law Magazine, 172; Philips v. Walsh, 11 Nev. 187; New Orleans v. Steamship Co., 20 Wall. 387; State v. Lucksinger, 79 Mo.App. 294. (5) There is no statute of Missouri authorizing an appeal in such a case as this. (a) The statute concerning appeals in civil cases does not apply. R.S. 1899, sec. 806. (b) Although the contempt in this case is in its nature criminal, the statute concerning appeals and writs of error in criminal cases does not apply. R.S. 1899, secs. 2696, 2697. (6) If any statute can be construed to permit an appeal in such a case as this, it is unconstitutional. State ex inf. v. Shepherd, 177 Mo. 205; State ex rel. v. Ryan, 182 Mo. 349; see, also, authorities cited under point 3. (7) Section 1617, Revised Statutes 1899, which limits the power of the court to punish for contempts, is unconstitutional. State ex inf. v. Shepherd, 177 Mo. 205; State ex rel. v. Ryan, 182 Mo. 349.

Chester H. Krum, Bond & Bond and Edward J. O'Brien for respondents.

(1) An order imposing a sentence of fine, or imprisonment upon a person for a contempt of court, is in the nature of a judgment convicting him of a criminal offense; and when he is imprisoned upon such an order, he is said to be imprisoned in execution. Ex parte Kearney, 7 Wheat. 345; State ex rel. v. Horner, 16 Mo.App. 191; Ex parte O'Brien, 127 Mo. 488. In the last-named case, the language employed is much stronger: "Contempt of court is 'a specific criminal' offense and the fine imposed is a judgment in a criminal case. The adjudication is a conviction and the commitment in consequence thereof is execution." (2) Where the proceeding for contempt is instituted by a party to enforce a civil remedy, the decision of the court, whether for or against the accused, possesses the essential characteristics of a final judgment, dispositive of a substantial right. State ex rel. v. Horner, 16 Mo.App. 191; Bessette v. Conkey Co., 194 U.S. 324. (3) Where the proceeding is thus remedial as for a contempt, the final judgment or order by which the court ends the proceeding and exhausts its jurisdiction is subject to revision by appeal. State ex rel. v. Horner, 16 Mo.App. 194; State v. Schneider, 47 Mo.App. 669; State v. Lucksinger, 79 Mo.App. 289; Glover v. Ins. Co., 130 Mo. 184; Romeyn v. Caplis, 117 Mich. 449; Register v. Minnesota, 8 Minn. 214; Witter v. Lyon, 34 Wis. 564; Ross v. Griffin, 53 Mich. 5; State v. Miller, 23 W.Va. 801; Matter of Davis, 81 N.C. 72; In re Pierce, 44 Wis. 432; Matrons v. Kearney, 79 N.Y. 496; Snowman v. Haynd, 57 Me. 397; People v. Dwyer, 90 N.Y. 402; Ex parte Wright, 65 Ind. 504; Mullin v. People, 13 Gratt 57; Wells v. Commonwealth, 21 Gratt. 500; Turner v. Commonwealth, 2 Metc. 619; Bessette v. Conkey Co., 194 U.S. 324; Ganley v. State, 13 Neb. 445; Neinaber v. Tarvin (Ky.), 46 S.W. 513; Livingston v. Swift, 23 How. Pr. 1. (4) The proposition is indisputable in Missouri. (a) "Any party to a civil suit aggrieved by any judgment in any civil cause, from which an appeal is not prohibited by the Constitution, may take his appeal to a court having appellate jurisdiction . . . from any final judgment in the case." R.S. 1899, sec. 806. (b) "In all cases of final judgment rendered upon any indictment an appeal . . . shall be allowed." R.S. 1899, sec. 2696. Upon the proposition, if there is anything in the fact of repeated adjudication by all the courts of appellate jurisdiction, the right of appeal has been determined beyond room for controversy.

LAMM, J. Burgess, J., not sitting.

OPINION

In Banc.

Prohibition.

LAMM J.

In 1903 the Burlington company commenced two proceedings in equity in the circuit court of St. Louis, one against Schubach and one against Gildersleeve, and the Alton company also commenced in said court its proceedings in equity against Gildersleeve -- the life of each bill being for injunctive relief restraining said Schubach and Gildersleeve from dealing in the return-trip part of a certain class of railroad tickets issued severally by relators to accommodate travel to and from the Louisiana Purchase Exposition at St. Louis, and sold at reduced price in consideration of being non-transferable. (See a case on all-fours, Schubach v. McDonald, 179 Mo. 163, 78 S.W. 1020, where the averments and a copy of a similar bill are set forth with particularity.)

Such proceedings were had in each of said causes as resulted in temporary restraining orders against said defendants severally. While said temporary injunctions were in force and after they had been served upon defendants, plaintiffs in said suits, relators here, in their own several names and through their own counsel, filed in said circuit court, during its June term, 1904, verified complaints in said causes, causing the court to be informed that said Gildersleeve and Schubach, after injunction bonds filed and approved and after service of the preliminary restraining orders, violated the terms thereof by carrying on the business of ticket brokerage by buying, selling and dealing in World's Fair mileage, excursion and passenger tickets and return coupons thereof, and commutation passenger tickets or return coupons thereof, which were and had been issued by the plaintiffs severally for passage over their respective railroads, which said tickets were sold below regular schedule rates and under contracts with the original purchasers entered upon such tickets and signed by the original purchasers making them nontransferable and void in the hands of any other person than such original purchasers. Said complaints also caused the court to be informed of divers and sundry specific instances of violations of said orders, in names, tickets, dates and amounts, and prayed the court to make an order requiring said Schubach and Gildersleeve to appear and show cause why all and every of them should not be punished for contempt of court in violating said injunction.

Thereupon Gildersleeve and Schubach were ordered cited to appear and show cause, and they appeared and filed returns through counsel.

Thereupon the matter of said complaints, citations and returns came on for hearing, and thereafter the court entered its judgments, finding and adjudging Schubach and Gildersleeve guilty of contempt and adjudging Gildersleeve in one case to be committed to and be imprisoned in the common jail in the city of St. Louis for a period of thirty days from two o'clock, p. m., on the 2nd day of August, 1904 until twelve o'clock, p. m., on the first day of September, 1904, or until he be discharged according to law; and in the other case adjudging him to pay to the sheriff of the city of St. Louis for the use of the public schools the sum of $ 300, together with the costs incurred in the proceeding, before the 1st day of October, 1904, and if said fine and costs be not paid by the 1st day of October, 1904, that the body of said Gildersleeve be attached by the said sheriff and that said Gildersleeve be committed to and imprisoned in the common jail in the city of St. Louis for a period of thirty days from the 1st day of October, 1904, or until he shall be...