State ex rel. Hammond v. Hume

• Decision Date: 23 June 1922
• Docket Number: No. 34769.,34769.
• Citation: 188 N.W. 796,193 Iowa 1395
• Parties: STATE EX REL. HAMMOND v. HUME, DISTRICT JUDGE.
• Court: Iowa Supreme Court

193 Iowa 1395

188 N.W. 796

STATE EX REL. HAMMOND

v.HUME, DISTRICT JUDGE.

No. 34769.

Supreme Court of Iowa.

June 23, 1922.

Appeal from District Court, Polk County; James C. Hume, Judge.

Certiorari proceedings instituted in this court to review the validity of an order entered by respondent court paroling one George Willoughby from a judgment finding him guilty of contempt of an injunction in a liquor injunction cause. The facts are stated in the opinion. The order of parole is annulled.A. G. Rippey, Co. Atty., and Vernon R. Seeburger, Asst. Co. Atty., both of Des Moines, for petitioner.

John L. Thompson and C. H. Miller, both of Des Moines, for defendant.

ARTHUR, J.

On December 16, 1915, in a suit of equity in Polk district court entitled “State of Iowa v. George Willoughby,” a decree was entered permanently enjoining Willoughby from keeping and maintaining a nuisance by selling and keeping for sale or otherwise trafficking in intoxicating liquors. On November 14, 1921, John B. Hammond, relator, filed an “information and petition to cite for contempt of court” in the office of the clerk of the Polk district court alleging: That on or about the 17th day of June, 1921, and at other times, George Willoughby had owned and kept for sale, with intent to sell, intoxicating liquors in violation of the injunction issued against him on the 16th day of December, 1915, and prayed that Willoughby be cited to appear and show cause why he should not be adjudged in contempt. The contempt proceeding was heard, and on December 5, 1921, the court, Hon. James C. Hume presiding, entered an order finding Willoughby guilty of contempt of the injunction of December 16, 1915, and imposed a fine on Willoughby of $200, in default of payment of which he should be committed to the Polk county jail for a period of 60 days. On December 20, 1921, Willoughby applied to the court for a parole from the order finding him guilty of contempt, and the court entered an order paroling Willoughby to one Ray Womelsdorf for a period of 60 days from and after the 19th day of December, 1921, upon filing of a parole contract, which order was complied with.

On January 23, 1922, the county attorney of Polk county moved to vacate the parole ordered entered on December 20, 1921, supporting the motion by an affidavit of himself, A. G. Rippey, and the affidavit of J. B. Hammond, relator in the instant case, stating “that this court was without jurisdiction to grant said parole,” and asking that the parole order be vacated.

On March 11, 1922, the court entered an order overruling the motion to vacate the parole order. This proceeding was instituted to review and test the legality of the order of parole.

The premises stated disclose the question before us, which is: Did the court have jurisdiction to suspend the order imposing fine or imprisonment, and to substitute therefor or supersede such order by the order of parole?

It will be helpful in the consideration and discussion of the question involved to advert to our statute providing for punishment for violation of a liquor injunction, and some of our cases where we have had occasion to consider the statute. Code, § 2407, reads as follows:

“In case of the violation of any injunction granted under the provisions of this chapter, the court, or in vacation a judge thereof, may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of the court an information under oath, setting out the alleged facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of witnesses. A party found guilty of contempt under the provisions of this section shall be punished by a fine of not less than two hundred nor more than one thousand dollars, or by imprisonment in the county jail not less than three nor more than six months, or by both fine and imprisonment.”

We have held that the statute is mandatory and leaves no discretion with the trial court when it is clear that there has been a violation of an injunction restraining the illegal sale of liquors. Barber v. Brennan, Judge, 140 Iowa, 678, 119 N. W. 142;State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767. In the Barber Case, supra, we said:

“This statute leaves no discretion with the trial judge when it is clear that there has been a violation of an injunction restraining the illegal sale of liquors. When such a violation of the law is shown, it is the imperative duty of the judge to enforce the statute and to punish for the contempt which has been committed, and, if he refuses so to do, he acts illegally, and his order is subject to review by this court.”

In State v. Voss, supra, which was a certiorari proceeding, the defendants were found guilty of contempt for violating a liquor injunction and were adjudged to pay a fine and to be imprisoned in default of such payment. The judgment entered by the court contained the following provision:

“The execution of this judgment is to be suspended during the pleasure of the court; but whenever the court, or one of the judges thereof, so directs, execution and warrant of commitment are to issue.”

In passing upon such provision in the judgment entered, we said:

“The question of the case is a simple one, and demands but brief discussion. The condition of the judgment puts its execution wholly within the discretion of the court below, whether that discretion be exercised with or without justice or reason. If it be the pleasure of that court, process may never be issued upon the judgment. The case is this: We find a judgment for a fine against defendant, which can only be enforced at the pleasure of the court. The judgment is thus suspended, and the state is defeated of the remedy provided by law, upon the exercise of the pleasure of the district court. If the power to do this exists in a case of contempt, it must exist in all cases punishable by fine and imprisonment. The law is no respecter of persons. One violator of law possesses no rights or immunities not held by another. It follows, then, that all fines and penalties prescribed by law may be collected only when it accords with the pleasure of the court in which...