State Of West Va. Ex Rel. James M. Mason v. The Harper's Ferry Bridge Co.

• Decision Date: 26 December 1879
• Parties: State of West Virginia ex rel. James M. Mason v. The Harper's Ferry Bridge Company,andSame v. George W. Green, ANDSame v. Murtha Walsh.(Absent, Mooke, Judge.)
• Court: West Virginia Supreme Court

16 W.Va. 864

State of West Virginia ex rel. James M. Masonv. The Harper's Ferry Bridge Company, andSame

v.George W. Green, ANDSame

v.Murtha Walsh.

Supreme Court of Appeals of West Virginia.

Decided December 26, 1879.

I. Proceedings against a party for a contempt of court ate in the nature of criminal proceedings; and, when instituted at the instance of another party, when judgment is rendered, the case should be entitled in the name of the State at the relation of such person. On the trial of such a case the answer of the accused is not conclusive, but affidavits may be read against as well as for him.

2. If after the service of a supersedeas, issued by the Supreme Court of Appeals to an order of a circuit judge in vacation dissolving an injunction, the appellee violates the injunction, the party is in contempt of the Appellate Court and may be punished by it for disobeying its process.

3. The Supreme Court of Appeals may punish a party summarily for such a contempt. Its right to do so is inherent and essential to the existence of the court; and the discretion involved in this power is in a great measure arbitrary and undefinable, and for a contempt of this character it has been in no degree restricted by our statutelaw. This court may order, that that which has been done in disobedience of its lawful process shall be undone, where justice to any person requires this course to be adopted. When the contempt is wilful, it may imprison the party; and when merely in- advertent and reckless, it may impose a fine on the party. If a fine be imposed, the court may imprison the party, if such fine be. not paid in the time prescribed by the court.

4. The advice of counsel may under some circumstances be a palliation of the offence of his client in disobeying the lawful process of this court, but the extent of such palliation must depend upon the character of such advice and the circumstances under which it has been given. The offence will be palliated by such advice to the extent only of making it a reckless disobedience of the process of this court instead of a wilful contempt of this couri;, when the advice is hasty and inconsiderate, or where the party through carelessness has failed to give the counsel correct information as to the facts of the case.

5. In order to justify any punishment in such a case, the process of the court disobeyed must have been its lawful process.

6. By its lawful process is meant such process as the court has jurisdic-

tion to issue. If such jurisdiction exists, its process is lawful, though it be improvidently awarded, or though on the merits of the case it ought not to have been awarded.

7. If a supersedeas, which this court has the power to issue, be improvidently awarded, the defendant should move to have it quashed; and he cannot, while it is in force, disobey it with impunity.

8. So, if the appellee alleges that the appellant has agreed to abandon his appeal and supersedeas, he may move this court to quash them; but he cannot with impunity disobey for such reason the supersedeas while in force.

9. The statute-law gives this court jurisdiction to grant an appeal and supersedeas to an order dissolving an injunction; an I therefore when a petition is presented to this court, alleging that the legal effect of an order of a circuit judge made in vacation is to dissolve an injunction, it is the duty of this court to determine whether such be the legal effect of the order, and in such a case it has the power to grant an appeal and supersedeas.

10. In such case the supersedeas issued by the order of this court is lawful process; and disobedience to it will be punished by this court, though it was improvidently issued. If thus issued, the appellee should move this court to quash it, but he cannot disobey it with impunity, while it remains it force.

11. In order to afford an opportunity to a party to obtain an appeal and supersedeas, an order is made by a circuit judge suspending a final decree for sixty days; and the required bond is given. During these sixty days such decree is absolutely inoperative; and it leaves the parties to the suit in exactly the same situation, that they would have been in, if no such decree had been entered.

A rule to the said defendants to show cause, if any they have, why they and each of them should not be punished for contempt of this Court:

Green, President, furnishes the following statement of the case:

James M. Mason owned a ferry across the Shenandoah river at Harper's Ferry, West Virginia, it having been established by an order of the county court of Jefferson county made March 22, 1878. On February 21, 1879, George W. Green, Murtha Walsh and others obtained from the Secretary of State of West Virginia, a certificate of incorporation by the name of the Harper's Ferry Bridge Company, for the purpose of constructing and operating a toll-bridge across the Shenandoah river at Harper's Ferry. This corporation was organized and commenced erecting this bridge within two hundred yards of the ferry of said Mason, and also commenced erecting an abutment in said river on land, in which said Mason claims he has in part the ownership, without his consent and without taking any steps to condemn the same. On July 21, 1879, said Mason filed his bill in chancery in said county court, setting out among other things these facts, and claiming that as the proprietor of said ferry he had the exclusive right of charging toll for transporting persons and things across the river within half a mile of said ferry, and that if the said Harper's Ferry Bridge Company is permitted to erect said toll-bridge, not only will he be wronged by the illegal appropriation of his land aforesaid, but also an irreparable wrong will be done him by encroaching on his exclusive franchise and destroying the value of his ferry, and that said Harper's Ferry Bridge Company is insolvent. And he prays, that they be enjoined from erecting said bridge and for other relief. The corporation as well as corporators personally were the defendants.

After notice to the defendants and argument by the counsel of plaintiff and of defendants the court decreed that the defendants, and each of them, and their agents be, and they were thereby, restrained from proceeding further in and about the construction of the bridge in the bill mentioned, until by the exercise of the power of eminent domain in the manner prescribed by law they have acquired the right to damage the ferry-francise and other property of the plaintiff described in the bill, and to take and possess that part of the land in the bill mentioned, which will be occupied by the abutments and causeway of the bridge; but this injunction was not to take effect, until the plaintiff executed a bond with good security before the clerk of this court in the penalty of $500.00, conditioned to pay to the defendants such damages as they might sustain by reason of this injunction, should the same be dissolved. This injunctionbond was accordingly given, and the injunction was duly served.

On August 22, 1879, after legal notice the judge of the circuit court of Jefferson, by an order in vacation, made at the instance of the defendants, removed this cause into the circuit court of Jefferson; and the defendants then gave notice to the plaintiff, that on August 30, 1879, in vacation, they would move the said judge to increase the penalty of said bond. The notice was served August 23, 1879, and after taking time to consider this motion, made on the 30th of August, 1879, till September 2, 1879, the judge in vacation entered this order: "After careful consideration being of opinion that a judge of a circuit court has authority to hear and determine in vacation a motion of this character, and being further of opinion from the affidavits presented by the defendants and filed with the papers, that $500.00, the penalty of the injunction-bond heretofore executed, is insufficient, it is therefore ordered, that the motion of the defendants be allowed, and that the complainant do execute before the clerk of the circuit court of Jefferson county bond, conditioned according to law in cases of injunction, in the increased penalty of $2,500.00, and with security to be approved by said clerk. And it is further ordered, that unless the said complainant or some one for him do execute the bond required by this order within twenty days from the date hereof, the injunction awarded by the county court of Jefferson in this cause shall from and after the expiration of said period of twenty days be dissolved."

From this order or decree James M. Mason, the plaintiff, applied to this court for an appeal and supersedeas, whcih was granted and the writ of supersedeas issued on October 18, 1879, returnable to December rules, 1879, the penalty of the appeal and supersedeas bond being fixed by this Court at $800.00. This bond was given before the clerk of the circuit court of Jefferson with approved security, on November 25, 1879; and the writ of supersedeas was served on November 25, 1879, on the defendants, The Harper's Ferry Bridge Company and George W. Green, and on the next day on Murtha Walsh and other defendants. But in the meantime before this appeal and supersedeas bond was given, and before the writ of supersedeas was served on any of the defendants, the circuit court of Jefferson proceeded with said cause and rendered a final decree on November 21, 1879. This decree was as follows:

"This cause came on to be heard this the 21st day of November, 1879, upon the bill and exhibits filed, the demurrer to the bill and joinder in demurrer, the answer of the Harper's Ferry Bridge Company and general replication thereto, the depositions and exhibits filed in the cause, and was argued by counsel. On consideration whereof the court being of opinion that the plaintiff has failed to make a case, which entitled him to relief in a court of equity, it is adjudged, ordered and decreed, that the bill ot the...