State v. Boren, 32218

• Decision Date: 27 February 1953
• Docket Number: No. 32218,32218
• Citation: 42 Wn.2d 155,253 P.2d 939
• Parties: STATE, v. BOREN.
• Court: Washington Supreme Court

Page 155

42 Wn.2d 155

253 P.2d 939

STATE, v. BOREN.

No. 32218.

Supreme Court of Washington, Department 2.

Feb. 27, 1953.

Will Lanning and Bill Lanning, Seattle, and Phyllis L. Dolvin, East Stanwood, for appellant.

Charles O. Carroll and John L. Vogel, Seattle, for respondent.

HILL, Justice.

The defendant appeals from a judgment finding him to be 'guilty of Contempt of Court' and directing that he be punished by confinement in the county jail for ten days and that he pay a fine of two hundred dollars.

Pursuant to our en banc decision in State v. Boren, 1950, 36 Wash.2d 522, 219 P.2d 566, 20 A.L.R.2d 798, a judgment and decree was entered February 15, 1951, permanently enjoining A. E Boren (and others) from practicing dentistry in the state of Washington without a license.

Appellant was charged with contempt of court by an information filed October 18, 1951, alleging that he had wilfully disobeyed the lawful mandate of the superior court, to wit, the injunction entered February 15, 1951, by unlawfully practicing dentistry at 2005 Westlack avenue in Seattle. Appellant does not, in his assignments of error, take the position that the evidence was not sufficient to establish that he was practicing dentistry without a license, and makes no attack upon the trial court's findings of fact.

The trial court found that on or about August 17, 1951, appellant extracted a tooth for Mrs. Genevieve Wing, having first injected novocaine into her gums, and made a charge of five dollars therefor; and that, in that latter part of July or the first part of August, 1951, he extracted a tooth and filled two teeth for Amy Profitt, without charge. These acts constitute the practice of dentistry. RCW 18.32.020; cf. Rem.Rev.Stat. (Sup.) § 10031-6.

The trial court made a long and rather detailed finding with reference to the operation of a dental office at 2005 Westlake avenue in Seattle, from which the conclusion could justifiably be drawn that appellant owned, maintained or operated an office for the practice of dentistry, which also constitutes the practice of dentistry, RCW 18.32.020, and that he had no license so to do as required by RCW 18.32.090 (cf. Rem.Supp.1941, § 10031-4). See State v. Boren, supra, in which the statutes above referred to were construed.

Appellant, by his assignments of error, makes a collateral attack upon the jurisdiction of the superior court for King county to enter an injunction restraining him from practicing dentistry without a license; and makes an attack upon the jurisdiction of the particular department of the superior court for King county which heard the contempt proceeding. He also assigns as error the failure to accord him a jury trial, particularly in view of the fact that he had entered a plea of former acquittal, which he contends raised an issue of fact, apart from the issue of contempt, which he was entitled to have determined by a jury.

We will hereinafter dispose of certain assignments of error that are without substance, but before doing so we will state that the appellant was entitled to a jury trial, not because he interposed a plea of former acquittal, but because, being charged with a criminal offense (a misdemeanor), he was guaranteed the right to a jury trial by our state constitution, Art. I. § 22.

The statute under which appellant was tried is part of the criminal code adopted in 1909, and reads as follows:

'Every person who shall commit a contempt of court of any one of the following kinds shall be guilty of a misdemeanor: * * *

'4. Wilful disobedience to the lawful process or mandate of a court * * *.' Laws of 1909, chapter 249, § 120; cf. RCW 9.23.010; Rem.Rev.Stat. § 2372.

The information on which he was tried reads as follows:

'He, the said A. E. Boren, in the County of King, State of Washington, on or about the 17th day of August 1951, willfully and unlawfully did disobey a lawful mandate of the Superior Court of the State of Washington, for King County, to-wit: an injunction entered on the 15th day of February, 1951, in cause No. 400083, permanently enjoining the defendant [appellant], A. E. Boren from practicing dentistry without a license within the State of Washington, by willfully and unlawfully practicing dentistry within King County, in the State of Washington; at 2005 Westlake Avenue, in the City of Seattle;

'Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Washington.'

That there should be any doubt as to his right to a trial by jury on such a charge is due to the failure heretofore to distinguish between a trial on a criminal charge under RCW 9.23.010 (cf. Rem.Rev.Stat. § 2372) and a proceeding under the general contempt statute, RCW 7.20.010 et seq. (cf. Rem.Rev.Stat. § 1049 et seq.). The former, RCW 9.23.010, lists eight kinds of contempt of court that are misdemeanors. (We are here concerned with only the one quoted above.) The latter, RCW 7.20.010 et seq., sets out twelve acts and omissions that are deemed to be contempts of court. This statute outlines procedures for bringing the matter to the attention of the court when the alleged contempt is committed outside the 'immediate view and presence' of the court, and for the hearing to be accorded the alleged contemnor. In a proceeding under the general contempt statute, RCW 7.20.010 et seq., there is no right to a trial by jury; on the other hand, in the trial of an individual charged with crime, i. e., a misdemeanor, under RCW 9.23.010, the defendant has a constitutional right to a trial by jury that cannot be denied.

We frequently have referred to certain proceedings under the general contempt statute, RCW 7.20.010 et seq., as 'quasicriminal,' but there is nothing 'quasi' about the trial of an individual charged under RCW 9.23.010, which came into our statutes as part of the criminal code, being § 120 of chapter 249, Laws of 1909. The title of that act was

'An Act relating to crimes and punishments and the rights and custody of persons accused or convicted of crime, and repealing certain acts.'

In the annotations under Rem.Rev.Stat. § 2372, and in different wording under RCW 9.23.010, State ex rel. Dailey v. Dailey, 1931, 164 Wash. 140, 2 P.2d 79, is cited as authority for the proposition that

'Constitution Art. I, § 22, providing for trial by jury 'in all criminal cases' does not apply to a prosecution for criminal contempt under this section.'

We must confess that we are in a large measure responsible for the confusion in that we have not always made plain and definite the distinction between these statutes; nevertheless, we did not so hold in State ex rel. Dailey v. Dailey, supra, and if we had it would have been obiter, as the proceeding against Dailey was not by indictment or information for a misdemeanor under RCW 9.23.010 but was clearly a contempt proceeding initiated by affidavit under RCW 7.20.010 et seq.

The cases cited and relied upon by respondent to sustain the refusal to grant a jury trial relate to proceedings to determine whether an individual has or has not been guilty of contempt of the court conducting the inquiry. They relate to proceedings falling within that portion of our statutes governing contempts and their punishments under RCW 7.20.010 et seq. The reason for denying the purported contemnor the right to a jury trial in such a proceeding is well stated and at length in State ex rel. Dailey v. Dailey, supra, which statement was quoted in extensio in Blanchard v. Golden Age Brewing Co., 1936, 188 Wash. 396, 423-424, 63 P.2d 397. The gist of that statement is that

'* * * it is manifestly incompatible with the proper and efficient exercise by a judicial tribunal of its necessary functions that the fact of whether or not a contempt * * * has been committed be submitted to some other tribunal for determination.' [164 Wash. 140, 2 P.2d 81.]

The reasoning therein is, of course, applicable only where the proceeding is before the court against which the contempt is alleged to have been committed, and only that court can proceed under RCW 7.20.010 et seq. However, regardless of whether that court takes action, there might be a prosecution under RCW 9.23.010, which forms the basis of the charge against this appellant.

In People ex rel. Sherwin v. Mead, 1883, 92 N.Y. 415, 420, referring to a prosecution under a statute similar to our RCW 9.23.010, it was said:

'It was not necessary to the validity of the indictment that the accused should first have been adjudged in contempt by the court whose process he disobeyed. The two proceedings are wholly independent of each other. One who disobeys that lawful order of a court not only offends against the dignity of the particular tribunal, but also against the public law. The particular court may pass over the contempt and suffer its order to be spurned, but the offense against the people remains. Their authority has been contemned, the administration of public juctice assailed, and its power despised. For such an offense the guilty party may be punished by indictment, although the court whose order has been disobeyed may take the indignity in silence. The statute has made such disobedience, when willful in its character, an offense against the people, and not left it dependent upon the action or non-action of the specific judge or court. The statute contemplates that both remedies, or either may be pursued. If the court has first moved and proceeded against the offender by attachment and inflicted punishment, he may nevertheless be indicted for the same wrong, but in that event the sentence is to be affected by the previous punishment. (3 R.S. [6th ed.] 442, § 14.) We have considered the argument very elaborately stated, founded upon the phrase in the criminal statute, 'every person who shall be guilty of a criminal contempt,' and construing the word 'guilty' to mean adjudged guilty by the court whose process has been disobeyed, without being convinced by...