Chicago, Burlington & Quincy Railway Co. v. Gildersleeve

118 S.W. 86, 219 Mo. 170, 1909 Mo. LEXIS 222

Opinions

GANTT, J. —

This case has been certified to this court by the St. Louis Court of Appeals for the reason that a constitutional question, to-wit, the validity of section 1617 of the Revised Statutes of Missouri of 1899, is necessarily involved in the judgment rendered by the circuit court of the city of St. Louis.

It appears from the abstract of the record that the appellant, Edward J. Gildersleeve, had been enjoined on the 12th day of July, 1903, by the circuit court of the city of St. Louis from buying, selling, dealing in or soliciting the purchase or sale of any mileage passenger tickets or any part thereof, or the return coupon thereof or any part thereof, or any excursion passenger ticket or any part thereof, at that time or thereafter issued or sold, or which might thereafter be issued or sold, by the plaintiff for passage over its railroad, or issued by any other railroad for use over plaintiff’s road, or any part thereof, where such ticket was sold, or where it appeared upon such ticket, coupon of return ticket, that the same was issued or sold, below the regular schedule rate, under a contract with the original purchaser, entered upon the said ticket and signed by such original purchaser, that such ticket was non-transferable and void in the hands of any other person than the original purchaser, and also from soliciting, aiding and encouraging or procuring any person other than the original purchaser of such ticket to use or attempt to use the same for passage on any train or trains of the plaintiff. And that after-wards a citation had issued out of the said circuit court on the first day of October, 1904, against the said defendant, Edward J. Gildersleeve, commanding him to appear before said court and show cause why he should not he adjudged guilty of contempt for violating the' order of injunction issued as aforesaid.

It appears that said citation had been duly served upon the said Gildersleeve on the first day of October, 1904, and the said matter coming on for hearing on the 19th of October, 1904, and the court having heard the evidence and duly considered the same, adjudged the said Gildersleeve guilty of contempt, in that he had violated the said injunctive order, and by its judgment adjudged that he be committed to and imprisoned in the common jail in the city of St. Louis for a period of fifteen days from the 29th day of October, 1904, to the 13th day of November, 1904, and that he pay the costs of the said proceedings. Within four days the said Gildersleeve filed his motion for a new trial, which was overruled and he excepted and appealed to the St. Louis Court of Appeals, and that court has certified the same to this court.

Two other cases, to-wit, The Chicago & Alton Railway Co. v. Gildersleeve, and the Chicago, Burlington & Quincy Railway Co. v. Gildersleeve, were submitted along with this ease and involve the same question. In the Chicago & Alton case the fine imposed for the contempt was three hundred dollars, and in the Chicago, Burlington & Quincy Railway case the sentence was thirty days in jail.

I. But one question is raised on these appeals by the defendant, to-wit, that the circuit court in each of said cases exceeded its lawful powers as defined by section 1617, Bevised Statutes 1899', which is in these words: “Punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court; but the fine in no case shall exceed the sum of fifty dollars nor the imprisonment ten days; and where any person shall be committed to prison for the non-payment of any such fine, lie shall be discharged at the expiration of thirty days.” If this is a valid constitutional enactment, it is obvious that the judgment must he reversed. If, on the other hand, the Legislature exceeded its constitutional powers in abridging and impairing the power of the circuit court to punish contempts of its judgments and decrees, then the judgments must he affirmed.

The learned counsel for the appellant, Gilder-sleeve, goes to the root of the matter by insisting that the circuit court of this State has not and never had any inherent common law jurisdiction, but is subject to legislative control and its powers are such, and such only, as the Legislature shall see fit- to prescribe.

Article three of the Constitution of Missouri (1875) provides: “The powers' of the government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall he confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments shall exercise any power properly belonging to either of the others, except in the instances in this Constitution expressly directed or permitted. ’ ’

Article 6, section 22, creating circuit courts, is as follows: “The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all’ civil eases not otherwise provided for; and such concurrent jurisdiction with and appellate jurisdiction from inferior tribunals and justices of the peace as is or may he provided by law. It shall hold its terms at such times and places in each county as may he by law directed; but at least two terms shall he held every year in each county.”

Article 6, section 27, creating the circuit court of the city of St. Louis, is as follows: “The circuit court of St. Louis county shall be composed of five judges and such additional number as the General Assembly may from time to time provide. Each of said judges shall sit separately for the trial of causes and the transaction of business in special term. The judges of said, circuit court may sit in general term, for the purpose of*' making rules of court, and for the transaction of such other business as may he provided by law, at such time as they may determine, hut shall have no power to review any order, decision or proceeding of the court in-special term.”

The circuit court of the city of St. Louis, like all other circuit courts in the State, is to all intents and purposes a court of general jurisdiction, and has been so often adjudged to he such that it would he a waste of time to cite decisions to that effect. As late as In Re Clark, 208 Mo. 121, this court In Banc said: “In the second place, Division 11 is in very fact, as its name indicates, but a division of the circuit court of that city, and, hence, to all intents and purposes a court of general jurisdiction. The mere fact that in matters of detail in the administration of justice certain criminal cases are assigned to it and that such assignment is heavy enough to occupy, peradventure, its whole time, does not lop off or dim its power as a constitutional court — a circuit court proceeding according to the -course of the common law.” In view of the articles and sections above quoted from the Constitution itself, it is too plain for argument that the circuit court is created, not by the Legislature, but by the Constitution. We all agree, I take it, that the right of punishment for contempt is inherent in every constitutional court having common law powers. And that such courts cannot be shorn of that power by the legislative branch of our State government. As was said by McKean, C. J., in Respublica v. Oswald, 1 U. S. (1 Dallas) 319, “Not only my brethren and myself, but like wise all the judges of England, think that without this power no court could possibly exist — nay, that no contempt could, indeed, he committed against us, we would be so truly contemptible. The law upon this subject is of immemorial antiquity, and there is not any period when it can be said to have ceased or discontinued.”

The Supreme Court of Indiana, in Little v. State, 90 Ind. 338, most aptly stated the doctrine on this subject in these words: “Courts of justice possess powers which were not given by legislation, and which no legislation can take from them. Judicial power exists only in the courts; it cannot live elsewhere. [Underwood v. McDuffee, 15 Mich. 361; Chandler v. Nash, 5 Mich. 409; Shoultz v. McPheeters, 79 Ind. 373.] There are inherent powers resident in all courts of superior jurisdiction. These powers spring not from legislation, but from the nature and constitution of the tribunals themselves. [U. S. v. Hudson, 7 Cranch 32; Sanders v. State, 85 Ind. 318.] The judiciary is a co-ordinate department of the government, and is not a mere subordinate branch, dependent for existence and power upon the legislative will. Purely judicial powers, inherent in courts as of the essence of their existence, are not the creatures of legislation, and these powers are inalienable and indestructible. Among the inherent powers of a couid of superior jurisdiction is that of maintaining its dignity, securing obedience to its process and rules, protecting its officers and jurors from indignity and wrong, r-ebuking interference with the conduct of business, and punishing unseemly behavior. This power is essential to the existence of the court. . . There is no doubt that the power to punish for contempt is an inherent one, for, independent of legislation, it exists, and has always existed, in the courts of England and America. It is, in truth, impossible to conceive a superior court as existing without such a power.”

In Hawkins v. State, 125 Ind. l. c. 573, the court said: “When a conrt is created hy the Legislature, under the Constitution, all the powers essential to the existence of the tribunal and the due exercise of its powers at once vest in it from the Constitution. Among the powers which vest in a constitutional court, such as our circuit courts, is that of maintaining its existence and dignity hy punishing those who assume to treat it with contempt. This power, as has been often held, is an inherent one and exists independently of statute. The Legislature cannot take away from a constitutional court the power to punish for contempt, since that would make the judiciary subservient to the legislative department and violate the provision which secures the independence of the different departments of government. The Legislature may, within limits, regulate the procedure, hut it can not hy any regulation abridge or fetter the inherent power itself.”

In State ex inf. v. Shepherd, 177 Mo. l. c. 234, this court, in discussing section 1616, R. S. 1899, said: “If the Legislature had power to abridge or impair the power of this court to punish for contempt, then the defendant in this case could not he held liable. But if the Legislature had no such power, then the section of the statutes quoted is unconstitutional and not binding upon the court. It has already been pointed out in paragraph two of this opinion that the power of this court to punish contempts is inherent, and that statutes which attempt to confer such power have always been treated as conferring no new power, but as simply declaratory of the common law power that already belonged to every court of record. The law is well settled, both in England and America, that the Legislature has no power to take away, abridge, impair, limit, or regulate the power of courts of record to punish for contempts. [Rapalje on Contempts, sec. 11; 7 Am. and Eng. Ency. Law(2 Ed.), 33; Arnold v. Commonwealth, 80 Ky. 300; Middlebrook v. State, 43 Conn. 257; State v. Morrill, 16 Ark. 384; People v. Wilson, 64 Ill. 195; Ex Parte Robinson, 19 Wall. (U. S.) 505; Worland v. State, 82 Ind. 49; Cheadle v. State, 110 Ind. 301; Holman v. State, 105 Ind. 513; Matter of Shortridge, 99 Cal. 526; People v. Stapleton, 18 Colo. 568; In Re Chadwick, 67 N. W. 1071; Hawes v. State, 46 Neb. 149; Hale v. State, 55 Ohio St. 210.] ”

In commenting upon the Shepherd case, in In Re Clark, supra, among other things it was said: “This court [in that case] in effect ruled that a constitutional court may go to the common law for its inherent power to punish all contempts recognized as such at the common law; and to the extent that the statute clipped such power it was unconstitutional. That holding was right; but that case did not hold in judgment and, hence, is no authority for'the proposition that those parts of the statute declarative of the common law were invalid as unconstitutional.”

As this whole question was so exhaustively discussed and treated in State ex inf. v. Shepherd, 177 Mo. 205, we deem it entirely unnecessary to again enter upon the field of argument and authority to maintain the power of a constitutional court, such as the circuit court, to punish contempts. Indeed, as to this general power, we do not understand that there is any difference of opinion among us upon the main proposition. But some of our brethren, while holding that the right of punishment for contempt is inherent in every constitutional court in the very nature of things, and that such courts can not be shorn of that right by the legislative branch of the government, are of the opinion that the Legislature may make what they term reasonable rules regulating the discretion of constitutional courts in administering punishment for- contempt. This question was also considered by this court in State ex inf. v. Shepherd, and it was there said: “In Wyatt v. People, 17 Colo. 261, the court said: ‘Though the Legislature cannot take away from the courts created by the Constitution the power to punish contempts., reasonable regulations by that body touching the exercise of this power will be regarded. ’ But this, it must be observed, leaves it to the courts to decide whether or not the regulations that may be prescribed are reasonable, and also proceeds upon lines of comity between the courts and the Legislature, and not upon any recognition of the absolute right of the Legislature to enact such regulations. In addition to this, it is now well-settled law in this, as well as in other States, that-the courts have nothing to do with the policy or reasonableness of a law, those being legislative and not judicial questions. So that, if it be conceded that the Legislature had any power to regulate the exercise of the inherent power of the court to punish contempts, the court could not refuse to obey the law, because it deemed the regulations unreasonable. However, it is a contradiction of terms to say the power to punish is inherent, but that the Legislature may regulate the exercise. As the Supreme Court of the United States said in Gibbons v. Ogden, 9 Wheat. 1, the power to ‘ regulate’ includes the power to say in what cases the right shall be exercised. It is worthy of observation that in only the States of Georgia and Louisiana is power given, by the Constitution of the State, to the Legislature to limit the power of the court to punish for contempt. In all the 'other States the better opinion is that where the court is a creature of the Constitution, the inherent. gower to punish contempt cannot be' shorn, ‘ abridged, limited* or regulated.' This is the only logical view to take, because by the"Constitution (art. 3), the powers of government are distributed between legislative, executive and judicial departments, and it is expressly provided that, ‘No person, or collection of persons, charged with the exercise of powers properly belonging to one of these departments, shall exercise any power properly belonging to either of the others,, except in the instances in this Constitution expressly dirécted or permitted. ’ And nowhere in the Constitution is the Legislature given any power to meddle with the inherent power of the courts.”

While our brethren cite numerous cases in which the courts of last resort in our sister States have announced the rule of comity for which they contend and in which those courts have recognized a certain amount of legislative control over the subject of contempt of courts, in view of the provision in our own Constitution, which makes the judicial power of this State coordinate with that of the legislative department and forbids either to encroach upon the powers of the other, It seems to us that the conclusion reached on this subject in State ex inf. v. Shepherd, supra, is not only logical but unanswerable, and it is from no want of respect to the Legislature that this court maintains the power which the people in the organic law have conferred upon if. The Constitution is the supreme law for the Legislature and the court alike, and in declaring any act of the Legislature unconstitutional this court does not proceed upon any theory of superiority over the Legislature, but simply adjudges that it will follow the organic law, which creates both the Legislature and the court, and is alike binding upon each.

In regard to the Act of Congress restricting the power of the courts of the United States in the punishment of contempts and intended to deprive them of the authority to treat out-door publications of any character as such (4 U. S. Stats. at Large, p. 487, approved March 2nd, 1831), it was said in U. S. v. Holmes, 1 Wall. C. C. 1, by Mr. Justice Bald win, that this Act of Congress was the limitation upon his powers to punish contempts, but of this decision, it must be remembered that the judicial power of the United States is vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish. [Constitution of the United States, art. 3, sec. 1.] The Supreme Court was created by the Constitution, tbe district and circuit courts by Act of Congress. When tbe latter were established and vested with certain judicial powers, tbe authority to punish con-tempts attached as an incident. [2 Story on Constitution, sec. 1774.] But deriving their existence from Congress it follows that their power to punish con-tempts is under its control. The difference between a constitutional court, such as our circuit court, and a purely statutory court, as the circuit and district courts of the United States, is at once obvious. [Ex parte Robinson, 19 Wall. 505.]

.Much stress is laid upon the provision that unless this court shall recognize the provision of the statute upon which the defendant relies in this case as constitutional then the power of the court to punish for contempt is unlimited. A fear is expressed that the courts will exercise that power in an arbitrary and oppressive manner. This contention is not new. In Neel v. State, 4 Eng. (Ark.) l. c. 263, Mr. Justice Scott responded to this proposition as follows: “The right to punish for contempts, in a summary manner, has been long admitted as inherent in all courts of justice and in legislative assemblies, founded upon great principles, which are coeval, and must be co-existent, with the administration of justice in every country — the power of self-protection. And it is only where this right has been claimed to a greater extent than this, and the foundation sought to be laid for extensive classes of con-tempts, not legitimately and necessarily sustained by these great principles, that it has been contested. It is a branch of the common law brought from the mother country and sanctioned by our Constitution. The discretion involved in the power is necessarily, in a great measure, arbitrary and undefinable, and yet the experience of ages has demonstrated that it is compatible with civil liberty and auxiliary to the purest ends of justice, and to the proper exercise of the legislative functions, especially when these functions are exerted by a legislative assembly.” Chief Justice Watkins, in Cossart v. State, 14 Ark. l. c. 540, said: “The power of punishing summarily and upon its own motion con-tempts offered to its dignity and lawful authority, is one inherent in every court of judicature. The offense is against the court itself; and if the tribunal have no power to punish in such case, in order to protect itself against insult, it becomes contemptible, and powerless also in fulfillment of its important and responsible duties for the public good. It is no argument that the power is arbitrary, though indeed settled by precedents or limited by them as rules for the future guidance of the courts. While experience proves that the discretion, however arbitrary, has never been liable to any serious abuse, it would he a sufficient answer to say that the power is a necessary one and must he lodged somewhere. And it is properly confided to the tribunal against whose authority or dignity the offense is committed. ’ ’

And so in U. S. v. Hudson, 7 Cranch 32, it was held that “certain implied powers must' necessarily result to our courts of justice from the nature of their institution. To fine for contempt; imprison for contumacy; enforce the observance of order, etc., are powers which cannot he dispensed with in a court because they are necessary to the exercise of all others, and so far our courts no doubt possess powers not immediately derived from statute.”

Our conclusion is that the Legislature, in prohibiting the courts from imposing a fine in any case which should exceed fifty dollars and in limiting the imprisonment for contempt to ten days, exceeded its constitutional powers, and therefore such limitations were unconstitutional and void, and the judgment of the circuit court in this case was not in excess of its jurisdiction and must be and is affirmed.

Valliant, G. J., Burgess and Fox, JJ., concur; Lamm, Woodson and Graves, JJ., dissent, and express their views in an opinion by Lamni, J.