Mau v. Stoner

76 P. 584, 12 Wyo. 478, 1904 Wyo. LEXIS 14

• Court: Wyoming Supreme Court
• Decided: April 25, 1904
• Status: Published

Opinion

Potter, Justice.

Upon a petition filed in the District Court of Uinta County by the defendants in error for the appointment of some suitable person to distribute the water from an irrigating ditch alleged to be the joint ditch of the defendants and plaintiff in error, one H. J. Somsen was appointed by the District Court Commissioner to distribute the water in said ditch. Thereafter an affidavit of said Somsen was filed in said court, setting forth that the plaintiff in error had interfered with his discharge of the duties imposed upon him by the order of the Court Commissioner. Thereupon said Court Commissioner ordered that an attachment issue commanding the Sheriff to arrest the plaintiff in error and bring him before the commissioner at a time stated in the order, then and there to show cause why he should not be punished for contempt of court. The writ issued, and the Sheriff thereon arrested the plaintiff and brought him into the presence of the commissioner. A hearing was had, testimony taken, and the commissioner entered an order finding' the plaintiff in error guilty of a wilful and intentional violation of the order of the court and of interfering with said water distributer in the performance of his duties, and adjudging that he be fined in the sum of twenty-five dollars and costs of the proceeding, but suspended execution until the proceedings could be submitted to the proper Judge for confirmation, if the same be necessary, or until the further order of the court.

The proceedings were thereafter brought before the District Judge, and submitted before him “upon the testimony, pleadings, affidavits, filings and findings of the Court Commissioner,” whereupon the proceedings and findings of the commissioner were approved; and the court, upon the evidence, found and adjudged that the plaintiff in error had wilfully, intentionally and contumaciously interfered with an officer of the court, viz: said Somsen, who had been duly appointed to divide and distribute the water in the irrigating ditch aforesaid, and said plaintiff in error was ordered to pay a fine of twenty-five dollars and the costs of the proceeding, and execution therefor was awarded. The plaintiff in error complains in this proceeding in error of that judgment.

It is contended that the District Court Commissioner was without authority to entertain the contempt proceedings, or to make any orders or judgment therein, and that the alleged infirmity in the proceedings was not cured by an attempted approval thereof by the Judge or court, or the judgment thereon rendered adjudging guilt and imposing punishment.

It is also contended that the Court Commissioner was personally disqualified from acting by reason of his alleged professional relations to an action previously litigated between the parties. As to this point there is not sufficient proof, in our opinion, to sustain the charge, and it will not be further considered.

The chief contention that the judgment was rendered without any authority of law presents a serious question, and requires the most careful consideration. It may be conceded that the court would have had power to entertain and determine the proceedings, and, upon a trial of the accused before it, to have adjudged him guilty of a contempt and imposed a fine by way of punishment. But the important question is whether the commissioner possessed the power he assumed to exercise, and whether the subsequent action of the court or Judge cured the defect, if any, in the jurisdiction of the commissioner.

In the first place, we think it clear that the order of the court approving the acts and proceedings of the commissioner, and upon those proceedings, and the evidence taken before the commissioner, adjudging the plaintiff guilty of the contempt charged, and that he pay' a fine and the costs, was not made in the exercise of a general or independent jurisdiction which the court may have possessed to attach and punish the plaintiff in error as for a contempt by reason of his alleged interference with the water distributer aforesaid. The accused was not at any time ordered to appear before-the court to show cause why he should not be punished for contempt, nor was he tried by the court on the charge preferred against him. No testimony was taken at the hearing before the court. The matter was submitted upon the proceedings and findings of the commissioner. The plaintiff in error was arrested upon an attachment ordered by the commissioner, and brought before that officer, and then and there the charge against him was tried, and the commissioner adjudged him guilty. The matter thereupon was heard by the court, not in obedience to any process for that purpose, but manifestly in pursuance of the provisions of Section 3337, Revised Statutes, requiring the District Court to review all orders made by, and proceedings had before' commissioners of such court during vacation, and approve, disapprove, reverse or modify every such order or proceeding. It is unnecessary to decide whether the orders of the commissioner in the summary proceedings for the appointment of a distributer of water in partnership ditches are required to be brought before the court at any time for confirmation. It is apparent that this contempt proceeding was brought before the court, and that the sole basis for the action of the court was the proceeding before and the finding and judgment of the commissioner. The power of the court, therefore, in an independent proceeding is not involved. In this case the authority of the court depended upon the validity of the proceedings before the commissioner. The hearing before the court was in the nature of a review of the commissioner’s proceedings and acts. The fact that the court went further in its order than merely to approve those acts and proceedings, and expressly found and adjudged the plaintiff in error guilty and prescribed a penalty, added nothing substantially, since such order was confessedly based upon the commissioner’s proceedings and findings. (Haight v. Lucia, 36 Wis., 355; Kuhlman v. Superior Court, 122 Cal., 636; 55 Pac., 589.) The California court, in the case cited, say: “We find the superior court making an order adjudging this petitioner guilty of contempt, and decreeing that he be punished by imprisonment. This judgment and decree of the court in itself declares that it is based upon the warrant of arrest and order of commitment made by the Coroner. It is evident, therefore, that the petitioner had no trial before the superior court, but was adjudged guilty upon the showing made by the face of the warrant and order of the Coroner.” And in Haight v. Lucia, supra, where it was held that a Court Commissioner was without power to entertain contempt proceedings, and that the process being void, all the proceedings were coram non judice, it was said: “It is not a sufficient answer to this to say that the court authorized and affirmed the acts of the commissioner, or that, by litigating the matter in the Circuit Court, the defendants waived the objection to the jurisdiction of the commissioner. The court cannot confer powers upon a commissioner not given by law; and want of jurisdiction of the subject matter cannot be waived.”

It seems to be contended that the office of Court Commissioner is a creature of the constitution, and that its inherent powers as a court cannot be taken away by the Legislature. The constitution requires that the Legislature provide for the appointment of District Court Commissioners with authority to perform such chamber business as shall be prescribed by law, in the absence of the Judge, or in case of his disqualification from acting. (Const., Art. V. Sec. 14.) That office is not constituted a court separate and distinct from the District Court. The commissioner is rather an adjunct or an officer of the District Court. The judicial power of the State is vested in the Supreme Court, District Courts, Justices of the Peace, the Senate sitting as a Court of Impeachment, Courts of Arbitration, and such courts as the Legislature may, by general law, establish for incorporated cities or towns. (Const., Art. V, Sec. 1.) The inherent powers of the District Court are not here involved. (In re Barnhouse (Kan.), 58 Pac., 480.) The alleged contempt was not committed in the presence of the ■commissioner; hence the power that mzy be possessed by that officer to punish direct contempts is not in controversy. The contempt charged against plaintiff in error was not technically a contempt of the commissioner, nor would it have been a contempt of the District Judge, had he made the order claimed to have been disobeyed or interfered with. If a contempt at all, it was an offense against the District Court, wherein the petition for the appointment of the water distributer was filed, and the proceedings were pending. (People ex rel. v. County Judge, 27 Cal., 151; Kissel v. Lewis, 27 Ind. App., 302.) This was indeed recognized by the parties by filing the affidavit charging the contempt in the office of the Clerk of Court. The contempt proceeding was pending in court, if anywhere, as well as the summary proceeding out of which it arose,- and the statute authorizes the latter or main proceeding to be summarily heard by either the court, the Judge at chambers, or the Court Commissioner. It is nevertheless a court proceeding, and the judgment authorized for the services and expenses of the distributer is required to be entered by the court itself. (R. S., Sec. 912.)

The proceedings wherein the order was made that plaintiff in error is accused of having interfered with are purely statutory. They do not invoke the common law or equitable jurisdiction of the court. (R. S., Secs. 908-916.) That statute contains no provision authorizing the punishment as a contempt of any act of interference with the orders made in the proceedings provided for. If any authority exists to enforce the orders made in such statutory proceeding by contempt proceedings, it must be found outside that statute.

Conceding that the court inherently possesses ample authority to enforce obedience to its orders,- whether made by the Judge or commissioner, and to protect its officers from contumacious interference, by attaching and punishing the guilty parties as for a contempt, the question arises what authority in that respect was possessed by the Court Commissioner in case an order made by him appointing a dis-tributer of water in a joint ditch in the summary statutory proceedings aforesaid, is disobeyed or interfered with.

The constitutional declaration is that the commissioner shall have authority to perform such chamber business as may be prescribed by law, in the absence of the District Judge, or when he states that it is improper for him to act, and to perform such other duties as may be prescribed by law. (Const., Art. V, Sec. 14.) Referring particularly to the officer's authority as to chamber business, the Legislature has provided that he shall have power, in respect to every suit or proceeding pending in the District Court, to make order which a District Judge is authorized by law to make in chambers, if such Judge is absent from the county or disqualified from acting. (R. S, Sec. 3334.) He is also expressly empowered to punish persons for contempt committed during hearings had before him. (Id.) And to issue and enforce process for the attendance of witnesses and production of evidence in all lawful hearings before him, in the same manner and with like force and effect as the court might do if in session. (Id.)

It is contended by counsel for plaintiff in error that the Legislature having expressly conferred upon the commissioner power to punish certain contempts, viz: those committed during hearings before him, that power in other cases is necessarily or by implication excluded. On the other hand, it is argued that the power granted to make any order authorized by law to be made by a Judge at chambers embraces the same power that the Judge would have to punish a contempt resulting from an interference with an order or officer of the court.

The argument that the express grant of power as to con-tempts in a certain class of cases excludes all other cases is not without force; yet we are not prepared to hold that the power as to constructive or indirect contempts is not possessed by the commissioner where the District Judge at chambers is invested by law with such power. It might perhaps be a reasonable assumption that the special grant of power to punish contempts committed in the commissioner’s presence was intended as additional to the power to make chamber orders. But we do not decide that question. After careful consideration we have reached the conclusion that the District Judge would not have been authorized to hear and determine at chambers the particular contempt alleged in the case at bar, even though he had issued the order which it is claimed the plaintiff in error interfered with. That being so, then clearly the commissioner possessed no such authority.

It is to be observed that the commissioner not only caused the issuance of process in the contempt proceeding, but he had the party brought before him, and, upon a hearing, he rendered judgment. Whatever power, if any, a District Judge has to act at chambers upon preliminary matters arising in cases of purely equitable cognizance, in the absence of 'statutory provision, is not demanding consideration. We think the proposition is well settled, and generally conceded, that a Judge at chambers cannot render a judgment unless expressly authorized by law. (4 Ency. Pl. & Pr., 343; State ex rel. v. Stevens, 40 Kan., 113; 19 Pac.. 365; Bank v. Fennell, 55 S. C., 379; 33 S. E., 485.) And a Judge at chambers has no power, without express authority of law, to punish for a contempt not committed in his presence. (4 Ency. Pl. & Pr., 340: 9 Cyc., 31; State ex rel. v. Stevens, supra; Taylor v. Moffatt, 2 Blackf., 305; Gates v. McDaniel, 3 Port. (Ala.), 356; State ex rel. McKinnon, 8 Ore., 487; People ex rel. v. Brennan, 45 Barb., 344; Davis v. State ex rel., 50 O. St., 194.)

In order to .afford speedy relief to parties, and facilitate the transaction of the business of the courts, quite extensive powers have from time to time been conferred upon District Judges in vacation and at chambers by our statutes. And it is evident that it was deemed necessary for legislative authority to authorize the Judges to so act in these matters. The}' have been expressly authorized in a few cases to punish as a contempt the disobedience of orders made by them or the court. They are empowered to so punish the violation of an injunction. (R. S., Sec. 4048.) Also, in supplemental proceedings, after judgment, a person, party or witness disobeying an order of the Judge may be by such Judge punished for contempt. (R. S., Sec. 3949.) And doubtless there are other instances, unnecessary to specify, where the Judge has been expressly invested with such power. There is a rather significant provision respecting the Court Commissioners in contempt matters to be found in the probate code. The commissioner is given certain authority in probate matters; and in respect to certain proceedings therein it is provided that any person refusing to appear and testify in vacation may be attached for contempt and held to bail to answer to the alleged contempt at the next term of court. (R. S., Sec. 4536.)

Now, as airead)'’ observed, the statute providing the summary remedy for appointment of a water distributer upon joint ditches does not expressly or even by any reasonable inference confer authority upon the Judge to punish for contempt of the orders made in such proceeding. There are, however, certain general statutory provisions authorizing the Judge to act in vacation. (R. S., Secs. 3610, 3611, 3612.) Section 3610 provides that all motions, demurrers, applications and other matters not involving a trial upon the issue of fact in any civil or criminal action or special proceeding, pending in any of the District Courts, may be heard and determined by the Judg'e of such court in vacation. Section 3611 authorizes the Judge, at his discretion, and by consent of the parties, to try issues of law and fact in vacation or recess of the court; and the judgment thereon rendered is declared to have the same effect as though the issues had been tried in term time. And Section 3612 declares the court open at all. times for the transaction of business in the entry of judgments, decrees, orders of course, and such other orders as have been made or granted by the court or Judge, and for the hearing and determination of all' matters brought before the court or Judge, except trial of issues of fact. And when any cause or matter has been heard by the court or Judge, the decision may be made out of term, arid the order upon such decision may be entered as a court order. (See Anderson v. Matthews, 8 Wyo., 307; Jones v. Bowman, 10 Wyo., 47.) In Anderson v. Matthews the distinction is recognized between such an order and a strictly chambers order.

Although Section 3612 declares the court open at all times for certain purposes, the trial of issues of fact is expressly excepted therefrom; while in the preceding section issues of fact may be tried in vacation only upon consent of the parties, and Section 3610 again excepts from the matters therein permitted to be heard in vacation a trial upon the issue of fact in the pending case. There is no ground for doubting that a hearing and determination of this contempt proceeding involved the trial of an issue of fact. The allegations as to the contempt were denied by the answer of the plaintiff i.n error, and he also objected therein to the jurisdiction of the commissioner. Testimony was taken upon the issue as to the guilt of plaintiff in error. Guilt was adjudged upon the evidence, and likewise the findings of the commissioner were by the court approved upon the evidence. It is clear, therefore, that the general provisions of the statute above referred to would not have authorized a hearing and determination of the matter by the Judge in chambers.

There is recited in the judgment of the court that the matter came on to be heard before the Judge of the First District, at Cheyenne, by agreement of the parties. The cáse was pending in Uinta County, in the Third District. The Judge of the First District had been called in to preside over the court in Uinta County in the hearing of these matters. And it is evident that the agreement of the parties had reference to the hearing of the matter as to the approval or disapproval of the commissioner’s proceedings, before the Judge instead of the court, and out of the district. There was no consent as to the hearing before the commissioner; and, as stated in an earlier part of this opinion, the hearing before the Judge, or court, was. in the nature of a review of the commissioner’s acts.

We are unable, therefore, to find any authority for the acts of the commissioner in hearing and determining the contempt proceeding. Whether he would have been authorized to make an order requiring the plaintiff in error to show cause before the court is unnecessary to consider, since he made no such order.

The judgment will be reversed and the cause remanded with directions to the court to discharge the plaintiff in error. . Reversed.

Corn, C. J., and Knight, J., concur.