State v. Jacobs

11 Or. 314

• Court: Oregon Supreme Court
• Decided: March 15, 1884
• Status: Published

Opinions

By the Court,

Waldo, J.:

It appears in this case that the contempt for which the appellant was adjudged guilty, was for an act done in pursuance of a peremptory mandamus from this court. When the writ of mandamus was shown to the court below, the appellant should have been discharged. The writ was a complete defense, unless void as beyond the power of this court to issue it. But the counsel for the respondent was too learned to claim that this court was without power to enforce its judgments and decrees by mandamus. (See Att'y Gen. v. Cushing, 2 Wis., 507; Riggs v. Johnson County, 6 Wall., 166; Douglas v. Loomis, 5 W. Va., 542; Jared v. Hill, 1 Blackf., 155; Ex parte Morris, 9 Wall, 606; State v. Elmore, 6 Cald., 531; Henderson v. Winchester, 31 Miss., 294; The People v. Bacon, 18 Mich., 253; State v. Judge of Second Judicial District, 20 La., 521; Sanders v. State. 16 Central Law Journal, 476.)

Counsel urged, merely, that in the.absence from the record of the grounds on which the court helow issued the injunction, its action must be presumed to have been lawful, if, under any circumstances whatever, an injunction could have heen rightfully issued. In this, counsel overlooks the fact that the officer was acting in obedience to process from this court. The question before us is as to the legality of the judgment and sentence of the court below in this case. It is shown that the appellant acted in obedience to a higher and controlling authority, which absolved him from obedience to the alleged injunction, and exacted obedience to its own commands. The illegality of the injunction was conclusively determined when the mandamus was ordered to go. This court was the sole judge whether occasion existed for issuing the writ. When its discretion was exercised and the writ issued, the sole duty of the court below was to yield obedience to it.

The facts are, that the decree of this court in the case of Harrison Kelly v. William Nuble and others, reversing the decree of the court below, was regularly pronounced, was entered on its journal, and a certified copy, with mandate accompanying it, was regularly remitted to the court below to be entered on its records and carried into execution. When the mandamus was issued, it was determined that the alleged injunction, by which the execution of the decree of this court was sought to he stayed, was wholly illegal. That it was correctly so determined counsel hardly deny. The fact was too clear to the contrary. The sheriff of Jackson county but discharged his duty as a faithful officer in yielding obedience to rightful atithority, and in refusing to obey the illegal order of the circuit court to restore Kelly to the possession of property of which he had been lawfully dispossessed, in pursuance of a decree of this court. The j udgment against him must be reversed.

J udgment reversed.