Ex Parte Lake

HURT, Presiding Judge. The governor of Oklahoma Territory issued to the governor of this State a requisition, in proper form, for J. E. Edwards, who was charged by indictment with the offense of assault with intent to murder in that territory. Lake was named as the extradition agent, for the purpose of carrying Edwards to the territory. Edwards applied to Judge Surratt, judge of the District Court of the Nineteenth District, for a writ of habeas corpus, which was granted, *661 and, upon a hearing before said j udge, was discharged, because of some supposed or real informality in the warrant. (We are not called upon to pass on the action of Judge Surratt in discharging Edwards.) Thereupon Lake made complaint before a justice of the peace, as provided for by Arts. 1024, 1025, Code Crim. Proc., 1879, whereupon the justice issued a warrant for the arrest of Edwards as required by Article 1026. The warrant was executed by the sheriff of McLennan County. (The complaint and warrant were in proper form.) Pending this condition of affairs, Lake applied to the governor of Texas for a corrected warrant to be issued and forwarded to the sheriff of McLennan County. The governor issued the warrant, and directed the same to the sheriff of McLennan County, as requested by Lake. But, before the warrant issued by the governor was received by the sheriff of McLennan County, Edwards again applied to Judge Surratt for a writ of habeas corpus. Counsel for Lake and counsel for Edwards argued the propriety of issuing the writ. While Judge Surratt was considering the matter, the executive warrant reached the sheriff of McLennan County, by virtue of which Edwards was arrested and delivered to Lake, the authorized agent. Lake at once left with Edwards for Oklahoma Territory. Judge Surratt, being informed of this, telegraphed a warrant for the arrest of Lake, and he was arrested and brought back to Waco, McLennan County, and punished for contempt. The judgment is as follows: “Ex parte M. F. Lake. In contempt. February 16, 1897. On this day came on to be heard the answer and showing made by M. F. Lake as to why the judgment nisi entered against him in this court on the 12th day of February, 1897, for contempt of this court, and imposing upon him a fine of $100 and confinement in the county jail of McLennan County for three days, should not be made.final; and after hearing said answer, and the evidence offered in connection therewith, the court is of the opinion that said M. F. Lake has not purged himself, but is in contempt of this court, in this: That pending a hearing by the judge of this court of an application for a writ of habeas corpus, which had been presented to the said judge of said court by Frank Edwards, and which was then being heard, and of which proceedings the said Lake had full notice and knowledge, and to which he had made himself party by voluntarily appearing before the said judge in person and by attorneys in said proceedings, and protesting against the issuance of said writ, and while said application, and said Lake’s protest thereto, was being argued and submitted by said Lake’s attorneys to the said judge of this court, said Lake procured the custody of said Edwards, and forcibly carried him out of the city of Waco and this county, for the purpose and with the intent of avoiding the process of this court, and in contempt and disrespect of this court and its proceedings, and for the purpose of interfering with and hindering this court in the administration of justice; but this court being of the opinion that said Lake did not, at the time he committed said acts, fully realize the enormity of the contempt being committed by him, remits the imprisonment as *662 sessed in said nisi judgment, and reduces the fine therein to the sum of fifty dollars. It is therefore ordered, adjudged, and decreed by the court that the State of Texas do have and recover of and from the said M. F. Lake the said sum of fifty dollars, together with all costs of this proceeding, and that he be remanded to the custody of the sheriff of McLennan County until such fine and costs are paid.” The Assistant Attorney-General moves to dismiss this writ “because the application and exhibits thereto fail to show that the judgment from which relief is sought is void; that Judge Surratt had jurisdiction to render the same,” etc. If J udge Surratt had jurisdiction to render the judgment, then this writ should be dismissed. Was the relator, Lake, guilty of contempt? If so, then this writ should be dismissed. There was no suit before Judge Surratt to which Lake was a party, if the application can be termed a suit. The application did not allege that Edwards was restrained of his liberty by Lake, but by J. W. Baker, the sheriff of Mc-Lennan County. Judge Surratt had no jurisdiction over Lake, because he was not a party in any manner whatever. Judge Surratt had no jurisdiction over Lake, because the writ had not been issued, and might never have been issued—in fact, it has never been issued. Lake could not be a party to the application, because he did not have charge of Edwards. Baker, the sheriff, who had Edwards under arrest, was not a party to this proceeding, because the writ had not been issued; and, if it had been issued, unless served upon him, or unless he had been informed of its issuance, he could not have been guilty of contempt, though he might have taken or spirited Edwards from the State to defeat the writ, if it should have bean issued. Now, it is certain that Lake disobeyed no order made by Judge Surratt, in any respect whatever. . It is also evident from this record that Judge Surratt had not obtained jurisdiction over the person of Edwards, nor had he issued any writ or warrant for the purpose of obtaining jurisdiction over the person of Edwards. We therefore have a case in which a person is punished for contempt where the jurisdiction of the judge has not attached either to the subject-matter or the person of the supposed contemner. But it is contended that as Lake, by his counsel, appeared before Judge Surratt, and opposed the issuance of the writ of habeas corpus, he was guilty of a contempt in spiriting Edwards from the State without informing the judge of his purpose. It is also contended that his conduct was in bad faith towards the judge; that he was trifling with the judge. Neither Lake nor his counsel had a legal right to appear before Judge Surratt and oppose the issuance of the writ, but the judge heard both counsel for Edwards in favor of, and counsel for Lake against, the issuance of the writ of habeas corpus. Was there anything wrong in this? Certainly not. Did such conduct bind Lake to await the action of the judge upon the application for the writ? If so, how? Pending this application the sheriff of McLennan County received a warrant from the governor of this State commanding him to arrest Edwards and deliver him to Lake, the legally appointed *663 extradition agent. This was done, and Lake left immediately for Oklahoma with Edwards. Let it be conceded that Lake had departed with great haste and clandestinely, and that his object was to defeat the writ if one should be issued. Would there have been any wrong in this? Would such conduct have been contempt of the authority of Judge Surratt? Under the circumstances it evidently would not have been: (1) Because Judge Surratt had obtained no jurisdiction over the person of Edwards. (2) Because he had obtained no jurisdiction over the person of Lake. (3) Because Lake had violated or disobeyed no order issued by Judge Surratt, for there was none of any character made in the case; and there was no order, decree, writ, or any other process in existence, forbidding him from doing just what he did, nor was there any order made by the judge for any such writ to issue. (4) Lake did what it was his duty to do, what he was commanded to do. He was acting under the command of the governor of this State, who had a perfect right to issue the warrant; and there was no order, no decree, made by any court of this State, prohibiting him from obeying the writ of the governor. In Ex parte Buskirk, 18 C. C. A., 410; 72 Fed. Rep., 14, the plaintiff: filed a complaint against Buskirk and others, praying for an injunction to restrain the defendant from cutting and hauling, or in any manner trafficking in, the timber upon the land claimed by the plaintiff. This complaint was served upon the defendant. Now, with the knowledge of this complaint, and the prayer for the injunction, Buskirk cut down and felled a large number of trees upon the land in controversy, for which he was punished for contempt. He refused to pay the fine, and was ordered to jail until he should pay the fine. He applied to the Circuit Court of Appeals for a writ of habeas corpus, and obtained it. Upon a hearing thereof, he was discharged, because no order for the injunction had ever been made by the court. This case is more analogous to the one in hand than any we have found. We have found no case authorizing punishment by contempt for such conduct as is attributed to Lake, and we believe none can be found. The authorities have been closely and exhaustively examined, and the rule deducible therefrom is that unless the court has jurisdiction of the supposed contemner, or some order, decree, or process, has been resisted or disobeyed, the court has no jurisdiction to punish for contempt. Jurisdiction over the party will not confer power to punish for contempt unless some order, decree, or process has been disobeyed, or the party is guilty of some act of the nature of malpractice in the case, or has disobeyed reasonable rules of the court. But, if there is no jurisdiction of the party, some order, etc., must be disobeyed—such order or decree or process as the court had jurisdiction to make. We are not treating of cases of contempt which might arise from newspaper articles pertaining to pending cases, etc. In addition to what has already been said, we would refer to some of our statutes which regulate writs of habeas corpus. We extract as follows from Arts. 167, 168, Code Crim. Proc., 1895: When it is made to appear to a judge authorized to grant *664 a writ of habeas corpus that any one is held in illegal confinement or custody, and there is good reason to believe that he will be carried out of the State, etc., or whenever the writ of habeas corpus has been issued and disregarded, said judge may issue a warrant to any peace officer, or to any person specially named by said judge, directing him to take and bring such person before him to be dealt with according to law. And, where it appears by proof that a person charged with having illegal custody of a prisoner is guilty of an offense against the law, the judge may, in the warrant, order that he be arrested and brought before him, and upon examination he may be committed, discharged, or held to bail as the law and the nature of the case may require. Now, this proceeding apprehends the granting of a writ of habeas corpus, and the bringing of both the party alleged to be restrained and his restrainer before the court to be dealt with, and authorizes the court, upon examination of the person guilty of the false imprisonment, to hold him to bail, or discharge him, as the law and the nature of the case may require. This is one of the remedies afforded by our statute, and indicates how, in the contingency therein stated, the court may deal with a person who has another in illegal custody and proposes to spirit him out of the State. But it will be observed that this exercise of authority is made to depend upon the issuance of the writ of habeas corpus, and the bringing of the parties before the court. Arts. 182 and. 184, Code Crim. Proc., 189.5, substantially provide that, when a party has been brought before the ■court on a writ of habeas corpus, the safe keeping of the prisoner pending his examination and hearing is entirely under the direction and authority of the judge or the court issuing the writ. In the last-named ■article it is provided that: “When service has been made upon a person charged with the illegal custody of another, if he refuses to obey the writ and make the return required by law, or if he refuses to receive the writ, or conceals himself, the court or judge issuing the writ shall issue a warrant directed to any officer or other suitable person willing to execute the same, commanding him to arrest the person charged with the illegal custody or detention of another, and bring him before such court or judge; and when such person shall have been arrested and brought before the court or judge, if he still refuses to return the writ, or does not produce the person in his custody, he shall be committed to prison and remain there until he is willing to obey the writ of habeas corpus, and until he pays all the costs of the proceeding.” In this case it is not pretended that any writ of habeas corpus was ever issued by the judge for the prisoner, Edwards; nor is it pretended that Edwards was in the custody of the relator, Lake. Evidently he was in the custody of Baker, the sheriff of McLennan County. Suppose the judge, under the facts shown by the record in this case, had fined Baker; would he have had jurisdiction to impose upon him this punishment anterior to the granting ■on his part of any writ of habeas corpus? We think not. His qiower as to Baker would have been marked out and limited by the above statute. He would have been compelled, under the law, to have issued his *665 writ to Baker, and then, if Baker had refused to obey said writ and make the return required by law, or if he had refused to receive the writ, or had concealed himself to prevent its being served upon him, the court or judge issuing the writ would have had authority to issue a warrant for the arrest of Baker and have him brought before him; and if, after he had been brought before the judge, he had then refused to have obeyed the writ or to have produced Edwards, the court would only have been authorized to commit him to prison, and to confine him there until he produced the body of said Edwards. We hold that the rule, “expressio unius” applies as to this statute, and that this statute gave the judge his sole power in the premises. If, under this statute, he had no power to imprison even Baker, by what process of reasoning was he authorized to imprison Lake, a third party? He did not have jurisdiction to imprison Baker; much less had he authority to fine and imprison the relator. Such action on the part of the judge would have been arbitrary as to Baker, and would be much more so as to the relator. Ho order or process had been issued in this case which would have given the court jurisdiction of Baker, and the court could make no subsequent order punishing him for contempt unless he was at the time guilty of some contempt. That is, as we understand it, contempts are divided into two classes: contempts in the presence of the court (that is, in facie curias), or constructive contempts (that is, contempts committed outside of the court; acts violative of some decree, or order of the court). It is not pretended that the relator, in this instance, was guilty of a contempt in the face of the court. Then the jurisdiction of the court can only be invoked to punish him for a constructive contempt. To be guilty of a constructive contempt, there must have existed, at the time, some order or some writ which he violated. In re Chiles, 22 Wall., 157, which was an attempt to punish Chiles for disobedience of an order of court at the time having no existence, the court uses the following language: “The petition, for the present rule on Chiles, asks, that he may be ordered, by a proper instrument in writing, to convey and transfer to the State of Texas all rights, titles, and interest which he appears or pretends to have in said bonds; and counsel, in oral argument, says he should be imprisoned for contempt until he complies with this order. But, the obvious answer to this is, that no such order or decree has been made, and the defendant can be guilty of no contempt in.not doing this until he has been ordered to do it and he is aware of it. To make an order now, and then punish for contempt or disregard of it before it was made, is ex post facto legislation and judicial enforcement at the same moment.” And see, also, Cosby v. Superior Court of Los Angeles County, 110 Cal., 45, 42 Pac. Rep., 460. From no point of view in which this question can be be considered can the authority of the court to punish the relator for contempt be maintained. In the view we have taken, it is unnecessary to discuss the power of the executive to grant a pardon, or the imposition of costs by the judge who tried this case as a part of the punishment for contempt, and we pretermit any observation in regard *666 thereto. For the reasons stated, we hold that the attempt of the Dis'triet Judge to punish the relator for contempt was null and void, because he never acquired jurisdiction of either the subject matter or the person of the relator. The relator is therefore ordered discharged. Relator Ordered Discharged.