Haight v. Lucia

Lyon, J. After careful consideration, we have reached the conclusion that a court commissioner has no power to issue an attachment against the person in a case like the one before us. Certainly this power is not expressly conferred upon those officers by any statute of this state. But the power is claimed to exist by virtue of the statutory provision, conferring upon court commissioners the authority, within their respective counties, of a judge of the circuit court at chambers, in civil actions. Tay. Stats., 818, § 127. We will not now decide whether, in a case like this, the circuit judge may award an attachment in vacation. In In re Gill, 20 Wis., 686, Chief Justice Dixon remanded a petitioner brought before him on habeas corpus, who had been committed by a circuit judge for nonpayment of an allowance to his wife in a divorce suit. The order for the allowance was made by a county judge. The question chiefly considered was, whether the county judge had power to make the allowance, and to order the ‘husband to pay it, and the chief justice held that he had. The power of the circuit judge to order the petitioner into custody for noncompliance with such order, does not seem to have been denied or considered. But had the authority of the circuit judge to attach the person of the petitioner been expressly affirmed in that case, that fact would not necessarily establish the power of the commissioner, in the present case, to attach the defendants. Notwithstanding the general provision of law giving to court commissioners the powers of a circuit judge at chambers in civil actions, the case In re Remington, 7 Wis., 643, is authority that many things may lawfully be done by the judge at chambers which a commissioner has no power to do ; and it was there expressly held that a commissioner has no power to punish for contempt, unless it be clearly conferred upon him by law. In that case, the alleged contempt was committed in the progress of proceedings supplementary to execution; and subsequently the legislature conferred upon court commissioners the powers there denied them. Laws of 1860, ch. 44 (Tay. Stats., 1564, §§ 100 to 113). . . . [360] In Geisse v. Beall, 5 Wis., 229, the court says that “ an attachment for contempt should be issued or withheld, sustained, modified or set aside, by the direct order of the court.” The fundamental principle which underlies these decisions, and which must control our decision of this appeal, is, that the power to order the arrest of a citizen in a given case cannot be upheld upon mere inferences or implications, but must be expressly conferred by law, or it does not exist. The statute first above cited (Tay. Stats., 318), gives authority to court commissioners to issue attachments to compel the attendance of witnesses before them, and, as already stated, another statute confers upon them power to punish for disobedience to orders in supplementary proceedings ; but we fail to find any statute-which confers upon them authority to order the arrest of. persons, charged with any other contempt. But there is another fatal objection to the jurisdiction of a court commissioner in cases like this. The statute only confers upon him the powers of a circuit judge at chambers in civil actions. Now, although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the authority and dignity of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor ; and it is wrongly entitled in the civil action out of which it arose. There are cases in which an attachment may be issued without the special order of the court; and in those cases a commissioner may fix the amount of bail to be given by the party against whom the process goes (Tay. Stats., 1739, §§ 6, 8, 11); but this is not one of those cases. The want of power in the commissioner to order the arrest of the defendants is recognized in Lee v. Dunlop, 15 Wis., [361] 387, and the reasons for withholding that power from those officers are well stated by Justice Cole in In re Remington, supra. But further discussion of the subject is unnecessary. We hold that the commissioner had no jurisdiction to issue the attachment for the arrest of the defendants. He should have made report of their default and misconduct to the court; and the court alone, in the exercise of its original jurisdiction, has power to cause them, to be arrested, and to punish them therefor. The order appealed from is based upon the process issued by the .commissioner, by virtue of which the defendants were arrested and brought into court. The process being void, such order, and all the proceedings in the matter of the alleged contempt, are necessarily coram non judice. 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 inevitable that the order appealed from must be reversed. Before leaving the case we deem it our duty to refer to the fact, which appears in the record, that immediately after he had obtained an injunction which, in effect, restrained the defendants from cutting timber on the premises in controversy (each party claiming to be the owner of such premises and timber), the plaintiff, with a number of employees, entered upon the premises and felled a large quantity of the timber fchreon. At that time, neither party had established a right thereto. In that respect they were on equal ground. If there were valid reasons for restraining the defendants from cutting the timber, it was proper, for the same reasons, to restrain the plaintiff also from doing the same act. Evidently the spirit of the injunction was to preserve the property in controversy, so that the prevailing party might have it unim [362] paired. The plaintiff invoked the extraordinary powers of the court to accomplish that purpose, and then, in entire disregard of the spirit and object of the injunctional order which he had obtained, attempted to seize and appropriate to his own use the most valuable portion of the property in controversy, before his right thereto had been adjudicated. This was a gross abuse by the plaintiff of the process of the court, which, to say the least, should have been severely censured by the court. Had an application therefor been made, the court would have been justified had it dissolved the injunction, and refused further to exercise its discretionary powers for the protection of the plaintiff. Courts should see to it that their process be not used as instruments of wrong and oppression. By the Court. — Order reversed.