Pierce v. State ex rel. De Geer

The opinion of the court was delivered by Horton, C. J.: After an order had been entered by the district judge of Barber county against Daniel L. Pierce, finding him guilty of contempt, and sentencing him to pay a fine of $25, and make restoration of certain county scrip, Pierce filed his motion to set the injunction aside, for alleged irregularities of the order. These alleged irregularities were not embraced in the appéal disposed of in The State, ex rel., v. Pierce, 51 Kas. 241, 246. Subsequently he appeared before the court below asking to be discharged from imprisonment and to purge himself of contempt. He offered to pay the fine of $25 imposed, together with all the costs of the proceedings against him, amounting to $46.50. He also showed [522] his insolvency, and his inability to make restoration of the county scrip. If the court below had made a finding that the evidence introduced was not satisfactory concerning his insolvency or his inability to do the act commanded, a very different question would be presented than the one we now have for consideration. The court, however, placed its refusal of the application of the defendant “ upon the ground that it had no jurisdiction to discharge him.”- Upon the testimony presented, unless the defendant is permitted to purge himself of contempt, the alternative is perpetual imprisonment. This, of course, cannot be favored. The order of the district judge of the 12th of July, 1892, had a twofold operation: it was in the nature of a remedy to compel the performance of a duty, as also a penalty for the wrong done. It was intended for the benefit of Barber county and for the vindication of the district judge for the violation of his order. It appears that the defendant, in signing the scrip, acted upon the advice of R. A. Cameron and A. J. Jones, two reputable lawyers, whom he consulted. One of them was the late county attorney. This advice was no justification, but may be considered in the application to purge the contempt. It also appears that the defendant is now out of office; that he is insolvent, and unable to make restoration. Since the order was entered punishing him for contempt, he has been tried and convicted upon the criminal charge of unlawfully issuing the county warrant. He has appeared before the court below and given a full statement under oath of his property, and of his inability to do anything further to comply with the order of the court. He has attempted, as far as he could do so, to disavow the contempt, and, drawing the reasonable inferences from the testimony, we do not think that there is any legal justification for his further imprisonment. (In re Hilles, 13 Phila. 340; Ex parte Thurmond, 1 Bailey, 605; O’Callagahn v. O’Callagahn, 69 Ill. 552.) The judgment in these cases will not prevent the board of commissioners of Barber [523] county from recovering from the defendant in a civil action any damages they may be entitled to on account of his malfeasance or misfeasance while in office. The defendant will be discharged, upon the payment to the sheriff of Barber county of $25, his fine, and the costs, of §46.50, all of which were tendered by him. All the Justices concurring.