Show ONE LESSON IN LAW Given to the Noted Brigham City Commissioner AS TO HIS POWERS AND DUTIES He is Very Small Potatoes and Very Few in the HillThe Writ Permanent Following is the opinion of the Supreme Su-preme Court in the case of Eli JH Pierce vs J B Darlington Commissioner etc Our readers are familiar with the question involved The opinion was delivered by Judge Boreman Judges Zane and Henderson concurring This is an application for a writ of prohibition The applicant for the wt tEll t-Ell H Pierce was arrested upon a warrant war-rant issued by J B Carrington a commissioner com-missIoner of this court upon a charge of contempt of the commissioners court in writing and having published in THE SALT LAKE HERALD certain articles concerning said commissioners court No copies of the articles have been furnished to us Pierce was bound over to answer to said commissioner commis-sioner why he should not be punished as for contempt Thereupon Pierce applied ap-plied for a writ ofjjprohibition to prevent pre-vent said commissioner from proceeding proceed-ing in the matter An alternative writ was issued and to this the defendant Carringtou has demurred and also filed his answer The principal ground of the demurrer is that the writ does not state facts sufficient to constitute a cause of action The arguments of counsel were made upon the demurrer and upon the whole case THE FIRST OBJECTION to which our attention is called is that the applicaut forthis writ did not apply to the commissioners court for relief before applying for the writ ef prohibition prohibi-tion In support of this objection we are referred to High on Extraordinary Remedies sections 765773 The cases upon which Mr High relies have not been furnished us but from their titles and from what appears in the text it would seem that the cases are all civil ones and in regard to matters other than contempt Whether they are cases where the lower courts were acting act-ing within their general jurisdiction or without it does not appear It would seem probable that they were the former We can well see why in a common civel action the party should be required to apply for relief first to the lower court The different steps to be taken in the case are pointed out and are consequently in the ordinary coarse of law But it is a wholly different matter where the lower court is acting without authority and whclly outside of his jurisdiction in a summary sum-mary proceeding and one of at least semicriminal character and where the penalty would be of the same nature as that imposed in criminal cases The latter and better practice in England and in this country is different from that urged by the defendant at least in cases of contempt where the lower courts were acting wholly outside their general jurisdiction in the late English case of the Queen vs Lsfroy 4 Eng R 134 As soon as the party was cited to appear and answer for his contempt a prohibition was immediately applied for and thereafter was made absolute A similar practice was followed in California Cali-fornia in the People etc vs County Judge 27 Cal 151 and in William vs Dwinelle 51 Cal 442 Any other rule would seem to be unreasonable The applicant for the writ is by the order of the commissioner required to answer and show cause why he should not be punished as for contempt He denies the right of the commissioner to require him to answer and make such a showing show-ing and he charges that the commissioner commis-sioner has THREATENED TO PROCEED n the matter and to punish him and his charge is not denied in the answer Simple justice would say that if the commissioner has no legal authority no jurisdiction to summon the applicant appli-cant to answer and show cause why he should not be punished for such alleged contempt the applicant should not be denied the writ by reason of the fact that before asking for it he had I not applied to the commissioner to dismiss the proceedings It is said that the applicant has a complete remedy by way of appeal An appeal could only be resorted to after judgment It would not prevent the unjust proceeding prior thereto the expense vexation and annoyance of trial and an appeal would subject the applicant to the necessity of taking all the preliminary steps therefore giving undertaking etc or of going to jail if unable to give the appeal bond and he would be required to follow the Cf se into the District Court and take steps there for defense against the proceeding proceed-ing When he should reach the District Court he would find that he could not have the issues heard and determined there upon which he was tried and condemned con-demned by the commissioner The only question there to be settled would be that the commissioner was acting without authority and that the proceeding proceed-ing should be dismissed Such would not be an adequate remedy for the vexations expense and proba lv damaging trial through which he had against his will been forced It is said that the applicant has ample remedy by way of certiorari but certiorari cer-tiorari like appeal has no effect until after af-ter action has been had by the commissioner commis-sioner A certiorari can only be issued when the inferior court has decided its jurisdiction It looks to the past and not to the future It then would not prevent the illegal proceedings that should follow The writ of prohibition is preventive and not remedial in its nature and therefore is the appropriate writ to arrest the unauthorized proceeding proceed-ing prior to judgment as well as after it always however looking to the future and not to the past Our attention is called to the fact that But habaes corpus would be available it could avail nothing until after the party has been restrained of his liberty In the prevent case that would take place after judgment and when the person per-son had been committed to prison It would be neither a epeedy nor adequate remedy Therefore neither appeal certiorari nor habaes corpus would be a iA PLAIN SPEEDY AND ADEQUATE REMEDY in this case They would all leave the applicant without relief from vexations annoyances injury and expense of the unauthorized proceedings of the com missioner No citizen should be sub jected to an illegal arrest trial or imprisonment im-prisonment If the proceedings be illegal and without the jurisdic diction of the commissioner the party should be relieved therefrom at the earliest possible moment The purpose of the writ of prohibition is to arrest the proceedings when they are without or in exess of the jurisdiction of the tribunal assuming to exercise them Laws of Utah 188 P 326 SEC 982 If the commissioner was acting simply in excess of his jurisdiction an appeal or writ of certi orari or habeas corpus might bo an adequate ade-quate remedy as uoon the appeal the case would be tried de novo and it or certiorari might be the appropriate and ordinary course cf law but where he is acting wholly without his jurisdic tion the question is different The primary object and purpose of a I writ of prohibition is to keep the in ferior courts within the limits and bounds of their several jurisdictions as prescribed by the laws SBc Ab P206 title prohibition High on Ex Rem Sec 765 And the general rule is that the writ issues whenever an inferior court is attempting at-tempting to exercise a jurisdiction which it does not possess or if it does have the jurisdiction that it is exercising exercis-ing an unautho ized power 5 Waits A and D p 250 The next question for our consideration considera-tion is whether the defendant acting asa as-a United States Commissioner nad jurisdiction to punish for this alleged contempt It is contended that the commissioner had the same power Hl the matter as a justice of the peic would have had and that a justice of the peace had full power to punish for such contempt A justice of the peace has NO INHERENT POWER to commit for contempt The Queen vs Le Froy Eng R 134 llheinehar vs Lance 14 Vroom K J 311 SC 39 n Tn Am R 591 story vs People 79 Ill 45 SC 22 Am R 15S And it is doubtful whether at common law justices of the peace were accorded power to pun ish contempts except perhaps where they were committed in facie curiae Sapalje on contempt Sec G N 2 In < uperior courts toe power to pun ish contempts is inherent and necessary independent of statutory authority and such courts may go beyond the power given by statute in order to preserve and enforce constitutional powers when acts in contempt invade them Rapalje on contempts section 1 I Although a justice of the peace has no inherent right to commit for contempt I con-tempt he has the inherent right to remove re-move disorderly persons from his presence Such a power the Commis sioner undoubtedly has it is essential to the very existence of the court and is implied in its creation but a power to commit is not a necessary incident ands and-s not granted by implication A justice of the peace or a commissioner has power not only to remove the party ommitting the contempt but has the power also in a proper case to require the party to give bail for his appearance appear-ance to answer to a criminal charge if acts of a criminal nature take place and if he cannot find bail to commit him in default of bail A justice the peace or commissioner therefore his not the power by implication tion to punish such contempt but if he has it at all it must be given him by statute Although a justice may not have any inherent power to punish for contempt and none was accorded by the common law except when the contempt was in thj presence of the justice while acting officially vet it is contended that by our statutes justices have the power and that their powers extend touch to-uch a case as the one before us The Territorial enactments for I THE PUNISHMENT OF CONTEMPTS by > justices of the peace specify five different ferent classes or subdivisions of con tempts punishable by justices Laws 1884 p 151 and p 299 The first and second subdivisions s ° em to refer to tempts committed in the immediate presence of the justice while acting officially icially or in the immediate vicinity and tending to interrupt the proceedings before him Subdivisions 3 and 4 have reference to disobedience of orders or process And the fifth subdivision has reference solely to the rescueing of any person or property held under order or process ofjmch justices court There is in none of these subdivisions any sort of authority given to a justice to commit or punish for a contempt out of the presence or immediate vicinity of the justice except where there is disobedience dis-obedience or resistance 10 some order or process of the court or where there is arescue of some person or property The case before us does not present one coming under either of the five subdivisions The alleged contempt matter was a publication in a newspaper news-paper and the circulation thereof From the argumentof counsel it would seem that reliance is placed mainly if not wholly upon the first subdivision above stated That subdivision sets forth as the things that can be punished by a justice of the peace as contempts the following Disorderly contemptuous con-temptuous or insolent behavior toward to-ward the justice while holding court tending to interrupt the due course of the trial or other judiciary proceeding This behavior must be toward the justice and it must be toward him while holding court The jurisdiction jurisdic-tion of the justice as we have seen CANNOT BE IMPLIED and the rule being that he has no inherent in-herent or common law jurisdiction punish contempts except when in his presence it follows that the statute must provide in express terms that he could punish for acts committed out of his presence or he cannot have such power But this statute in none of the subdivisions aforesaid so provides It follows that he dces not have the power It is urged that the Commissioner Commis-sioner had the same jurisdiction as the Commissioners of the circuit and district courts of the United States and that such latter commissioners have the power to punish such contempts hence the former has the power also We are referred to no authorities showing that commissioners of the circuit and dis trict courts of the United States have jurisdiction to punish contempts of this character committed out of their immediate im-mediate presence Such circuit and district courts have not since 1831 had any such power except of course in the enforcement of some order Revised statutes U S page 137 section 725 judgment process They have HO power to punish contempts committed by publications in newspapers And we do not see how they could except by an express act of Congress grant to their commissioners greater power than they themselves had The granting of such power to any court is one of extraordinary character charac-ter and is only granted to courts of I general jurisdiction And then it is to be exercised WITH GREAT CAUTION AND PRUDENCE and only in cases of urgent necessity The tendency of the present day is to narrow rather than enlarge the limits for the exercise of such summary power And it is not the policy of the law to grant such extraordinary powers to inferior courts It is deemed that such courts and in a measure the superior supe-rior courts are well protected by the criminal statutes whereby the party alleged to be in contempt for making libelous publications is subject to indictment in-dictment and punishment Compiled laws pages 5934 sections 1954 to 1963 > 1963We We think that the commission is in this matter acting outside of his jurisdiction juris-diction and that the writ of prohibition prohibi-tion would be the proper remedy The demurrer is overruled and as the case made by the answer would not change the result the alternative writ is made absolute |