In re Pierce

LyoN, J.

I. Within the rules of Attorney General v. The Railroad Companies, 35 Wis., 425; Attorney General v. Eau Claire, 37 id., 400; State ex rel. Wood v. Baker, 38 id., 71; and In re Semler, 41 id., 517, we think this is a proper case for the exercise of the original jurisdiction of this court. The interest of the state in the personal liberty of its citizens is primary and proximate, and to secure such liberty to each citizen entitled thereto is one of the most important pui-poses of government. “ All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men.” Const., art. I, sec. 1. It was said by this court in Sender’s case, that “ no rule should be adopted restricting the jurisdiction of this court over the writ of habeas corpus, which has ever been regarded as the best safeguard of personal liberty, except for the most weighty considerations. The plenary power of this court over the writ has frequently been asserted and exercised under the constitution, and has hitherto not been questioned.” (p. 522.)

In Attorney General v. Eau Claire this court took original *419 jurisdiction of an information for a writ of injunction brought to restrain the city of Eau Claire from obstructing the navi • gation of the Chippewa river. The ground of the jurisdiction is thus stated by the chief justice: “ Public rivers are highways by no local authority, and are rarely, if ever, within a single municipality or in charge of its officers. They are in the charge of the state, and the state cannot abdicate its charge of them. That charge is a duty to the federal government, and a trust for the whole people, not of the state only, but of the several states. An unauthorized encroachment upon any of them is a violation of the duty assumed by the state, in its aggregate and sovereign character, to keep them forever open. Every such encroachment is a pourprestv/re, which concerns the sovereign prerogative of the state, and the prerogative jurisdiction of this court. Original jurisdiction of such eases here is too manifest for discussion.” (p. 447.)

In State ex rel. Wood v. Baker we issued a writ of quo warranto, to inquire into the right of the relator to a county office, alleged to have been usurped by the defendant, because of the necessity of a speedy determination of.the right, and because the judge of the circuit court for the county was so situated in respect to the question that he was disqualified, in propriety if not in law, from sitting judicially in the case, and because we believed he would, for that reason, refuse to act in it.

The essential grounds, or many of them, upon which these judgments went, are present in this proceeding, and would be (although, perhaps, as to some of them in a qualified degree), if the case were considered with reference to the power of a court commissioner, as well as the circuit court, to issue the writ. ¥e regard the above cases as ample authority for the exercise of our original jurisdiction here. And we take this occasion to reaffirm the doctrine of the Sender case, that this com’t should never deny the writ of habeas eorqms, “ except for the most weighty considerations,” if the petition for the *420 writ shows an illegal imprisonment. Whether such considerations exist, must be determined in each case upon its own facts.

These views render it unnecessary to consider whether the jurisdiction may not also be rested upon the general superintending control over all inferior courts, conferred upon this court by sec. 3,, art. YII of the constitution.

II. We now proceed to consider this application on the merits. The imprisonment alleged is by virtue of an order of the circuit court adjudging the petitioner in contempt for disobedience to the order of that court contained in the divorce judgment, awarding to the plaintiff in the divorce suit the care and custody of the child Lottie Alice Alter. In substance and form, the contempt proceedings were instituted and are prosecuted under eh. 149, R. S. 1858, entitled “ Of proceedings as for contempts,' to enforce civil remedies, and to protect the rights of parties in civil actions.” Unless they can be upheld by the provisions of that chapter, they are invalid.

The authority to commit the petitioner until she restore the child to the care and custody of her former husband, to whom such care and custody was awarded by the terms of the divorce judgment, must be found, if at all, in sec. 23 of ch. 149, which is as follows: “ When the misconduct complained of consists in the omission to perform some act or duty which is yet in the power of the defendant to perform, he shall he imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings.” We must, therefore, ascertain the true meaning and effect of this section, in order to determine whether it has any application to a case like this. To do so intelligently, an examination of' the various statutes for the punishment of civil and criminal contempts is necessary.

Chapter 149 does not provide for the punishment of all cohtempts, but only of those specifically enumerated in sec. 1, *421 by whicli tlie rights or remedies of a party in a cause pending in tlie court inflicting the punishment, or triable therein, may be defeated, impaired, impeded or prejudiced. If the court regularly adjudge that these conditions exist in a given case, it may fine or imprison the offender, or both fine and imprison him in its discretion. (Sec. 20). But the fine is limited to §250 over and above the costs and expenses of the proceedings (sec. 22), and the imprisonment to six months, and until the costs and expenses are paid. (Sec. 25.) Punishment for those criminal contempts which do not necessarily defeat, impair, impede, or prejudice, the rights or remedies of a party in a cause or matter depending in the court, or triable therein, is prescribed in ch. 119, sec. 7. The classification of criminal contempts in that section also includes many acts which are within the provisions of ch. 149. When the contempt proceedings are under ch. 119, the fine cannot exceed §250, nor the imprisonment thirty days. Sec. 11 of ch. 119 provides, that “ nothing contained in the preceding, sections shall be construed to extend to proceedings against parties or officers for any contempt, for the purpose of enforcing any civil right or remedy.”

If, in a proceeding under ch. 149, the court shall adjudge the accused guilty of the misconduct specified in sec. 1, and sball fine or imprison him, or both, pursuant to sec. 20, the conviction and punishment are essentially as for a criminal contempt, and the fine goes to the school fund. It was so held in In re Murphey, 39 Wis., 286. The difference between the two chapters, in respect to criminal punishment for contempt, seems to be, that if the offense comes within the provisions of ch. 149, imprisonment may be imposed for a longer term than can lawfully be imposed under ch. 119.

Thus far we have considered these statutes with reference to criminal punishment alone. But by ch. 149 the court is authorized, in certain cases of conviction for contempt, to award the injured party compensation or indemnity for the loss *422 or injury be lias sustained by reason of tbe misconduct of the offender. Section 21 reads as follows: “If an actual loss or injury has been produced to any party by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party, to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case the payment and accejffance of such sum shall be an absolute bar to any action by such aggrieved party to recover damages for such injury or loss.”

The distinction between a proceeding which results in criminal punishment under ch. 119, or sec. 20 of eh. 149, and one which results in awarding indemnity to the injured party, is manifest and substantial. One is criminal in its character, the other civil; one is prosecuted by the state outside the particular cause in which the offense was committed (if committed in the progress of a cause), the other is a proceeding in the cause in which the offense was committed, or ancillary to it; one results in punishment by fine, or imprisonment, or both, inflicted to vindicate the authority and dignity of the court, which the defendant has contemned; the other in adjudging the offender to pay a sum sufficient to indemnify the injured party for the loss he has sustained by the misconduct of the offender, and to satisfy his costs and expenses. In the one case, the fine goes to the school fund, in the other the indemnity goes to the injured party; and an appeal lies to this court from the order requiring payment of the indemnity, but not from the order imposing a fine or imprisonment. State ex rel. Chappel v. Giles, 10 Wis., 101; State ex rel. Mann v. Brophy, 38 id., 414; In re Murphey, supra.

Recause a conviction for contempt which results in the enforcement of a civil remedy by indemnity under section 21, is so essentially different from one which results in criminal punishment, the two proceedings cannot be blended in one. "Were this otherwise — were it competent for the court in the same order to punish a contempt criminally, and also to award *423 indemnity to the injured party, — the portion of the order awarding indemnity could be brought to this court for review by appeal, while that portion which punishes the misconduct criminally could only be brought here by certiorari or writ of error. Civil and criminal proceedings can never thus be united and blended, at least not without the sanction of some positive statute. Hence, the final order in contempt proceedings must be one thing or the other; it must impose criminal punishment for the misconduct, or enforce the civil remedy by awarding indemnity. It cannot do both.

Eor the same reasons we cannot import the authority given in section 20, to imprison the offender (which is essentially criminal punishment), into section 21, which gives the civil remedy alone. To do so would be a gross violation of the rule which requires that such statutes shall be strictly construed. Section 21 does, not authorize the court to punish the offender by imprisonment, and it expressly prohibits the imposition of a fine. Ye conclude, therefore, that in cases where indemnity is awarded under section 21, imprisonment cannot be imposed as a part of the punishment. Undoubtedly, under chapter 149 and perhaps other statutes, the court may, in such a case, commit the offender for nonpayment of the indemnity.

'Whether the offender may be punished both civilly and criminally for the same contempt, wre do not determine. We only hold that he cannot be so punished in the same proceeding.

The foregoing observations upon the different statutes concerning contempts and the punishment therefor, have been extended to greater length than was intended; but the examination of these statutes seemed necessary in order to give construction to section 23 of ch. 149, under which the petitioner was committed to prison.

An important question is, whether section 23 is applicable to cases in which the contempt is criminally punished, or whether its operation is confined to cases in which a civil remedy may be enforced. Regarding the title of the chapter *424 and the connection in which the section is inserted therein, we should have no doubt that it applies exclusively to the cases specified in section 21 — that is, to cases where loss and injury have resulted to a party by the misconduct of the offender,- — -were it not that the woi'&fine is employed in it, and in the following section relating to the same subject. We have already seen that a fine, in the usual meaning of that term, can only be imposed when the offender is punished criminally for the contempt.

Our chapter 149 is mainly copied from the statute of New York on the 'same subject. (2 E. S., 552, Part III, ch. YIII, title XIII, Edmonds5 ed.) Our sections 23 and 24 are exact transcripts of the New York statute. But section 21 of the New York statute, corresponding to our section 21, provides that, “ if any actual loss or injury shall be produced to any party by the misconduct alleged, a, fine shall be imposed sufficient to indemnify such party,” etc. Hence, under that statute, the use of the word fine in sections 23 and 24 is entirely consistent with the view that those sections relate only to the enforcement of civil remedies. We are of the opinion that the word as employed in our sections 23 and 24 (inadvertently, no doubt) means the indemnity of section 21, and nothing more. And we think further, that the remedy of those sections can only be obtained where the injured party has suffered loss or injury which, under proper circumstances, would entitle him to indemnity under section 21. To state the last proposition in another form, vre think that relief can only bo given tinder section 23 in cases where “an actual loss or injury has been produced to a party by the misconduct alleged.55

III. It is very clear that the “loss or injury55 of the statute is a pecuniary loss, or injury to rights for which compensation may be made in money; a loss or injury which would entitle the injured party to maintain an action against the offender to recover damages for his misconduct. This is made apjiarent *425 by the last clause of section 21, which renders the payment of the indemnity a bar to such an action.

Can Fred. P. Alter maintain an action against the petitioner to recover damages for the abduction and detention of the child? We are clearly of the opinion that he cannot. No rights of property are involved in the care and custody of the child. No paternal rights are enforced by the order in that behalf. The child is the ward of the court, and the care and custody of her was given to her father, not because he is her father, but because the court deemed it for the best interests of the child that he should be her custodian for the time being. The order was made exclusively in the interest of the child and for her benefit, and not in the interest or for the benefit of her father. Besides, the order is temporary and provisional in its nature, and may be changed at any time in the discretion of the court, if the welfare of the child will be thereby promoted. To-day, the father is the custodian; to-morrow, such care and custody may be transferred to the mother. The relation with which we have to deal, between the child and her custodian, is not that of father and child, nor yet that of master and servant. It is more nearly like that of guardian of the person and ward. In that relation the guardian is not entitled to the services of the ward. Leech v. Agnew, 7 Barr, 21; Hurd on Habeas Corpus, 44.

It follows from these views that the misconduct for which the petitioner stands committed, has not produced a loss or injury to Fred. P. Alter for which he may be indemnified under section 21; and because it has not, the court could not lawfully commit the petitioner for a continuing contempt under section 2S.

IY. Thus far we have considered the question of the validity of the order under which the petitioner is imprisoned, just as we should have considered it were it before us on certiorari or appeal. Ye have reached the conclusion that the return oí *426 the sheriff to the writ of habeas corpus shows the order to be one for the enforcement of a civil remedy in a case where criminal punishment alone can lawfully be inflicted, and hence that it is invalid. The question remains, whether the invalidity of the order is available to the petitioner in a proceeding by habeas corpus.

The general rule, as stated by Hurd, is, that “ a proceeding defective for irregularity, and one void for illegality, may be reversed upon error or certiorari; but it is the latter defect only which gives authority to discharge on habeas corpus ” (p. 327). This rule has frequently been applied to cases before this court, -some of which are cited in /Semler’s Gase, 41 Wis., 523. “ Nothing will be investigated on habeas corpus except

j urisdictional defects, or illegality as some courts and authors term it; by which is meant the want of any legal authority for the detention and imprisonment.” By DixoN, O. J., in Be Crandall, 34 Wis., 179. And a remark of Mr. Hurd, that “ it would be illegal to sentence a man to imprisonment for a crime punishable by a pecuniary fine only,” is there quoted approvingly. Our statute provides, in effect, that a person brought up on habeas corpus, although in custody by virtue of civil process of a court legally constituted, or issued by an officer in the course of judicial proceedings before him authorized bylaw, shall be discharged “where the jurisdiction of such court or officer has been exceeded either as to matter, place, law or person; ” or “ where the process, although in proper form, has been issued in a case not allowed by law.” R. S. 1858, ch. 158, sec. 19, subdivisions 1 and 4 (Tay. Stats., 1796, § 20).

If our construction of the several statutes relating to con-tempts is-correct, it seems very clear that in this case the circuit court exceeded its jurisdiction both as to matter and law, when it attempted to enforce a civil remedy in a proceeding which could lawfully result in criminal punishment alone; and that the process of commitment, although in proper form *427 were it authorized by the subject matter of the proceedings, was issued in a case not allowed by law. Many cases are referred to by Mr. Hurd, which support his illustration of the test of jurisdiction quoted in lie Crandall. Hurd on Habeas Corpus, 327 et seq., and notes. If there is any distinction in principle between those cases and the proceedings under consideration, we have failed to detect it.

A broader range of inquiry on habeas corpus in a case where the imprisonment is for contempt than in other cases, has been suggested; and there are adjudications in the boohs which seem to sustain the suggestion. But it is quite sufficient for the exigencies of this case, to rest it upon the general rule above stated. "Whether the distinction exists, will be left for determination when a case shall arise which necessarily involves the question.

It must be held that the invalidity of the order under which the petitioner is imprisoned, is available on habeas corpus.

Y. It should have been said earlier in this opinion, that we think the order respecting the care and custody of the child, Lottie Alice Alter, is “a matter depending in the court,” within the meaning of chapter 149; and hence, a violation of that order may be punished as a contempt under the statute. This results from the fact that the court has continuing power over the matter, and may at any time during the minority of the child make any order in respect to her care and custody which her welfare may require.

Hpon the case made by the return of the sheriff, we conclude that the petitioner is illegally imprisoned. The demurrer to such return must therefore be sustained.