Pelletier v. Glacier County , 107 Mont. 221 ( 1938 )

In my opinion, the contempt proceeding growing out of the case of Rigney v. Cook, and which we reviewed in State ex rel.Cook v. District Court, 105 Mont. 72, 69 P.2d 746, while not strictly speaking a "criminal offense," was nevertheless a proceeding of a "criminal nature," so as to constitute a "criminal cause" within the meaning of section 8931, Revised Codes.

In State ex rel. Flynn v. District Court, 24 Mont. 33,60 P. 493, this court, in speaking of a contempt prosecuted under our Code of Civil Procedure, said: "When prosecuted under the Code of Civil Procedure, a contempt of court is not to be regarded as a `criminal offense,' to be prosecuted only by complaint, information, or indictment, as laid down by section 8 of Article III of the state Constitution, but, rather, as a special proceeding of a criminal character. In that sense it is a public offense, yet it is not one a prosecution for which is exclusively controlled by constitutional limitations circumscribing methods of prosecution of strictly criminal offenses. (Williamson's Case, 26 Pa. St. [9] 19 [67 Am. Dec. 374].)" In analyzing the proceeding this court in that case, contrary to the majority opinion here, said: "The proceeding in contempt is distinct from the action wherein the injunction violated was issued. Vindication of the dignity of the authority of the court is the object to be attained by the matter, and not indemnity for the plaintiff in the civil suit. Judgment cannot go in favor of the plaintiff in the civil action had, unless authority to enter such a judgment exists by law. (In reRhodes, 65 N.C. 518.) There is no statute granting such authority under the Codes. Nor was there power in the court to enter a judgment for costs. Statutory power to punish for contempt by fine and imprisonment for disobedience of an injunction order is limited by the manner in which the statute says the power shall be exercised."

Contempt proceedings are so far criminal in character that the right to disqualify a judge in such proceedings does not exist. (Brindjonc v. Brindjonc, 96 Mont. 481, 31 P.2d 725;State ex rel. Boston etc. Co. v. Harney, 30 Mont. 193,76 P. 10.) In the last case cited this court said: "Blackstone treats of contempts under the head of crimes and misdemeanors (4 Bl. Com. 1), punishable as an offense against public justice (Id. c. 10) and also by summary proceedings (Id. c. 20).

"In New Orleans v. Steamship Co., 20 Wall. 387,22 L. Ed. 354, the Supreme Court of the United States said: `Contempt of court is a specific criminal case. The imposition of the fine was a judgment in a criminal case.'

"In Re Buckley, 69 Cal. 1, 10 P. 69, in speaking of a constructive contempt, the supreme court of California said: `It should be remembered that the proceeding here taken is criminal or quasi criminal.' In Ex parte Gould, supra [99 Cal. 360,33 P. 1112, 21 L.R.A. 751, 37 Am. St. Rep. 57], the same court said: `Although the alleged misconduct of 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.' * * * So highly penal in character are these proceedings considered, that the evidence must show that the accused party is guilty beyond a reasonable doubt."

In Ex parte Burns, 83 Mont. 200, 271 P. 439, this court reviewed all previous decisions of this court and said: "Proceedings in both direct and constructive contempt are criminal in their nature (State ex rel. Boston M. Consol.Copper Min. Co. v. Judges, 30 Mont. 193, 76 P. 10; In reMettler, supra [50 Mont. 299, 146 P. 747]; State ex rel.Rankin v. District Court, supra [58 Mont. 276, 191 P. 772];State ex rel. Nett v. District Court, 72 Mont. 206,232 P. 204), and the order of commitment must be supported by substantial evidence. `Contempt proceedings are sui generis (State ex rel. Zosel v. District Court, 56 Mont. 578,185 P. 1112), but are criminal in their nature. (State ex rel.Rankin v. District Court, 58 Mont. 276, 191 P. 772.) So highly penal are they in character that the evidence must show that the accused is guilty beyond a reasonable doubt, otherwise he is entitled to be discharged (State ex rel. Boston Mont. C.C. S.M. Co. v. Judges,30 Mont. 193, 76 P. 10). In the case last cited this court said that from an examination of the practice provided for in the Code of Civil Procedure (secs. 2170-2183 of the 1895 Codes, corresponding to sections 9908-9921, Rev. Codes 1921) for summary punishment of contempts it is apparent that contempt proceedings "have most, if not all, the characteristics of a criminal case and few, if any, of a civil action."' (State ex rel. Nett v.District Court, supra.)"

The proceedings being criminal in their nature, I think section 8931, which contains the clause: "If the county attorney or attorney-general or judge requires such copy in a criminal cause, the stenographer is entitled to his fees therefor; but he must furnish it, and upon furnishing it, he shall receive a certificate of the sum to which he is so entitled, which is a county charge, and must be paid by the county treasurer upon the certificate like other county charges," entitles plaintiff to prevail here.

I think the judgment should be reversed with direction to enter judgment for plaintiff.