Robinson v. City Court of Ogden, Weber County , 112 Utah 36 ( 1947 )

I concur in the view of the prevailing opinion that the city court never acquired jurisdiction because the statutory procedure requisite to vest the court with jurisdiction was never followed. However, mere want of jurisdiction is not alone sufficient to entitle a petitioner to a writ of prohibition. It has been generally held in this court, and in many other jurisdictions as well, that prohibition will be denied if the petitioner has a plain, speedy and adequate remedy at law. Ducheneau v.Ireland, 5 Utah 108, 13 P. 87; Campbell v. Durand, 39 Utah 118,115 P. 986; Union Portland Cement Co. v. Public UtilitiesCommission, 56 Utah 175, 189 P. 593; Oldroyd v. McCrea,65 Utah 142, 235 P. 580, 40 A.L.R. 230; Atwood v. Cox, 88 Utah 437,55 P.2d 377; Van Cott v. Turner, 88 Utah 535,56 P.2d 16; Evans v. Evans, 98 Utah 189, 98 P.2d 703; Mayers v.Bronson, 100 Utah 279, 114 P.2d 213, 136 A.L.R. 698;Furbreeders Agricultural Coop. v. Wiesley, 102 Utah 601,132 P.2d 384; Washington County v. State Tax Commission, 103 Utah 73,133 P.2d 564; and Olson v. District Court, 106 Utah 220,147 P.2d 471. In a few cases we have said that we have discretion as to whether or not we should issue the writ even though there be another remedy at law. Barnes v. Lehi City, 74 Utah 321,279 P. 878; Construction Securities Co. v. District Court,85 Utah 346, 39 P.2d 707; Allen v. Lindbeck, 97 Utah 471,93 P.2d 920; Adolph Coors Co. v. Liquor Control Commission,99 Utah 246, 105 P.2d 181.

Generally, our discretion will be directed to the narrower ground as to whether the circumstances are such as to make the appeal a plain, speedy and adequate remedy, but I am not prepared to say that our discretion may not go so far as to permit us to grant the permanent writ in those cases where lack of jurisdiction is palpable even though it may be admitted that there is a plain, speedy, and adequate remedy. I realize that minds may differ as to what is palpable lack of jurisdiction but I think it would exist in cases where no competent legal mind would maintain that jurisdiction existed. Where the case was one where competent legal minds could differ on the question of jurisdiction then certainly, if there is unquestionably a plain, speedy and adequate remedy the writ ordinarily should not issue. In some cases we have issued a temporary writ and later, on argument upon the case, made the writ permanent even though there was in the particular case an adequate remedy by appeal. See Broadbent v. Gibson, 105 Utah 53,140 P.2d 939. In that case our discretion was influenced by the public importance and interest in the question involved and the fact that the defendant was threatened by embarrassment of a repetition of prosecution for every alleged violation of the Sunday closing law.

I borrow from my article entitled "The Use of the Writ of Prohibition in the State of Utah as a Means of Intermediary Review" published in Vol. XVI of the Utah Bar Bulletin, Nos. 8, 9, 10, p. 113, in which most of the Utah cases touching on prohibition were treated. It was therein concluded that:

(1) If the lower tribunal is without jurisdiction or is proceeding in excess of its jurisdiction and there is no adequate remedy, the writ should issue as a matter of right.

(2) If the lower tribunal is proceeding without jurisdiction, but it appears that there is an adequate remedy, the writ should generally not issue, but the court is not entirely without discretion. Allen v. Lindbeck, supra.

(3) If the lower tribunal has jurisdiction but it appears that by an erroneous order it has placed one party in a position where he will be irreparably injured and that he has no adequate remedy to prevent the injury or retrieve his loss, then the court may in the exercise of its sound discretion use the writ as a procedure for intermediate review. Atwood v. Cox, supra; Mayers v.Bronson, supra.

(4) If there is no want or excess of jurisdiction and there is an adequate remedy, the writ should never issue. Olson v.District Court, supra.

Rules (1) and (4) are absolutes. Rules (2) and (3) are guides.

Since, as heretofore noted, the city court was without jurisdiction, the first question which must be determined is whether or not the petitioner had a remedy by way of appeal. For a time, I entertained a doubt as to whether the right to fine or punish for criminal contempt, being a right inherent in the very constitution of the court to preserve its diginity and authority, was appealable. For the above reason I had a doubt as to whether the constitutional or statutory provisions granting a right of appeal from all judgments in civil and criminal cases were meant to apply to judgments of criminal contempt which by the common law were in a class by themselves. After more mature study, I have concluded that such judgment is appealable. Since appealability has heretofore been presumed, but the bases never definitely set out in any opinion issuing from this court, I have deemed it advisable to set forth briefly the reasons for my conclusions in that regard.

The common law did not permit a proceeding for contempt to be reviewed by a higher court upon appeal or error proceedings. 2 Am. Jur. 919, Appeal and Error, Sec. 118; Kelly v. MontebelloPark Co., 141 Md. 194, 118 A. 600, 28 A.L.R. 33; Heinze v.Butte Boston Consol. Min. Co., 9 Cir., 129 F. 274; 63 C.C.A. 388; 28 A.L.R. 48 n., Ex parte Whitmore, 9 Utah 441, 35 P. 524;Ex parte Sturm, 152 Md. 114, 136 A. 312, 51 A.L.R. 356; Cooperet al. v. People ex rel Wyatt, 13 Colo. 337, 373, 22 P. 790, 6 L.R.A. 430; Vilas v. Burton, 27 Vt. 56; Blankenburg v.Commonwealth, 260 Mass. 369, 157 N.E. 693; Easton v. State,39 Ala. 551, 87 Am. Dec. 49; State v. Galloway et al., 5 Cold. 326, 45 Tenn. 326, 98 Am. Dec. 404; State v. Knight,3 S.D. 509, 54 N.W. 412, 44 Am. St. Rep. 809; 2 Bishop on Criminal Law, 9th Ed., Sec. 268; 22 Am. St. Rep. 417 n. This list of authorities might be extended indefinitely.

Prior to the adoption of the constitution of this state, the common law rule was followed in this jurisdiction by the territorial court. In People v. Owens, 8 Utah 20, 28 P. 871, and In re Whitmore, 9 Utah 441, 35 P. 524, it was held that judgments of criminal contempt were not reviewable on appeal. Both of these cases were qualified by statements that contempt judgments were not appealable unless specially authorized orallowed by statute.

The right of review in this country has been gradually extended by judicial legislation or by statute, until now, generally, judgment in contempt may be reviewed by appeal or error proceedings in most of the states. 2 Am. Jur. 919, Appeal and Error Sec. 118; 28 A.L.R. 59 n.; 2 Bishop op. cit. Sec. 268. In a few jurisdictions the right of review by way of appeal or writ of error is expressly given by statute. 28 A.L.R. 63 n.;Cooper et al. v. People ex rel. Wyatt, supra; State v.Knight, supra.

In Bessette v. W.B. Conkey Co., 194 U.S. 324,24 S.Ct. 665, 48 L.Ed. 997 in an illuminating opinion by Mr. Justice Brewer, the history of the reviewability of contempt proceedings in the federal courts was traced.

Art. VIII, Sec. 9, Constitution of Utah, provides, in part, as follows:

"* * * Appeals shall * * * lie from the final judgment of justices of the peace in * * * criminal cases to the District Courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; * * *." (Italics mine.)

Sec. 20-4-18, U.C.A. 1943, provides that:

"* * * From any final judgment an appeal may be taken by * * * the defendant in a criminal case to the district court of the county, in the manner and with the same effect as provided by law for * * * appeals from justices' courts in similar cases."

The question is whether the constitutional and statutory provisions above quoted abrogated the common law rule and permitted appeals from contempt judgments of the city courts.

In Snow v. Snow, 13 Utah 15, 43 P. 620, decided one month after admission to statehood, the court held that civil contempts were appealable, but by dictum implied that the common law rule was still applicable to criminal contempts. In Herald-RepublicanPub. Co. et al. v. Lewis, 42 Utah 188, 129 P. 624, this court granted certiorari to review contempt proceedings in the district court on the grounds that although the judgment was appealable,the time for appeal had expired. In Re Thomas et al., 56 Utah 315,190 P. 952, a contempt proceeding in the district court was reversed by us on appeal. The court did not discuss the question of whether the judgment was appealable, apparently assuming that it was.

In Foreman v. Foreman, 111 Utah 72, 176 P.2d 165, an appeal from a judgment of criminal contempt was dismissed on the ground that, since the contempt was criminal, the state was a party, and the appellant failed to serve a notice of appeal upon any of the state's attorneys. We assumed that the judgment was appealable, but did not discuss the question.

From the foregoing review, I conclude that in this jurisdiction, in line with the modern trend of authority, a judgment of criminal contempt is a final judgment in a criminal action, and is appealable as such. It is true that most of the foregoing cases involve reviews of proceedings in the district court. However, if contempt judgments of the district court are reviewable on appeal, similar judgments of city courts must, afortiori be appealable.

But even though there was an adequate remedy by way of appeal, we still have, as pointed out in the beginning of this opinion, discretion as to whether the writ should issue, where the lower tribunal has palpably acted outside its jurisdiction. I think this is a case where our discretion ought to be exercised in favor of granting the writ.

I can see no good reason why proceedings carried on palpably without jurisdiction should not be halted at the threshold by a writ of prohibition rather than permitted to run their course in the lower tribunal and then putting the party who should never have been subjected to the proceedings to the trouble and expense of taking an appeal.

For the foregoing reasons I concur.