Hutton v. Superior Court

Certiorari to review certain proceedings culminating in a judgment adjudging petitioner guilty of contempt of court, and requiring him to pay a fine of one hundred dollars.

The contempt charged was the alleged willful violation by petitioner of the terms of a certain decree given in an action brought by one Jean Pon v. George W. Wittman, chief of police of the city and county of San Francisco et al., to which petitioner was not a party, whereby said Wittman, chief of police, and James T. Donovan, a sergeant of police, and “all police officers of the said city and county, . . . and all other persons acting under their direction or control,” were perpetually restrained “from in any manner whatever entering into or upon and from in any manner whatever interfering with or infringing upon the quiet and peaceable possession and enjoyment by the said plaintiff Jean Pon of the premises No. 1129 Dupont Street, in the said city and county of San Francisco, and from in any manner not authorized by law

A copy of this injunction had been served upon petitioner prior to the date upon which the acts constituting the alleged contempt were committed.

Several points are made against the validity of the contempt proceedings, but it will be necessary to notice only one.

The acts constituting the alleged contempt were committed without the presence of the court. The only affidavit presented as the basis of the contempt proceedings was that of Jean Pon. Such affidavit, so far as it attempted to allege any specific acts on the part of the petitioner in violation of the injunction, was as follows, viz.: “That . . . with full knowledge and notice of the said injunction, and of the contents thereof, the said H. W. Hutton directed and commanded two police officers of the said city and county of.San Francisco, to wit: one George F. Barry and one C. E. Fennell to arrest and imprison and they did accordingly arrest and imprison one Mary Duran who was then and there a customer of the said restaurant business of the said plaintiff Jean Pon, and who then and there was proceeding on her way home after patronizing the said restaurant. That notwithstanding said facts the said police -officers . . . acting under and pursuant to the said direction and the said order of the said H. W. Hutton, did as aforesaid arrest the said Mary Duran and did thereby intimidate and prevent her from thereafter patronizing the said restaurant business of the said plaintiff Jean Pon. That the said acts on the part of the said H. W. Hutton did impair and injure the said restaurant business of the said plaintiff Jean Pon, to wit: this affiant. . . . That in respect to the said arrest of the said Mary Duran, the same was made without cause and without a warrant, writ or process of any court or judge and was not made or had for any offense or

Other allegations which were inserted merely as the deponent’s conclusions from the specific facts alleged are immaterial.

We are satisfied that this affidavit does not state facts constituting a violation of the injunction, and, therefore, does not state facts constituting a contempt of court.

It is well settled that where the contempt is committed without the presence of the court, the affidavit of facts forming the basis of judicial action must show upon its face a case of' contempt.; and if it does not, the court is wanting in jurisdiction, and the order of contempt is void and will be annulled on certiorari. (Overend v. Superior Court, 131 Cal. 280 , 286, 63 Pac. 372 ; Rogers v. Superior Court, 145 Cal. 88 , 78 Pac. 344 .) In such a case, it is immaterial what may be shown to the court upon the hearing, or specified and found by the-court in its decree adjudging the accused guilty of contempt. The proceedings are void ab initio. The affidavit or affidavits upon which the contempt proceeding is based constitute the complaint, and unless they, upon their face, charge facts constituting a contempt, the court is without jurisdiction to proceed.

If it be assumed, purely for the purposes of this case, that if petitioner had known that the Mary-Duran mentioned in the affidavit was, at the time of her arrest, on her way home after patronizing the restaurant of Jean Pon, his procuring her arrest would have been such an interference with the business of said Jean Pon as to constitute a violation of the-terms of the injunction, it still remains that there is not the slightest intimation contained in the affidavit, to the effect.

Contempt proceedings are quasi-criminal in their nature, and an intent to commit a forbidden act is as essential to guilt as in the case of a charge of a criminal offense.

The absence of any allegation in this behalf renders the affidavit fatally defective, and the subsequent proceedings absolutely void.

We do not desire to be understood as deciding that the affidavit in other respects states facts sufficient to show a violation of the injunction. There is no allegation to the effect that the ■ arrest of the woman was made because she was a patron of the business of Jean Pon, or for the purpose of keeping her away from the premises of said Jean Pon. However broadly the injunction may be construed, it cannot be construed as decreeing immunity from arrest to all patrons of Jean Pon, simply because they were such patrons, and their arrest might deprive Jean Pon of their patronage. The injunction, at Most, was intended to prevent the commission of the specific acts named in the decree, such as picketing and blockading, and such other acts as might be committed for the purpose of preventing persons from patronizing the premises occupied by Jean Pon. If the affidavit contained allegations showing such an arrest, a different case might have been presented.

Questions as to the proper construction of this injunction decree and the correctness of the action of the superior court

It was alleged in the affidavit of Jean Pon, that the petitioner was, at the time of the commission of the alleged acts, a police commissioner of the city and county of San Francisco, and the superior court found that by reason of directing the arrest of Mary Duran under the circumstances set forth in such affidavit, he was, in addition to being guilty of contempt because of disobedience of a lawful judgment, etc., guilty of misbehavior in office, constituting a contempt of court under the provisions of subdivision 3 of section 1209 of the Code of Civil Procedure. That section, in specifying what acts or omissions, “in respect to a court of justice or proceedings therein,” are contempts, “of the authority of the court,” specifies in subdivision 3, “Misbehavior in office, or other willful neglect or violation of duty by an attorney, counsel, clerk, sheriff, coroner, or other person, appointed or elected to perform a judicial or ministerial service. ’ ’

There being no sufficient allegation showing willful disobedience of any judgment, order, or process of the court, the subdivision quoted above has no application to the facts of this case. It is not every misbehavior in office by any of the officers specified therein that constitutes a contempt of the authority of a court. The misbehavior by such an officer, to constitute a contempt of the court, must be “in respect to” such court, or some proceeding therein. Eliminating the element of disobedience to the judgment, the alleged misbehavior was, at most, simply the malicious taking part in an arrest that was unauthorized by the facts. This would not be a contempt of the authority of any court.

The proceedings and judgment of contempt against petitioner are annulled.

Lorigan, J., Shaw, J., Van Dyke, J., Henshaw, J., and Beatty, C. J.. concurred.