#### STATE ex rel. MORSE et al., Relators, *v.*DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT et al., Respondents.

(No. 2,005.)

(Submitted November 25, 1903.

Decided December 4, 1903.)

*Contempt of Gourt*— Habeas *Corpus*— Avoidance *of*Service— *Costs*— Writ *of Supervisory Control.*

*231T. A chief of police and his subordinates, who, with actual knowledge that a writ of *habeas corpus*had been issued for a certain prisoner under their control, endeavored to avoid the service and execution of the writ, and aided in delivering the prisoner into the custody of a messenger from the governor of another state, under' extradition process, were guilty of contempt of court.

2. It is not necessary, before a party can be punished for contempt for interference with, or disobedience of, a writ of *habeas*corpus, that actual service has been had, if the party actually knows that the writ is in the hands of an officer for service.

3. In a proceeding for contempt of court, the costs cannot be charged to the contemners.

4. The writ of supervisory control should be seldom used, and then only in the greatest emergency where palpable injustice has been done and there is no other remedy provided by law.

Petition by tlie state, on tlie relation of Sydney P. Morse and others, for a, writ of supervisory control to the district court of the Seventh judicial district, in and for the county of Yellowstone, and Hon. Charles H. Loud, judge thereof.

*Mr. O. F. Goddard,*for Relators.

*Mr.*TP. *M. Johnston,*and *Mr. Fred. 11. Hathhorn,*for Respondents.

MR. JUSTICE MILBURN

delivered the. opinion of the court.

The petitioners herein pray for a writ of supervisory control, to be directed to the district court, commanding' it to vacate and set aside a certain judgment of said court, whereby the petitioners were adjudged guilty of contempt, and ordered to pay certain fines and costs.

On the 14th day of September, 1903, a writ of *habeas corpus*was duly issued out, of the office of the clerk of the district court, directed to one Sydney E. Morse, and commanding him to have the body of one Carey P. Snyder, alleged to be in prison and unlawfully detained by said Morse, before the Honorable Charles H. Loud, district judge, at 1:80 p. m. the following day. It appears that said Morse was then chief of police in the city of Billings, having under his control a sergeant and other policemen. Said Morse was then also a constable in and for *232tbe township of Billings. It further appears that said Snyder was in bis custody as constable, being charged with the violation of one of the criminal laws of the state; that the prisoner was confined in the city jail, which was under the sole control of Morse, as chief of police, and of his subordinates; that a.t the time the writ was issued a messenger of the governor of Mis-' souri was en route to Billings from Helena, armed with a warrant of the governor of Montana authorizing him to take said Snyder into his custody under the extradition laws for removal to Missouri; and that the writ of *habeas corpus*was issued on the evening of the 14th day of September, between 8 and 9 o’clock, two or three hours before the arrival of the train bearing the messenger. ■ Prior to the issuance of the writ of *habeas corpus,*and soon afterwards, and long before Snyder was delivered to the messenger on the train, the petitioner Harris, “the right arm of the court,” being then and there county attorney of the county of Yellowstone, and at Billings, inquired of the clerk of the court whether the writ had been, issued, and, receiving information that the same had been issued, informed himself of the nature and contents thereof.

Although there was no technical, actual, personal service of the writ upon Morse prior to the removal of the prisoner from the county, by the messenger to whom he was delivered by the police, it must have been apparent to the district court, upon the hearing in, contempt, as it is apparent to us, that all of the relators herein, having knowledge that the writ had been issued, used their utmost endeavor to avoid it, whether directed to Morse or the messenger, and to aid the messenger in carrying away the body of Snyder out of the county in opposition to the order, for the time being, of the district court.

The privilege of the writ of *habeas corpus*may hot be suspended or obstructed by a chief of police or a county attorney. It is impossible to conceive of a more flagrant act of contempt of court than the unlawful interference with such a writ. Although one or more of the parties disavowed in their testimony any knowledge whatever that the district court had caused the writ to be issued, nevertheless it was for the- court to pass upon *233tbe credibility of tbe witnesses and the weight of the testimony before it. There is sufficient testimony appearing in the record, which, if believed by the court to be true, warranted it in arriving at the conclusion which it did in the contempt proceedings.

The writ applied for, as this court has said) before, should be seldom used, and then only in the greatest emergency, where palpable injustice has been done arbitrarily and perhaps maliciously, and where there is no other remedy provided by law'. This does not appear to be such a case.

It is not necessary, before a party} can be punished for contempt for interference with or disobedience of a writ of a competent court, that actual service has been made, if the parties actually know that the writ is in the hands, of an officer for service.

The record shows that the court, when it entered its: judgment, wias in doubt as to whether the costs should be charged to the parties found guilty of contempt, but resolved the doubt against such persons, and adjudged them to pay the costs in addition to the several fines. In this the court- erred. There is no provision of law for charging the costs in contempt proceedings to the contemners. *(State ex rel. Flynn*v. *District*Court, 21 Mont. 33, GO Pac. 493.) This is not a matter to be remedied in this proceeding. We simply call the attention of the court below to the mistake made as to< the charging of costs against the guilty parties.

The writ is denied and the proceedings dismissed.

*Dismissed.*