The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-02
TIE BROADWAY RAILROAD.
The Standing Dish for the
New Workers.
lSOTHER DECISION IN THE CASE.

AEOTBER DECISION In The CASE
the Case on the Common Council Ia Contempt
SUPERIOR coURT-sPECIAL TERM.
The Hon. Judges Duer, Bosworth, and Emmett on
the bench.
MARCH The People Us. Oscar W. S,nrteraH.-
Boeworth, j., furnished to Judge Duer the following
advisory opinion, which was adopted by him as the
opinion of the Court:-The specific question under
consideration Isl Shall the defendant be required to
answer the fifth interrogatory? This proceeding Is
based on an allegation that the defendant has dis
obeyed an injunction-order made by Judge OF the
Court in an action pending therein. The papers on
which the attachment issued allege that the de-
fendant in addition to disobeying the order, intro
duced and voted for certain preamble and resolu-
lions relating to the issuing Of the injunction, the
acts prohibited by it, and protesting to state the
grounds which the defendant assumed to disobey
Il. The fifth interrogatory calls upon the defendant
10 answer whether he did not vote for such preamble
and resolutions and whether, by his vote and others
they not adopted by the Board OF which ne Is,
and was then, member. To determine Wneener
the defendant should be required TO answer H. IL Is
necessary TO look at the nature OF the present pro-
ceedinr the ends that may properly be accomplished
by it. and whether the fact OF having voted or having
emitted 10 vote for Them is one that can egitlmately
be taken into consideration in the nal disposition Of
his matter and which can Justly affect the ultimate
decision The code provides that the order which
has been disobeyed may be enforced as the order
of " the court" lCode, sec. 2ls3 Section All de
clares that until the Legislature otherwise provides,
the code shall not affect any proceedings provided
for by" chapter of the third part Of the Revised Sta
tutes excluding the second and twelfth titles thereof
unless some provision thereof is plainly inconsistent
with the code, and that any such provision shall be
deemed repealed. These proceedings are instituted
under the thirteenth title of that chapter of the Re-
vised Statutes. The provisions of the Revised Sta
tntes must, therefore, furnish solution OF the
question under consideration. They provide that
every court of record shall have power to
punish, as for criminal contempt" persons
guilty of certain acts and, among Others " wllfu
disobedience of any process order lawfully is
sued or made by it, q r. s.. 27s, Sec 10, sub. ~
This class of contempts may be punished by a fine
not exceeding two hundred and fifty dollars, and by
imprisonment not exceeding thirty days. This pun
shment may be inflicted irrespective of the cOnside-
ration Of any injury done to party to the action on
which the process was issued the order made, and
10 to be fixed irrespective OF any such consideration.
For all contempts of this character the offending
party may be indicted(2 R. s. 692, SlDas for mis-
demeanor. If subsequently indicted, the court be-
fore which conviction is had on such Indictment is
required, in forming its sentence. to take into con-
deraton the punishment before inflicted in the pro-
ceedings as for criminal contempt. q r. s. 27s,
Sl4) The revisors, in their notes upon this title,
Tit. OF chap. of part 81 remark that a solid
and obvious distinction exists between cOntempts,
strictly such, and those offences which go by that
name but which are punished as contempts only for
the purpose of enforcing some civil remedy. This
distinction has been observed and the former are in
tended to be included in the preceding sections The
latter class are treated Of subsequently among mis-
eellaneons proceedings in civil cases. g R. $. 695,
foot of the page The statute in relation to the lat
ter class q r. s. 534 Sl)provdes that every court
Of record shall have power TO punish by fine and I'M
prisonment or either, any neglect or violation OF
duty, or any misconduct, by which the rights or
remedies OF party in a cause or matter depending
in such court may be defeated, impaired, impeded,
or prejudiced, in the follow among others,
flor dsobedeDce of any process OF such court or OF
any lawful order thereof or OF any lawful order OF
Judge Of such court" 1t will be noted that the
preston here used is, for disobediencen OF lawful
. criminal contempt there must have been "a wilful
disobedience." e R. s. 27S $40, sub. 80 Although
the disobedience was not wilful, party offending
may be punished in the cases prescribed in h. 5.
534 81 if his neglect OF duty such that by 1t the
nights or remedies OF party to cause might be de-
feated impaired, impeded, or prejudiced. But al
though in such case the disobedience might have
resulted from misapprehenson OF duty or from the
advice OF counsel, honestly given and implicitly
believed that the act which the law adjudges to be
aisobedience was not prohibited yet the disobedi-
ence may have been wilful, and ave been accOmpa-
MED with such acts and circumstances would show
q purpose to make the disobedienee studiously Often
Gve to the court and to publicly manifest by il a
c0ntemptu0us disregard OF its order and authority.
the latter should be the true nature and character
of the act of dsObedience is it to be overlooked and
are all interrogatores calling for that might
establish it to be suppressed? The 10th section de-
elares, that if the court adjudges the defendant to
have been guilty of the misconduct alleged and that
ait was calculated to or actually did, produce
tain results, it shall proceed to impose fine, to
imprison him. both, the nature of the shall
require" If actual loss has been produced, fine
shall be imposed that will indemnify the party, and
satisfy his costs and expenses, (sec. 2l) The sta
tue is imperative that in case OF actual loss, fine,
sufficient to indemnify and TO satisfy costs and
penses must be imposed In all other cases, that is in
those cases in which no actual loss is shown but in
which it is adudged that the act OF disobedence was
calculated to defeat impair, impede or prejudice the
rights or remedies OF any party, the fine shall not
exceed $3.50 and above the costs and expenses OF
the proceedings, (sec. 22) For what, it may be ask
ed, is this fine to be imposed in case in which no
actual loss has been sustained and by what considera
lions is court to be governed in properly determin
ing whether it shall be 81 or $3.50? This question
can be more advisedly answered on a reference to
other provisions of this statute. 1t will be noted
that sections Il and 22 speak only Of the fine TO be
imposed and nothing in relation to the imprisonment
Section 20 gives the power to fine and imprison.
Sections % and "a relate to the matter OF mprsou-
ment, and embrace two classes of cases. The 23d
regulates the extent OF the Imprisonment, where the
misconduct complained OF consists in the omission to
perform some act or duty which it is still in the power
OF the offending party to perform and provides that
in such cases he shall be imprisoned only until he
shall have performed such act duty, and paid such
fine as shall be imposed, and the costs and expenses
Ut the proceedings. In such case, the order and
process OF commitment must specify the act to be
DONE and the amount Of fine and expenses to be paid.
III able to pay the latter, the term OF his imprison-
ment will depend exclusively on his own volition;
for when he has paid the fine and expenses and
dose the act performed the duty it will terminate,
and he will be entitled to discharge. In all other
cases that is, in all except those in which the
misconduct alleged consists in the omission to per
form some act or duty which it is yet in the power of
the defendant to perform, he may be punished by
imprisonment for reasonable time, not
ceeding six months and until the expenses of the
proceedings are paid and also, if fine be imposed,
until ach fine be paid i'd 25) The power to
punish by imprisonment, conferred by section 30, 80
far as the Imprisonment is ordered, by way Of pun
ishment, is limited by section % to six months; but
if the fine and expenses are not paid it would last
through fe but for the act of l843 chapter g. This
limitation Of the power to imprison for a period
not exceeding six months, has no connection with
the imprisonment ordered to compel the payment
Of the fine imposed, and ofthe costs and expenses OF
the proceedings. For If the power to punish by i'm
prisonment in this class OF cases is powerto be eX
erclsed for the sole purpose of compelling payment
Oh the lines and expenses then it would follow, as
limit - set TO the power to imprison, and the impr.
sonment cannot exceed six months-that at the end