The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1890-09-20
BARRY RELEASED.
There Can Be No Imprisonment for 8
Defaulted Fine.

AIRY RELEASED.
There Can Be No Imprisonment for a
Defauited Fine.
In deciding the habeas corpus case of
James III. Barry yesterday morning, Judge
Van Reynegom said that if this were the
first appearance of the point involved he
would prefer to remand the prisoner, in
order hat he might present his case before
the Supreme Court. Where a matter of
this character is involved in legal doubt one
Judge of the Superior Court should not be
placed in position where it will be neces-
sary for him to interfere with the ruling of
another Judge of the same court.
But" added the Judge, ''the case of
RoseDheim, decided by the Supreme Court,
is so directly conclusive of the case now
presented as to leave no room for doubt.
The judgment OF the trial court was that
ROsenheim should serve one year in the
County jail and pay fine of $1,000, and that
in default of the payment of that fine he
should be imprisoned until the sum be salts
fed, at the rate of one day for each dollar
In pesslng upon the point the Supreme
Court said: The code nowhere expressly
provides for imprisonment and fine coupled
with Imprisonment until the fine be paid,
after the expiration OF the fixed term OF i'm
priSonment.
The Judge calls attention to the fact that
this Is the first instance where the gu estion
involved was brought squarely before the
Supreme Court, and that ever since its
decision Judges Of the Superior Court have
been called upon TO discharge prisoners held
under similar Judgments previously rem
dered. When the Supreme Court has
given Its ruling" continued Judge Van
Reynegom, CLEARLY enuncating principle
of law, it is the duty OF the Judges of tue
Superior Court to follow in such ruling.
In the words of the lion. Judge Wallace, in
his able exposition Of the law of contempt
in this petitioners case: 1T is expected
that the Superior Court and Its Judges will
decide in consonance with the views of the
Supreme Court so far as such views are
known
The right OF a court to protect its dig
nifty and enforce its orders by punishment
for contempt is necessary and inherent
right which does not depend upon legisla-
ton for its existence. 1t is a common law
right existing independent of statutory
provisions. But when the Legislature
adopts laws designating what classes of acts
constitute contempt and prescribing the
measure OF punishment the courts are bound
by The limitations Of the Legislature. As
has been aptly said by Mr. Justice Harris
oil the High Court Of Errors and Appeals of
Mississippi:
60 The power to fine and imprison for con-
tempt from the earliest history Of juris-
prudence has been regarded as necessary
incident and attribute OF court, without
judge. 1t is power inherent In all courts
of record and co-eXlSting with them by the
wise PROVISIONS OF the common law. A
court without the power effectualy to pro-
tect itself against the assaults of the law
less, or to enforce its orders against recuSant
parties before it, would be disgrace to the
legislation and stigma upon the age which
invented it..
a. In this State our Supreme Court. by its
Interpretation of Section 1918, c. c. F., in
eX-paIte Crittenden, stands committed to the
ruling that where a fine is imposed Tor con-
tempt the party may be imprisoned for nom
payment of the fine. But this decision does
not conflict with the later case of Rosen-
helm, as the imprisonment for non-payment
Of the fine was not in the case OF CrlttendeE
added to a term Of Imprisonment"
The prisoner was ordered discharged from
custody. Section 12lS of the Code Of Civil
PROCEDURE, referred to in the above decision
and upon which the court based Barrys pun
ishment, reads as follows:
Upon the answer and evidence taken the court
or Judge must De tel mine whether the person pro-
ceeGed against IS gully OF Tie contempt charged,
aud If II be adjudgrd that he Is guilty OF lbe con-
tempt a fine may be Imposed on him not exceed
ing 5000. or lie may be Imprisoned not exceeding
five days or both.
the effect of the Supreme Courts ruling
in the ROsenhein case WAS to Wipe out the
TWO last words oil this section. Punishment
for an offenSe mot alone contempt may be
either Imprisonment or fine, where the law
reads as 1t does in this case, but not both.