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abide by the order of the court thereon." With some immaterial changes, the same provision was preserved in Rev. St. 1835 (page 314, § 17), and in Rev. St. 1845 (page 581, c. 81, § 17), and in Rev. St. 1855 (chapter 128, art. 8, § 17). In Rev. St. 1855, however, the following significant clause, somewhat indic ative of the mischief struck at, was added to the section: "And in the meantime to observe and obey the injunction." Section 17, art. 8, c. 128, Rev. St. 1855, has been carried through the various revisions, and now appears as section 3643, Rev. St. 1899, under the title "Injunctions." In 1825, in an act to establish courts of justice and prescribe their powers and duties, there appeared the following provision relating to contempts (Rev. Laws Mo. 1825, p. 274, § 19): "Sec. 19. Be it further enacted, that the several courts aforesaid, shall respectively have the power to punish, by fine and imprisonment, the officers of their courts respectively, for their official misconduct; and all such officers, parties, jurors and witnesses, for any disobedience of process of the court; and any person what soever, for any contempt by him committed toward such court, or for any disorderly or contemptuous behavior, in their presence, while in session, or in any manner obstructing the administration of justice, and to issue attachments against any person so offending; but in no case shall the fine exceed one hundred dollars, nor the imprisonment be for a longer period than thirty days, and until the fine and costs are paid." The latter section, amended and amplified, has been carried through all the revisions, and now appears as sections 1616, 1617, 1618, 1619, and 1620, Rev. St. 1899, which are as follows:

"Sec. 1616. Every court of record shall have power to punish, as for a criminal contempt, persons guilty of any of the following acts, and no other: First, disorderly, contemptuous or insolent behavior, committed during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; second, any breach of the peace, noise or other disturbance, directly tending to interrupt its proceedings; third, wilful disobedience of any process or order, lawfully issued or made by it; fourth, resistance willfully offered by any person to the lawful order or process of the court; fifth, the contumacious and unlawful refusal to answer any legal and proper interrogatory."

"Sec. 1617. Punishment for contempt may be fine or imprisonment in the jail of the county where the court may be sitting, or both in the discretion of the court; but the fine in no case shall exceed the sum of fifty dollars, nor the imprisonment ten days; and where any person shall be committed to prison for the non-payment of any such fine, he shall be discharged at the expiration of thirty days."

"Sec. 1618. Contempt committed in the immediate view and presence of the court, may be punished summarily; in other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defense."

"Sec. 1619. Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstances of his offense shall be set forth in the order or warrant of commitment."

"Sec. 1620. Nothing contained in the preceding sections shall be construed to extend to any proceeding against parties or officers, as for contempt, for the purpose of enforcing any civil right or remedy."

On the material question as to whether or not an indirect or constructive contempt for violating an injunctive process is to be considered technically a criminal case, or whether it is merely quasi criminal, as this court held in State ex rel. v. Dillon, 96 Mo., loc. cit. 62, 63, 8 S. W. 781, and effects principally the beneficial right of a party litigant, it will be instructive to consider the last clause of section 3643, Rev. St. 1899, viz., "and in the meantime to observe and obey the injunction." Giving full effect to that clause makes it clear to our minds, when read in connection with the rest of the section, that, while the idea of punishment is in the eye of the law, yet there is injected the preservation of the status quo in favor of the plaintiff as, possibly, the gist and heart of the matter. In other words, the very life and purpose of the bill is to be preserved by the proceeding in contempt, thus making the contempt proceedings ancillary and in aid of the objects of the principal suit, while at the same time preserving the dignity of the court and the orderly administration of justice. In some of the cases this is made the line of demarcation between civil and criminal contempts. If a forbidden act has been wholly performed by the violation of an injunction order, if thereby it was put out of the power of the defendant to restore the condition of things existing at the time of the service of the injunction, there might be room for the conclusion that punishment for the violation could be of no benefit to the plaintiff, and would be considered solely punitive retribution for a contumacious insult to the court and the majesty of the law. This distinction this court had in mind in Ex parte Crenshaw, 80 Mo. 447.

It is argued that the acts for which Gildersleeve and Schubach were punished were completed acts, that they had put it out of their power to undo these acts, and therefore the punishment meted out to them was solely for a past offense, and affecting only the dignity of the court; but we are constrained to think this view too narrow, because the relief sought by the principal suits was directed to the business of Schubach and Gildersleeve. That business was ticket brokerage, dealing in forbidden tickets. The isolat

ed sale of a few tickets was a matter of little pith to plaintiffs. If that were all they had involved, the game, to use a homely saying, was hardly worth the candle; there was great cry and little wool; the mountain labored and brought forth a mouse; but, contra, the continuous dealing in such tickets the business of so dealing-was the gravamen of their complaints. This idea is carried forward into the after-proceedings, and the very citations for contempt and the orders and judgments of the court finding Schubach and Gildersleeve guilty show the heart of the matter was the illegal business they were carrying on, and the menace to plaintiffs' rights arising from this continuation. The state did not, eo nomine, move in this matter. Plaintiffs, as private citizens, moved, and the prime object of plaintiffs in so moving for citations for contempt and in procuring convictions therefor was to preserve the life of their injunctions, and to prevent a continuation of defendants' illegal business by putting defendants in terrorem.

Justice Brewer, in Bessette v. Conkey Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997, considers this question, quoting from In re Nevitt, 117 Fed. 448, 54 C. C. A. 622, and formulates the distinction we have in mind thus: "Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and deerees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N. J. Eq. 105, 108, 21 Atl. 182; Hendryx v. Fitzpatrick (C. C.) 19 Fed. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer and Terminer, 101 N. Y. 245, 247, 4 N. E. 259, 54 Am. Rep. 691; Phillips v. Welch, 11 Nev. 187, 190; State v. Knight, 3 S. D. 509, 513, 54 N. W. 412, 44 Am. St. Rep. 809; People v. McKane, 78 Hun, 154, 160, 28 N. Y. Supp. 981; 4 Bl. Comm. 285; 7 Am. & Eng. Ency. Law, 68. A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little, if any, interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with

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the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings. See, also, Rapalje on Contempts, § 21. Doubtless the distinction referred to in this quotation is the cause of the difference in the rulings of various state courts as to the right of review. Manifestly, if one inside of a courtroom disturbs the order of the proceedings, or is guilty of personal misconduct in the presence of the court, such action may properly be regarded as a contempt of court; yet it is not misconduct in which any individual suitor is especially interested. It is more like an ordinary crime, which affects the public at large, and the criminal nature of the act is the dominant feature. On the other hand, if in the progress of a suit a party is ordered by the court to abstain from some action which is injurious to the rights of the adverse party, and he disobeys that order, he may also be guilty of contempt, but the personal injury to the party in whose favor the court has made the order gives a remedial character to the contempt proceeding. The punishment is to secure to the adverse party the right which the court has awarded to him. He is the one primarily interested, and if it should turn out on appeal from the final decree in the case that the original order was erroneous, there would be in most cases great propriety in setting aside the punishment which was imposed for disobeying an order to which the adverse party was not entitled. It may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determinative feature is that the act is by one party to a suit in disobedience of a special order made in behalf of the other. Yet sometimes the disobedience may be of such a character and in such a manner as to indicate a contempt of the court rather than a disregard of the rights of the adverse party."

Referring again to section 806, Rev. St. 1899, and attending to its language, it will be observed that "any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution may take his appeal to a court having appellate jurisdiction from or from any final judgment in the case." It must be admitted that Gildersleeve and Schubach were parties to a suit. They allege they were aggrieved by a judgment, and it must be admitted it was a final judgment, and it was rendered ancillary to, and hence substantially "in," a "civil cause." Construing this statute, the St. Louis Court of Appeals in State v. Horner, 16 Mo. App. 191, held that, where a proceeding is instituted by a party to enforce a civil remedy, it assumes the es

sential characteristics of an adversary proceeding, and that the decision of the court, by whatever name it may be called, and whether it may be in favor of or against the accused, shows the essential characteristics of a final judgment dispositive of a substantial right; and that, while it is a rule of common law procedure that an appeal does not lie from a judgment in a proceeding for a criminal contempt, yet it is generally held that, where a proceeding is a remedial proceeding as for contempt, the final judgment or order by which the court ends the proceeding and exhausts its jurisdiction is subject to a revision by an appeal. In State v. Schneider, 47 Mo. App. 669, Judge Romnauer, after reviewing the authorities and citing Rev. St. 1889, § 2246 (now section 806, supra), said: "We must therefore conclude that there is nothing in the mere fact that the final judgment sought to be reviewed is one in a proceeding for a contempt, which prevents its review on appeal in this state, where, as in this case, the contempt is not direct, and the appeal in no way interrupts or delays the proceedings in the main cause." In State v. Lucksinger, 79 Mo. App. 289, it was said: "The power to punish contempts was deemed essential to the existence and authority of the court and hence granted as a necessary incident in its establishment, and was equally available whether the contempt was direct or constructive, or, as otherwise designated, civil or criminal. In either case the judgment of a court of competent jurisdiction was final and conclusive. Rapalje on Contempts, §§ 21, 22. In this and many of the states the rule of the common law on this subject is not enforced in its full rigor. With us appeals or writs of error, though not permitted in cases of direct contempts, may be taken from a final judgment in a matter of constructive contempts to comply with an order for the inspection of papers." In Glover v. Insurance Co., 130 Mo., loc. cit. 184, 32 S. W. 304, this court, through Gantt, J., said: "It is true that every superior court of record at common law is the sole judge of contempts offered or committed in its presence against its dignity and authority, and may punish the same summarily, and no other court can review its decisions in such cases, unless an appeal is expressly allowed by the statutes; but this principle is applicable only to those direct contempts which interfere with the orderly and effective administration of justice by judicial proceedings in which appeals, if sanctioned, would seriously impair the authority of the court against which they were committed, and deprive it of that respect without which it is impotent to perform its high function, and has not obtained in constructive contempts as in the case at bar. In many cases similar to this the right of appeal has long been recognized and sanctioned in many jurisdictions, and the necessity therefor we

think can hardly be questioned, if appeals are allowable in any case." Sustaining the doctrine thus formulated the learned judge cited a formidable array of authorities, to which may be added Nienaber v. Tarvin, 104 Ky. 149, 46 S. W. 513; Livingston v. Swift, 23 How. Prac. 1; State ex rel. v. Gray (Or.) 70 Pac. 904; Strong v. Randall, 177 N. Y. 400, 69 N. E. 721; Witter v. Lyon, 34 Wis. 564; Snowman v. Harford, 57 Me. 397; Ex parte Wright, 65 Ind. 504; Wells v. Commonwealth, 21 Grat. 500; Turner v. Commonwealth, 59 Ky. (2 Metc.) 619; State ex rel. v. Pierce, 51 Kan. 241, 32 Pac. 924.

While the subject is not free from doubt and embarrassment, yet under the reasoning of the foregoing cases and the liberal construction to be applied to statutes penal in their character, and bearing in mind that the law does not concern itself so much with mere names as it does with the essence of things, and realizing that it is the glory of our law to be diligent in preventing stealthy approaches upon the liberty of the citizen and to have a glow of generous warmth in its preservation, we are persuaded to adopt the view that the judgments punishing Gildersleeve and Schubach were remedial in their character, were primarily for the benefit of relators, and intended to prevent future encroachments upon the rights of relators involved in the subject-matter of the litigation, and that the right of appeal existed per legem terræ as from judgments in civil causes; that the punishment also relating to past sales in isolated instances, and also involving the dignity of the court below, should not solely dominate the situation, make the contempts criminal in their character, and prevent an appeal.

It is eloquently contended by counsel that to allow an appeal in cases of this sort would destroy the inherent power of a superior court of record to protect itself and the law from insult, and would subject courts to contumely and superciliousness, but it is not pointed out to us how the inherent power of the court to punish for contempt is involved in sustaining the right of review in constructive contempts. The power to render judgment in any matter within its Jurisdiction is also an inherent power o which a constitutional court may not be shorn; but the right of an appellate court to review that judgment when rendered, and annul it, if erroneous, has not hitherto been allowed as any impairment of the inherent power of such court to render it. This court stands committed to the protection of the inherent powers of all constitutional courts to punish for contempt. State ex inf. v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624. But we are now asked to take one step farther, and to hold that any statute permitting a review of a judgment nisi in constructive contempt is unconstitutional. This step we decline to take. May it not be possible that we may better protect

the inherent powers of all courts and the respect due them and their judgments by at the same time protecting the rights of citizens to have judgments subjecting them to fines and imprisonments reviewed, and reversed if found arbitrary or otherwise erroneous?

The preliminary rule is discharged, and the writ denied. All concur, except BURGESS, J., not sitting.

BOLING v. ST. LOUIS & S. F. R. CO. (Supreme Court of Missouri, Division No. 2. June 6, 1905.)

1. APPEAL-CONSTITUTIONAL QUESTION.

An appeal, having fairly raised a constitutional question, and having been taken before the question was settled by the Supreme Court, will be retained, and not sent to the Court of Appeals.

2. CARRIERS SPECIAL RATE TICKET.

The condition in a railroad ticket sold at a reduced rate that it will not be good for return passage unless the holder identifies himself as the original purchaser to the ticket agent at destination on any day within the limit of 21 days from date of sale, and that it will then be good for continuous return passage, which shall be commenced on date of execution, as punched in the right-hand margin, is binding, so that the purchaser having, on arriving at her destination, two days after purchase of the ticket, been identified by the ticket agent at that place, who then attested her signature and dated it as of that date, the ticket is not good for a return passage commencing several days thereafter, though within the limit of 21 days. [Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1020-1036.1

3. SAME-EXPIRATION OF TIME LIMIT.

The acceptance of a railroad ticket by one of the connecting carriers over whose lines it provides for passage does not require another of such carriers to accept it, the time for using it having expired.

4. SAME RIGHTS OF PURCHASER.

The fact that one buying what she knew was a special-rate railroad ticket did not read it does not relieve her of the effect of a stipulation, plainly printed on its face, that return passage should be commenced on the date that she was identified, and the ticket was stamped and punched for return passage.

5. SAME-EXPULSION OF PASSENGER.

Though a railroad ticket presented by a passenger does not entitle her to passage, so that, on her being informed of its invalidity and refusing to pay fare, the conductor may remove her, the company is liable for compensatory damages for his using unnecessary and insulting language to her, injuring her feelings and humiliating her.

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selling the ticket it acted as agent, and was not responsible beyond its line, and that the return passage must be commenced the day that the passenger identified herself to the ticket agent at C., and he punched the ticket. Held, that the ticket agent at C. was not the agent of defendant, so as to make it responsible for his mistake in punching it on her arrival, and telling her that she could use it on a later day.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Julia M. Boling against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

L. F. Parker and J. T. Woodruff, for appellant. Vaughan & Coltrane, for respondent.

GANTT, J. This is an action by Mrs. Julia M. Boling, who resides at Claremore, Ind. T., against the defendant company for damages for being ejected from one of its trains at Pacific, Mo., April 6, 1900. The petition alleges the purchase of a railroad ticket from the defendant company at Joplin, Mo., entitling her to passage from Joplin to Chickamauga, Ga., and return, and then alleges that "before beginning her return passage said ticket was duly signed by her, and her signature witnessed and the same countersigned by the agent of the defendant's connecting line at Chickamauga, Georgia, and that at the times hereinafter stated said ticket entitled plaintiff to return over said lines of railway to Joplin, Missouri; that she began her return passage on the 5th day of April, 1899, and on the night of April 6, 1899, at St. Louis, Mo., she took passage upon and entered one of the defendant's trains leaving St. Louis, the same being a regular passenger from said city of St. Louis to Joplin, Missouri; that near a station of defendant's said railway, called 'Pacific,' and while she was rightfully on said train, the conductor in charge thereof rudely and wrongfully deprived her of said ticket and the use there of by taking it up and denying her transportation thereon, and wrongfully, willfully, and insultingly expelled and ejected her from said train; that in consequence she was compelled to use the small amount of money she had to obtain other transportation to her home, and, being among strangers, was compelled to go without food the next morning, and was put to great expense, trouble, and inconvenience, was injured in body and mind, and suffered great shame and humiliation, on account of all of which plaintiff says she has been damaged in the sum of five thousand dollars." In its answer the defendant admits it is a railroad, and owns and operates the line of railways between St. Louis and Joplin, and is engaged in carrying passengers for hire thereon, but denies each and every other allegation in said petition contained.

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20, 1900, and on that date went to Joplin, Mo. She desired to go to Chickamauga, Ga., to visit her sister, and bring back with her a little niece, five or six years old. That she learned that the Frisco Road, the defendant herein, had on sale at Joplin, Mo., excursion tickets from Joplin to Chickamauga and return. That she endeavored to obtain one of these tickets from the agent at Claremore, but was unable to do so, and, desiring to see Joplin, she went to that city, and there purchased one of those excursion tickets from Joplin to Chickamauga and return. The ticket was sold at a reduced rate. This ticket, in large type, reads:

"Good for one first-class passage to Chickamauga, Georgia, and return, when officially dated, stamped and presented with coupons attached subject to the following contract:

"(1) In selling this ticket and carrying baggage hereon, this company acts as agent and is not responsible beyond its own line.

"(2) This ticket will be good to leave starting point only on date of sale, as stamped thereon. It will then be good for going passage within fifteen days from date of sale as per final going limit punched in left hand margin by selling agent.

"(3) Stop-overs will be allowed on going passage within the going of fifteen days. No stop-overs will be allowed on return trip.

"(4) It will not be good for return passage unless the holder identifies himself as the original purchaser to the satisfaction of the ticket agent at destination point by signature or otherwise, on any day within final limit of 21 days from date of sale, as stamped on back or written below. It will then be good for continuous return passage of the original purchaser, which shall be commenced on date of execution, as punched in right-hand margin hereof."

The ninth clause is: "Unless all the conditions on this ticket are fully complied with, it shall be void." "I hereby agree to all the conditions of the above contract. [Signed] J. M. Boling, Purchaser. Witness: J. A. Glassey, Selling Agent. Date of sale March 20th, 1900."

The plaintiff commenced her journey from Joplin on the 20th of March, 1900, and arrived in Chickamauga, Ga., on the 22d, as indicated by punched marks on the left-hand margin of the ticket. On arriving at Chickamauga, Ga., on the 22d of March, and intending to visit relatives some 12 miles in the country, and near Kingston, on another railroad, leading into Chattanooga, Tenn., and not wishing to return by way of Chickamauga, she inquired of the station agent of the Chickamauga, Rome & Southern Railroad (the last road over which she traveled to Chickamauga) if she could be identified and have her ticket stamped by him at that time so that she would not have to return to Chickamauga for that purpose when she got ready to return to her home, in the Indian Territory. He assured her that she could,

and thereupon she signed the ticket before the ticket agent at that place, and he attested her signature, and dated the same March 22, 1900. This agent at Chickamauga was advised that she had just arrived, because she called on him for her baggage, which it appears had not arrived, but had been left in Chattanooga, when, at her request, he had the baggage sent from Chattanooga to Kingston direct on another road. When plaintiff got ready to return to her home, she did not return to Chickamauga, but started from Kingston, and went to Chattanooga. She began to use her ticket for return passage between Chattanooga and St. Louis, and it was honored by the other railroads until she reached St. Louis, on April 5, 1900. On the evening of April 6th, plaintiff purchased of the Pullman Palace Car Company a sleepingcar berth for herself and her sister Miss Davis, and the little niece, and was allowed to pass through the gate at the Union Station on the presentation of her ticket, and into the sleeping car attached to one of defendant's passenger trains, bound for Monett, Mo. The conductor of this train was John Gillis. After the train started, and near Valley Park, a station some 17 miles west of St. Louis, the conductor, Gillis, began taking up tickets in this sleeping car. Plaintiff's sister Miss Davis had her own and the plaintiff's said return ticket, and, when the conductor came to her, she handed both to him, and thereupon he pronounced the ticket invalid. And at this point there is a conflict in the testimony as to what occurred between plaintiff and the conductor. The evidence of the plaintiff tends to show that after the conductor had seen plaintiff's ticket he insinuated that she had not come by it properly; that he refused to make any effort to find out whether the ticket was good; that he disputed the plaintiff's words; that his manner was rude and insulting, and he wound up by confiscating the ticket, and directing his porter to see that the plaintiff got off the train at Pacific; that when they reached Pacific the porter came and got her grips, and told her this was the place to get off, and that she, her sister, and little niece got off the train and went into the station at Pacific, and plaintiff purchased a ticket to Monett, and she and her sister and little girl took the next train, and arrived at Monett at the same time and made the same connections for her home in the Territory that she would have made, had she remained on the train on which she first started. On the part of the defendant, the conductor, Gillis, testified that he refused to take the ticket because it had expired according to the limitations printed thereon, and that when he took it he gave her a receipt, and explained to her fully that the rules of the company prevented him from permitting her to ride on the ticket, and that she must pay her fare, and, if she did not have the money to do so, he would take her baggage check

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