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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, Rey. 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 bad inrolved, the game, to use a homely saying. was hardly worth the candle; there was great cry and little wool; the mountain la bored and brought forth a mouse; but, contra, the continuous dealing in such tickEts-the business of so dealing—was the gta ramen 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 Sebabach 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 preTent a continuation of defendants' illegal basiness by putting defendants in terrorem.
Justice Brewer, in Bessette v. Conkey Co., 134 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 indi. viduals whose private rights and remedies they were instituted to protect or enforce. Thompson 7. 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, 134, 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 wbich 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 be is committed until he complies with
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 pro- think can hardly be questioned, it appeals ceeding, and that the decision of the court, are allowable in any case.” Sustaining the by whatever name it may be called, and doctrine thus formulated the learned Judge whether it may be in favor of or against cited a formidable array of authorities, to the accused, shows the essential characteris- which may be added Nienaber v. Tarvin, tics of a final judgment dispositive of a sub- 104 Ky. 149, 46 S. W. 513; Livingston v. stantial right; and that, while it is a rule Swift, 23 How. Prac. 1; State ex rel. v. of common law procedure that an appeal Gray (Or.) 70 Pac. 904; Strong v. Randall, does not lie from a judgment in a proceed- 177 N. Y. 400, 69 N. E. 721; Witter v. Lyon, ing for a criminal contempt, yet it is gen- 34 Wis. 564; Snowman v. Harford, 57 Me. erally held that, where a proceeding is a 397; Ex parte Wright, 65 Ind. 504; Wells remedial proceeding as for contempt, the v. Commonwealth, 21 Grat. 500; Turner v. final judgment or order by which the court Commonwealth, 59 Ky. (2 Metc.) 619; State ends the proceeding and exhausts its Juris- ex rel. v. Pierce, 51 Kan. 241, 32 Pac. 924. diction is subject to a revision by an appeal. While the subject is not free from doubt In State v. Schneider, 47 Mo. App. 669, Judge and embarrassment, yet under the reasoning Romnauer, after reviewing the authorities of the foregoing cases and the liberal conand citing Rev. St. 1889, § 2246 (now section struction to be applied to statutes penal in 806, supra), said: “We must therefore con- their character, and bearing in mind that clude that there is nothing in the mere fact the law does not concern itself so much with that the final judgment sought to be re- mere names as it does with the essence of viewed is one in a proceeding for a contempt, things, and realizing that it is the glory of which prevents its review on appeal in this our law to be diligent in preventing stealthy state, where, as in this case, the contempt approaches upon the liberty of the citizen is not direct, and the appeal in no way in- and to have a glow of generous warmth in terrupts or delays the proceedings in the its preservation, we are persuaded to adopt main cause." In State v. Lucksinger, 79 the view that the judgments punishing GilMo. App. 289, it was said: “The power to dersleeve and Schubach were remedial in punish contempts was deemed essential to their character, were primarily for the benthe existence and authority of the court efit of relators, and intended to prevent fuand bence granted as a necessary incident ture encroachments upon the rights of rein its establishment, and was equally avail- lators involved in the subject-matter of the able whether the contempt was director litigation, and that the right of appeal exconstructive, or, as otherwise designated, isted per legem terræ as from judgments in civil or criminal. In either case the judg- civil causes; that the punishment also rement of a court of competent jurisdiction lating to past sales in isolated instances, was final and conclusive. Rapalje on Con- and also involving the dignity of the court tempts, 88 21, 22. In this and many of the below, should not solely dominate the situastates the rule of the common law on this tion, make the contempts criminal in their subject is not enforced in its full rigor. character, and prevent an appeal. With us appeals or writs of error, though It is eloquently contended by counsel that not permitted in cases of direct contempts, to allow an appeal in cases of this sort may be taken from a final judgment in a would destroy the inherent power of a sumatter of constructive contempts to comply perior court of record to protect itself and with an order for the inspection of papers." the law from insult, and would subject courts In Glover v. Insurance Co., 130 Mo., loc. cit. to contumely and superciliousness, but it is 184, 32 S. W. 304, this court, through Gantt, not pointed out to us how the inherent J., said: "It is true that every superior power of the court to punish for contempt court of record at common law is the sole is involved in sustaining the right of review judge of contempts offered or committed in in constructive contempts. The power to its presence against its dignity and author- render judgment in any matter within its ity, and may punish the same summarily, jurisdiction is also an inherent power o. and no other court can review its decisions which a constitutional court may not be in such cases, unless an appeal is expressly shorn; but the right of an appellate court allowed by the statutes; but this principle to review that judgment when rendered, and is applicable only to those direct contempts annul it, if erroneous, has not hitherto been which interfere with the orderly and effec- allowed as any impairment of the inherent tive administration of justice by judicial pro- power of such court to render it. This court ceedings in which appeals, if sanctioned, stands committed to the protection of the would seriously impair the authority of the inherent powers of all constitutional courts court against which they were committed, to punish for contempt. State ex inf. v. and deprive it of that respect without which Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. it is impotent to perform its high function, St. Rep. 624. But we are now asked to and has not obtained in constructive con- take one step farther, and to hold that any tempts as in the case at bar. In many
statute permitting review of a judgment cases similar to this the right of appeal has nisi in constructive contempt is unconstitulong been recognized and sanctioned in many tional. This step we decline to take. May jurisdictions, and the necessity therefor we it not be possible that we may better protect the inherent powers of all courts and the re- selling the ticket it acted as agent, and was not spect due them and their judgments by at
responsible beyond its line, and that the return the same time protecting the rights of citi
passage must be commenced the day that the
passenger identified herself to the ticket agent veds to bare judgments subjecting them to at C., and he punched the ticket. Held, that the sses and imprisonments reviewed, and re- ticket agent at C. was not the agent of defendTersed if found arbitrary or otherwise er
ant, so as to make it responsible for bis misroneous?
take in punching it on her arrival, and telling
her that she could use it on later day. The preliminary rule is discharged, and the writ denied. All concur, except BUR
Appeal from Circuit Court, Greene CounGESS, J., not sitting.
ty; Jas. T. Neville, Judge.
Action by Julia M. Boling against the St. Louis & San Francisco Railroad Company.
Judgment for plaintiff. Defendant appeals. BOLING v. ST. LOUIS & S. F. R. CO. Reversed. (Sopreme Court of Missouri, Division No. 2. L. F. Parker and J. T. Woodruff, for apJune 6, 1905.)
pellant. Vaughan & Coltrane, for respond1. APPEAL-CONSTITUTIONAL QUESTION.
ent. An appeal, having fairly raised a constitutional question, and having been taken before
GANTT, J. This is an action by Mrs. Juthe question was settled by the Supreme Court, will be retained, and not sent to the Court of
lia M. Boling, who resides at Claremore, Ind. Appeals.
T., against the defendant company for dam2. CARBIERS-SPECIAL RATE TICKET.
ages for being ejected from one of its trains The condition in a railroad ticket sold at
at Pacific, Mo., April 6, 1900. The petition a reduced rate that it will not be good for retorn passage unless the holder identifies himself
alleges the purchase of a railroad ticket as the original purchaser to the ticket agent at
from the defendant company at Joplin, Mo., destination on any day within the limit of 21 entitling her to passage from Joplin to dars from date of sale, and that it will then
Chickamauga, Ga., and return, and then albe good for continuous return passage, which sball be commenced on date of execution, as
leges that “before beginning her return passpudebed in the right-hand margin, is binding, age said ticket was duly signed by her, and so that the purchaser having, on arriving at her her signature witnessed and the same coundestination, two days after purchase of the
tersigned by the agent of the defendant's ticket, been identified by the ticket agent at that place, who then attested her signature and
connecting line at Chickamauga, Georgia, dated it as of that date, the ticket is not good and that at the times hereinafter stated said for a return passage commencing several days ticket entitled plaintiff to return over said thereafter, though within the limit of 21 days.
lines of railway to Joplin, Missouri; that she (Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, $$ 1020-1036.)
began her return passage on the 5th day of 3. SAME--EXPIRATION OF TIME LIMIT.
April, 1899, and on the night of April 6, 1899, The acceptance of a railroad ticket by one
at St. Louis, Mo., she took passage upon and of the connecting carriers over whose lines it entereu one of the defendant's trains leavprovides for passage does not require another ing St. Louis, the same being a regular pasof such carriers to accept it, the time for using it baring expired.
senger from said city of St. Louis to Joplin, 4. SAVE-RIGITS OF PURCHASER.
Missouri; that near a station of defendant's The fact that one buying what she knew said railway, called 'Pacific,' and while she was a special-rate railroad ticket did not read was rightfully on said train, the conductor it does not relieve her of the effect of a stipu
in charge thereof rudely and wrongfully de lation, plainly printed on its face, that return passage should be commenced on the date that
prived her of said ticket and the use there sbe was identified, and the ticket was stamped of by taking it up and denying her transporand punched for return passage.
tation thereon, and wrongfully, willfully, 5. SAYE-EXPULSION OF PASSENGER.
and insultingly expelled and ejected her Though a railroad ticket presented by a
from said train; that in consequence she was passenger does not entitle her to passage, so that, on her being informed of its invalidity compelled to use the small amount of monand refusing to pay fare, the conductor may ey she had to obtain other transportation to remove ber, the company is liable for compen- her home, and, being among strangers, was sa tory damages for his using unnecessary and insulting language to her, injuring her feelings compelled to go without food the next mornand humiliating her.
ing, and was put to great expense, trouble, 6. SAVE.
and inconvenience, was injured in body and The leaving of a train by a passenger mind, and suffered great shame and humilwhose ticket the conductor had refused to accept, in obedience to the conductor's command
iation, on account of all of which plaintiff to the porter to see that she got off at the next
says she has been damaged in the sum of station, is an ejection.
five thousand dollars." In its answer the de7. SAME.
fendant admits it is a railroad, and owns For a passenger, whose ticket the con
and operates the line of railways between dictor had refused to accept, to leave the train of ber own accord, and against his advice that
St. Louis and Joplin, and is engaged in carshe remain, and allow him to hold her baggage rying passengers for hire thereon, but denies beck as security for passage, to be paid if the each and every other allegation in said pevapauy agreed with him that the ticket was
tition contained. sot good, is not an ejection. 6. SAYE--TICKET AGENT-MISTAKE.
The evidence, in substance, was: That Defendant sold ticket over its road and plaintiff, a married lady, was a resident of other roads to C. and return, providing that in the town of Claremore, Ind. T., on March
20, 1900, and on that date went to Joplin, and thereupon she signed the ticket before Mo. She desired to go to Chickamauga, Ga., the ticket agent at that place, and he attestto visit her sister, and bring back with her ed her signature, and dated the same March a little niece, five or six years old. That she 22, 1900. This agent at Chickamauga was learned that the Frisco Road, the defendant advised that she had just arrived, because herein, had on sale at Joplin, Mo., excursion she called on him for her baggage, which it tickets from Joplin to Chickamauga and re- appears had not arrived, but had been left turn. That she endeavored to obtain one of in Chattanooga, when, at her request, he had these tickets from the agent at Claremore, the baggage sent from Chattanooga to Kingsbut was unable to do so, and, desiring to see ton direct on another road. When plaintiff Joplin, she went to that city, and there pur- got ready to return to her home, she did not cbased one of those excursion tickets from return to Chickamauga, but started from Joplin to Chickamauga and return. The tick- Kingston, and went to Chattanooga. She be et was sold at a reduced rate. This ticket, gan to use her ticket for return passage bein large type, reads:
tween Chattanooga and St. Louis, and it “Good for one first-class passage to Chick- was honored by the other railroads until she amauga, Georgia, and return, when officially reached St. Louis, on April 5, 1900. On the dated, stamped and presented with coupons evening of April 6th, plaintiff purchased of attached subject to the following contract: the Pullman Palace Car Company a sleeping
“(1) In selling this ticket and carrying car berth for herself and her sister Miss Dabaggage hereon, this company acts as agent vis, and the little niece, and was allowed to and is not responsible beyond its own line. pass through the gate at the Union Station
“(2) This ticket will be good to leave start- on the presentation of her ticket, and into ing point only on date of sale, as stamped the sleeping car attached to one of defendthereon. It will then be good for going pass- ant's passenger trains, bound for Monett, age within fifteen days from date of sale as Mo. The conductor of this train was John per final going limit punched in left hand Gillis. After the train started, and near Valmargin by selling agent.
ley Park, a station some 17 miles west of “(3) Stop-overs will be allowed on going St. Louis, the conductor, Gillis, began takpassage within the going of fifteen days. No ing up tickets in this sleeping car. Plainstop-overs will be allowed on return trip. tiff's sister Miss Davis had her own and the
"(4) It will not be good for return passage plaintiff's said return ticket, and, when the unless the holder identifies himself as the conductor came to her, she handed both to original purchaser to the satisfaction of the him, and thereupon he pronounced the tickticket agent at destination point by signa- et invalid. And at this point there is a conture or otherwise, on any day within final flict in the testimony as to what occurred Jimit of 21 days from date of sale, as stamp- between plaintiff and the conductor. The ed on back or written below. It will then be evidence of the plaintiff tends to show that good for continuous return passage of the after the conductor had seen plaintiff's tickoriginal purchaser, which shall be commen- et he insinuated that she had not come hy it ced on date of execution, as punched in properly; that he refused to make any efright-hand margin hereof."
fort to find out whether the ticket was good; The ninth clause is: "Unless all the con- that he disputed the plaintiff's words; that ditions on this ticket are fully complied with, his manner was rude and insulting, and he it shall be void.” “I hereby agree to all the wound up by confiscating the ticket, and diconditions of the above contract. (Signed] J. | recting his porter to see that the plaintiff got M. Boling, Purchaser. Witness: J. A. Glas- off the train at Pacific; that when they sey, Selling Agent. Date of sale March 20th, reached Pacific the porter came and got her 1900."
grips, and told her this was the place to get The plaintiff commenced her journey from off, and that she, her sister, and little niece Joplin on the 20th of March, 1900, and arriv- got off the train and went into the station ed in Chickamauga, Ga., on the 22d, as in- at Pacific, and plaintiff purchased a ticket dicated by punched marks on the left-hand to Monett, and she and her sister and little margin of the ticket. On arriving at Chick- girl took the next train, and arrived at Moamauga, Ga., on the 22d of March, and in- nett at the same time and made the same tending to visit relatives some 12 miles in connections for her home in the Territory the country, and near Kingston, on another that she would have made, bad she remainrailroad, leading into Chattanooga, Tenn., ed on the train on which she first started. and not wishing to return by way of Chick- On the part of the defendant, the conductor, a mauga, she inquired of the station agent of Gillis, testified that he refused to take the the Chickamauga, Rome & Southern Rail- ticket because it had expired according to road (the last road over which she traveled the limitations printed thereon, and that to Chickamauga) if she could be identified when he took it he gave her a receipt, and and have her ticket stamped by him at that explained to her fully that the rules of the time so that she would not have to return to company prevented him from permitting her Chickamauga for that purpose when she got to ride on the ticket, and that she must pay ready to return to her home, in the Indian her fare, and, if she did not have the money Territory. He assured her that she could, to do so, he would take her baggage check