Ex Parte A. K. Edwards, 11 Fla. 174

DuvPOXT, C. J., delivered the opinion of the Court.

This case arose from the refusal of a Judge of the Circui t Court to award a writ of habeas corpus, and is brought to this court by writ of error, under the provision,- of the statute, which is in these words: “If any party to such judgment rendered by a Judge of the Circuit Court hi vacation, or the said court in term time, shall led himself aggreived thereby, it shall be lawful for the Supreme Court having jurisdiction on his motion, to grant a writ of error, and upon the trial, to reverse or affirm the judgment wholly or in part, and to cause such other judgment to be entered, and such other proceedings to be had, as the law and the right of the case may require, either awarding costs or not, at their discretion.” At the hearing before us, a motion was made by the counsel for the contestants, to dismiss the casé, upon the ground that no “judgment” had been rendered by the Judge of the Circuit Court, to whom the application for the writ of habeas corpus had been made,, upon which a writ of error would lie.

In support of the motion, it was insisted that a refusal to grant the writ was not such a “judgment” as was contemplated by the statute. We think otherwise, and it is only necessary to recite the order- entered in this case, to show that it contains all the elements of a judicial “judgment.” It is in these words: “ On this day, the petition of A. K. Edwards, asking,that ‘ a writ, of .habeas corpus’ might be granted to him, and lie discharged from further custody, was presented • and considered : Whereupon the court doth adjudge and order that the prayer of said petition be refused,”* &c.

Having arrived at the conclusion that the writ of error does lie, we proceed now to the investigation of the ease, to ascertain whether or not an error was committed in the refusal to grant the writ of habeas corpus. In making this investigation, we concur in'the position held by the counsel for the contestants—that the court must be confined to the petition asking for the issuance of the writ, and that it is not permissible in this proceeding to investigate the merits of the cause out of which the commitment arose. The statute (vide Thomp.

Dig., pp. 527-’8,) is very peremptory in its terms as to the duty of the Judge to whom the application may be made for the award of the writ.

It is iu these terms: “ Whenever any person detained in custody, whether charged with a crminal offence or not, shall, by himself or by some other person in his behalf, apply to the Circuit Courts in this State, or to any Judge thereof in vacation, for a writ of habeas corpus, and show by affidavit or evidence, probable cause to believe that he is detained in custody without legal authority, it shall be the duty of the Court or Judge to whom such application shall be made, forthwith to grant the writ, signed by himself, directed to the person in whose custody the applicant is detained, and returnable immediately before such Court or Judge, or any of the said Courts or Judges.” The terms of this statute are peremptory upon the Judge to whom the application may be made, to grant the writ in all cases where it shall be shown by the affidavit or evidence that “probable cause” exists for believing that the applicant may be detained in custody without legal authority.

It is to be presumed that the Judge below did his duty in this particular—that he did look into the affidavit to ascertain whether ‘ there was such “ probable case ” therein set forth as would warrant him in granting the prayer of the petitioner, and finding none, he refused to award the writ.

It was upon this judgment of refusal that the petitioner founded his writ of error, and brings the case before the Supreme Court for its supervision, and we are now called upon to do what the Judge below did, viz: to look into the petition or affidavit to see if there is therein set forth such “ probable cause ” as ought to have entitled him to the award of the writ of habeas corpus.

The petition or affidavit shows upon its face that the petitioner is deprived of his liberty, by an order of the Chancellor, for an alleged contempt of the authority of the court of Chancery, and but for the statutory provisions in this State upon the matter of “contempts,” this isolated showing would be sufficient ground for the dismissal of -this writ of error ; for it is not to be denied, (and the numerous authorities cited at the hearing by the counsel for the contestants abundantly establishes the position,) that, in the absence of any statutory limitations or restrictions, the power of the several courts over “ contempts” is omnipotent, and its exercise is not to be enquired into by any other tribunal.

This is the great bulwark established by the common law for the protection of courts of justice, and for the maintainance of their dignity, authority and efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned. The genius of our people, however, ever sensitively jealous of restraints upon the personal liberty of the citizen, has caused them, through the action of the legislative department, to limit and restrict this common law power of the courts.

The act of the Legislature here referred to gives to the courts the power “ to punish for contempts, by fine or imprisonment, and not otherwise,” but expressly* provides, that “ the fine in any case not to exceed one hundred dollars, or the imprisonment thirty days.” Now if this statute be applicable to Courts of Chancery as to courts of law, and from the very terms used in the act, (passing “ orders and decrees,” being mentioned among the powers accorded to the courts referred to,) there can be no doubt of * it, it becomes absolutely necessary that an

interpretation be given to it, which, while it shall guard the personal liberty of the citizen, shall not operate to deprive this great dispenser of equity of its appropriate power and authority to enforce its orders and decrees. This can be done only by distinguishing between that class of contempts which are merely punitive in their character, and such as afford the means of enforcing the orders and decrees of the Court of Chancery.

Of the former class are such as imply an indignity or some exhibition of disrespect to the officer, .such as indecorous conduct in Ids presence, or the violation of a restraining order of the Chancellor, passed before the final hearing of the cause. Such acts, win eh are merely the Subjects of punishment, are doubtless the only ones to which the restriction and limitation of the statute was designed to apply.

It never could have been the design or intention of the Legislature to deprive the Court of Chancery of the only means which it possesses to enforce affirmatively its orders and decrees, or to enforce any decree, whether affirmative or otherwise, which may be passed upon the final hearing of the cause. We do not find this distinction in the books, nor was there any necessity for it, as the law anciently stood. It arises entirely from the enactment of our statute limiting the power of the courts to punish for contempts.

But, reverting to the petition, we think that there does appear upon the face of the petition such probable cause as entitled the petitioner to the issuance of the writ. The affidavit shows that the petitioner was imprisoned for the violation of the restraining order of the court, in removing certain cotton from the plantation, and had this been all, we are very clear in the opinion that, for that offence, the punishment of the party could not have extended beyond the limitation mentioned in the statute.

But the petition also shows that the petitioner was ordered to restore.the cotton to the plantation, or to pay its value into the registry of the court. Such an order implies that the cause had come to a final hearing, and that this was the final decree in the case, and imprisonment was certainly one of the means to enforce the decree, and would not be affected by the restriction contained in the statute. How it was the right of this party to have his case investigated, in order that he might show, if he could, that there had been no such final decree in the cause.

Tire fact that the application for the writ was made to the Judge, who, as Chancellor, had ordered the commitment, can have no legal bearing in this investigation. The application could as well have been made to some other J udge, and, as we have done, he would have confined himself, upon the application for the writ, to the matters set forth in the petition. After the writ had been granted, he might then, as a matter of evidence, been permitted to use the record in the original suit.

With these views, we are constrained to reverse the judgment of the Circuit judge, and to remand the cause for such further proceedings as shall be conformable to the views set forth in this opinion. In this cause a petition for a rehearing wras filed by the counsel for the contestants, but lias not been acted upon by the court.