H. P. PHILLIPS, Plaintiff, v. WILLIAM WELCH et al., Defendants. E. D. SWEENEY, Petitioner
Phillips v. Welch
H. P. PHILLIPS, Plaintiff, v. WILLIAM WELCH et al., Defendants. E. D. SWEENEY, Petitioner.
[No. 806.]
H. P. PHILLIPS, Plaintiff, v. WILLIAM WELCH et al., Defendants. E. D. SWEENEY, Petitioner.
Contempt — Soppiciencx op Appidavit. — The affidavit alleging that Sweeney-had violated the decree in the case of Phillips v. Welch: reviewed and held sufficient to give the court jurisdiction of the subject-matter of the contempt, and of the person of the petitioner.
Inottkx upon Ckbtiobabi. — The inquiry upon the writ of certiorari cannot he extended any further than is necessary to determine whether the inferior tribunal has exceeded its jurisdiction, or has regularly pursued its authority.
Idem — Excess op Jueisdiction. — Error in judgment, in respect to a ques tion which the court is authorized to investigate and determine, does not constitute an excess of jurisdiction.
Idem — Authoeitv op Supreme Court. — Whenever the inferior tribunal has regularly pursued its authority, and has not, in any respect, exceeded its jurisdiction, the authority of the supreme court in this proceeding ceases; it cannot correct any errors of law or fact not jurisdictional in their character.
Contempt — Habeas Corpus — Jurisdiction.—When a court commits a party for a contempt, its adjudication is a conviction, and its commitment, in consequence, is execution; and no court can discharge on habeas corpus a person that is in execution by the judgment of any other court having jurisdiction of the subject-matter of the contempt.
Certiorari — Statutes Construed.- — In construing sections 1497 and 1503, vol 1, Compiled Laws: Held, that the words “has exceeded the jurisdiction of such tribunal,” and “regularly pursued the authority of such tribunal,” present substantially the same idea, and under neither section can any question be inquired into or decided, except that of jurisdiction.
Idem — Jurisdiction—Contempt.—Jurisdiction as applied to any particular claim or controversy is the power to hear and determine that controversy, and where a person is charged with violating the. decree of a court, no other court, except the one rendering the decree can hear or determine the controversy, or punish such person if found guilty of a contempt.
Contempt — Judgment op Conviction Final and Conclusive. — A contempt of the character alleged in this x>roeeeding is a specific substantive and distinct criminal offense, and under the constitution and laws of this state, judgment of conviction, if within the jurisdiction of the inferior court, is final and conclusive.
No Excess op Jurisdiction. — The facts of this ease elaborately reviewed: Held, that the court, in adjudging petitioner guilty of a contempt, in violating the decree and order in the suit of Phillips v. Welch, did not exceed its jurisdiction, and that this court cannot, upon the writ of certiorari, review the case upon the merits. (Beattx, J., dissenting.)
Original application for a writ of certiorari.
The affidavit for the writ of attach men t against the defendant Sweeney for contempt (referred to in the opinion), was presented to the district court on the thirtieth of July, 1875. Sweeney appeared and demurred to the sufficiency of the affidavit. The demurrer was overruled, and defendant Sweeney then filed an answer denying most of the allegations contained in the affidavit. A hearing ivas had, and witnesses were sworn and examined touching the disputed questions. The court, after the hearing, found the facts as stated in the opinion of the court. The judgment of the court adjudging Sweeney guilty of contempt, and entering a fine of one hundred dollars against him, was rendered August 17, 1875. From this judgment an appeal was taken to the supreme court, and there dismissed for want of jurisdiction. (11 Nev. 187.) Defendant Sweeney having (as was claimed by plaintiff), continued to violate the decree, was thereafter, to wit, in July, 1876, brought before the court, and fined in the sum of five hundred dollars. The defendant Sweeney thereupon presented to this court a petition alleging, among other things, that in adjudging him guilty of contempt, “said court exceeded its jurisdiction, and that the decision of said court, in said proceeding, was contrary to and against the evidence adduced before said court, and contrary to and against law.” Upon the presentation of this petition, counsel agreed in open court that the transcript on appeal in Phillips v. Welch (11 Nev. 187), should be considered and treated as a return of the district court to the writ of certiorari.
O. PI. Belknap, for Petitioner:
1. A parly cannot be adjudged guilty of contempt for doing an act which he is not forbidden to do. (Weeks v. Smith, 3 Abbott’s Prac. Pep. 211.)
If the order be ambiguous or doubtful, or fairly capable of a construction which will be consistent with the person’s innocence of any intentional disrespect, the court should not interfere to punish for a contempt. Injunction orders should be made so clear, definite and precise, that every person enjoined should see clearly and distinctly just what acts are enjoined, and what are permitted.
II. The affidavit of Phillips, upon which the contempt proceeding is founded, does not state facts sufficient to give the district court jurisdiction of the subject matter. (Batch-elder v. Moore, 42 Cal. 414.) It abounds in legal conclusions; it does not state a single fact by which the district court could have been informed whether a contempt had, or had not, been committed. The fact which should have been stated was the quantity of water, the fractional portion of the stream, that Sweeney was actually diverting; then the district court, from such statement, could have determined whether, upon the facts stated, Sweeney was violating the decree. The affidavit of Phillips does not state facts sufficient to give the district court jurisdiction of the case of contempt. The jurisdictional facts not appearing, this court can, upon certiorari, unquestionably review the action of the district court, and determine whether it had jurisdiction of the matter. (Pindar v. Black, 4 How. Prac. 95; Crandall v. Bryan, 15 How. Prac. 48; Whitlock v. Both, 5 How. Prac. 143; DeNierih v. Sidner, How. Prac. 419; Vanderpool v. Kissam, 4 Sandforcl, 715; Blasón v. Bruno, 21 How. Prac. 112; City Bank v. Lumley, 28 How. Prac. 397; Cook v. Boach, 21 How. Prac. 152; Draper v. Beers, 17 Abbott Pr. 163; Lippman v. Petersburg, 10 Abbott Pr. 254.)
Sections 1497 and 1503 (compiled laws) must be considered together, and effect must be given to each, if possible; so considered, it seems clear, under the statute, that the first question to determine is under section 1497, whether the inferior tribunal had jurisdiction; and secondly, whether it has regularly pursued its authority.
In cases where petitioner has no other remedy, and where injustice would otherwise be done, the court will examine the regularity of the proceeding of the inferior tribunal, and determine whether its decision is in accordance with law. (Sivijt v. Poughkeepsie, 37 N. Y. 516; People v. Assessors, 39 N. Y. 88; People v. Supervisors, 51 N. Y. 442; People v. Allen, 52 N. Y. 538; People v. Betts, 55N. Y. 600; Peoples. Sanders, 3 Hun. N. Y. 16; Niblo v. Post, 25 Wend. 280.)
These decisions were based upon the common law.
Our statute is in affirmance of the common law. (Whitney v. Board of Delegates, &c., 14 Cal. 500.)
Bobert ill. Clarke, for Respondent:
I. The relief sought can only be granted in case the court pronouncing the judgment acted in a case where it had no jurisdiction to act, or, having jurisdiction, entered a judgment in excess of its jurisdiction. (Civ. Prac. Act, secs. 436, 442; Maynard v. Biley, 2 Nev. 313; State v. Board of Com. W. Co., 5 Id. 317; Fall v. Humboldt Co., 6 Id. 100; Mason v. Commissioners Ormsby Co., 7 Id. 398; Helzel v. Commissioners Eureka Co., 8 Id. 359; C. P. B. B. Co. v. Placer Co., 43 Cal. 365; People v. Elkins, 40 Cal. 642; Mon-real v. Bush, 46 Id. 79; Barber v. San Francisco, 42 Id. 631; C. P. B. B. Co. v. Placer Co., 46 Id. 667.)
II. Sweeney liad no right to use any water for any purpose as against Phillip, because the water was decreed to the land, and because he had granted the land by lease without reservation of water to others for five years. (Angelí on Water Courses, secs. 6, 8, 9-92; Vansickle v. Haines, 7 Nev. 249.)
I[I. This particular use now claimed was arrested in the pleadings and denied by the decree, and this is conclusive of the right. (Freeman on Judgments, sec. 249; 36 Barb. 88; 37 N. Y. 59; 7 Wall. 102.)
IY. Granting the right in Sweeney which was decreed to him, that is, the use of sixteen one-hundredths parts of the water to irrigate the land; that right does not include the use made of the water, to wit: the right to divert it to Carson in £>ipes. (Angelí, 227-28.)
Leiois & Deal, also for Respondent:
I. The findings and decree, in Phillips v. Welch, clearly give to Sweeney the water awarded to him only for certain purposes and uses; that is, for irrigating his land and for domestic purposes. The court finds that he is entitled to the water in connection with his land, and for certain uses mentioned. The denial of the court to allow Sweeney to divert it to be used in Carson, shows that the only use intended was on the land. If the decree only allows Sweeney to use it in a given Avay, or for certain purposes, he has no right to use it in any other way or for any other purpose. It ivould be a manifest violation of the decree to depart from its letter or its purpose.
II. The affidavit presented by Phillips is sufficient. A distinction must be made betAveen the total absence of an averment and a defective statement. (Treadioay v. Wilder, 8 Nev. 97.)
The affidavit states that said defendant Sweeney did unlawfully and intentionally divert the waters * * * in quantities largely in excess of the quantities authorized or permitted by the decree. This of itself was sufficient to give the court jurisdiction.
III. If the court had jurisdiction to punish Sweeney for contempt, that is the end of this proceeding. Nothing but jurisdiction can be inquired into. We contend that if in this case the district court had power to punish for the contempt alleged, then this court will not review the proceedings. (Ex parte Kearney, 7 Wheat. 38; Lord Mayor of London, 3 Wils. 188; Yates’ Case, 1 John. 318; 2 Iowa, 69.)
G. E. Belknap, in reply:
The affidavit does not state a single fact. Whether the amount of water diverted was excessive would depend upon the amount taken out. Hence, the amount taken out, as well as the amount which Sweeney was entitled to, should be stated.
II. The fact that Sweeney in his answer upon the trial of the suit to determine the rights of the occupants of land adjoining Kings Canon creek, set up a right to carry a portion of the stream to Carson city, which right is not affirmatively acknowledged in the judgment in that case, cannot be used as an argument in support of the theory that Sweeney has no right to divert the water to Carson city for purposes of sale.
III. The earlier cases in England and in this country, always held that upon certiorari in cases where the party has no other remedy, and where, unless the court exercised its authority there would be a failure of justice, the review under the writ would be extended to the questions of law determined by the lower court, and erroneous decisions would be corrected. These views do not conflict with the decisions heretofore made by this court. This court can, with perfect consistency, make the distinction, which the justice of the case requires.
By the Court,
Hawley, C. J.:
E. D. Sweeney, one of the defendants in the above-entitled action, upon the same transcript and evidence that was presented in this case on appeal, (11 Nev. 187,) claims that the district court in adjudging him guilty of contempt "exceeded its jurisdiction, and that the decision of said court in said proceeding was contrary to and against the evidence adduced before said court, and contrary to and against law;" and that, by reason of said court adjudging him guilty of contempt, he has been greatly injured in his property and otherwise, and asks this court, upon a review of the case upon certiorari, to set aside the proceedings and declare the order adjudging him guilty of contempt to be null and void.
It is argued by petitioner's counsel that the affidavit of the plaintiff Phillips, upon which the contempt proceeding is founded, does not state facts sufficient to give tlio court jurisdiction of the subject matter; that said affidavit abounds in legal conclusions without the statement of any fact upon which the conclusions are based.
1. Does the affidavit state any substantive fact sufficient to set the power of the court in motion? This is the material question that we are called upon to decide. If it does not, then the proceedings must be annulled. If it does, the judgment must stand.
The statute applicable to this case, provides that: "When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt." (1 Comp. L. 1522.)
Under a statute identical with these provisions, the supreme court of California, in Batchelder v. Moore, say: "The power of a court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld, except under the circumstances and in the manner prescribed by law. It is essential to the validity of proceedings in contempt, subjecting a party to fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support. The statute of this state regulating contempts and their punishments provides that when the alleged contempt is not committed in the presence of the court an affidavit of the facts constituting the contempt shall be presented. If there be no affidavit presented there is nothing to set the power of the court in motion; and if the affidavit, as presented, be one which, upon its face, fails to state the substantive facts which in point of law do, or might, constitute a contempt on the part of the accused, the same result must follow, for there is no distinction in such a case between the utter absence of an affidavit and the presentation of one which is defective in substance in stating the facts constituting the alleged contempt." (42 Cal. 414.)
The affidavit in this case charges but one offense. It sets out in detail the fact of the commencement of the suit of Phillips v. Welch et al,, and the proceedings had therein. The complaint and answer in said suit are referred to aud made a part of the affidavit. The decree rendered in said suit is copied into the affidavit. Affiant then, among other things, states: "That said decision aud decree was rendered in open court, and the several parties and their attorneys had actual knowledge thereof, and the same was served in due form on the several parties defendant on the day of November, 1872, aud the third day of December, A. D. 1872; that said decision and decree has never been appealed from, stayed, modified or reversed, but ever since the rendition thereof has been and now is in full force, virtue and effect;" that ever since said decision was rendered, affiant has been, and now is, the owner of the land described in the complaint and mentioned in the decree, and of the water, water-right, usufruct and privilege specified therein; that during the present season' affiant has been engaged in the cultivation of his said land, and in growing crops of grain, vegetables and grass, and raising stock thereon, and' needs and requires the use of the water awarded to him in said decree, and the whole thereof, to irrigate said land and the crops growing thereon, and for watering his stock and for domestic purposes; "that the said defendant, E. D. Sweeney, on the first day of July, A. D. 1875, and on divers and sundry other days between the first and the twenty-eighth days of July, A.D. 1875, did, in disobedience and resistance of a lawful writ and order of said district court, to-wit: the decree and injunction aforesaid made and entered in said cause, and in willful violation and disregard of said writ, order and decree, and in willful contempt of the said court and its said lawful writ, order and decree, unlawfully and intentionally violate and disobey said writ, order and decree, and unlawfully and intentionally diverted the waters of said stream in violation of said decree, and contrary to the terms and provisions thereof, and in violation of and contrary to the injunction therein contained ;" " that at the several dates aforesaid, said defendant, E. D. Sweeney, did unlawfully and intentionally divert the waters of said stream in quantities largely in excess of the quantities authorized or permitted by the decree, and for uses and purposes not authorized but forbidden by the decree;" that at the several dates aforesaid affiant needed and required all the water awarded to him by said decree in connection with his said land, to wit, thirty-one one-hundredth parts thereof, to irrigate said land and the crops growing thereon, and that he was deprived thereof by said excessive and unlawful diversion and use by said defendant, E. D. Sweeny, and that by such deprivation affiant was injured in his right and land, and that his crops greatly suffered and were actually damaged.
It is claimed by counsel for petitioner that the quantity of water to which he was entitled is clearly a question of law, and that the affidavit should contain a statement of the exact quantity of water that he was actually diverting, so that the court, from such statement, could have determined whether he was violating the decree or order, and especially is it contended that this fact should have been stated in the affidavit, because it appears from other averments therein that Sweeney has acquired the title of defendant Quill to the lands mentioned in the decree since the rendition thereof. Ordinarily, this would be the best mode of stating the facts. But the decree rendered in the suit of Phillips v. Welch et al. is in many respects a peculiar one. It states the exact fractional part of the water in King's canon to which each of the parties to the suit is entitled. The court found, among other facts, that plaintiff Phillips was the owner in fee of certain lands described in his complaint; that said land is agricultural and farming land; that the stream known as Kings Canon creek flows through and over said land in the natural channel of said stream; that thirty-one one-hundredth parts of the water customarily flowing in said stream are necessary to be used in irrigating said land and the crops of grass, grain, and vegetables grown thereon, and for watering the stock, and for household and domestic uses of the plaintiff; "that the plaintiff as against the defendants, and each of them, is the owner of and entitled to use, for the purpose of irrigating said land and the crops grown thereon, thirty-one one-hundredth parts of all the water customarily flowing in said stream;" "that the defendant, E. D. Sweeney, is the owner in fee of the land described in his answer, part of which is agricultural and farming land; that the waters of said creek flow in the natural channel through said land; that a portion thereof, to wit: sixteen one-liundredth parts of all the water customarily flowing in said stream is necessary for the irrigation of said land and the crops grown thereon, and for watering the stock and for the domestic purposes of the defendant; and that the defendant, E. D. Sweeney, in connection with said land, is the owner of an usufruct in, and is entitled to use sixteen one-hundredth parts of all the water customarily flowing in said stream for said purposes." Defendant Quill is entitled to use six one-hundredth parts in the same manner. The balance is portioned out respectively, in like manner, to the other parties defendants in said action. The decree follows the findings. It enjoins the plaintiff from diverting or otherwise depriving defendants, or either of them, of the water decreed to them. It perpetually enjoins the defendants, and each of them, "from diverting any part of said Phillips' portion of said water, or otherwise depriving him of the use of the same for irrigation and for stock and domestic purposes."
Taking the facts in the decree with the sworn statements' of Phillips, it seems to us that the affidavit was sufficient to give the court jurisdiction of the subject-matter of the contempt, and of the person of the petitioner. Conceding that the legal principles already quoted from the case of Batch-elder v. Moore are applicable' to this case, yet upon an examination of that case it must be admitted that the facts in relation to the affidavits are entirely dissimilar. In Batchelder v. Moore, the proceedings were based wholly upon the statute of that state, which provided "that every person who shall have been or shall be hereafter dispossessed or ejected from" premises under the judgment of a court, and who shall himself re-enter, or procure some one else to reenter, shall be deemed guilty of a contempt. The court, after alluding to this statute, say: "It is essential that the person accused should be one who has been ejected or dispossessed, as provided by the act; and unless he be such person the act has no application whatever, and he cannot be guilty of the contempt therein denounced. In the affidavit of Batclielder, there is a total omission to allege that Calderwood was such a person, and the omission is obviously jurisdictional in its consequences." From the facts stated by the court, it will readily be seen that in that case there was an entire omission to make any statement whatever, defective or otherwise, of the essential fact that the statute positively required. The omission reached the very substance that was, by the provisions of the statute, necessary to be included in order to give the court jurisdiction. It was, as the court very properly said, the same as if no affidavit at all had been presented. Here, the objections are to the form, not the substance of the affidavit.
The essential fact to be determined by the court was whether or not the defendant Sweeney had, in disobedience of the decree and of the lawful process issued thereunder in the suit of Phillips v. Welch, deprived the plaintiff Phillips of the quantity of water decreed to him in that case. There is an averment in the affidavit that Phillips was deprived of the water, to which he was entitled, by the excessive and unlawful diversion and use of the water by Sweeney. It is also stated that Sweeney, in direct violation of said decree unlawfully and intentionally diverted the waters of King's Canon creek in quantities largely in excess of the quantities authorized or permitted by the decree, to plaintiff's damage, etc. The affidavit shows the exact quantity to which Sweeney is entitled, and when it states that he used a greater quantity it is as positive in its terms, in so far as the question of violating the decree and order is concerned, as if it stated the exact fractional part of the water of the stream which he had unlawfully diverted. But, admitting that there is a defect in the manner of stating these facts, it does not, as did the omission in Batchelder v. Moore, reach the substance, so as to be " obviously jurisdictional in its consequences."
Respondent's counsel contend that if we find the affidavit to be sufficient to give the court jurisdiction, we cannot examine the question whether or not the order adjudging Sweeney guilty of contempt is sustained by the evidence. This position is abundantly sustained by the authorities. This court, in all the numerous cases brought before it by the writ of certiorari, has uniformly held that the inquiry upon the writ could not be extended any further than is necessary to determine whether the inferior tribunal has exceeded its jurisdiction or has regularly pursued its authority. (Maynard v. Railey, 2 Nev. 313; State v. County Commissioners of Washoe County, 5 Nev. 317; State ex rel. Fall v. County Commissioners of Humboldt County, 6 Nev. 100; State ex rel. Mason v. County Commissioners of Ormsby County, 7 Nev. 393; Hetzel v County Commissioners of Eureka County, 8 Nev. 359.)
The decisions in California, including Batchelder v. Moore, are to the same effect. (People ex rel. Lamby v. Dwinelle, 29 Cal. 632; People v. Johnson, 30 Cal. 98; Winter v. Fitzpatrick, 35 Cal. 269; People ex rel. Waldon v. Elkins, 40 Cal. 642; Barber v. Board of Supervisors of the City and County of San Francisco, 42 Cal. 630; Yenawine v. Richter, 43 Cal. 312; Central Pacific Railroad Company v. The Board of Equalization of Placer County, 43 Cal. 365; Petty v. County Court of San Joaquin County, 45 Cal. 245; Monreal v. Bush, 46 Cal. 79; Central Pacific Railroad Company v. Placer County, 46 Cal. 670; Reynolds v. County Court of San Joaquin County, 47 Cal. 604.)
The affidavit of Phillips, in our judgment, presented a case for the legitimate action of the court. The district court had the authority to hear and determine the question whether or not Sweeney had been guilty of disobeying the decree, or any order or writ of injunction issued and served pursuant to its provisions. The court, after acquiring jurisdiction for that purpose, had the undoubted right to decide the question upon the law and the evidence. It may have erred. Whether it did or did not, it is not our province, in this proceeding, to inquire. We are prohibited by the statute from investigating this question. Even admitting that the court erred in the conclusions it reached, yet all the authorities above cited hold that error in judgment, in respect to a question which the court is authorized to investigate and determine, does not, by any means, constitute an excess of jurisdiction. If it did, then every error committed by any inferior tribunal, in the course of judicial investigations, would be an excess of jurisdiction, and the writ of certiorari would be converted into a writ of error instead of remaining, where the statute has placed it, a writ of review; and every case brought before us under this writ would have to be heard and determined in the same manner as if the right of appeal existed.
If appellate courts were compelled to examine the evidence in proceedings of this character, the result would have a tendency to destroy the binding force and effect of all judgments of justices of the peace and other inferior tribunals.
By adopting the rule contended for by petitioner, every criminal action for an alleged misdemeanor prosecuted and tried before a justice of the peace could, after the conviction of the defendant, on appeal to the district court, be brought before this court by the writ of certiorari, and it would be the duty of this court to examine into the evidence and see if justice had been done, and to determine whether the right of the defendant, in his person or prop erty, has been in any manner injuriously affected by any error that the inferior court may have committed during the progress of the trial, and if error appears, the judgment would have to be set aside; thus, as before stated, virtually giving the right of appeal in cases where no right of appeal exists. Nevertheless, if such a course is authorized b}r the statute, it would be our duty to follow it without regard to the consequences. But it is manifest that such is not the language, meaning or intention of the law. Whenever the inferior tribunal has regularly pursued its authority, and has not in any respect exceeded its jurisdiction, our authority ceases. We cannot in this proceeding furnish a panacea for all the "ills that flesh is heir to," nor can we correct any errors of law or fact, not jurisdictional in their character, that may be committed by any inferior tribunal acting within the scope of its authority.
2. In pursuance of the warrant of attachment issued upon the affidavit of Phillips, the petitioner appeared before the court in person and by counsel, and made answer, specifically denying all the averments in said affidavit charging him with a disobedience of the process issued in the suit of Phillips v. Welch. The court investigated the charge, heard and considered the evidence for and against the petitioner, and found the following facts: Carson, which claim of right was litigated in said cause, and was not allowed by the court;
"First. At the several dates mentioned in the proceedings, to Avit: July 1, 1875, the defendant, E. D. Sweeney, was diverting from the natural channel of said Kings Canon creek, above the lauds of II. P. Phillips, by means of pipes and flumes, and conducting the same permanently away from the stream and from the land of plaintiff to the town of Carson, to supply the people of Carson city with Avater, a large portion, to Avit: about forty inches of the Avater of said stream;
"Second. In the said cause of Phillips v. Welch et al., said Sweeney ansAvered and defended, asserting and claiming a right to divert from said stream, by means of his pipes and flumes, a portion, to avít: eight inches of the Avaters of said stream, and conduct the same, by means of his pipes and flumes aAvay from said stream to the toAvn of
"Third. At the several dates aforesaid, the plaintiff (Phillips) was seized of the land and water privilege described in the proceedings herein, and required and needed, and was entitled to have flow to and upon his land, and to use the same in the manner and for the purposes specified in the decree, thirty-one one hundredth parts of the water flowing in said stream, and at the several dates aforesaid said Phillips and his land were deprived of the water which was awarded to said land by said decree, and no water, except a small quantity of seepage water was flowing to the land of said Phillips, and said lands and the crops growing thereon were thereby injured, and the right of said Phillips was thereby violated;
"Fourth. At the several dates aforesaid, while said Sweeney was delivering said quantity of- water away from the stream, and away from the land of said Phillips to Carson for sale to customers, the said laud described in the answer of Sweeney and in the decree as belonging to defendant E. D. Sweeney, and which land was decreed sixteen oneliundredth parts of the water of said stream for irrigation, and for stock and domestic purposes, was occupied and cultivated by one James Authers as the tenant of said Sweeney under a written lease, which lease granted the land to said Authers without reservation of the water for five years, and said Authers was at said several dates using the waters of said stream to irrigate said land, and the crops thereon;
"Fifth. At the several dates aforesaid the said land known as the Quill land was being occupied and cultivated, and all the water awarded to said Quill in connection with said land to irrigate the same was being diverted upon and used in irrigating the same.
"Wherefore, it is now and here considered and adjudged by the court that the defendant, E. JD. Sweeney, has been guilty of the misconduct alleged against him in the proceedings herein, to wit, the willful violation of the order, decree and injunction made and entered in said cause, and that such misconduct was calculated to and did defeat, impair and prejudice the rights of said Phillips in said action awarded to him by the decree, and was calculated to and did injure the said land of the said Phillips, and the crops of the said Phillips growing thereon, and was calculated to and did damage the said Phillips. And it is now and here considered, ordered and adjudged that the said E. D. Sweeney has been guilty of contempt of court, and that he be fined," etc.
It is claimed by petitioner's counsel that an examination of the evidence will show that he was acquitted of any violation of the injunction order by using any water in excess of the amount allowed him by the decree; but was found guilty of a contempt of the district court in diverting the waters of said stream, and conveying the same to Carson city for sale; the court holding that the decree prohibited such use, and only allowed the respective parties to use the water for irrigation in connection with their land, and for stock and domestic purposes. It is argued that this is an erroneous construction of the decree, and hence the order should be set aside, as petitioner has really been found guilty of contempt for doing an act which he is not directly forbidden to do by the decree.
It is admitted that the previous decisions of this court upon the question of jurisdiction are stereotyped, and all adverse to an examination of the evidence in cases where it appears that the inferior tribunal acted within its jurisdiction, and that the general rule, as to the province of the writ, is such as we have stated; but it is contended that this court has hitherto acted without mature consideration, and superficially followed the general rule, without noticing the fact that in the earlier cases in England and in the United States a distinction was made that ought to be observed in this case, viz.: that where it affirmatively appears that the petitioner has no other remedy, and where, unless the appellate court exercised its authority, there would be a failure of justice, the review was extended to an examination of the evidence and all questions of law determined in the lower court, and if any error was found the proceedings were annulled. In this connection it was argued that the present case differs from all previous decided cases in this state wherein (with but one exception) the petitioners had some other remedy and the decision was not final.
The argument that petitioner had no other remedy was advanced when this case was argued on the appeal, and this court was then asked by both parties to examine the evidence and decide the case upon its merits, without reference to jurisdictional questions. After mature consideration, we then held that it was the duty of the court to decide, "in limine, whether in a case like this, where the parties before the court are willing to concede jurisdiction for the purpose of obtaining our opinion upon the matters in controversy, we ought to raise the question ourselves." We decided that it ought to be done, and disposed of the case purely upon jurisdictional grounds. (11 Nev. 188.)
Petitioner was next brought before the chief justice upon a writ of habeas corpus, where a similar argument ivas again advanced, and the petitioner was remanded into custody upon the familiar principle, almost universally recognized, that when a court commits a party for a contempt its adjudication is a conviction, audits commitment, in consequence, is execution; and no court can discharge on habeas corpus a person that is in execution by the judgment of any other court having jurisdiction of the subject matter of the contempt.
This principle is acknowledged by counsel for petitioner to be correct, and is certainly too well settled to require a citation of the authorities. Some of the cases are referred to in Ex parte Winston, 9 Nev. 71.
Without attempting to follow the learned counsel in his review and criticisms of former cases on certiorari, decided by this court, it seems to us that it is only necessary, in addition to what we have already said, to state that we are not acting upon the common law rule relating to the writ of certiorari, under which courts in earlier times, and in New York and some of the other states at the present time, often exercised their discretion in granting or refusing the writ, according to the justice of the case. The truth is, that there is no uniformity upon this point, and we are of opinion that even under the writ as known at common law a majority of the decisions in the United States hold that the writ must be confined to the question of jurisdiction; but, however that may be, it is here unnecessary to decide, as the question is to some extent foreign to the decision in this case.
This court must follow the provisions of the statute of this state, the language of which is clear, plain and, in our judgment, decisive. It has been often quoted, and invariably construed one -way: "The writ shall be granted in all cases when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, and there is no appeal, nor, in the judgment of the court., any plain, speedy and adequate remedy." (1 Comp. L., 1497.)
Under this provision the court is not authorized to issue the writ, because there is no other remedy, unless it also appears that the inferior tribunal has exceeded its jurisdiction.
The statute in another section provides as follows: "The review upon this Avrit shall not be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer." (1 Comp. L., 1503.)
In Maynard v. Railey, supra, this court in construing this section held that the expression "has regularly pursued its authority," did not authorize an inquiry into any irregularity or question beyond that of jurisdiction.
In the C. P. R. R. Co. v. The Board of Equalization of Placer Co., supra, it was there, as here, argued by able counsel that the review of the proceedings of the inferior tribunal Avas not to be confined to the bare question whether the subject matter or the parties were within the jurisdiction of the court, but must be extended to all questions affecting the mode in which the jurisdiction or the power of the inferior tribunal has been exercised, and that the statute must be so construed as to authorize the court, upon a review of the case, to determine not only Avhether the inferior tribunal had authority to deal with the parties and subject matter; but whether it dealt with them in the manner authorized by law. The court, after citing the provisions of the statute of that state, identical with the provisions quoted from our statute, held that the words "has exceeded the jurisdiction of such tribunal, board," etc., and "has regularly pursued the authority of such tribunal, board," etc., as expressed in these two respective sections of the practice act, present substantially the same idea, and refused to inquire into or decide any question except that of jurisdiction. This court has always followed this construction, and we are satisfied that no other conclusion can be arrived at without doing violence to the language of the statute.
Under this construction can it seriously be contended that it is our duty to decide this case upon its merits without reference to the question of jurisdiction ?
The fourth subdivision of the act relating to contempts and their punishments provides that " disobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at chambers," shall be deemed a contempt. The affidavit sets forth the fact that petitioner has disobeyed a lawful writ and order that was issued by the district court of Ormsby county under a final judgment, obtained in said court in the case of Phillips v. Welch. Upon this affidavit a warrant was issued and petitioner was brought before the court, and a hearing was had, which resulted in his conviction, and he was fined in the sum of five hundred dollars.
It is, of course, admitted that the district court has the power to punish for contempts in cases like the one under consideration. It must also be admitted, if the affidavit is sufficient, that the court had jurisdiction of this case. As was said in the case last referred to from California, " jurisdiction, as applied to a particular claim or controversy, is the power to hear and determine that controversy;" and as jurisdiction is the power to hear and determine a disputed controversy, it is beyond all question that the district court of Ormsby county had jurisdiction of this case. In fact no other court could hear or determine the disputed controversy or punish petitioner if he was found guilty of the contempt. (Ex parte Cohen and Jones, 5 Cal. 494; People ex rel. Wright v. The County Judge of Placer County, 27 Cal. 151; Lessee of John Penn, Jr., v. Messenger, 1 Yeates, 2; Passmore Williamson's Case, 27 Penn. St. 18; Gates v. McDaniel, 4 Stew, and Port. 69; Ex parte Stickney, 40 Ala. 167; Yates v. Lansing, 9 Johns. 423; State v. Towle, 42 N. H. 544; Pilas v. Burton, 27 Vt. 61; Crosby v. Lord Mayor of London, 3 Wilson, 198.)
The truth is, that in a case like the present, where the court acquired jurisdiction of the subject-matter and of the person of the petitioner, this court has no jurisdiction either on appeal, writ of error, habeas corpus or certiorari.
The decisions are clear, positive, and, in our judgment, conclusive upon this point.
In The People v. Johnson, supra, defendant was arrested, tried and convicted before a justice of the peace, fined one hundred dollars, and upon appeal to the county court the judgment was affirmed. An appeal was then taken to the supreme court, and there dismissed for want of jurisdiction. Sanderson, J., in delivering the opinion of the court, said: "This is a criminal action for an alleged misdemeanor, in which no question as to the jurisdiction of the court below is made. In such a case this court has no jurisdiction, either on appeal or writ of error or certiorari. Our jurisdiction to review the proceedings of inferior courts, boards and officers upon certiorari is limited, by the very nature of the writ, to cases Avliere the jurisdiction of the inferior courts, board or officer is impeached. Hence, in no respect have we jurisdiction in the present case. In all cases of misdemeanor, the constitution has prescribed that the judgment of the county court, whether erroneous or not, shall be final except where there lias been an excess of jurisdiction, in which case only it can be reviewed. With the wisdom of this provision we have nothing to do." It will be observed from reading the entire opinion in that case that it involved questions of great importance. A certain road for the general use of the public was claimed by private parties, for whom the defendant was acting as gate-tender and collector of tolls. The legality of the toll was there involved in the action just as the legal right of the petitioner here as to diverting the waters from King's Cañón creek to Carson city is involved. The appeal in that case, just as the proceedings in this case, was avowedly taken for the purpose of determining the right of defendant to do a certain thing, and the court was there, as here, urged to pass upon the legal questions, notwithstanding it might be of opinion that it had no jurisdiction. The court, in refusing to consider the case on its merits, among other things, said, that to examine such a case upon its merits, in order to gratify the wishes of counsel, "would be to set a most pernicious example, and establish a dangerous precedent."
It is true, that in that particular case, there was another remedy whereby a decision upon the merits could be obtained, but the reasoning of the decision, nevertheless, applies to this case.
A contempt of the character alleged in this proceeding is a specific, substantive and distinct criminal offense, and under the constitution and laws of this State the judgment of conviction in such a case, if within the jurisdiction of the inferior court, is as final and conclusive as in any other criminal case for a misdemeanor. (Phillips v. Welch, supra.)
In The People ex rel. Lamby v. Dwinelle, supra, the case was brought before the supreme court of California by certiorari for the purpose of reviewing the proceedings had in the district court, where the court had rendered a judgment of conviction against the relator Lamby for contempt. The proceedings in the district court were instituted under the provisions of the statute referred to in Balchelder v. Moore. The defense that Lamby made did not satisfy the district court that his re-entry after he had been dispossessed under the action of ejectment was by legal right, and the supreme court, in discussing the questions involved, say: ' ' Whether the court ivas right or Avrong upon the merits of the issue joined upon these proceedings is not the question before us, but Avhether the court exceeded its jurisdiction is the sub ject of inquiry." The court then say that the proceedings which resulted in the judgment of conviction was authorized by the statute; that "the court had jurisdiction of the subject-matter and of the person of the relator, and even if it were admitted that the court erred upon the merits, it cannot be said the judgment for that reason was coram non judice."
So in this case the statute of this state authorized the proceedings in the district court. That court had jurisdiction of the subject-matter and of the person of petitioner. The petitioner upon a hearing failed to satisfy the court that his diversion of the water from King's Cañón creek was not in disobedience of the decree and injunction order in the suit of Phillips v. Welch, or that he did not by such diversion deprive the plaintiff Phillips of the quantity of water decreed to him in said action, and we cannot upon the writ of certiorari review the case upon its merits.
The argument as to the hardships of this case so earnestly advanced by petitioner's counsel, even if conceded to exist, cannot be considered.
As was said by the supreme court of the United States in Ex parte Kearney (7 Wheat. 45): " Where the law is clear this argument can be of no avail. Wherever power is lodged it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice "
The writ must be dismissed. It is so ordered.