
    STATE ex rel. NORTHERN PACIFIC RY. CO., Relator, v. LOUD, Judge, Respondent.
    [No. 1589.]
    [Submitted September 6, 1900.
    Decided September 10, 1900.
    
      Contempt — Punishment — Powers of Judge at Chambers — Manda/mus.
    
    1. Under the provisions of the Code of Civil Procedure, where there has been disobedience of an order made at a term of court, the judge at chambers in vacation has power to punish the same as a contempt.
    2. Where the District Judge dismissed contempt procedings, holding that he was not authorized to entertain them, mandamus to compel him to hear and determine them was the proper remedy, since an appeal from the order of dismissal would not lie.
    
      Mandamus by the state on the relation of the' Northern Pacific Railway Company, against C. H. Loud, as judge of the Seventh judicial district in and for Custer county.
    Writ granted.
    
      Mr. Wm. Wallace, Jr., for Relator.
    
      Mr. Geo. W. Farr, and Mr. Geo. R. Milburn, for Respondent.
   MR. JUSTICE WORD

delivered the opinion of the Court.

Application for writ of mandate to compel respondent to hear and determine certain proceedings for contempt growing out of an alleged violation by one James B. Kempton of a certain injunction theretofore issued against said Kempton in a certain action in said district court of said county wherein the said Kempton was defendant and Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse, as receivers of the Northern Pacific Railway, were the plaintiffs.

The facts are these: On the ,18th day of August, 1895, in an action theretofore begun in the District Court of the Seventh judicial district, Custer county, Thomas F. Oakes and others, as receivers of the Northern Pacific Railway, plaintiffs, obtained a temporary restraining order against said James B. Kempton, defendant, in said action, enjoining him from diverting the water from a certain stream known as ‘ ‘Sand Creek, ’ ’ in said county and state or from in any way preventing the said plaintiffs from using the water of said stream for the purpose of supplying Avater to the water tank of the Northern Pacific Railroad Company at the station of Terry, in said county of Custer. Thereafter, on the 31st day of March, 1899, judgment was rendered in said action in favor of said plaintiffs and against said defendant, and the temporary restraining order theretofore issued in said cause was made permanent.

On the 6th day of August, 1900, in behalf of the relator herein, affidavits Avere filed in the said District Court of said county, setting forth the facts above given, and further alleging that said James B. Kempton, defendant in said action, had theretofore violated, and then was willfully and maliciously violating, the said injunction order issued on the 18th day of August, 1895, and also the perpetual injunction granted in said cause on the 31st day of March, 1899. Upon the shoAving made, the respondent, at chambers, caused an order to issue under the seal of said court, and to be served upon said Kempton, requiring him to show cause on the 11th day of August, 1900, why he should not be punished for contempt of court for violating the degree of said court made and entered in said action on the 31st day of March, 1899. Thereafter on the 11th day of August, 1900, the said Kemp-ton appeared before respondent at chambers, and moved that the proceedings in contempt be dismissed for two reasons, the second of which is as follows: “Because the judge of said District Court in vacation had no authority in law to make sucha rule tó show cause, orto hear or determine contempt proceedings for the violation of any order or decree made by said court in term time. ’ ’

The respondent, after hearing argument on said motion, granted the same, and dismissed said proceedings in contempt, for the reason set forth in the second ground of said motion above given.

If this ruling of the respondent upon the motion to dismiss was correct, then the writ of mandate should not issue; but if, under the statute, respondent had the power, and it was his duty, to hear and determine the proceedings in contempt in vacation, then the writ should issue.

The position taken by counsel for respondent may be thus stated: A contempt committed in the immediate view and presence of the court, or judge at chambers, under the statute, may be punished summarily (Code of Civil Procedure, Section 2172); that under this section of the Code a judge at chambers would have the authority to punish as for a contempt the violation out of his presence of an order made by a judge at chambers. But respondent contends that there is no authority given by Section 2172, supra, or by any other section of the statutes, by virtue of which a judge at chambers may punish as for a contempt the violation of an order or decree made in term time.

To determine the questions presented, it becomes necessary to examine the statutes by which it is claimed the power to punish at chambers, and as for a contempt, disobedience of the judgments or orders of court is given. Section 171 of the Code of Civil Procedure, among other things, provides: “The judge of the District Court may at chambers * * * grant all orders and writs which are usually granted in the first instance upon an ex parte application, and at chambers hear and dispose of such orders and writs; and may also, at chambers, make any order, issue any process, and hear and determine any matter necessary in the exercise of his powers in matters of probate, or in any action or proceeding provided by law. If a jury is necessary the judge may open court and obtain a jury as in other cases.”

Section 2170 of the Code of Civil Procedure declares certain acts or omissions in respect to a court of justice, or proceedings therein, to be contempts of the authority of the court. Subdivision 5 of said section is as follows: “Disobedience of any lawful judgment, order, or process of the court. ’ ’

The affidavits presented to respondent, and upon which the order to show cause was based, charged that the defendant Kempton had willfully disobeyed and disregarded a valid and existing order and decree of the court. Under Section 2170, supra, this was a contempt of the authority of the court. One of the steps that may be taken in proceedings for contempt is an application for, and the granting of, an order to show cause. In the opinion of the Court, express authority to make the order to show cause and to hear and determine the proceedings for contempt in vacation is expressly given by Section 171, supra. An order to show cause is one “usually granted in the first instance upon an ex parte application;” and this section, which gives to the judge at chambers the power to make such an order, likewise gives him power at chambers to hear and dispose of the same. This Section (171) further provides that a judge at chambers “may make any order * * ant| hear and determine any matter necessary in the exercise of his powers * * * in any action or proceeding provided by law. ’ ’ Here, also, is express authority found to grant the order to show cause and to hear and determine the proceedings for contempt. Nor does this section of the Code limit the powers of a judge at chambers to the punishment, as for contempt, of the disobedience of orders made in vacation. Disobedience of an order made during a term of court may Be punished at chambers in vacation. To hold otherwise would be to overlook one of the patent purposes of this statute, and that was: to give to the judges of the district courts of this state, not continually in session, the power to enforce, in vacation, obedience to orders and decrees made in term time.

Support for this construction is to be found in the several sections of Title V of Chapter III of the Code of Civil Procedure, entitled ‘ ‘Contempts. ’ ’ An examination of this title shows that it is the court or judge, and not the court alone, who is authorized to punish in the manner and fonn prescribed by statute those acts and omissions designated therein as con-tempts of the aúthority of the court. For instance, the last section of this title (Section 2183) provides that “the judgment and orders of the court or judge,- made in cases of contempt, are final and conclusive, and there is no appeal, ’ ’ etc.; thus plainly showing that the judgments and orders contemplated by the statute are those which may emanate from a. judge at chambers as well as from the court itself. When Sections 2170 — 2183 of the Code of Civil Procedure are read in connection with Section 171, supra, we are of the opinion that the conclusions we have reached are those in keeping with the intent and spirit of the statute^

Counsel for respondent cites a number of cases in which the powers of judges at chambers are considered and defined. A leading case is that of People v. Brennan, 45 Barb. 347. The court in this case reached the following conclusions: ‘ ‘That the court cannot punish as for a contempt a disobedience of an order made by a judge out of court, unless-such order is made in an action pending in the court; and that a judge out of court has no authority to punish as for a contempt a disobedience of an order made by him in a statutory proceeding before him, unless authority so to punish is expressly conferred by law.” This case, and those of like holding, are not in conflict with the conclusions reached herein, because our statutes give to a judge at chambers the power and authority denied him by the statutes of those states wherein the cases cited by counsel for respondent were decided. It may be added that in many states, besides our own, statutes have been passed which authorize at chambers and in certain cases the exercise of the power to punish as for a contempt the disobedience of a lawful judgment or order of the court. (4 Enc. Pl. & Prac. p. 340).

Under the authority of Raleigh v. First Judicial District Court, 24 Mont. 306, 61 Pac. 991, mandamus is the proper remedy, and it follows from the conclusions we have reached that the writ should issue as prayed for, and it is so ordered.

Writ Granted.  