Opinion
29894.
DECIDED MARCH 19, 1943.
Rule for contempt; from Fulton superior court — Judge Pomeroy April 16, 1942.
H. A. Allen, Morgan S. Belser, Hal Lindsay, Howard, Tiller Howard, for plaintiffs in error.
John A. Boykin, solicitor-General, James A. Branch, E. A. Stephens, contra.
1. The court has the power and authority to hold the documents, the subject-matter of the proceedings, in the protection of the law, pending such proceedings, even though jurisdiction be eventually denied.
2. It is contempt of court to remove, conceal, or destroy, for the purpose of defeating the court's jurisdiction, documents which are known to be the subject-matter of proceedings pending before the court. This is true even if the proceeding is one where the court in which it is pending eventually determines that there is a want of jurisdiction.
DECIDED MARCH 19, 1943.
On February 25, 1942, a subpoena duces tecum was served on Mrs. M. S. Vines, requiring her to produce certain books, papers, and documents, before the Fulton County grand jury on February 26, 1942. These papers, books, and documents related to the affairs of certain corporations, firms, or partnerships known as Eastern Construction Company, Co-operative Asphalt Association, Southern Improvement Association, Southeastern Construction Company, Modern Asphalt Company, and Georgia Highway Improvement Company, and were under the custody or supervision of Mrs. Vines, who was a bookkeeper and a partner of the above-mentioned concerns. On the morning of February 16, 1942, Mrs. Vines filed a motion to quash said subpoena on several grounds, and obtained an order relieving her from responding to said subpoena until a hearing could be had as to whether or not she should be required to produce the evidence under said subpoena. On February 26, five subpoenas duces tecum (one for each company) were served on Mrs. Vines, requiring her to produce before the Fulton County grand jury, on February 27, 1942, the books, documents, and records of the following firms: Eastern Construction Company, Southern Improvement Association, Southeastern Construction Company, Co-operative Asphalt Association, and Georgia Highway Improvement Company. Mrs. Vines filed motions to quash these subpoenas, prayed that she be relieved from responding thereto, and obtained rules nisi on said motions for a hearing to be had on March 2, 1942, and orders relieving her from producing said documents until a hearing could be had on the motions filed by her.
When said subpoenas duces tecum were served on Mrs. Vines, she had in her possession, custody, and control many of the books, papers, and documents called for by said subpoenas, and was in a position to produce them before the grand jury in response to said subpoenas. On February 27, while the hearing on said motions was pending and while Mrs. Vines was out of the office, Mrs. Evans, with the approval and direction of Mr. Evans, took said books, papers, and documents, and removed them beyond Mrs. Vines' reach and control. This was admitted by Mr. and Mrs. Evans at a contempt hearing against Mrs. Vines on March 26, 1942. While the contempt hearing against Mrs. Vines was being tried, a contempt citation was issued against Mr. and Mrs. Evans. Counsel for both sides agreed that the evidence in the Vines case would be used in the latter hearing. Mrs. Vines, the witness who had been served with the subpoenas duces tecum, and who had come into court seeking a ruling on some phases of said subpoenas, never raised any question as to the manner in which the subpoenas had been issued. This objection was first raised by the Evanses in their answer to the citation for contempt. The court declined to require the restoration of the documents to the custody of Mrs. Vines, and adjudged the plaintiffs in error in contempt for removing and concealing the documents after the subpoenas had been served, and while the motions to quash were pending before the court. To this judgment the plaintiffs in error excepted.
Constitutional courts have the inherent power to fine and punish contempt, and this authority is not limited by the Code, § 24-105. Bradley v. State, 111 Ga. 168 ( 36 S.E. 630, 50 L.R.A. 691, 78 Am. St. R. 157); Cobb v. State, 187 Ga. 448 ( 200 S.E. 796, 121 A.L.R. 210). And the inherent power of the courts should never be impaired or destroyed to such an extent that they can not exercise a power necessary to their proper functioning. Mrs. Vines, upon whom were served the subpoenas requiring her to appear and bring into court the certain papers desired to be used as evidence, in filing her motions to quash and obtaining the orders thereon, invoked the jurisdiction of the court concerning these documents. It was then for the court to decide whether the documents, or any of them, called for in the subpoenas, were to be produced, and what jurisdiction the court had of them; and neither Mrs. Vines nor any one else who had knowledge of the facts at this stage of the proceedings had any right to withdraw the documents from the jurisdiction of the court, and thus defeat or make nugatory the court's coming decree.
The legality of the subpoena duces tecum was not attacked by Mrs. Vines on the ground that the clerk signed them in blank, to be filled out by the solicitor-general, or some one acting for him, before they were served on her; but on the contrary she appeared and submitted to the jurisdiction of the court for it to determine matters other than the manner of issuing the subpoenas as above indicated. It would be a useless and a vain thing for the court to pass on the question whether the documents should be produced and introduced in evidence, if Mrs. Vines, or the Evanses, or any of them, could conceal or destroy the documents which would be the subject-matter of the court's decision. We think the documents were in gremio legis, which is defined in Black's Law Dictionary, 3d ed., as being "in the bosom of the law; in protection of the law; in abeyance." "The power to punish for contempts is inherent in every court of justice. It is absolutely necessary that a court should possess this power, in order that it may carry on the administration of justice and preserve order and decorum in the court. As far as we can ascertain, this power has existed since courts were first established. Judge Wilmot, in 1795, in a treatise upon the subject, said he had been unable to find where it was first exercised, but in his opinion it was as old as the courts themselves. All the courts in their decisions, and all the text-writers, lay down the same doctrine, — that this power is necessary to all courts and is inherent in them." Bradley v. State, supra. Such power is necessary for the self-preservation of the courts.
Where the evidence showed that the deputy clerk signed the subpoenas in question, and the solicitor-general or some one acting for him filled in the blanks therein, and the subpoenas when served on Mrs. Vines were directed to her and stated the case or cases in which she was required to produce the documentary evidence, leaving out of view the technical defenses stated above, the testimony clearly showed that Mr. and Mrs. Evans were guilty, and that the Evanses as well as Mrs. Vines knew the case in which the documents were wanted as evidence and were sought to be brought before the grand jury by said subpoenas. Under such a statement of facts the court is not inclined to give technical objections any more weight than they are entitled to strictissimi juries. Scott v. State, 109 Tenn. 390 ( 71 S.W. 824). Whatever weight they may be entitled to if relied on by Mrs. Vines, a witness who was being proceeded against for a failure to produce the documents, we think they should be given no weight at all when brought forward as defenses by persons being proceeded against for wilfully removing, concealing, or disposing of the documents sought to be introduced in evidence, when it appears, as in the instant case, that Mrs. Vines, the witness herself, recognized the validity of subpoenas as to the manner in which they had been issued.
The plaintiffs in error rely strongly on Dobbs v. State, 55 Ga. 272; but that case is differentiated by its facts from the instant case, for in that case the subpoena never at any time stated any case in which the witness's testimony was to be used. The subpoena called on the witness to be and appear at a named court to testify in the case of "State v. ____." The court held that this was not a subpoena for a witness to testify in any case pending in that court; and that it was not a valid process on which to predicate a rule for contempt, in that a subpoena should show in what case or proceeding it is issued. 70 C. J. 46. Whereas, in the instant case, the subpoenas when served on Mrs. Vines were directed to her, and stated the case in which the documents were sought to be brought into court and used as evidence, thus showing in what proceeding the matter was pending. In short, the subpoenas, when served on Mrs. Vines, appeared to be regular on their faces, and the evidence authorized a finding that Mrs. Vines and Mr. and Mrs. Evans all knew the court proceeding in which the documents were sought to be produced and used as evidence. Rucker v. Tabor, 126 Ga. 132 (4), 135 ( 54 S.E. 959). It was contempt of court where such proceeding was pending, as above stated, for Mr. and Mrs. Evans to wilfully and knowingly destroy, remove, or conceal the documents, the subject of the proceeding then pending in the court, which acts may render nugatory the decision of the court in the pending proceeding, even if the proceeding is one where the court eventually determines that there is a want of jurisdiction. Merrimack River Savings Bank v. Clay Center, 219 U.S. 527, 529 ( 31 Sup. Ct. 295, 55 L. ed. 320, Ann. Cas. 1912A, 513); Lamb v. Cramer, 285 U.S. 217 ( 52 Sup. Ct. 315, 76 L. ed. 715); United States v. Shipp, 203 U.S. 563 ( 27 Sup. Ct. 165, 51 L. ed. 319, 8 Ann. Cas. 265); Clay v. Waters, 178 Fed. 385 (21 Ann. Cas. 897).
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.