Petition for Writ of Certiorari — Brosten v. Park City

LIBRARY

SUPREME COURT, U. &

—~s « 91 ~

No. 64" LQIV

In the

Supreme Court of the United States:

Ocroser Term, 1975

HY BROSTEN,

vB.

CITY OF PARK CITY,

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND JUDICIAL DISTRICT

Respondent.

BELLOWS & BELLOWS

Chicago, Illinois

Of Counsel

CAROLE KAMIN BELLOWS

and

JASON ERNEST BELLOWS

One IBM Plaza, Suite 1414

Chieago, Illinois 60611

Attorneys for Petitioner

UNITED STATES LAW PRINTING

CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

INDEX

PAGE

Reference to Reports of Opinions ........2................----- 1

Statement of Jurisdiction 2.2.0.0... cesses Rrra de 1

The Questions Presented for Review ........................ 2

Constitutional Provision Involved ~........0.................. eas a

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Appendix—Opinion of the Appellate Court of

ROU, TN BNO cnhciccccdimemencoasens App. 1

In the

Supreme Cowt of the United States

Ocrosper Term, 1975

No.

HY BROSTEN,

Petitioner

vs.

CITY OF PARK CITY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

SECOND JUDICIAL DISTRICT

Reference to Reports of Opinions

The opinion of the Court rendered upon entry of the

judgment for which review is sought is reported sub nom.

Park City v. Brosten, 24 Ill.App.3d 442, 321 N.E.2d 15.

Statement of Jurisdiction

The judgment of the Appellate Court of Illinois in this

cause was entered on December 12, 1974. A timely petition

for rehearing was denied on January 8, 1975. A timely

petition to the Supreme Court of Illinois for leave to ap-

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peal was denied on March 21, i975. The statutory provi-

sion believed to confer on this court jurisdiction to review

the judgment in question by writ of certiorari is Title 28,

United States Code, Section 1257(c).

The Questions Presented for Review

Whether the petitioner has been deprived of his liberty

and property without due process of law by virtue of the

enforcement against him of an injunction commanding

him to cease his business of operating an auto salvage

yard where the trial court held him in contempt for dis-

obeying the injunction in proceedings wherein no evidence

was taken, where the trial court refused to hear evidence

of the petitioner’s good faith attempts to comply with the

licensing ordinance involved.

Constitutional Provision Involved

United States Constitution, Fourteenth Amendment:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

Statement of the Case

Petitioner Hy Brosten d/b/a Hy Way Sales owns cer-

tain real estate situated within Park City, Illinois.

On May 27, 1969, respondent, Park City filed a complaint

against Brosten in the Cireuit Court of Lake County, Ili-

nois, General Number 69 CH 107 which charged that

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Brosten was engaged in the junk yard business within tie

City of Park City without having obtained a proper 1li-

cense. (Tr. C-3)

A decree filed May 31, 1971 in the Cireuit Court of Lake

County, Illinois in the Case No. 69-CH-107 provides as

follows: (Tr. C-31)

1. That the Court has jurisdiction of the parties

hereto and subject matter hereof.

2. That the Plaintiff has proved the allegations of

its Complaint, and the equities in this cause are with

the Plaintiff.

»

3. That the Plaintiff is entitled to the issuance of

a permanent injunction against the Defendant as re-

quested in said Complaint.

4. That the parties have entered into this agreed

Order, a record of the Stipulation being made before

the Court.

5. That the Defendant operates the business sought

to be enjoined in the City of Park City, within an area

bounded on the North by Illinois State Route 120 (also

known as Belvidere Road), on the South by Eighth

Street as extended, on the East by Chestnut Street,

and on the West by the Chicago & North Western

Railway right of way, all in the City of Park City,

Illinois.

Wherefore, it is ordered, adjudged, and decreed by

the Court as follows:

1. That the Defendant, Hy Brosten, d/b/a Hy-

Way Sales, his agents, employees, and successors, and

each and every one of them be, and they are hereby

perpetually restrained and enjoined from operating

DORE NTIS LET NOLES GRE GLARE EE FE GE EES. WA ETS HOE

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a junk yard, automobile salvage, or automobile grave-

yard business on the premises herein above described.

2. That said permanent Writ of Injunction be

stayed until November 1, 1972, and that thereafter,

the Clerk of this Court shall forthwith issue a perma-

nent Injunction Writ in accordance herewith.

3. That a mandatory Writ of Injunction be issued

requiring the Defendant, Hy Brosten, d/b/a Hy-Way

Sales, to clean up the premises any wrecked, disman-

tled automobiles, batteries, tires, rubber, debris, or

parts of automobiles or vehicles before November 1,

1972, and that after said date that the Clerk of this

Court shall issue said Injunction Writ.

4. That this decree is no way intended to affect

the existing zoning on the property above described.

5. That this Court shall maintain the jurisdiction

of this cause until the terms of this decree are ful-

filled.

Thereafter Brosten filed a petition in the trial court

seeki = *o vacate the above decree. This petition claimed

a mate..c! mistake of fact on the part of Brosten which

vitiated the agreement upon which the decree was based

in that Brosten set forth that he had intended to move his

business on to an adjoining parcel of land also owned by

him but not within the city limits of Park City. However,

Brosten stated, since the agreement he had learned that

the forest preserve district of Lake County, Illinois, was

about to commence proceedings to condemn that property.

Park City moved to strike the petition to vacate and the

trial court ordered it stricken. An appeal from that order

was taken and the Appellate Court of Illinois, Second Dis-

trict, affirmed. 6 Ill.App.3d 474, 285 N.E.2d 528. (Opinion

published in abstract only.)

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On January 30, 1973 an order was entered commanding

that the Writ of Injunction be issued pursuant to the De-

cree of May 31, 1971. (Tr. C-36) On March 8, 1973, the

City of Park City presented a petition stating that Brosten

had failed to comply with said Writ and requested that

the Court enter a rule to show cause why he should not be

held in contempt for failure to comply with the Injunction ‘

Writ entered on January 30, 1973. (Tr. C-35) .

On March 8, 1973, an order was entered for a rule on

appellant to show cause why he should not be held in con-

tempt of the Court, said rule being made returnable on

March 29, 1973. (Tr. C-40)

TE IEE Ne Re pe eon wD ometgmnee

It is therefore ordered that said respondent Hy

Brosten be and he is hereby committed to the custody

% of the Sheriff of Lake County, Illinois to be confined

4 to the County Jail until he purges himself of said

‘ contempt of this Court and its order of May 13, 1971.

: On April 2, 1973, an order was entered by Hon. Fred

" A. Geiger which recited as follows: (Tr. C-44)

i On a rule to show cause on the respondent Hy

s Brosten, and the same having been made returnable

q on the 29th day of March, 1973 and the same being

‘ continued to this day, and the respondent appearing

: in person and with his attorney Richard Drew and

J said respondent Hy Brosten failing to show cause why

a he should not be held in contempt, and the Court find-

2 ing that said Hy Brosten is in contempt of the Order

a of this Court and the injunction writ issued thereon.

. It is further ordered that the writ be stayed until

% April 23, 1973 and this cause be continued until April

‘ 24, 1973 at 9:15 a.m. at which time said respondent

shall submit to this court and plaintiff counsel a plan

by which respondent can comply with the May 13,

1971 order of this court subject to court approval.

6

Nowhere in the record does it appear that appellant had

been giver an opportunity for a hearmg er for nresenta-

tion of any evidence.

On April 24, 1973, appellant filed an Answer to Rule

to Show Cause which contained an allegation that he was

seeking to operate an auto recycling business and that he

proposed to erect a 2,000 square foot building on the prop-

erty in question to house the parts from re-cycled automo-

biles.

Brosten further alleged that he was appearing before

the City Council on April 19, 1973 to request a building

permit for the initial structure and that he would be able

to remove all existing cars within one year after comple-

tion of said building. The petition alleged that after the

building is built all future purchases could be dismantled

within one week in shielded areas and the scrap frames

left behind would be removed within ten days after enter-

ing the said premises.

The answer further alleged that if the building permit

is not issued pursuant to the plans drawn appellant will

file suit for mandamus for the issuance of a building per-

mit pursuant to the Court approved site plan.

Brosten then prayed:

A. That the Court study the proposed plan.

B. That the Court inspect the premises.

C. That the Court stay all proceedings until the de-

fendant’s proposed plan is implemented and that

the Court direct that a building permit be issued

to the Defendant.

D. That the Court adopt a site plan within a reason-

able time to satisfy the provisions of this Court’s

Decree. (Tr. C46-C48)

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An order entered by the Hon. Fred H. Geiger on the

same day the Answer to the Rule was filed allowed respon-

dent until May 30, 1973, to do the following:

1. Respondent Hy Brosten et al shall cause the

removal of at least 100 tons of wrecked, dismantled

automobiles, batteries, tires, rubber, debris or parts

automobiles or vehicles per week and submit a_re-

port or evidence of same on said May 30, 1973 afore-

said.

2. Respondent shall not permit any wrecked, dis-

mantled automobiles or other material as aforesaid

to be brought on the premises described in the Deeree

of May 138, 1971. (Tr. C-50)

Again, no opportunity for appellant to have a hearing

was allowed.

On June 13, 1973, the following order was entered:

All parties in open Court in person and by their

respective attorneys—Defendant Hy Brosten has sub-

mitted te the Court an Agreement purging himself

from contempt—Order of Commitment is vacated and

set aside—Order finding Defendant in contempt or-

dered to stand in full force and effect until 120 work-

ing days from this date—Court and attorneys will view

premises in question on October 10, 1973. Cause is

hereby continued until October 10, 1973, at 9:15 a.m.,

in C-304 before Judge Geiger—Defendant released

from custody. (Tr. C-52)

On July 12, 1973, appellee filed a petition requesting

that Hy Brosten be committed to the custody of the Sheriff

of Lake County jor wilfully violating his proposal with

Diamond Serap Yards which was used to purge himself

of the contempt order entered on April 2, 1973. (Tr. C-54)

On August 2, 1973, appellant was ordered to submit

through his attorney a weekly report of the amount of ton-

nage or wrecked, dismantled automobiles or other material

removed from his premises and that appellant prepare

the premises to facilitate the Court preparing guidelines

to delineate the area to be cleared by Diamond Scrap

Yards. (Tr. C-62)

On September 10, 1973, an order was entered that all

wrecked and dismantled automobiles be removed by Octo-

ber 10, 1973, and that the attorneys for the parties meet

at the site in question on October 10, 1973. (Tr. C-65)

On October 10, 1978, the Hon. Fred H. Geiger entered

an order reciting that he had viewed the premises on May

31, 1973, and October 10, 1973, and finds as follows:

1. That the Mandatory Writ of Injunction issued

pursuant to Decree aforesaid had not been complied

with.

2. That the Defendant has had adequate notice and

sufficient time and opportunity to comply with said

Mandatory Writ of Injunction issued pursuant to said

Decree and said Defendant has not given any excuse

to support his failure to comply with said Writ and

Decree.

3. That the premises described in said Deeree and

Writ, aforesaid contains substantial amounts of

wrecked, dismantled automobiles, batteries, tires, rub-

ber, debris or parts of automobiles or vehicles.

4. That said Defendant has willfully and contemp-

tuously failed to comply with the Decree of May 18,

1971, and the Orders of this Court.

5. That said conduct of the Defendant tends to

embarrass or obstruct the Deeree and Orders of this

Court in the administration of justice, and tends to

bring the administration of justice into disrespect.

6. That failure of the Defendant to comply with

said Decree and Mandatory Writ of Injunction issued

thereon is a direct contempt of this Court.

It is therefore ordered that the Defendant, Hy

Brosten be and he is hereby sentenced to the County

Jail, Lake County, Illinois for three (3) months or

such lesser period when said Defendant, Hy Brosten,

might purge himself by complying with the Writ here-

tofore issued on January 30, 1973.

It is further ordered on motion of William Holm-

quist, attorney for the Defendant, Hy Brosten, that

said mittimus be stayed until 9:30 a.m. daylight sav-

ings time, Monday, October 15, 1973. (Tr. C67-C68)

On October 15, 1973, a notice of appeal was filed along

with a motion to stay the imprisonment of the defendant

and admit him to bail pending said appeal. (Tr. C-70)

The question presented was presented to the court be-

low in terms of criminal contempt. The Appellate Court

of Illinois evaded the issue by holding that the petitioner

was held in civil contempt. We submit that regardless of

what the proceedings are called the petitioner is threat-

ened with imminent imprisonment or loss of valuable

property right and that due process was not afforded to

him in any of the proceedings in the trial court.

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Reasons for Granting Writ

The proceedings under which the petitioner here was

adjudged guilty of contempt and sentenced to a term of

imprisonment, completely violated all of the safeguards

contained in the first eight amendments of the Constitu-

tion of the United States and made applicable to the States

through the due process clause of the XIVth Amendment.

This case presents the important question of the appli-

cation of the rights contained in the Bill of Rights in civil

contempt proceedings.

Originally the plaintiff in the case filed a petition for a

rule to show cause on March 8, 1973. As a result of that

petition an order was entered stating: ‘‘that a rule be and

is hereby entered on the defendant Hy Brosten d/b/a Hy-

Way Sales to show cause why he should not be held in

contempt of this court for his failure to comply with the

writ of injunction heretofore issued and served on said

defendant in this cause.’’

On April 2, 1973, an order was entered which stated

that the petitioner here ‘‘failing to show cause why he

should not be held in contempt, and the court finding that

said Hy Brosten is in contempt of the order of this court’’

ordered him confined to the county jail until he purges

himself of that contempt of court. A further part of that

order stayed the execution of ‘*the writ’? until April 23,

1973, and required petitioner to submit a plan by which he

could comply with the original injunction. (C 44)

There was no report of proceedings on this date and

the next proceeding took place on April 24, 1973, at which

time the petitioner appeared with an attorney and filed an

—— ee >

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answer to the rule to show cause. At which time the fol-

lowing colloquy took place between counsel for the plain-

tiff and the court:

Mr. Snarski: I have examined the answer, your

honor, and I’d like to just make this as a preliminary

statement. I think rather than calling it an answer,

it should be entitled to ‘‘Plan’’ because we’re past the

stage of a rule to show cause now.

The Court: That is right. He has been held in

contempt and all I need is for the sheriff to take him

to jail now. (Tr. 3)

The proceedings of April 24, 1973, resulted in the court

granting petitioner time to comply with the original in-

junction order which required the removal of junk auto-

mobles from his automobiles salvage lot. (Tr. 17)

The next reported proceedings were on May 30, 1973,

at which time petitioner appeared without counsel and

brought along a man by the name of Coleman who gave

some testimony as to the results of his attempts to remove

the junk automobiles. (Tr. 19-35)

On June 12, petitioner appeared with another attorney

and attempted to introduce the testimony of Bernard

George Murphy (Tr. 39, et seq.) who testified that he was

the mayor of Park City, the plaintiff. Petitioner attempted

to prove by the witness that he tried to obtain the license

that was the cause of the litigation in the first place and

that the City Council of Park City refused to issue the

license as long as the case was in litigation.

Here we see petitioner being faced with the ‘*Cateh 22”

situation. He was under an injunction forcing him out of

business until he could comply with the licensing laws of

the City of Park City. The court was insisting upon put-

ting him out of business regardless of whether he was at-

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tempting to obtain the license required. Ultimately, under

this situation, if he completely went out of business and

cleaned the junk automobiles off of his lot, the City Coun-

cil of the City of Park City would have entertained his

application for a license, which by time would have been

rendered useless by the Court’s unreasoning efforts to

vindieate its authority.

The proceedings here show that the trial court was not

trying to do justice. It was trying to enforce a decree

without giving any consideration to any of the underlying

causes for the issuance of the decree and at this point

the plaintiff was taking a position that was also ill suited

to the purposes of the original litigation.

After refusing to hear Mayor Murphy the Court then

ordered the appellant to make further efforts to clean up

the automobiles on his lot and continued the case again.

The next time the case was in Court was June 13, 1973.

On June 13, the appellant presented a plan whereby a

scrap company in Waukegan would cause the removal of

the scrap metal from his yard aad after having reviewed

the plan the Court stated (Tr. 71):

Let the record show that the agreement which was

one of the methods the court had said was a means of

purging himself from contempt at this time has been

submitted to the court by the defendant Hy Brosten.

That the commitment for the contempt is vacated and

certified at this time; however, the order finding him

in contempt is still in full force and effect and is con-

tinued and at the end of 120 days from this date, as

the court stated, it will make an examination of both

counsel. * * * And the court will then be satisfied

whether or not a fair and honest effort has been made

to abide by the terms of the order and with the as-

surances that Mr. Rubinson has made. I’m quite sure

13

there will be a very, very obvious reduction in the

amount of junk or junked automobiles or whatever in

the area. 120 days from today.

On August 2, 1973, a petition was presented to the court

by the plaintiff alleging that the appellant had refused to

comply with the agreement to have the Diamond Scrap

Yard, Ine. remove the junk automobiles from his premises.

Petitioner filed an answer to the petition and certain pro-

ceedings were had at which time it was explained to the

court that there was a disagreement between the appellant

and the Diamond Scrap Yards as to which automobiles

were to be removed first.

The reason for the disagreement was, simply put, that

Diamond desired to remove some of the more accessible

automobiles which were extremely valuable to the appel-

lant not as scrap but as salvage. The appellant desired

Diamond to start removing scrap from an area that con-

tained parts of wrecked automobiles from which all of the

salvagable items had been removed.

During the colloquy it was stated that the appellant had

indeed caused to be moved over 129,000 pounds of serap

material. Apparently this did not satisfy the court even

though no evidence was produced as to what would have

been a reasonable amount.

Finally, on October 10, 1973, the Court without having

heard any evidence, but having made personal inspection

of the appellant’s yard, sentenced him to 90 days in the

county jail of Lake County ‘‘for your contemptuous acts

and attitude.”

The following colloguy was then had between the court

and the appellant:

The Court: * * * you are remanded to the custody

of the sheriff of Lake County to be held until such

time as your sentence has been served or if you can

14

purge yourself of the contempt prior to the expira-

tion of the three months you will be released on the

date that you purge yourself.

Mr. Brosten: May I ask you how I can purge my-

self, sir?

The Court: By removing the materials in compli-

ance with the order.

Mr. Brosten: Sir, we moved over 430 tons. I think

we’ve done real well. Sir, its easy to say remove that.

I can say that in three words. But it takes a lot of

work.

The Court: Mr. Brosten—

Mr. Brosten: Sir, I have not done anything illegal.

May I say something here, sir?

It is apparent that the court refused to take into con-

sideration any of the efforts made by the petitioner to try

to comply with the injunction. It is further apparent that

the appellant was operating in a sort of judicial never

never land where le was not told what he would have to do

to comply with the order, inasmuch as the only person who

seemed to know what the court thought proper was the

court itself.

Thus we return to the basie propositions that we started

with at the beginning of this point. The petitioner has

been imprisoned for contempt without knowing the nature

of the charges. He was never adequately informed what

the court desired in the way of action to comply with the

injunction, there was never any opportunity afforded him

to confront the witnesses against him for indeed there

were none, and the court did not have any evidence be-

fore it upon which it could make a ruling. In short the

proceedings in which the appellant was convicted take on

the aspect of Alice in Wonderland and a Franz Kafka

novel.

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Conclusion

For the above and foregoing reasons a writ of certiorari

ought to issue to review the judgment below.

Respectfully submitted,

Jason E. BeLLows

CaroLte K. BELLows

Attorneys for Petitioner

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APPENDIX

APPENDIX

Mr. Presipinc Justice Tuomas J. Moran delivered the

opinion of the court:

Defendant was jield in contempt of court and sentenced

to a term of 3 months ‘‘or such lesser period when said

defendant * * * might purge himself by complying with

the Writ (mandatory injunction) heretofore issued.’’ On

appeal, defendant claims: (1) that he was found guilty

of criminal contempt; (2) that he was denied due process ;

and (3) that the trial court was without jurisdiction to

enter the injunction upon which the contempt order is

founded.

On May 27, 1969, the plaintiff filed its complaint alleg-

ing that the defendant was violating its junk yard ordi-

nance. During trial, on May 13, 1971, a decree was entered

in which the court found it had jurisdiction both of the

parties and the subject matter and that the parties had

entered into an agreed order. The court entered a perma-

nent injunction against the defendant ordering him to

cease operating a junk yard and to ‘‘clean up the prem-

ises’’ before November 1, 1972. A few days later, the de-

fendant petitioned the court to rescind its decree. The

court denied the petition. This Court stayed the injune-

tion pending appeal and later affirmed the decree (6 TI.

App. 3d 474, app. den. 52 Ill. 2d 597). Upon remand, the

trial court entered an order on January 30, 1973, directing

the issuance of the writ of injunction pursuant to the May,

1971 order.

A review of the record reveals that on April 2, 1973,

after a hearing on plaintiff's rule to show cause, defen-

dant was found in contempt of court. He was sentenced

App. 2

to jail until he purged himself of said contempt but the

order was stayed to allow defendant time to submit to the

court a plan by which he could comply with the injunction.

On April 24, defendant submitted a plan which amounted

to a continuation of his operation under a different ar-

rangement. The proposed plan did not comply with the

court's order for removal of junk. At this hearing there

was entered an agreed order continuing the cause until

May 30, at which time defendant was to submit a report

showing a weekly removal of 100 tons of scrap and, addi-

tionally, show that no new scrap was being allowed into

the yard. On May 30 it was determined that 120 tons, not

000 tons, of scrap had been removed. Defendant claimed

that he was unable to remove the required amount because

his property was under water; he invited the trial judge

to inspect the premises. Court and counsel visited the

premises on the following day. At the next hearing, June

12, the court reported on its visit, finding that while the

south end of the property was under water, the north end,

which contained several hundred dismantled cars, was not

and that those cars could have been removed. Thereupon

the court committed defendant to jail until he purged him-

self of contempt. The next day, defendant appeared be-

fore the court and stated that he had entered a contract

with Diamond Scrap Yards for removal of the scrap. After

hearing Diamond’s representative testify that removal

would take 120 days, the court vacated the commitment

order and continued the case for 120 days. On August 2,

defendant appeared and advised the court that because of

a disagreement, Diamond was no longer removing the

scrap. At this hearing, Diamond’s representative testified

that defendant was hauling in new junk. The court then

ordered weekly reports and continued the matter until

September 4. At the next hearing, September 10, the

court, unsatisfied with defendant’s progress, ordered re-

App. 3

moval of all junk (as required under the injunction of May

13, 1971) by October 10, 1973, and further ordered that it

would meet defendant and the attorneys at the premises

on that morning. On October 10, after the judge and the

attorneys visited the premises, the judge found that the

north end of the property looked ‘‘just as loaded with

automobiles’’ as it was four months previous. At this

hearing, defendant called the attorney for the Lake County

Forest Preserve who testified that a condemnation suit was

filed against a portion of defendant’s property located in

the City of Waukegan and adjacent to the premises in

question and that the District might work out an arrange-

ment by which defendant could temporarily store the junk

from the Park City property on the Waukegan parcel. He

further testified, however, that defendant ‘‘has not ceased

bringing in new junked cars to the yard, and until such

time as he does that we don’t see how he’s ever going to

get to the point where he can remove the ones he’s got.’’

It was at the conclusion of this hearing that the order

appealed was entered.

Defendant contends that he was held in criminal con-

tempt of court in violation of due process requirements

accorded a criminal proceeding. Specifically, he maintains

that he was denied the right to know the nature of the

charge against him, the right to a hearing, the right to

confront witnesses, the right to present evidence in his

own behalf, and possibly the right to have his case heard

by a jury.

Clearly, defendant was held in civil, not criminal con-

tempt of court. The Illinois Supreme Court distinguished

the two as follows:

‘*Criminal contempt is conduct which is directed

against the dignity and authority of the court or a

ee

App. 4

judge acting judicially, while civil contempt ordinarily

consists of failing to do something ordered to be done

by a court in a civil action for the benefit of the op-

posing litigant therein.’’ People ex rel. Kazubowski

v. Ray, 48 Ill. 2d 413, 416 (1971).

In Board of Jr. College v. Cook County T. Union, 126 Tl.

App. 2d 418, 427-28 (1970), the court stated:

sees * (A) useful test by which a civil contempt can

be distinguished from a criminal one is the punish-

ment imposed. When punishment is purely punitive:

imprisonment for a definite term, * * * the contempt

is said to be criminal. When punishment is a remedial

or coercive measure: commitment of a contumacious

party until he complies with the mandate of the court,

* * * the contempt is said to be civil.’’

Here, the court found defendant in contempt, not to

punish him but to make him comply with the order of the

court. The court's intent to coerce, rather than punish,

the defendant is manifested by the many opportunities al-

lowed defendant to comply with the order and also by the

fact that on a prior occasion defendant was released from

jail upon presenting before the court a contract for re-

moval of junk frem his property in compliance with the

court’s order. Throughout these proceedings the trial

court displayed remarkable patience and extended con-

siderable effort on behalf of defendant.

The trial court imposed a term of three months or such

lesser period of time as it may take the defendant to purge

himself of contempt. Once again, defendant can avoid a

jail term by merely complying with the order. The sen-

tence imposed is, therefore, clearly coercive, not punitive.

Defendant claims that he was denied the right to know

the nature of the charge against him, that he was not af-

forded a hearing, that he was not allowed to confront wit-

nesses or to present evidence in his own behalf. This

App. 5

argument in its entirety appears to be based on the defen-

dant’s dissatisfaction with the trial court for not allow-

ing him to re-litigate the issues underlying the order of

May 13, 1971, which enjoined him from operating a junk

yard on the subject premises. Those issues were decided

against the defendant, affirmed by this court and are res

judicata.

The issue at bar is whether the defendant was in con-

tempt of court for failing to comply with the order entered

on May 13, 1971. That defendant did not know the nature

of the charge against him is beyond comprehension; he was

in court, told to clear his property and informed that the

consequence for failing to comply with this order would be

a jail term. Defendant presented proposals to the court

as to how he intended to comply with the order. The

charge was clear. Defendant had the option of complying

or being held in contempt. He chose the latter. Similarly,

there is no merit to defendant’s contention that he was not

afforded a hearing. He was given at least six hearings.

Defendant was allowed to confront witnesses and pre-

sent evidence in his own behalf. In point of fact, however,

several of his own witnesses testified that defendant was

not complying with the court order in that he was con-

tinuing to bring additional scrap into the yard. Defen-

dant objects, on appeal, to the trial judge’s personal in-

spections of the junk yard but because such inspection was

initially made at defendant’s request, this issue, too, is

without merit.

Defendant further argues that the court was without

jurisdiction to enter the original injunction against him.

This contention is nothing more than a circuitous and

futile attempt to relitigate the original case. As we have

App. 6

indicated, that issue was resolved by this court on a prior

appeal.

Shortly after entry of the order appealed, defendant ob-

tained a stay order from this court, which order, in part,

set forth the following conditions;

“IT IS HEREBY ORDERED:

* * *

2. That pending the appeal of said Order, the De-

fendant be and he is hereby released on bail upon his

own recognizance in the sum of $1,000.00.

Q

3. That pending appeal the said Defendant is en-

joined from moving wrecked or dismantled [sic |

automobiles, batteries, tires, rubber debris or parts of

automobiles or vehicles onto the property owned by the

Defendant in Park City, Illinois, the subject matter of

this litigation.

4. That said Defendant continue removal of the

wrecked, dismantled {sie} automobiles and all other

debris on said property on the same seale or better

than he has done in the past three (3) months and

furnish weekly reports of the tonnage removed to

Attorney Eugene Snarski, 83 North County Street,

Waukegan, Illinois, 60085, Attorney for Park City,

Dine, * * ***

During the pendency of the appeal, plaintiff filed a petition

containing allegations to the effect that, subsequent to the

entry of the above order, defendant has received additional

junk onto his property and has failed to furnish weekly re-

ports of removal of serap ‘‘since February 1973 [sic]’’.

The petition requests this Court or, in the alternative, the

trial court to conduct a hearing to determine the appropri-

ate relief and to vacate the stay order. In response, defen-

dant filed a motion to dismiss the petition on the grounds

App. 7

that laches has attached and, additionally, that this court

lacks jurisdiction to direct the trial court to hold hearings

on the petition. We have considered defendant’s motion

to dismiss and find it to be without merit. Our stay of

proceedings was granted ‘until further order of this

Court.’? This opinion finds against the defendant on the

issues, therefore, plaintiff’s motion to vacate the stay

order, entered October 17, 1973, is allowed.

The remainder of plaintiff’s petition presents a novel

issue from a procedural aspect. The substantive law is

clear. ‘All courts are vested with an inherent power to

punish for contempt as an essential incident to the mainte-

nance of their authority and the proper administration and

execution of their judicial powers.’’ (People v. Javaras, 51

Tll.2d 296, 299 (1972). Also see this court’s opinion in

Stevens vy. County of Lake, Gen, No, 74-232, — Tll. App.

3d —— (1974).) Unclear is the method to be used to ob-

tain evidence from which a determination of the issue may

he made. This court, like most reviewing courts, is not

physically equipped to receive and record evidence on the

matters here presented. While this may create a certain

frustration, it does not mean that we are necessarily es-

topped from invoking our power to punish for contempt.

Contrary to defendant’s claim, we are of the opinion that

Supreme Court Rule 366(a)(5) (Ill. Rev. Stat. 1973, ch.

110.4, $866(a)(5),) empowers this court to remand plain-

tiff’s petition to the trial court for an evidentiary hearing.

See also Tn re Koome, 82 Wash.2d 816, 514 P.2d 520 (1973).

It is therefore ordered that:

1. The motion to dismiss plaintiff’s petition is denied;

2. The notion to vacate defendant’s stay order is al-

lowed ;

App. 8

3. The order appealed is affirmed and that portion of

the decision is final.

4. <A rule is hereby entered upon the defendant, Hy

Brosten, d/b/a, Hy-way Sales, to show cause, if

any he has, why he should not be held in civil con-

tempt of this Court for failure to comply with its

order of October 17, 1973. Said rule is returnable

on December 27, 1974, at 9:30 a.m., before the Hon-

orable Fred H. Geiger, or any other cireuit judge of

the Nineteenth Judicial Cireuit, for the taking of

evidence upon matters contained in plaintiff’s peti-

tion (which is hereby transferred to said court) and

responsive pleadings, if any.

5. Upon completion of such hearing, the pleadings and

all evidence introduced shall be promptly transcribed

and certified by the sitting judge and submitted to

this Court for further proceedings for which pur-

poses this Court retains jurisdiction.

6. <A copy of this order shall be served upon the parties

by certified mail and plaintiff’s petition is continued

pending execution of paragraphs 4 and 5 of this

order.

Gui_p, RecHENMACHER, J.J.—Coneur