In re Adams, 176 N.W. 508

In re Adams

176 N.W. 508 | S.D. | 1920

POLLEY, J.

The chairman of the council of defense of Dewey county filed a written request with the circuit court of *595that comity, requesting said court to issue a subpoena for certain persons, including appellant named in said request. The subpoena was issued and served on appellant, directing him to appear before saidi council of defense at its office in Timber Lake, on December 6, 1918, at 2 o’clock p. m., then and there to answer all questions that might be propounded to him.. To this subpoena appellant paid no attention whatever. On the 27th day of December, 1918, the Chairman of said council of defense filed saidi subpoena, with the return of service thereon, in the circuit court in and for Dewey county, and made and filed in said court his affidavit, setting forth the issuance and service of said subpoena and the failure of appellant to obey the same, and requested said court to proceed against -appellant as for contempt of court for his refusal to obey the said subpoena. The circuit court thereupon issued an order, directing appellant to appear before said court at a time therein named and to show; cause, if any he had, why he should not be adjudged guilty of contempt of court for his refusal to obey- said subpoena and why he should not be punished accordingly. This order, together with said affidavit, was served on appellant on the 28th day of December, 1918. To- this order appellant paid no attention. Thereupon, on the nth day of January, 1919, the court made findings of 'fact in which it found all the facts above recited, and found further, as a conclusion of law, that appellant was guilty of contempt of court and that he should be punished for such offense. Judgment was entered, sentencing appellant to pay a fine of $50, and, in default of the payment thereof, that he be confined in the county jail for a period of 25 days, and t-h'at he be committed to the custody of the sheriff-until the sentence was complied with. -Whether appellant was arrested or not does not appear from the record, but on the 25th day of February, 1919, appellant, by his present counsel, served upon the state’s attorney for Dewey county notice of motion to set aside and vacate said -judgment. This notice was accompanied by an affidavit made by appellant, setting up certain matters, none of which are in. any wise relevant or pertinent to the subject-matter then before the court. The motion was denied, and the case is here on- appeal from- the judgment and the order denying the said motion.

*596[1] Appellant has filed in this court a paper book designated “Brief and Argument,” and also a “Reply Brief.” The so-called argument in these briefs is so replete with vituperation and abuse of the members of the Dewey County Council of Defense and the Attorney General’s office as to render a greater portion thereof scurrilous and impertinent, and afford no assistance whatever to the court. Scurrility never rises to the dignity of argument, and its insertion in a brief is an insult to the dignity of a court that no self-respecting court can overlook. The scurrilous portions of the argument in both the original brief and reply will be stricken out by order of the court.

[2] The only question involved on the appeal is, What legal excuse did appellant have for not obeying the subpoena issued 'by the circuit court?

[3] Appellant claims that the law under which this proceeding was initiated is unconstitutional, for the reason that it purports to delegate legislative power to the council of defense. This claim- is without any foundation whatever. Ihis proceed.ing was brought under section 8, c. 61, Spec. Daws 1918. This section reads as follows:

“Said council may require airy person to appear- before it, or before any ag'ent or officer of such council, for examination, and may examine any such person under oath as to any information within the knowledge of such person, and to require such person to produce for inspection any writings or documents undter his -control, and to that end the circuit court of any county in the state shall issue a subpoena upon the request of any of its agents or officers, and' all said agents and officers shall have power to administer oaths and take testimony, and and person refusing' to obey such subpoena, or to answer or produce writings or documents íequested by such council shall be punished by the circuit court of the county where such refusal occurs as for a contempt.”

This section confers no power of a legislative character upon any person or tribunal whatsoever. It confers certain powers and imposes certain specific duties upon the council of defense, and the circuit court and Its officers, but’ makes no attempt to go further.

*597[4] It is next claimed that the law is unconstitutional because it purports to authorize the council of defense to compel a party to testify against 'himself. But this contention is without foundation. There is nothing in the subpoena to indicate that appellant would be called upon to testify against himself or to incriminate himself; and, if there wtere, it would not furnish an excuse for ignoring the subpoena. The right of a witness to refuse to testify on the’ ground that the testimony would' incriminate him is a personal privilege to be exercised by the witness during his examination, but the witness had no right to assume that he is subpoenaed for the purpose of incriminating himself, and for that reason to refuse to obey the subpoena.

[5] It is further contended by appellant that the circuit court was without jurisdiction to issue the subpoena in the first instance because, as stated in his brief:

“Before the circuit court can issue a writ of subpoena in this ease there must, of necessity, be a lawful action or proceeding pending.in a court of competent jurisdiction, without which such subpoena, cannot be issued, possessing validity and commanding obedience.”

This contention is equaly unfounded. Chapter 61, Spec. Laws 1918, provides for the creation of councils of defense and defines their powers and duties. It then prescribes the necessary procedure for carrying out and enforcing obedience to the law. Upon request of the chairman of the council of defense, the circuit court is required to issue subpoenas to such persons as may be designated in such request, and failure to obey a subpoena so issued is malde to constitute contempt of court, just as a failure to obey a subpoena issued in any other matter pending in court. There is nothing in the law) that' conflicts with any provision of the Constitution, and that a circuit court, or other designated tribunal or officer, may be empowered by. the Legislature to issue subpoenas and enforce obedience thereto in other than matters regularly pending in court is fully settled in this state. In criminal investigations, any magistrate may-issue subpoenas and compel the attendance of witnesses before the commencement- of a prosecution. Section 4504, Code 1919. The state’s attorney may issue subpoenas for witnesses to appear *598before the grand jury upon an investigation before them. Section 4994, Code 1919. The state sheriff may issue subpoenas upon an investigation of a druggist’s application for a permit to sell intoxicating liquors. Section 10251, Code 1919. In investigations of unlawful business methods the Attorney General may issue subpoenas and compel the attendance of witnesses. Section 4368, Code 1919; State v. Lumber Co., 24 S. D., 136, 123 N. W. 504, 42 L. R. A. (N. S.) 804. The mere fact that subpoenas, as a rule, are issued only in regularly pending actions or proceedings does not signify that the Legislature cannot provide for their issuance in special procedings or investigations.

[6] Appellant contends that he was placed on trial without being specifically informed of the charges against 'him, and that by so doing his constitutional rights were invaded. In this contention appellant is clearly wrong. The affidavit that was served on him with the order to show cause informed! him fully and in detail of the offense with which he was charged.

As a further reason for his failure to obey the subpoena appellant stated in his affidavit that he had already purchased his full quota of Liberty Bonds. 'He was not charged with a failure to purchase Liberty Bonds. Therefore this matter was wholly irrelevant to any issue before the court.

The judgment and court order appealed from are affirmed.