62 P. 289 | Or. | 1900
after stating the facts, delivered the opinion of the court.
Our statute relating to the punishment of contempts provides that, when not committed in the immediate view and presence of the court, “ before any proceedings can be taken therein the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer : ’ ’ Hill ’ s Ann. Laws, § 653. This affidavit is essential to the jurisdiction of the court in all proceedings for constructive contempts (State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584); and it must state facts which, if established, will constitute the offense. If it is insufficient in this respect, there is nothing to set the power of the court in motion, and it is without jurisdiction to proceed : Works, Courts, 492 ; Wyatt v. People, 17 Colo. 252 (28 Pac. 961), and authorities; Batchelder v. Moore, 42 Cal. 412; McConnell v. State, 46 Ind. 298. Now, a proceeding for contempt for violating an injunction is in its nature criminal (5 Cr. Law, Mag. 171; Freeman v. City of Huron, 8 S. D. 435, 66 N. W. 928; Lester v. People, 150 Ill. 408, 41 Am. St. Rep. 375, 23 N. E. 387, 37 N. E. 1004; Wyatt v. People, 17 Colo. 252, 28 Pac. 961); and therefore the statute must be strictly pursued (4 Ene. PI. & Prac. 770). It requires that facts shall be stated in the affidavit, and, in our judgment, a statement that the affiant is informed and believes certain things to be true is obviously not a compliance with its provisions. Such an affidavit is not a statement of any positive fact, except the information and belief of the party making it. The statute requires more. It contemplates that the facts
In Ludden v. State, 31 Neb. 429 (48 N. W. 61), and Freeman v. City of Huron, 8 S. D. 435 (66 N. W. 928), it is held that an affidavit upon information .and belief is insufficient to confer jurisdiction in a proceeding for contempt. In the former of these cases, Mr. Justice Maxwell, speaking for the court, said : “It will be observed that the charge made by Mr. Easterday is ‘ that he is informed and believes that the said removal was done by the said Owen and men in his employ, and was with the permission and consent, procurement, and instance of the said Luther P. Ludden and the said W. O. Miller.’ Who informed Easterday we are not told, nor upon what grounds he based his belief. His informant may have been a ‘ busybody, ’ who meddled in the affairs of others, without knowledge or judgment, and his belief may have been based on the idle statements of those who knew nothing of the matter. A proceeding in contempt for acts not committed in the presence óf the court is instituted .by filing an information under oath stating the facts constituting the alleged contempt. * * * The charge must be direct that the party has committed the act complained of. In all matters based on the oath of a party charging another with the commission of an offense by which he may be deprived of his liberty, the charge must be specific and direct. Mere hearsay will not do.” In the latter, the holding is : “In cases of this character, the facts should be stated with certainty. Persons should not be required to answer an essentially criminal charge based merely upon the belief of a private prosecutor.
