State v. Conn, 62 P. 289

State v. Conn

62 P. 289

Or.

1900

Check Treatment

Mr. Chiee Justice Bean,

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 *599constituting the contempt shall be stated in a positive manner by some one conversant therewith. Indeed, a proper regard for the liberty of the citizen forbids any proceeding by which he may be deprived of his liberty without the information furnished by such an affidavit, and so the courts hold.

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. *600Because the affidavit did not confer jurisdiction upon the court below, its judgment is reversed.” It is true that in State v. McKinnon, 8 Or. 487, an affidavit upon information and belief is said to be sufficient, but it would seem that the objection here made was not urged or considered. But however that may be, the judgment was reversed for want of jurisdiction in the lower court, and therefore an opinion upon any other question was not called for, and must be, regarded as mere dictum. The judgment of the court below is reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.