127 N.W. 72 | N.D. | 1910
Lead Opinion
This is an appeal from a judgment of the district court of Stark county adjudging appellant guilty of contempt of court in violating an injunctional order duly and regularly issued and served upon appellant in an action commenced in that court on June 1, 1909, for the purpose of enjoining defendant and others from maintaining a liquor nuisance upon certain premises in the city of Dickinson. By such judgment appellant was sentenced to imprisonment in the county jail for the period of five months and fined in the sum of $500, and costs taxed at $150. In default of payment of such fine and costs, he was adjudged to be confined in such jail for the additional period of not
“You are hereby requested to act as district judge and take full charge of the above-entitled action, including all' matters and contempt proceedings therein which are now in issue or which may hereafter be brought before you by any person, authority, or officer lawfully entitled to do so, or otherwise as law and justice may require.
“Dated July 20, 1909.
“By the Court,
“W. C. Crawford, Judge.”
Thereafter and on July 22d the following affidavits, omitting formal parts, were presented to Judge Burr, at Rugby:
“R. C. Heffron, being first duly sworn, does upon oath depose and say that he is assistant attorney general of state of North Dakota; that on the 1st day of June, 1909, as such officer, in the name of the State of North Dakota, ex reh, R. C- Heffron, Assistant Attorney General for the State of North Dakota, as plaintiff, he brought an action against William Heiser, Daniel Heidt, and Mary Willard, of Stark county, North Dakota, praying that the court grant judgment that the intoxicating liquor business carried on by the defendants be adjudged a common nuisance, and that the same be abated in due form of law, and that the defendants, their clerks, servants, agents, and employees, be permanently enjoined from in any manner, personally or otherwise, on the following described premises, within the county of Stark and state of North Dakota, to wit, lot 1 in block 2, town of South Dickinson, and in the buildings thereon, known as Heiser & Heidt saloon, selling or otherwise unlawfully disposing of intoxicating liquors, or being in any manner illegally concerned, engaged, or employed in keeping said liquors for sale, or keeping and maintaining a place where persons can resort for the purpose of drinking intoxicating liquors as a beverage; and that on the 9th day of June, 1909, the Honorable W. C. Crawford, Judge of the Tenth Judicial District
“The affiant is informed and believes said William Heiser and Daniel Heidt have disregarded said in junctional order and disobeyed the mandate of the court herein, in this, to wit:
“That on the 3d day of July, 1909, on the premises aforesaid, they sold beer to one J. C. Lemarr, to be drank upon the premises where sold, and between June 9, 1909, and July 19, 1909, kept a place at and upon the premises aforesaid for persons to resort for the purpose of drinking intoxicating liquors as a beverage, affidavits as to such violating being hereunto attached, marked Exhibit A and made a part hereof; and have sold intoxicating liquors to divers persons on said premises since June 9, 1909; that said injunctional order so made, as aforesaid, has not been dissolved or modified.
“The said action of the said Daniel Heidt and William Heiser has a tendency to embarrass, hinder, and obstruct this court in the discharge of its duties, and to bring the authority of the same into contempt.
“Affiant therefore asks this court, or the judge thereof, to issue an attachment to the sheriff of said Stark county, North Dakota, commanding him to forthwith arrest the said William Heiser and Daniel Heidt, and bring them before this court at such time and place as he may direct.”
Duly subscribed and sworn to.
Duly subscribed and sworn to.
Upon the affidavits aforesaid Judge Burr issued an attachment commanding the sheriff of Stark county to forthwith arrest the defendants as prayed for. Pursuant thereto the defendants, William Heiser and Daniel Heidt, were arrested and taken before Judge Burr at the city of Dickinson on August 3, 1909. Thereupon the defendants moved to quash such attachment proceedings on the following grounds:
First. That the affidavits upon which the said warrant of attachment was issued are fatally defective in this, that they fail to make out a prima facie ease for the state as required by law.
Second. That part of the material and necessary allegations in the affidavit of F. C. Heffron, the same being the part wherein the said defendants and each of them are charged with violation of the injunctional order, is made upon information and belief, and is not corroborated by the affidavit of J. C. Lemarr or otherwise; that said affidavit fails to state that the defendants have personally violated the injunction or knowingly permitted its violation by others.
Such motion was overruled, to which defendants excepted. Thereupon they answered admitting the pendency of the main action and the
All of the objections to the regularity and validity of the contempt proceedings, as stated in the answer, were overruled, and defendants ‘excepted. Defendant Heiser was acquitted of the contempt charged. Defendant Heidt orally plead not guilty. The court heard testimony over the objection of defendant Heidt, and at the conclusion thereof found him guilty of violating the in junctional order, as charged, and on August J, 1909, entered the judgment appealed from.
Appellant assigns error as follows:
“1. The Honorable A. Gr. Burr had no jurisdiction to issue the warrant of attachment herein or to try or hear or determine this contempt proceeding, this proceeding not being pending when Judge Burr was requested to act.
“2. That the affidavits upon which the warrant of - attachment is issued do not make out a prima facie case for the state.
“3. F. C. Heffron, claiming to act herein as assistant attorney general, had no authority to institute or prosecute this proceeding.
“4 The oral judgment and sentence of the court is void for uncertainty, it fixing no time when the imprisonment is to commence; and the written judgment and sentence of the court is void because it is inconsistent with the oral judgment and sentence of the court.
“5. That part of the judgment requiring appellant to pay the cost of this proceeding in addition to the fine imposed is void, there being no provision for costs against the contemner in a criminal contempt in this state.”
These assignments will be noticed in the order presented.
1. As. to the jurisdiction of Judge Burr to issue the warrant of
The essence of the contempt consists in the violation of the mandate of the judgment in the main action. We cannot assent to appellant’s contention that Judge Burr, by force of the above-written request of Judge Crawford, acquired no jurisdiction to hear and determine the contempt proceeding. Conceding for the purpose of argument that such proceedings were not pending at the date of such request, we think the necessary legal effect of the. transfer to Judge Barr of jurisdiction over the main action was to confer upon him power and jurisdiction over contempts theretofore or thereafter committed arising out of violations of the mandate of the court in such main action. It is conceded that the scope of the request is sufficiently broad to thus operate but it is argued that, until the contempt proceedings were instituted and pending, there existed no legal authority to transfer the same to another judge. Our attention is directed to the case of Kirk v. Milwaukee Dust Collector Mfg. Co. 26 Fed. 501, being a decision of the circuit court, eastern district of Wisconsin, but we do not deem said case at all in point. That was a case involving a removal from a state to a Federal court, an entirely different proposition, and it was very properly held that by the removal of the main action from the state court the Federal court acquired no jurisdiction to hear and determine “a pending and unadjudicated contempt proceeding.” Very satisfactory reasons are given by the court for such holding, but we find nothing therein contained which tends in any degree to support appellant’s contention in the case at bar. There the contempt proceedings were pending at the time of the removal of the main action to the Federal jurisdiction. Here the exact reverse is claimed to be
We think counsel’s construction of this section altogether too narrow. By the use of the words, “in which such action or proceeding is at the time pending,” it was not the legislative intent to restrict the jurisdiction of the judge thus requested to act in a district other than the one in. which he is elected, to causes only which were then pending. Such words were there employed merely to designate what judge could legally make such request, and they have no reference to any particular subject-matter over which such requested judge may take jurisdiction.
2. It is appellant’s second contention that tho affidavits upon which the attachment was issued do not present a prima facie case for the state. Such contention is based solely on the assumption, which we think unwarranted, that the averment in the affidavit of the assistant attorney general, to the effect that the in junctional order had not been dissolved or modified at the date such affidavit was made, was not positive, but merely on information and belief, the affidavit of Lemarr being silent upon this point. Assuming for the sake of argument the necessity for an averment that the in junctional order has not been dissolved or modified, we are entirely clear that the affidavit, on this point, is positive, and not merely on information and belief. By the ■clear language of the affidavit the only matters .stated on information
3. Tinder his third assignment appellant challenges the authority of E. C. Heffron to prosecute these proceedings. The line of argument seems to be that the attorney general is without legal authority to appoint an assistant for the purpose of instituting and prosecuting injunctional proceedings and proceedings to punish as for contempt, violations of injunctional orders, restraining and enjoining the maintenance of liquor nuisance, under the so-called prohibition statute. Such contention is devoid of merit. The attorney general is a constitutional officer. He is the law officer of the state and the head of its legal department. His duties are prescribed by the legislature. When the nature and objects of his office are considered there can be no doubt of the - constitutional power of the legislature to impose on him the duties enumerated in § 9372, Hev. Codes, 1905, relative to the enforcement of the prohibition law under the restrictions and limitations therein mentioned. Having such power it necessarily follows that like duties may be imposed upon his assistants, if, in its wisdom, the legislature deems it expedient so to do. Such legislative power was expressly recognized by this court, both in the majority and minority opinions in the recent case of State ex rel. Miller v. District
That Mr. Heffron was the duly appointed and authorized assistant attorney general throughout these proceedings is positively sworn to by him, and furthermore such fact will be presumed in the absence of proof to the contrary, and none exists.
4. The remaining assignments challenge the validity of the judgment upon two grounds, neither of which we deem tenable, or deserving of extended consideration. It is said that the judgment is void because it designates the time when the imprisonment should commence as “at noon to-day,” and in this respect it does not conform with the sentence of the court as orally pronounced, which failed to designate any time. We are unable to discover any merit whatever to such contention. It is next asserted that the judgment is excessive
Finding no error in the record the judgment is affirmed.
Concurrence Opinion
(concurring specially). While I concur in the result and generally in all points passed upon by the foregoing opinion on the point of the jurisdiction of Judge Burr to act in the case at bar, I limit my concurrence to the holding that the order made by Judge Crawford sufficiently described the action or proceeding in which he was requested to act; and, that the proceeding in question arising as it did out of and depending for its existence upon an action pending .in the district court of the tenth judicial district, may be regarded as a pending action within the meaning of § 6765, ¡Revised Codes 1905. This, together with the fact that as Judge Burr was in any event unquestionably acting as judge de facto of the tenth judicial district, his judgment was merely voidable, and not void, and that no attack upon it has been made as provided by § 6766, Revised Codes 1905, — is, I think, sufficient to warrant the result announced by the opinion. The following language used in the opinion in construing § 6765, I consider dicta and entirely unnecessary to a decision of the point presented and an expression which I cannot accept in any part. “We think counsel’s construction of this section altogether too narrow. By the use of the words, fin which such action or proceeding is at the
Concurrence Opinion
I concur without expressing any opinion as to any distinction between this case and Ex parte Corliss cited.
Rehearing
On Petition for Eehearing.
Appellants have petitioned for a rehearing upon several grounds. The last ground urged, and the only one which we deem it necessary to notice, pertains to the latter portion of the opinion wherein the imposition of costs in addition to the fine is sustained upon the theory that such costs were imposed as a part of the fine. We are convinced that the ultimate conclusion that the costs were properly assessed is correct, but upon more mature deliberation we have concluded to modify the opinion in so far as the reasons given for sustaining such costs are concerned, and to place our decision on this feature of the case solely upon the ground that the court had the right to impose payment of the costs in addition to the fine. The supreme court of Kansas has expressly so held under a statute identically like § 9374, Rev. Codes 1905. State ex rel. Curtis v. Durein, 46 Kan. 695, 27 Pac. 148.
We think the reasoning of the Kansas court on this question is sound. See also 9 Cyc. Law & Proc. p. 54, and cases cited.
The original opinion is accordingly modified in this respect and petition for rehearing denied.
