Brissman v. Thistlethwaite
| Decision Date | 23 November 1922 |
| Citation | 192 N.W. 90,49 N.D. 429 |
| Court | North Dakota Supreme Court |
Rehearing denied December 30, 1922.
Appeal from the District Court of Burleigh County, Nuessle, J.
Affirmed.
Theodore Koffel, Joseph Coghlan, and J. K. Murray, for appellant.
A justice of the peace is not bound to dismiss a prosecution of a criminal offense upon motion of the state's attorney and he has authority to issue a warrant without the approval of the state's attorney. Comp. Laws, 1913, § 10,535; Re Voss, 11 N.D. 541, 90 N.W. 15.
The same question was also raised and decided in the same way in the case of Clyde v. Lauder, 7 N.D. 136, 90 N.W 564.
It has been held that a prosecuting attorney has no right at his own discretion to stop criminal proceedings instituted before a justice of the peace or direct the sheriff not to execute a valid warrant of arrest in his hands for execution issued by a justice of the peace and not approved by the prosecuting attorney. Beecher v. Anderson, 8 N.W. 539; State v Yakey, 85 P. 990.
That the magistrate is not limited to the matter approved by the state's attorney is clearly evidenced by reading the remainder of the Code of Criminal Procedure relating to preliminary examinations. Section 10611 provides. State v. Rossum, 8 N.D. 548, 80 N.W. 47; 170 S.W. 624; People v. Kingston, 139 N.Y.S. 649; Read v. Shipley, 104 S.W. 1001; Foley v. Ham, 169 P. 183; Hutchinson v. Ionia County, 89 N.W. 561.
Where the court has jurisdiction of the class of cases complained of, and acquired jurisdiction of the subject-matter, the mere fact that the petition or complaint by which the proceeding was inaugurated is defective is no ground for certiorari or prohibition. State v. Scobie, 92 S.W. 191.
O'Hare & Cox, for respondent.
That certiorari is and was the proper remedy in this proceeding in view of the question of law raised in the court below, seems too apparent for argument. 11 C. J. 88 and cases cited thereunder.
Inferior courts and justices of the peace have only such jurisdiction as is expressly given. Bowers v. Green, 2 Ill. 42.
In Robinson v. Harlan, 2 Ill. 237, it is said: In Evans v. Pierce, 3 Ill. 468, it is said: "A justice's jurisdiction is conferred by statute, and, in its exercise he must proceed in strict conformity with the manner prescribed."
And the powers of a justice of the peace are strictly limited to what is conferred upon him by statute. 24 R. C. L. 706; 12 Cyc. 210; State v. Peterson, 13 A.L.R. 1284, 194 P. 342.
This question has also been raised in the courts of the state of New York, and in the case of People ex rel. Brown v. Tighe, 146 A.D. 491, it is held that a magistrate has no arbitrary power to issue a warrant of arrest, but must rest his authority to do so on provisions of law, citing in support thereof McKelvey v. Marsh, 63 A.D. 396. See also 16 C. J. 299 under Issuance of Warrant.
This case was submitted together with Brissman v. Thistlethwaite, ante, 417, 192 N.W. 85. The complaint here purports to charge a violation of the statute relating to false and misleading advertising. Comp. Laws 1913, § 9991. No good purpose would be subserved by setting forth the allegations of the complaint. The complaint clearly does not state facts constituting a public offense, nor is there any contention on this appeal that it can be amended so as to obviate the defects. The appellant asserts that wholly without regard to whether the complaint states facts constituting a public offense, the action of the justice of the peace was not subject to review by certiorari, and that the trial court erred in so reviewing it.
It appears that the alleged criminal action under consideration here was instituted at the same time that the action considered in Brissman v. Thistlethwaite, supra, was instituted. All the facts stated in the opinion in that case with respect to the criminal action involved in that case exist here. Here also the state's attorney disapproved the issuance of a warrant of arrest, and the record on appeal is in all material respects similar to that considered there. Hence, this case is necessarily controlled by the decision in Brissman v. Thistlethwaite, and on authority of that case the judgment of the district court is affirmed.
This is a prosecution before a justice of the peace, under Comp. Laws, § 9989, Laws of 1913, chap. 2. After hearing on an order to show cause the district court gave judgment dismissing the prosecution and the justice of the peace appeals. The case presents three questions on each of which the appeal may be dismissed or the judgment affirmed.
1. The prosecution was commenced; the warrant issued and the arrest made without the consent and against the will of the state's attorney and the attorney general.
2. The complaint does not state facts sufficient to constitute a public offense.
3. The justice of the peace was no party of record, he had no interest in the case, and hence no right to appeal.
The last point needs no argument. The justice was neither plaintiff nor defendant; dismissal of the case was of no concern to him; he had no rights as a party to the action.
The rule is that criminal prosecution must be conducted in the name, and by the authority, of the state, and by the state's attorney. The statute reads:
"When a complaint is made to a magistrate, charging the commission of a public offense, before issuing a warrant, he must submit the matter to the state's attorney for approval, or disapproval, and if the...
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