Brissman v. Thistlethwaite
| Decision Date | 23 November 1922 |
| Citation | 192 N.W. 85,49 N.D. 417 |
| 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 has power to determine whether or not a criminal action brought before him shall be dismissed, and is not bound to obey the order of the district attorney for such dismissal. Re Voss, 11 N.D. 540, 90 N.W. 15.
This case was cited in State ex rel. Clyde v. Lauder, 11 N.D. 136, 90 N.W. 564, holding a wilful refusal by a state's attorney to file an information and prosecute a criminal action where a defendant was held by a justice of the peace to answer in district court for a public offense would constitute a misdemeanor and render him liable to prosecution for professional misconduct; and the court actually disbarred him.
In Michigan it was 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. Judge Cooley, one of the most eminent constitutional lawyers of this county, wrote the opinion. Beecher v. Anderson, 8 N.W. 539.
In another case it was held that it was not necessary that the prosecuting attorney should have authorized the prosecution or that the complaining witness should have given security for costs. People v. Griswold, 31 N.W. 809; State v Yakey, 85 P. 990.
O'Hare & Cox, for respondent.
This is an appeal from an order of the district court of Burleigh county reviewing and setting aside proceedings had before a justice of the peace in a certain criminal action. The controlling facts are as follows: A criminal complaint was made before a justice of the peace, the charging part of which was as follows: "That at said time and place the said defendant did wilfully, wrongfully, and unlawfully assume the title of a certified public accountant of this state and, by misrepresenting himself as such, made and submitted to the board of auditors and senate and house of representatives of the state of North Dakota a certain audit of the books and records of the Bank of North Dakota, he, the said Herman G. Brissman, not having received a certificate as a certified public accountant, contrary to the statute in such case made and provided and against the peace and dignity of the state of North Dakota." A warrant of arrest was issued upon such complaint and Brissman was arrested. When the matter came on for hearing in the justice's court objection was made by the defendant in such criminal action to the jurisdiction of the justice on the ground that the complaint had not been approved by the state's attorney as required by law, and that it did not appear from statements in the complaint or other written evidence submitted to the magistrate that the defendant was liable to escape from the county before the approval of the state's attorney could be had. The objection was overruled. Thereafter Brissman made application to the district court for a writ of certiorari to review the action of the justice. The district court issued an order to show cause why the relief prayed for should not be granted and stayed proceedings pending such hearing. On the return day the justice of the peace appeared and filed a demurrer and a return to the petition. The demurrer was based on the grounds that the district court had no jurisdiction of the person or subject-matter; that the plaintiff had no legal capacity to sue; that there was a defect of parties plaintiff; and that the petition failed to set forth sufficient facts to constitute a cause of action or to authorize the issuance of a writ of certiorari or injunctional order. The demurrer was overruled. The matter in issue upon the return was thereupon submitted, and the district court having determined that a writ of certiorari should issue directing the said justice of the peace to certify to said district court for review all proceedings had in said alleged criminal action, said justice of the peace through his counsel in open court specifically waived the issuance of the writ, and informed the court that he had no further defense to offer, and submitted the entire matter in issue to said district court at said time and place. In the return of the justice, it is admitted that the warrant of arrest was issued without the approval of the state's attorney, and upon the hearing the petitioner Brissman submitted the affidavit of the state's attorney showing that a criminal complaint submitted by the same complaining witness who presented the complaint under consideration here was submitted to him for investigation and approval; that he conferred with the attorney general of the state with regard to the matter and after such conference and full investigation indorsed upon the complaint his disapproval in writing for the reason that said complaint did not state facts constituting a crime under the laws of this state. The affidavit further shows that the state's attorney was not absent at the time the warrant of arrest under consideration here was issued. It will be noted that the act charged in the alleged criminal complaint is that Brissman practised as an accountant, and assumed the title of a certified public accountant, in this state without having received a certificate as certified public accountant from the board of accountancy. The laws of this state provide for the appointment of a board of accountancy to examine and license public accountants. Comp. Laws, 1913, §§ 549--557. This statute, however, does not purport to create a crime or to impose any penalty or punishment whatsoever upon anyone who practises accountancy without having been so licensed. "A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction a punishment or penalty." Comp. Laws, 1913, § 9195. Inasmuch as the statute relating to accountancy does not either declare that it is a crime for one to practise or prescribe any punishment or penalty whatever upon one who practises, as an accountant without having received a certificate from the board of accountancy, manifestly no punishment can be prescribed by the courts. Hence, it is obvious that the alleged criminal complaint did not charge a crime at all.
It is contended, however, on this appeal that the action of the justice of the peace is not reviewable on certiorari, and that the district court erred in granting such writ. In this state "a writ of certiorari may be granted by the supreme and district courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction and there is no appeal, nor in the judgment of the court any other plain, speedy, or adequate remedy, and also when in the judgment of the court it is deemed necessary to prevent miscarriage of justice." Laws 1919, chap. 76. "The review upon this writ cannot be extended further than to the determination whether the inferior court, tribunal, board, or officer has regularly pursued the authority of such inferior court, tribunal, board, or officer." Comp. Laws, 1913, § 8453. The court may "in its discretion permit either party to produce affidavits or other written proofs relative to any alleged error of fact or any other question of fact, which is essential to the jurisdiction of the body or officer to make the determination to be reviewed, when the facts in relation thereto are not sufficiently stated in the return and the court is satisfied that they cannot be made to appear by means of an order for a further return." Comp. Laws, 1913, § 8451.
The district court is vested with original jurisdiction of all causes both at law and equity, except as otherwise expressly provided in the Constitution, and with such appellate jurisdiction as the legislature confers upon it. N.D. Const. § 103. Under the provisions of the statute the district court of Burleigh county, and it alone, has appellate jurisdiction in civil and criminal actions tried before a justice of the peace of that county. Comp. Laws, 1913, §§ 9163--9174. That court, and that alone, has jurisdiction to try criminal causes, except those minor offenses where a justice of the peace or police magistrate has jurisdiction to try and determine, originating in said county. And in all cases where a preliminary examination is conducted before a justice of the peace sitting as a committing magistrate, for criminal offenses committed or alleged to have been committed within said Burleigh county the magistrate must immediately return all papers and proceedings in the action to that court. Comp. Laws, 1913, § 10,624. If in this case the hearing had proceeded and the justice of the peace had made an order holding the defendant to answer, it would have been the duty of the justice of the peace to have made a return, and transmitted all the papers in the case, to the district court. And it is clear, under the undisputed facts here, that if such order had been made the defendant in such alleged criminal action would have been entitled to be released upon habeas corpus. Comp. Laws, 1913, § 11,373. The district court would have had jurisdiction to issue the writ. And upon application for such writ it would, under the undisputed facts in this case, have been its unquestioned duty to do so.
The ordinary presumptions on appeal are applicable on appeal from a judgment in a certiorari proceeding. 11 C. J. 221. The appellate...
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Brissman v. Thistlethwaite
...appears that the alleged criminal action under consideration here was instituted at the same time that the action considered in Brissman v. Thistlethwaite, supra, instituted. All the facts stated in the opinion in that case with respect to the criminal action involved in that case exist her......