Ex parte Corliss

• Decision Date: 23 October 1907
• Citation: 16 N.D. 470,114 N.W. 962
• Parties: Ex parte CORLISS.
• Court: North Dakota Supreme Court

16 N.D. 470

114 N.W. 962

Ex parte CORLISS.

Supreme Court of North Dakota.

Oct. 23, 1907.

Syllabus by the Court.

Petitioner was adjudged guilty of contempt of court for willfully violating an order excluding him from visiting the grand jury room while the grand jury were in session. He seeks to justify his action upon the grounds:

(1) That he was a duly appointed and qualified assistant state's attorney of the county;

(2) That he was employed by the board of county commissioners to assist the state's attorney in the discharge of certain duties; and

(3) That he was a duly appointed and qualified deputy enforcement commissioner of the state under the provisions of chapter 187, p. 303, of the Laws of 1907.

Held, for reasons stated in the opinion, that neither his appointment as assistant state's attorney nor his employment by the board of county commissioners vested in him any right to visit such grand jury sessions.

Held, also, that no such right could be claimed under his appointment as deputy enforcement commissioner for the reason that the law creating such alleged office is unconstitutional and void for the reasons set forth at length in the opinion.

Guy C. H. Corliss was adjudged guilty of contempt of court for violating an order of the district court of Burleigh county, and was committed in default of payment of a fine imposed upon him. He petitions this court for a writ of habeas corpus, alleging that such order and commitment were unauthorized and void. Writ denied.

Spalding, J., dissenting.Guy C. H. Corliss, pro se, and Asa T. Patterson, for petitioner. B. D. Townsend, for respondent.

FISK, J.

Application for writ of habeas corpus. Petitioner alleges that he is deprived of his liberty through a commitment issued by the district court of Burleigh county pursuant to a judgment of that court adjudging him in contempt for violating an order excluding him from the grand jury room while a grand jury was in session. Petitioner admits that he willfully violated such order, but he challenges the validity of the same, claiming the right to enter such room for three reasons: (1) Because he claims to be a duly appointed and qualified assistant state's attorney of Burleigh county; (2) because he claims to have a valid contract of employment with the board of county commissioners of said county to assist the state's attorney in the performance of his official duties; and (3) because he is a duly appointed and qualified deputy enforcement commissioner. It is stipulated that the merits may be disposed of upon the preliminary application for the writ.

Petitioner admits that prior to such official appointments and employment he had been employed by private individuals to prosecute certain criminal cases against one Edward G. Patterson for alleged violation of the law of this state prohibiting the manufacture and sale of intoxicating liquors, and that said official appointments and official employment were made for the purpose of investing him with legal authority in said criminal prosecutions, and to authorize him to attend before said grand jury in the interest of such private employers. Petitioner concedes that his appointment as assistant state's attorney was and is void for the reason that he is a nonresident of Burleigh county. His employment by the board of county commissioners was concededly for a nominal consideration. It was not a good-faith employment for the purpose of assisting the state's attorney in the discharge of his public duties, but was, as conceded by him, as above stated, for the purpose of gaining admission to the sessions of the grand jury for the purpose of discharging his duties under such private employment. Even if a good-faith employment by the county commissioners would legally qualify him to visit the grand jury session, which we seriously question, we are clear that he had no such right under the employment in question, as he concedes, as before stated, that it was merely to enable him to fulfill a contract of employment entered into with private individuals. Under such facts, it was manifestly improper for him to appear before such grand jury, and the district judge properly excluded him therefrom.

Petitioner's right to enter such room, therefore, necessarily depends upon his official character of deputy enforcement commissioner. The facts are not in dispute, but in opposition to the granting of the writ it is urged that the law creating the offices of enforcement commissioner and deputy enforcement commissioner, being chapter 187, p. 303, of the Laws of 1907 of this state, is unconstitutional and void for several reasons, only one of which it is necessary for us to notice, as in our opinion the same is clearly sound; and this is the fact that the statute in question violates those provisions of our state Constitution by which the people reserved the right to have the public functions which are attempted to be conferred upon the officers created by said act discharged by officers of their own selection. In other words, the people in framing the Constitution, were careful to safeguard this right in unmistakable language by providing, in effect, that certain public duties should be performed by persons elected by them; and among the public duties to be only thus performed are those pertaining to the offices of state's attorneys and sheriffs. We are not unmindful of the well-established rule that the courts should uphold legislative enactments unless they are clearly violative of some provision, either expressed or necessarily implied, of the organic law of the state. As stated by Mr. Cooley in his work on Constitutional Limitations, p. 218: “The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes; but it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

Keeping in mind this rule, let us examine the act in question. By section 1 the Governor is authorized to appoint a capable citizen of this state to be enforcement commissioner, said enforcement commissioner to be paid a salary of $2,000 per annum and his actual expenses, and to maintain an office at the capital. Section 2 requires that such appointee shall be an attorney at law, and he is authorized to exercise in any part of the state, with the advice and under the direction of the Governor, all of the common-law and statutory powers of state's attorneys in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors. Section 3 provides for the appointment of one deputy commissioner whenever the commissioner may deem such deputy necessary. Such deputy shall have the same powers as are given to the enforcement commissioner. Section 4 provides that “the enforcement commissioner shall appoint such number of special enforcement sheriffs as in his judgment may be necessary, who shall have throughout the state all the common law and statutory powers of sheriffs in their respective counties in the enforcement of the law against the manufacture and sale of intoxicating liquors; * * * and they shall hold office during the pleasure of said enforcement commissioner.” Section 5 provides for the giving of official bonds by these various officers. Section 6 provides that “it shall be the duty of said deputy commissioner and special sheriffs to exercise all the powers herein conferred when, where and as directed by said enforcement commissioner.” The remainder of the section relates merely to the payment of the expenses of these officers, and fixes the compensation of the deputy commissioner and special sheriffs. Section 7 provides for the taxation of costs for such enforcement commissioner and deputy commissioner in all actions in which they appear, which costs shall be the same as are allowed to be taxed for state's attorneys under the prohibition law of this state, and also for the taxation of costs for special sheriffs, which shall be the same as are taxed for sheriffs in such cases. Section 8 is as follows: “The said enforcement commissioner, upon being satisfied that the local authorities fail to enforce the law against the manufacture and sale of intoxicating liquors in any county, city, village or town of this state, shall, subject to the limitation of section 2 hereof, with the aid, assistance and co-operation of the said deputy commissioner and one or more of such special sheriffs, enforce said laws.” The remaining sections of the law are not material to a decision of the questions here involved.

We think it clear, from the language employed, that it was the intention of the legislative assembly, in the enactment of this law, to vest in the enforcement commissioner the power, whenever he deems the exercise thereof necessary, to displace the regularly elected state's attorney and sheriff in any county, so far as the enforcement of the so-called “Prohibition Law” is concerned in such county, and appoint in their stead a deputy enforcement commissioner and a special enforcement sheriff to discharge the duties of such regularly elected officers during the pleasure of the enforcement commissioner.

Has the legislative assembly, under the Constitution of this state, the power to do this? In disposing of this important question we cannot be controlled by the desirability or seeming necessity for such a law or by the beneficial results which might be obtained thereunder. It is far more important that the...