Latta v. Utterback

• Decision Date: 16 December 1926
• Docket Number: No. 37635.,37635.
• Citation: 211 N.W. 503,202 Iowa 1116
• Parties: LATTA v. UTTERBACK, JUDGE.
• Court: Iowa Supreme Court

202 Iowa 1116

211 N.W. 503

LATTA

v.UTTERBACK, JUDGE.

No. 37635.

Supreme Court of Iowa.

Dec. 16, 1926.

Certiorari to District Court, Polk County; Hubert Utterback, Judge.

Certiorari to review the action of the respondent judge of the district court in issuing a search warrant for intoxicating liquors.Writ sustained, and action of respondent reversed.Guy A. Miller, of Des Moines, for petitioner.

Vernon R. Seeburger, Co. Atty., and Russell Jordan, Asst. Co. Atty., both of Des Moines, for respondent.

VERMILION, J.

An information under oath, reciting that the affiant had good reason to believe, and did believe, that certain described intoxicating liquors were owned and kept by petitioner on described premises in Polk county, was filed in the office of the clerk of the district court of that county, and a search warrant was issued, signed by the respondent as judge of the district court of the county, commanding any peace officer of the county to search the described premises for such intoxicating liquors, and to make return of the writ to the court.

Return of the warrant was made by the sheriff of the finding of certain intoxicating liquors on the premises.Thereafter petitioner filed in the office of the clerk of the court a written claim for the liquors so seized, and alleging that the liquors were not obtained by him by means of unlawful transportation of the same, and were not intended for unlawful use or sale.He also filed a bond, which was approved by the clerk, conditioned for the payment of costs.Petitioner, by his attorney, demanded a jury trial, but, before the day set for trial, he sued out the writ of certiorari herein, alleging that the respondent exceeded his jurisdiction, and acted illegally in issuing the search warrant.

It is urged by the respondent that certiorari will not lie for two reasons: (1) That the petitioner is estopped by filing a claim of ownership of the liquor and demanding a jury trial from questioning the jurisdiction of respondent to issue the search warrant; (2) that there was no final judgment in the search warrant proceedings, and the writ is therefore premature.

[1][2] I. This is not a question of jurisdiction of the person of the petitioner, which may be waived by appearance.The attack is upon the jurisdiction of the respondent over the subject-matter of the action.It is settled that an absolute want of jurisdiction of the subject-matter or of the cause of action cannot be waived.Dicks v. Hatch, 10 Iowa, 380;Walters v. The Steamboat Mollie Dozier, 24 Iowa, 192, 95 Am. Dec. 722;Groves v. Richmond, 53 Iowa, 570, 5 N. W. 763;Cerro Gordo Co. v. Wright County, 59 Iowa, 485, 13 N. W. 645;Orcutt v. Hanson, 71 Iowa, 514, 32 N. W. 482;State v. Van Beek, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397;Wedgewood v. Parr, 112 Iowa, 514, 84 N. W. 528;Porter v. Welsh, 117 Iowa, 144, 90 N. W. 582;Ft. Dodge Lbr. Co. v. Rogosch, 175 Iowa, 475, 157 N. W. 189;Franklin v. Bonner (Iowa)207 N. W. 778.See, also, 15 Corpus Juris, 544.Nor can it be conferred by estoppel.Freer v. Davis, 52 W. Va. 1, 43 S. E. 164, 59 L. R. A. 556, 94 Am. St. Rep. 895.

II.The general doctrine of the foregoing cases is that an absolute want of jurisdiction can be raised at any stage of the proceeding.Walters v. The Steamboat Mollie Dozier, supra;Wedgewood v. Parr, supra;Porter v. Welsh, supra.

[3]The petitioner was not required to wait until a judgment was rendered on the issue presented by his claim of ownership of the seized liquors, if the respondent had no power or jurisdiction to issue the search warrant.In Des Moines U. R. Co. v. Funk, 185 Iowa, 330, 170 N. W. 529, a writ of certiorari had been sued out of the district court to review the action of the industrial commissioner in making an award of compensation for the death of an employee where the rights of the parties were controlled by the federal Employers' Liability Act(U. S. Comp. St. §§ 8657-8665).We said:

“Jurisdiction involves the right to hear and determine.The writ of certiorari is allowed, to the end that the right to hear and determine may be investigated.”

And further, referring to the right of appeal from the judgment that might have been rendered on the award by the district court, we said:

“No discussion can make plainer the fact that the commission had no jurisdiction to inquire into or determine any fact touching the liability of this plaintiff to the injured party, when both were engaged in interstate commerce.The commission assumed jurisdiction.It assumed the right to make a report to the district court, upon which, under the law, without notice to this plaintiff, judgment would be entered against the plaintiff.The proceeding here called in question the very right to do this thing; questioned the right of this tribunal to do it.It was the only speedy remedy open to the complainant here.He was not required to sit by and permit a tribunal acting upon a subject-matter over which it had no jurisdiction, to determine the existence of a liability which, under that statute, must merge into a judgment, and then appeal from that judgment.”

If and when the petitioner's property was seized by virtue of a search warrant issued by a magistrate or tribunal entirely without jurisdiction to issue it, or to hear and determine any fact upon which the right to condemn and destroy the property would depend, the petitioner had a right to resort to an appropriate remedy to prevent such action.There is no claim that certiorari is not such a remedy.The resort to the remedy was not premature.

III.Coming to the merits of the case, the only question presented is that of the authority of a judge of the district court to issue a search warrant for intoxicating liquors.The contention of respondent is bottomed upon certain sections of the statute.

Section 13403, Code of 1924, is as follows:

“The term ‘magistrate’ includes: 1.All judges of the supreme, district, superior, or municipal courts, throughout the state.(2) All justices of the peace, mayors, and judges of the police court, within their respective counties.”

Section 1968, Code of 1924, is in chapter 96, relating to search warrants and under title 6, the subject of which is intoxicating liquors, and provides in part as follows:

“Any credible resident of this state may, before a magistrate, make written information, supported by his oath or affirmation, that he has reason to believe and does believe that at a named place in the county wherein the information is filed: 1.Intoxicating liquors are being unlawfully kept. * * *”

Section 1970 provides in part:

“Said magistrate shall, upon finding that complainant has probable cause for the belief set forth in said information, issue his warrant of search.”

The argument is that, since a judge of the district court is, under section 13403, a magistrate, and by sections 1968and1970 a magistrate is, upon a proper information, authorized to issue a search warrant for intoxicating liquors, therefore a judge of the district court may issue such warrant.The question is not so simple, nor the conclusion so obvious, as this argument would indicate.

Other sections of chapter 96 provide for the posting of notice of a hearing where there is a seizure under the warrant (section 1972) and the right of the person named in the notice, or any other, to appear and show cause why the articles seized should not be destroyed (section 1974).Section 1975 provides:

“The proceeding in the trial of such case may be the same, substantially, as in cases of misdemeanor triable before justices of the peace.”

Any person who has appeared and acquired the right to contest the condemnation may demand a jury trial (section 1976), and, if upon the hearing the magistrate or the jury shall find the articles seized subject to forfeiture, the magistrate shall render judgment accordingly (section 1979).Section 1981 is as follows:

“Any person appearing as aforesaid may appeal to the district court from said judgment or forfeiture, as to the whole or any part of said liquors, instruments, utensils, materials, or vessels claimed by him and so adjudged forfeited.”

The state has the same right to appeal, where the judgment is against it.Section 1982.

An examination of prior statutes and the legislative history of the present enactment will be of material aid in arriving at a sound and consistent construction.

[4] In construing a statute, we are entitled to look at the law as it previously stood, the matter to be remedied, and the nature and spirit of the statute.State v. Claiborne, 185 Iowa,...