Moore v. Jarvis

• Decision Date: 01 March 1932
• Docket Number: 1758
• Parties: MOORE v. JARVIS
• Court: Wyoming Supreme Court

8 P.2d 818

44 Wyo. 92

MOORE v. JARVIS

No. 1758

Supreme Court of Wyoming

March 1, 1932

ORIGINAL proceedings in habeas corpus by Clifford C. Moore against Dick Jarvis, Sheriff of Campbell County, Wyoming. Heard upon demurrer to the answer and return of respondent Jarvis. The material facts are set forth in the opinion.

Petitioner denied.

For the plaintiff there was a brief and oral argument by Wm. B. Cobb of Casper, Wyoming.

Laws 1921, Ch. 117, Sec. 22, does not authorize District Courts to permanently restrain persons from committing offenses therein specified, nor punishment for contempt for violating such restraining orders. Clark v. Riddle, (Ia.) 70 N.W 207; State v. Frahm, (Ia.) 80 N.W. 209; State v. Club, (S. C.) 65 N.E. 730. Under a similar statute, it was held in South Carolina, that one may not be enjoined from selling liquor independent of the place where the nuisance exists. The same rule was applied in Georgia. Walkins v. Wilkerson, (Ga.) 80 S.E. 718; Capawana v. U.S. 294 F. 153; State v. Bruch, 149 N.E. 262; U. S. v. McCrory, 26 F.2d 189; U. S. v. Rosoff, 27 F.2d 719; U. S. v. Cunningham, 37 F.2d 349.

For the defendant there was a brief by J. A. Greenwood, Attorney General, Richard J. Jackson, Deputy Attorney General, and George W. Ferguson, Assistant Attorney General, and also oral argument by Mr. Jackson.

The constitutionality of Laws 1921, Chap. 117, Sec. 22, attacked by petitioner would seem to be the only material point in the case, other points raised being identical with the main question. Petitioner was taken into custody in a contempt proceeding. The finding of guilty of contempt will not be considered a finding that petitioner is guilty of a crime. Tucker v. State, 35 Wyo. 430. If the statute be valid, the petition should be dismissed. Actions of this class should be tried as actions in equity. United States v. Schwartz, 1 F.2d 718, and the injunction order need not be confined to the premises involved. United States v. McCrory, 26 F.2d 189; United States v. Rosoff, 27 F.2d 719; United States v. Lockhart, 33 F. 597; Murphy v. United States, 272 U.S. 630; Grosfield v. United States, 276 U.S. 494; Mugler v. Kansas, 123 U.S. 562; Eilenbecker v. Court, 134 U.S. 31. Damage proceedings are ordinarily triable to a jury. Equity deals primarily with the person, and only through him with the res. 21 C. J. 195.

Wm. B. Cobb, in reply.

The petition was insufficient to authorize issuance of a personal restraining order against defendant. If the statute in question, Laws 1921, Ch. 117, Sec. 22, authorizing the issuance of a restraining order without a showing of nuisance having been committed, the statute is unconstitutional, in permitting a court of equity to fine or imprison offenders for crimes, without a trial by jury. The proceeding was one in rem. Engler v. U.S. 25 F.2d 37; U. S. v. All Buildings etc., 28 F.2d 774; Cornelius on Search and Seizure, (2d Ed.) p. 770. In the Rosoff case there was a threatened continuance of the nuisance complained of. The authorities cited by the attorney general sustain the position taken by this petitioner. Murphy v. U.S. 272 U.S. 630. The power to enjoin is for the purpose of preventing further acts of nuisance.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This matter is here upon the petition of Clifford C. Moore--who will be referred to herein either as the "petitioner," the "defendant" or by his name--for a writ of habeas corpus directed to Dick Jarvis as Sheriff of Campbell County, Wyoming, who, it is claimed in said petition, is unlawfully restraining the petitioner of his liberty. To this petition, the Attorney General of the State of Wyoming has made answer on behalf of the respondent and petitioner has questioned the sufficiency thereof as upon demurrer. The personal production and presence of the petitioner at the hearing had upon the issues thus joined was waived by his counsel and petitioner's ultimate right to the writ is the question now to be determined.

The situation disclosed by the pleadings is substantially as follows: Some time prior to the third day of February, 1931, the County Attorney of Campbell County, Wyoming, filed in the District Court of said county a petition entitled "State of Wyoming on the relation of Earl Dunlap, County and Prosecuting Attorney of Campbell County, Wyoming, Plaintiff v. Clifford C. Moore, alias C. C. Moore, alias Cliff Moore, alias 'Dr. Pete' Moore, Defendant," wherein the abatement of an alleged nuisance on certain described property and an injunction order was sought against said defendant. On the date above mentioned, the cause came on for final hearing, all parties being then duly represented by counsel. After the introduction of evidence and the conclusion of the hearing, the court found "that the material allegations in said petition are true and that the defendant has been guilty of maintaining a nuisance in operation of gambling games and the sale of intoxicating liquor in the premises known as the Perkins Building, or Moore and Moore Pastime and located on Lot Fourteen of Block Seven of the First Addition to the town of Gillette, Campbell County, Wyoming, and that the nuisance should be abated and the defendant, Clifford C. Moore, should be permanently enjoined from continuing to violate the intoxicating liquor laws and the gambling laws of the State of Wyoming." Pursuant to this finding, a decree granting the relief asked by plaintiff's petition under date of February 3, 1931, was entered to the effect that "the said defendant be and he is hereby, together with his agents, servants and employes, permanently restrained and enjoined from operating or conducting gambling games and from trafficking in intoxicating liquor in violation of the laws of the State of Wyoming in or upon said premises or elsewhere within the Seventh Judicial District of the State of Wyoming" and that the Sheriff close "said building or place" against its use for such purposes for one year unless sooner released by order of court. No proceedings to review this decree were ever prosecuted.

Subsequently and on the seventh day of September, 1931, the County Attorney of Campbell County, filed in the District Court aforesaid, a sworn information consisting of nine paragraphs denominated "counts" wherein and whereby the court was apprised in substance that Clifford C. Moore, the above named defendant "in the said Campbell County in the State of Wyoming, at and within a certain building located on Lot 1, Block 2, Park Addition to the town of Gillette, Campbell County, Wyoming, by himself, his agents or other persons in privity with the said Clifford C. Moore," knowingly and unlawfully and contrary to the injunction order above described and while it was in force and effect, did certain acts which are particularly enumerated. These acts which were charged to have been committed, commencing on August 1, 1931, and concluding on September 5, 1931, occurring also on sundry other specified days intervening the dates mentioned, consisted of the repeated sale to divers persons named, of intoxicating liquors and the possession for sale of considerable quantities thereof.

This information was duly served on Moore on September 7, 1931, and on September 9 following, he entered a plea of not guilty thereto. Thereafter, another judge than the one who had entered the injunction decree was assigned to try the issues thus made, a hearing was had and the defendant was "found guilty of the offense charged in the information, to-wit: That of contempt of court." It was thereupon adjudged that defendant pay a fine of $ 600.00 and costs and that he be committed to jail until fine and costs were paid or he was otherwise legally discharged. No proceedings to obtain a review of this judgment by the usual methods of error proceedings or direct appeal were ever prosecuted. The relief here sought is from the restraint imposed upon the defendant in consequence of his failure to pay the fine thus adjudged.

This court in Miskimins v. Shaver, 8 Wyo. 392, 58 P. 411, 415, 49 L. R. A. 831, a case involving the legality of contempt proceedings, has said concerning the writ of habeas corpus that:

"The writ is not in the nature of, nor is it to be used as a substitute for, proceedings in error. A finding or decision of the inferior court, no matter how erroneous, if it does not affect its jurisdiction, is not subject to attack in this collateral proceeding. The office of the writ is to determine the legality of the particular imprisonment, and the facts to be considered in determining that question are jurisdictional facts. If upon a consideration of such facts, it appears that the court exceeded its jurisdiction in making the order, the petitioner will be discharged upon habeas corpus, and it is not material that the questions might have been brought to this court by petition in error."

Several years antedating the decision thus mentioned, in the case of In re Wright, 3 Wyo. 478, 27 P. 565, 568, 13 L. R. A. 748, 31 Am. St. Rep. 94, the court had also declared that, while it did "not favor the practice of looking into the constitutionality of this statute in habeas corpus proceedings," mentioning the rule announced in some jurisdictions to the effect that such a question must be tested by appeal, writ of error or trial in the appropriate court, remarked further:

"But the Supreme Court of the United States in Ex parte Siebold 100 U.S. 371, (25 L.Ed. 717), has established a different doctrine; and this seems now to be the rule in habeas corpus, as the learned author of the work above cited states: 'But we apprehend the true rule to be that when a prisoner alleges that the law under which he was convicted and sentenced is...