State ex rel. Baker Lodge No. 47, AF & AM v. Sieber

• Decision Date: 12 January 1907
• Citation: 49 Or. 1,88 P. 313
• Parties: STATE ex rel. BAKER LODGE NO. 47, A.F. & A.M., et al. v. SIEBER.
• Court: Oregon Supreme Court

88 P. 313

49 Or. 1

STATE ex rel. BAKER LODGE NO. 47, A.F. & A.M., et al. v. SIEBER.

Supreme Court of Oregon

January 12, 1907

Appeal from Circuit Court, Baker County; Samuel White, Judge.

Contempt proceedings by the state on the relation of the Baker Lodge No. 47, Ancient Free and Accepted Masons, and others against J.R. Sieber, for an alleged violation of an injunction issued in an action by relators against respondent and others. From a judgment imposing a fine on respondent, he appeals. Reversed and new trial ordered.

O.B. Mount and Albert Backus, for appellant.

Leroy Lomax and John L. Rand, for the State.

MOORE J.

This is a contempt proceeding instituted in the circuit court for Baker county by the state of Oregon on the relation of Baker Lodge No. 47, Ancient Free and Accepted Masons, a corporation; Baker City Lodge No. 25, Independent Order of Odd Fellows, a corporation; W.J. Patterson and F.W. Eppinger partners as Patterson & Eppinger; and I.M. Welch, E.M. Welch F.B. Welch, and C.R. Welch, partners as Welch & Co., against J.R. Sieber for an alleged violation of an injunction. The affidavit of the relator Patterson, on which the proceedings are based, was filed May 26, 1906, and states, in effect that prior thereto a suit was commenced in the court named by the relators against Sieber and others, and, a preliminary injunction having been issued therein, Sieber was commanded not to interfere with the flow of 150 inches of water miners' measurement, in a ditch from Sutton Creek to a cemetery owned by the relators, or to place any obstruction in that stream which would prevent the quantity of water specified from reaching the head of the ditch mentioned, a copy of which restraining order was served on him; that the injunction has never been set aside or modified, but, in violation thereof, Sieber unlawfully constructed in the creek two dams whereby the water was prevented from flowing to the head of such ditch, at a time when it was needed by the relators for irrigation. An order was thereupon made that a warrant be issued for Sieber's arrest, in pursuance of which he was apprehended and taken before the court, which denied a motion to dismiss the proceedings and overruled a demurrer to the affidavit. A plea of not guilty having been interposed, a trial was had resulting in a judgment imposing on Sieber a fine of $50, and he appeals.

W.J. Patterson, as a witness for the relators, was permitted, over objection and exception, to state that Sieber, in violation of the injunction, had cut their ditch and turned water flowing therein upon a garden on his premises. It is maintained by defendant's counsel that, as the charge in the affidavit was the construction of two dams in Sutton creek, whereby the water of that stream, to the extent of the alleged appropriation, was prevented from flowing to the head of the cemetery ditch, an error was committed in admitting such testimony. It is argued by relators' counsel, however, that a court will take judicial notice of its own orders, made in a suit out of which the contempt arose, and, as the affidavit, which is not a "pleading" within the ordinary sense of that term, stated facts sufficient to confer jurisdiction, the testimony so objected to was admissible. It was formerly held by this court that an affidavit initiating a contempt proceeding, for violating an order of court, was not regarded as a pleading within the ordinary rules governing the construction of formal allegations of the parties of their respective claims and defenses. State ex rel. v. McKinnon, 8 Or. 487. In that case the affidavit was made on information and belief, but no objection seems to have been made thereto on that ground. In State ex rel. v. Conn, 37 Or. 596, 62 P. 289, it was ruled that an affidavit made on information and belief was insufficient to confer jurisdiction of a constructive contempt. It will thus be seen that a stricter rule than that which formerly obtained as to stating the facts constituting a contempt has been adopted. Our statute regulating the practice in cases of this kind provides that, when the offense is not committed in the immediate view and presence of the court, "before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court." B. & C. Comp. § 665. As a violation of an injunction is a criminal contempt, the proceedings to punish a party accused thereof must be strictly pursued (4 Enc.Pl. & Pr. 770), and, in all cases of constructive contempt, the initiatory affidavit must state facts sufficient to constitute a prima facie case ( Id. § 780). The affidavit in the case at bar makes a case of that kind by stating that Sieber violated the injunction in a particular manner. He was thus specifically notified of the alleged offense, and, from such averments, he had the right to expect that the testimony to be offered against him would be limited to the charge. Instead of confining the examination to the case thus made, testimony was received, over objection and exception, tending to show a violation of the order of the court in a manner different from that stated. The counsel for the relators, in support of the principle for which they contend, cite Ex parte Ah Men, 77 Cal. 198, 19 P. 380, 11 Am.St.Rep. 263, where it was held to be unnecessary to set forth, in an affidavit charging the violation of an injunction, the provisions of the writ that had been transgressed, because the court would take judicial notice of its own orders. The conclusion in that case was based on the fact that the practice prevailing in California permits the prosecution of a contempt to be made in the cause out of which the restraining order arose, and not in a separate proceeding with a title of its own. Such rule, however, does not obtain in this jurisdiction where contempt proceedings must be prosecuted in the name of the state or in its name on the relation of a private party. B. & C. Comp. § 667. Attention is also called to the case of Jordan v. Circuit Court, 69 Iowa, 177, 28 N.W. 548, where it was held that a failure to introduce in evidence in a contempt proceeding the order on which an injunction was based was not fatal, Mr. Chief Justice Adams saying: "The court would take judicial notice of its own orders in the matter out of which the alleged contempt grew." So, too, in State v. Bee Publishing Co., 60 Neb. 282, 83 N.W. 204, 50 L.R.A. 195, 83 Am.St.Rep. 531, another case relied upon by relators' counsel, it was held, in a contempt proceeding, that the court would take judicial notice of a case pending before it, to which a published criticism applied. It will thus be seen that the decisions reviewed relate to the absence of an averment in an affidavit and to the failure to introduce in evidence orders of courts, the violation of which constituted alleged contempts. That a court will take judicial notice of its orders made in certain cases must be admitted, but the notice referred to is a rule of evidence only, whereby proof of the existence of such orders, by the production of the originals or certified copies thereof, may be dispensed with. The statute makes the filing of an affidavit charging the commission of a constructive contempt a prerequisite to the institution of the proceeding to punish a party for the alleged offense, and the testimony offered by the state or by a relator must be confined to, and correspond with, the sworn statement. A rule that would permit a prima facie case to be stated in the affidavit for the purpose of securing jurisdiction of the cause and allow the introduction of evidence of other contemptuous acts or conduct, not generally stated therein, would violate the elementary principles of pleading, by failing to give to the accused any notice of the offense for which he was to be tried. As a violation of an injunction is a criminal contempt, the rule governing pleadings in civil actions, at least, should be observed, that evidence must be limited to the issues. No serious disadvantage can result from the application of this principle, for, if on a trial it should be ascertained that the affidavit initiating a contempt proceeding was not sufficiently specific in its charge, it may, with the court's consent, be amended by a reverification. State ex rel. v. Lavery, 31 Or. 77, 49 P. 852. An error was, therefore, committed in admitting the testimony complained of.

In view of the conclusion thus reached, it is deemed proper to treat several questions that may arise again in this cause.

It is contended by defendant's counsel that the affidavit forming the basis of the measures taken fails to show the existence of any emergency necessitating the apprehension of their client without citing him to show cause why he should not be arrested to answer the charge, and, this being so, an error was committed in denying the motion to dismiss the proceedings. Our statute provides that, upon the filing of an affidavit stating the facts constituting a contempt, the court may either make an order upon the person charged, to show cause why he should not be arrested to answer, or issue a warrant of arrest to bring such person to answer in the first instance. B. & C. Comp. § 665. Before a person can be found guilty of a constructive contempt, the rule generally prevailing requires that he must have due and reasonable notice of the proceeding. 9 Cyc. 39. Where, however, a necessity for the immediate apprehension of the party accused of violating an injunction is disclosed by the filing of the initiatory pleading, the right of the court to proceed in a summary manner is undoubted. Rapalje, Contempt § 100. This rule proceeds on the ground that the mischief complained of might, in...