State ex rel. O'Connor v. District Court In and For Shelby County
| Citation | 260 N.W. 73,219 Iowa 1165 |
| Decision Date | 02 April 1935 |
| Docket Number | 42585. |
| Parties | STATE ex rel. O'CONNOR, Atty. Gen., et al. v. DISTRICT COURT IN AND FOR SHELBY COUNTY et al. |
| Court | Iowa Supreme Court |
Original petition to this court asking that a writ of prohibition issue to district court of Shelby county, Iowa, commanding it to desist from further proceedings in certain actions brought therein by certain of the defendants in this action. The opinion states the facts.
Writ denied, and stay annulled.
Edward L. O'Connor, Atty. Gen., Frank B. Hallagan, Sp. Asst Atty. Gen., Folsom Everest, of Council Bluffs, Orville W Harris, of Jefferson, Andrew Bell, of Denison, and Jake S More, of Harlan, for plaintiffs.
V. H Byers, of Harlan, for defendants.
This is an original action in this court brought in the name of the state of Iowa on relation of the Attorney General and Special Assistant Attorney General asking for a writ of prohibition directed to the district court of Shelby county, Iowa, and the judges thereof, commanding them to desist from further proceedings in certain actions in said court against George Jensen, Hugo P. Willy, Matthew Tinley, Frank Hallagan, L. Dee Mallonee, __-- Zilinsky, and __-- Lacey. In order to understand the issues presented, it is necessary to set out a brief statement of the facts preceding the institution of this action:
On the 28th day of April, 1932, Clyde L. Herring, as Governor and commander-in- chief of the military forces of the state of Iowa, issued a proclamation in which it was stated that there then existed " in Crawford County of this state and territory adjacent thereto breaches of peace and imminent danger of a continuance thereof and open defiance of law enforcement by certain individuals and large groups and a vicious and criminal conspiracy and assault has been made upon officers of the department of justice of the State of Iowa, peace officers of Crawford County and adjoining counties and special deputies appointed by the proper officials of Crawford County, Iowa, while said officers were legally attempting to execute the decrees and orders of the district court of Crawford County, Iowa" ; that " the department of justice civil authorities, local peace officers and citizens are unable to enforce the laws and have requested military aid to reestablish peace, restore law and order, protect public and private property and to protect civil officers in the administration of the laws of this state" ; and that " the territory involved requires the presence of the military forces of this state in order to maintain the public peace and to prevent breaches of the peace and to reestablish law and order." Said proclamation proclaimed " martial law for the territory of Crawford County, Iowa, and territory adjacent thereto," and directed the Adjutant General to " place such troops on duty in Crawford County, Iowa, and territory adjacent thereto distributing them in such localities as will render them most effective for preserving the public peace and enforcing law and order." Said proclamation further ordered and directed that the Adjutant General " take such action and use such forces as he may deem necessary" ; that he " protect any and all property, officers, citizens and men from unlawful interference" ; and that he " arrest all persons engaging in acts of violence, intimidation and interference with enforcement of the laws." Said proclamation further stated that " the rule of martial law shall be invoked and extended to all parts of the territory of Crawford County, Iowa, and territory adjacent thereto, insofar as the same is necessary for the execution of this proclamation."
Pursuant to such proclamation the military forces of the state of Iowa were on the evening of said 28th day of April, 1933, quartered in and about the courthouse in the city of Denison, Crawford county, Iowa, and remained on duty until the 11th day of May, 1933.
During the period of military occupation the Commanding General, Matthew A. Tinley, caused a military commission to be set up. This commission undertook to investigate the facts connected with the disturbances and lawlessness in the military district, and in doing so examined several hundred witnesses. Among the witnesses thus examined were C. R. Kibbey, John Carroll, Jake Daeges, Dale McKeig, Nels Hagenson, Harry Marston, R. H. Bailey, Wm. Obrecht, Frank Lamar, Einar Rasmussen, and George Slaughter, all of whom were held under restraint for different periods of time, but none of whom was detained after the military forces had retired. After military occupation had been terminated and the courts had opened, charges of contempt of court and conspiracy to commit an illegal offense were filed against more that twenty men, who pleaded guilty to such charges. The record does not show that any of the persons involved in this action were included in the number against whom such charges were filed or by whom pleas of guilty were entered.
In October, 1933, long after the military forces had been withdrawn from Crawford county, each of the parties above named, who had been detained by the military forces, instituted an action at law in the district court of Shelby county, Iowa, through V. H. Byers, their attorney, against George Jensen, Hugo P. Willy, Matthew Tinley, Frank Hallagan, L. Dee Mallonee, __-- Zilinsky, and __-- Lacey, charging that the defendants, and each of them, both jointly and severally, caused the plaintiffs to be arrested and incarcerated in the county jail at Denison, Iowa, without the issuance of a warrant, without any crime having been committed for which such arrest could legally be made without a warrant, and without any reasonable grounds to believe that the plaintiff was guilty, and asking for damages for such false arrest and detention.
Following the service of notice upon the defendants in said action, all of said defendants, with the exception of Lacey, on the 13th day of March, 1934, filed special appearances and objections to the jurisdiction of the district court of Shelby county, Iowa, and on the same day the Honorable H. J. Mantz, presiding judge of said court, made an entry fixing the time for hearing upon said special appearance on April 7, 1934.
On April 2, 1934, the petition for writ of prohibition in this case was filed in this court. In such petition it is alleged, in substance, that the arrest and detention of the plaintiffs in said actions in the district court of Shelby county were all made and done by the defendants pursuant to the authority and direction contained in the proclamation of the Governor of the state of Iowa, as commander-in-chief of the military forces of this state, and as such were in truth and in fact done by the sovereign state of Iowa under the orders of the chief executive thereof; that neither the Governor nor any of the parties defendant in said suits, who were acting in his behalf and pursuant to his orders, can be held responsible to the plaintiffs therein for any of the acts of which complaint is made by plaintiffs; and that the judicial department of this state is wholly without authority to inquire into or pass upon the legality of the acts of the executive department of the state in putting down insurrection and in restoring law and order in the military district established by the Governor's proclamation.
To the petition for writ of prohibition certain of the defendants herein, who were the plaintiffs in the actions in the district court of Shelby county, and their attorney, filed a demurrer and motion to strike, which was ordered submitted with the case, and also filed an answer. The cause was heard and submitted to this court upon the written affidavits of the relators and defendants herein and the briefs and arguments of opposing counsel.
Several questions are raised by the demurrer to and motion to strike the petition and by the answer filed by the defendants, but, for the purposes of this opinion, we think the issues necessary to be considered and determined may be reduced to the following: (1) Has this court jurisdiction to issue a writ of prohibition? (2) Has the state of Iowa, through its Attorney General and Special Assistant Attorney General, a right to maintain this action? (3) Can this court cause a writ of prohibition to issue before the trial court has ruled upon the special appearance filed therein by the defendants? (4) Have the defendants in the actions in the district court of Shelby county an adequate remedy at law by appeal or certiorari? (5) Can this court determine facts or take cognizance of facts outside of the record in the actions in the district court of Shelby county?
The first question for our consideration is that which puts in issue the rights of this court to issue the writ of prohibition. If this court has no right to issue such writ then, of course, it is unnecessary for us to proceed further. The power to issue a writ of prohibition can only be exercised by a superior court over an inferior court; it cannot be exercised by a court against another court of equal rank. It is generally accepted that this power resides in the majority of the higher courts of the states and in the federal courts, but only as an ancillary writ in cases over which the court otherwise has jurisdiction. " Generally, except where the constitution or statutes in express terms confer either the original jurisdiction for that purpose or the power to award ‘ original remedial writs,’ or the power to issue any remedial writs necessary to give the court of last resort general control over courts of inferior jurisdiction, or a general superintending control over all inferior courts, the writ will be granted by a court of last resort only in aid of its appellate jurisdiction." 50 C....
To continue reading
Request your trial