State ex rel. Hart v. Rosencrans

CourtUnited States State Supreme Court of Iowa
Writing for the CourtADAMS
Citation21 N.W. 688,65 Iowa 382
Decision Date11 December 1884
PartiesSTATE EX REL. HART v. ROSENCRANS, SHERIFF.

65 Iowa 382
21 N.W. 688

STATE EX REL. HART
v.
ROSENCRANS, SHERIFF.

Supreme Court of Iowa.

Filed December 11, 1884.


Appeal from an order of R. G. Reiniger, circuit judge.

This proceeding, entitled as above, was instituted by Hart for the purpose of obtaining a writ of habeas corpus, and his discharge thereon from the defendant's custody. The writ was issued, and an answer and return were made thereto. Upon a hearing having been had, the prayer for release was denied, and the plaintiff was remanded into custody. He appeals.

[21 N.W. 688]

Blythe & Markley and P. J. Dougherty, for appellant.

Smith McPherson, J. B. Cleland, and J. J. Clarke, for appellee.


ADAMS, J.

The appellant sought to effect a release from the custody of the defendant, Rosencrans, as sheriff of Cerro Gordo county. The record shows that he had been brought before one H. H. Cummings, a justice of the peace, on a charge of maintaining a nuisance in the use made of a certain room by keeping whisky, wine, and beer, and other intoxicating liquors, therein, with

[21 N.W. 689]

intent to sell the same in violation of law. As to what order the magistrate made the record is silent. But both parties have treated the case as if the order was that Hart be held to answer to the charge against him. A bail-bond was given by him, and afterwards the surety upon the bail-bond surrendered him. The defendant, in his answer and return, sets up such bail-bond and surrender in his defense. The illegality of the restraint is said to consist in the insufficiency of the evidence to justify the magistrate's order. It is not denied but that the evidence would be sufficient but for the fact, as is alleged, that the law under which the charge was made is unconstitutional, so far as it applies to beer, which was the property of the person charged, and on hand in his place of business before the law took effect, and it is said that the evidence shows only that the appellant was keeping beer with intent to sell the same, and that all the beer thus kept by him was his property, and was in his place of business, to-wit, in the room complained of as a nuisance, on the third day of July, 1884, which was before the law under which the proceedings were instituted took effect.

Our rule is never to undertake to determine a constitutional question unless the case is one in which such question necessarily arises. It does not appear upon what ground the circuit judge refused to discharge the appellant; but, properly, we think...

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3 practice notes
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...the testimony before the grand jury, when put in evidence. This notwithstanding the broad language of State v. Rosencrans, 65 Iowa, 384, 21 N. W. 688. Were we to give to all said therein a literal meaning, it would not be permitted the defendant in habeas corpus to test the petition by demu......
  • State v. Wrenn, No. 34736.
    • United States
    • United States State Supreme Court of Iowa
    • June 21, 1922
    ...necessary for the determination of the case. Bond v. Railroad, 67 Iowa, 712, 25 N. W. 892;State ex rel. Hart v. Rosencrans, 65 Iowa, 382, 21 N. W. 688. Other cases might be cited, but the rule is well settled. It is also a rule of the court that we do not declare a statute unconstitutional ......
  • Hallway v. Byers, No. 38677.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1928
    ...to a preliminary hearing before said magistrate. See Cowell v. Patterson, 49 Iowa, 514;State ex rel. v. Rosencrans, 65 Iowa, 382, 21 N. W. 688;Balz v. Coquillette, 173 Iowa, 432, 155 N. W. 801. [3][4][5] In the instant case we are dealing with a judgment entered by a court of competent juri......
3 cases
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...the testimony before the grand jury, when put in evidence. This notwithstanding the broad language of State v. Rosencrans, 65 Iowa, 384, 21 N. W. 688. Were we to give to all said therein a literal meaning, it would not be permitted the defendant in habeas corpus to test the petition by demu......
  • State v. Wrenn, No. 34736.
    • United States
    • United States State Supreme Court of Iowa
    • June 21, 1922
    ...necessary for the determination of the case. Bond v. Railroad, 67 Iowa, 712, 25 N. W. 892;State ex rel. Hart v. Rosencrans, 65 Iowa, 382, 21 N. W. 688. Other cases might be cited, but the rule is well settled. It is also a rule of the court that we do not declare a statute unconstitutional ......
  • Hallway v. Byers, No. 38677.
    • United States
    • United States State Supreme Court of Iowa
    • April 3, 1928
    ...to a preliminary hearing before said magistrate. See Cowell v. Patterson, 49 Iowa, 514;State ex rel. v. Rosencrans, 65 Iowa, 382, 21 N. W. 688;Balz v. Coquillette, 173 Iowa, 432, 155 N. W. 801. [3][4][5] In the instant case we are dealing with a judgment entered by a court of competent juri......

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