State ex rel. Hart v. Rosencrans

Decision Date11 December 1884
Citation21 N.W. 688,65 Iowa 382
PartiesSTATE EX REL. HART v. ROSENCRANS, SHERIFF.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

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.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 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 that the judge could not have reached the constitutional question. Section 3449 of the Code provides that the petition for a writ of habeas corpus must state the place where the applicant is restrained of his liberty, and section 3450 provides that the petition must be sworn to by the person confined, or some one in his behalf. The petition in this case does not state the place where the appellant was restrained. As to whether the petition was sworn to by the appellant or some one in his behalf, is only a matter of conjecture. It may have been; but the record before us does not show that it was. We find appended to the petition, as set out in the abstract, only these words: “Subscribed and sworn,” etc. If...

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