State ex rel. Harvey v. Newton

• Decision Date: 30 April 1907
• Citation: 16 N.D. 151,112 N.W. 52
• Parties: STATE ex rel. HARVEY v. NEWTON.
• Court: North Dakota Supreme Court

16 N.D. 151

112 N.W. 52

STATE ex rel.

HARVEY

v.NEWTON.

Supreme Court of North Dakota.

April 30, 1907.

Syllabus by the Court.

An affidavit upon information and belief is insufficient upon which to base constructive contempt proceedings, and the court acquires no jurisdiction thereunder to issue an attachment for contempt.

Defendant does not waive such want of jurisdiction by pleading guilty to the charge thus insufficiently alleged.

Appeal from District Court, Williams County; E. B. Goss, Judge.

Proceedings by the state, on the relation of Mary Harvey, against George W. Newton. From the judgment adjudging defendant guilty, he appeals. Reversed.

Spalding, J., dissenting.Palda & Burke and W. S. Lauder, for appellant. Van R. Brown, for respondent.

FISK, J.

This appeal brings up for review a final order of the district court of Williams county, made on March 29, 1905, adjudging the appellant guilty of a criminal contempt, and sentencing him to imprisonment in the county jail for the period of 90 days and to pay a fine in the sum of $200 and costs. The alleged contempt consisted in violating a certain perpetual injunction, theretofore issued by such district court, restraining appellant from maintaining a liquor nuisance upon certain premises in the city of Williston. The offense being a constructivecontempt, the proceedings were instituted by the issuance of an order for the arrest of appellant and requiring him to show cause why he should not be adjudged guilty of contempt and punished accordingly. Such order was based solely upon an affidavit made by the state's attorney of Williams county, which affidavit, after reciting the proceedings in the action brought to abate such nuisance, including the issuance of the injunctional order therein and the entry of final judgment, enjoining the appellant from further maintaining such liquor nuisance, contains numerous statements, wholly upon information and belief, tending to prove a violation by appellant of such injunctional order and judgment.

That the portion of the affidavit charging, or attempting to charge, a violation thereof, is merely upon information and belief, is, we think, too clear for any doubt. It reads as follows: “Affiant further says that to his best knowledge, information and belief, the said Geo. W. Newton has disobeyed, violated and disregarded said injunctional order and mandate of court herein, in this, to wit: First. That on divers days and on divers times between the 9th day of September, A. D. 1901, and the date hereof, the said George W. Newton, did, upon the said premises hereinbefore described, the same being the premises described in said injunctional order of the court, and the said judgment of court, and in the building located thereon known as Newton's ‘Saloon’ or Newton's ‘pig’ kept and maintained a place where on said days, and at said times, intoxicating liquors were sold, bartered and given away as a beverage to various and divers persons by the said George W. Newton and by his leasees, agents, employés and servants. Second. That since the 9th day of September, A. D. 1901, the said George W. Newton has erected or permitted to be erected on the said premises hereinbefore described, additions to said building and that, as affiant is informed and believes, the said George W. Newton has maintained and permitted to be maintained in said building and additions, a place where intoxicating liquors were sold, bartered, and given away, as a beverage, to various and divers persons by the said George W. Newton, his leasees, agents, employés, and servants. Third. That the defendant has, since the granting of said injunction, on the 9th day of September, A. D. 1901, in the drug store on the said property, sold intoxicating liquors as a beverage to various and sundry persons without a druggist's permit and contrary to the laws of the state of North Dakota regarding the sale of intoxicating liquors, under such a permit. Affiant further states that on the said days, and at the said times, the said George W. Newton did personally and by his leasees, agents, employés and servants, use the said described lots 10 and the N. 1/2 of lot 11, in block 11, of the town of Williston, N. D., and various buildings or parts of buildings situate thereon as a place for keeping for sale as a beverage, intoxicating liquors, without the authority of a druggist's permit as required by law and against the laws of the state of North Dakota relating to the sale of intoxicating liquors under a druggist's permit.”

To hold that the latter sentence is a positive statement, and not on information and belief, we must say that it is not a part of subdivision third, and we must construe the same as having no relation or connection therewith, or with the language immediately preceding the first subdivision. It will be noticed that the facts stated in this last sentence are practically the same as those stated in the second subdivision, yet it cannot be contended that the second subdivison is other than on information and belief. Furthermore, respondent's attorney, who made the affidavit, in effect concedes both in his brief and oral argument that it is entirely upon information and belief; his contention being that defendant by his plea of guilty waived such defect.

Upon the return of the order to show cause, the appellant, in open court, not being represented by counsel, although informed of his right thereto, pleaded guilty to the numerous charges set forth in such affidavit, and was thereupon sentenced by the court as above stated. A few days thereafter, appellant, by his attorney, in open court, moved to vacate such sentence, upon the ground that the same was void for want of jurisdiction in the court to enter it, and upon other grounds unnecessary to mention, which motion was denied, and this appeal is prosecuted to reverse such orders. Numerous grounds are stated by appellant why such orders should be reversed; but the principal ground relied upon in oral argument, and the only one which we deem necessary to mention at any length, is the insufficiency of the affidavit upon which such contempt proceedings were based.

The law is well settled in this state, by repeated decisions of this court, that an affidavit upon information and belief is wholly insufficient upon which to base constructive criminal contempt proceedings, and that no jurisdiction is acquired thereunder (State v. McGahey et al., 12 N. D. 535, 97 N. W. 865;Kaeppler v. Bank, 8 N. D. 411, 79 N. W. 869;State v. Root, 5 N. D. 494, 67 N. W. 590, 57 Am. St. Rep. 568), and such is the established rule in other states (Ludden v. State, 48 N. W. 61, 31 Neb. 429;Swart v. Kimball, 43 Mich. 451, 5 N. W. 635;Freeman v. City of Huron, 8 S. D. 435, 66 N. W. 928;Thomas v. People, 14 Colo. 254, 23 Pac. 326, 9 L. R. A. 569;Young v. Cannon, 2 Utah, 560;Herdman v. State, 54 Neb. 626, 74 N. W. 1097;Batchelder v. Moore, 42 Cal. 412;State v. Sweetland, 54 N. W. 415, 3 S. D. 503). I would serve no useful purpose to reiterate the reasons for this rule, as given in the foregoing authorities. Suffice it to say that we fully approve the previous utterances of this court upon this question. Moreover, the Code (section 9374, Rev. Codes 1905), governing proceedings for contempt under the so-called prohibition law of this state, expressly requires that the affidavit upon which the attachment for contempt issues shall make a prima facie case for the state. This language is clear and explicit, and needs no judicial construction to ascertain its meaning; but we quote briefly from the opinion of Bartholomew, C. J., in Kaeppler v. Bank, supra, as follows: “As the application for the arrest is an ex parte proceeding, and as it is in derogation of personal liberty, the least that can be required is that the applicant make an undoubted prima facie case. Upon well-settled, general principles, this cannot be done, in the absence of statutory sanction, by an affidavit based upon information and belief, for the very evident reason that such affidavit is not competent evidence. It is merely hearsay. If the affiant were on the stand, he would not be permitted to testify to any such matter, and he certainly will be equally restricted in an ex parte affidavit, where he is subjected to no cross-examination; and so are the authorities.”

It follows that the court acquired no jurisdiction to arrest the appellant for the alleged contempt, and had no jurisdiction to inflict the punishment complained of, unless the appellant by pleading guilty, as he did, has waived his right to allege such want of jurisdiction. Respondent's counsel contends that: “Appellant cannot now be heard to object to the form and sufficiency of the affidavit, as he has not pleaded guilty to an affidavit, the affidavit being only a part of the evidence which caused the court to issue the order of arrest, and also that appellant pleaded guilty to contempt of court, which plea, when voluntarily entered, without objection, precludes any consideration of the evidence, and left the court no alternative, except to sentence the person so pleading”-citing Holman v. State, 105 Ind. 513, 5 N. E. 556. This case is not in point, as it was a direct contempt; that is, a contempt committed in the presence of the court, which was there involved. In such contempts no formal accusation is required. State v. Root, 5 N. D. 487, 67 N. W. 590, 57 Am. St. Rep. 568;State v. Crum, 7 N. D. 299, 74 N. W. 992. Counsel is mistaken in asserting that the affidavit was only a part of the evidence upon which the court issued the order of arrest. It was the only evidence that any contempt had been committed, and it constituted the only justification for the issuance of the warrant and the order to show cause. It was the only formal accusation against the defendant. That such an accusation is indispensable in cases of contempts not committed in the presence of the court is established in State v. Root, 5...