State ex rel. Jones v. Conn

• Court: Oregon Supreme Court
• Writing for the Court: BEAN, C.J. (after stating the facts).
• Citation: State ex rel. Jones v. Conn, 37 Or. 596, 62 P. 289 (Or. 1900)
• Decision Date: 08 October 1900
• Parties: STATE ex rel. JONES v. CONN.

62 P. 289

37 Or. 596

STATE ex rel. JONES v. CONN.

Supreme Court of Oregon

October 8, 1900

Appeal from circuit court, Lake county; H.L. Benson, Judge.

Proceeding by the state, on the relation of George Jones, for contempt against George Conn. Judgment of guilty, and defendant appeals. Reversed.

This is a proceeding for contempt, instituted by filing the following affidavit: "In the Circuit Court of the State of Oregon for Lake County. State of Oregon ex rel. George Jones Plaintiff, v. George Conn, Defendant. State of Oregon Jackson County--ss.: I, Austin S. Hammond, being first duly sworn, on oath say I am the attorney for the above-named George Jones in a suit now pending in the circuit court for Lake county, wherein said George Jones is plaintiff, and said George Conn is defendant, and on the _____ day of May, 1897 the Hon. W.C. Hale, one of the judges of said court, duly made and issued an order restraining the said George Conn, his attorneys, agents, and employés, from using any of the waters of Chewaucan river, in said county, for the purpose of irrigation, upon the northeast quarter of section 23, or the north one-half of the northwest quarter of section 24, in township 33 south, range 18 east, of the Willamette meridian, in said county, and said order is still in full force; that I am informed and believe that said George Conn, in violation of said order, and with full knowledge thereof, and with the intention willfully to violate and disobey the same, has been during the past two weeks, and now is, using said waters for the purpose of irrigation upon said lands and all of them, and threatens to continue so to do, and he refuses to obey said order; that said order was duly served upon said George Conn a few days after the issuance thereof. [ Signed] Austin S. Hammond. Subscribed and sworn to before me and in my presence this 21 day of June, 1898. [ Signed] W.I. Vawter, Notary Public for Oregon." Upon presentation of the affidavit, a citation was issued by one of the judges of the First judicial district, requiring the defendant to appear before him at Klamath Falls on a day named to show cause why he should not be punished for contempt. Thereafter such proceedings were had that at the hearing the defendant was adjudged to be in contempt of court, and sentenced to pay a fine of one dollar and costs. From this judgment he appeals, assigning as error the insufficiency of the affidavit and want of jurisdiction.

C.A. Cogswell, for appellant.

D.R.N. Blackburn, Atty. Gen., for the State.

BEAN C.J. (after stating the facts).

Our statute relating to the punishment of contempts provides that, when 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 or judicial officer." Hill's Ann.Laws Or. § 653. This affidavit is essential to the jurisdiction of the court in all proceedings for constructive contempts ( State v Kaiser, 20 Or. 50, 23 P. 964, 8 L.R.A. 584); and it must state facts which, if established, will constitute the offense. If it is insufficient in this respect, there is nothing to set the power of the court in motion, and it is without jurisdiction to proceed. Works, Courts, 492; Wyatt v. People, 17 Colo. 252, 28 P. 961, and authorities; Batchelder v. Moore, 42 Cal. 412; McConnell v. State, 46 Ind. 298. Now, a proceeding for contempt for violating an injunction is in its nature criminal (5 Cr.Law.Mag. 171; Freeman v. City of Huron, 8 S.D. 435, 66 N.W. 928; Lester v. People, 150 Ill. 408, 23 N.E. 387, 37 N.E. 1004; Wyatt v. People, supra); and therefore the statute must be strictly pursued (4 Enc.Pl. & Prac. 770). It requires that facts shall be stated in the affidavit, and, in our judgment, a statement that the affiant is informed...