State ex rel. Register v. McGahey

• Decision Date: 14 December 1903
• Docket Number: 6731
• Citation: 97 N.W. 865,12 N.D. 535
• Court: North Dakota Supreme Court

97 N.W. 865

12 N.D. 535

STATE OF NORTH DAKOTA, EX REL GEORGE M. REGISTER, v. ARTHUR E. MCGAHEY, THE NORTHERN PACIFIC RAILWAY CO., THE MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO

No. 6731

Supreme Court of North Dakota

December 14, 1903

Appeal from District Court, Burleigh county; Winchester, J.

Arthur E. McGahey was convicted of contempt, and appeals.

Reversed.

Reversed.

J. G Hamilton and A. T. Patterson (Tracy R. Bangs, of counsel) for appellant.

Contempt cannot be charged for resisting void process. The resistance must be predicated and have its foundation upon lawful process. 2 High on Injunctions, 1425.

Disobedience of an order of court not authorized by law is not contempt. Lester v. People, 150 Ill. 408, 23 N.E. 387; In re McCain, 68 N.W. 163.

If the writ in whole or in part is beyond the power of the court, or soin excess cmuh as is of jurisdiction, is void, the court has no right to punish for contempt of its requirements. Ex parte Rowlund et al., 104 U.S. 579, 25 L.Ed. 861; Ex parte in re Lange, 18 Wall. 165, 21 L.Ed. 872; Ex parte Parks, 93 U.S. 22, 23 L.Ed. 787; Ex parte Seibold, 100 U.S 371, 25 L.Ed. 717; Ex parte Virginia, 25 L.Ed. 676.

To constitute the offense of resisting an officer, the process must be legal, and the officer authorized in law to serve or execute it. Brown v. People, 17 Ill. 374; State v. Estis, 70 Mo. 427; State v. Hooker, 17 Vt 658; People v. Nash, 1 Idaho, 206; State v. Flagg, 50 N.H. 330; State v. Beason, 40 N.H. 367; Bowers v. People, 17 Ill. 373; State v. Hooker, supra; U. S. v. Stowell, 2 Curtis, C. C. 155; Keenan v. People, 58 Ill.App. 191; People v. O'Neill, 47 Cal. 109; Walton v. Develing, 61 Ill. 201; Lester v. People, 23 N.E. 387.

Where the court has no jurisdiction, no contempt in disobedience or resistance. McKinney v. Frankfort and State Line Co., et al, 38 N.E. 170, 39 N.E. 500; Call v. Pike, 66 Me. 360; St. Louis, K. & S. R. C. v. Wear, 36 S.W. 357; Ex parte Gardner, 22 Nev. 280, 39 P. 570; Bachelder v. Moore, 42 Cal. 412; State v. Davis, 2 N.D. 461, 51 N.W. 942; Harris v. Clark, 10 How. Pr. 415.

Accusations for contempt must be supported by evidence sufficient to convince the mind of another beyond a reasonable doubt of the actual guilt of the accused. U. S. v. Jose, 63 F. 951; Potter v. Pow, 16 How. Pr. 549; Woodruff v. North Bloomfield Gravel Min. Co., 45 F. 793; Weeks v. Smith, 3 Abb. Pr. 211; In re Buckley, 10 P. 69; In re Taylor, 10 P. 88; State v. District Court, Fourteenth Judicial District, Minnesota, 52 N.W. 831; People v. Brennan, 45 Barb. 347.

The affidavit served with the papers fails to conform to section 7605 of the Rev. Codes. It does not show that intoxicating liquors were sold, kept for sale, bartered or given away on the premises where a nuisance is alleged on information and belief to have been conducted contrary to law. It does not specifically, particularly and carefully designate the premises to be searched. It does not allege the reasonable cause for search. 3 Woods. 502; Bly v. Tomkins, 2 Abb. Pr. 468; Vanatta v. State, 31 Ind. 310.

A search warrant is only granted, after a showing, under oath, that a crime has been committed. Lippman v. People, 51 N.E. 872; Cooley on Const. Lim. (6th Ed.) 368.

Affidavit must show probable cause arising from the facts within affiant's knowledge, and must exhibit the facts upon which the belief is based. U. S. v. Turead, 20 F. 621; Johnson v. U.S. 30 C. C. A. 612, 87 F. 187.

The warrant is not allowed to obtain evidence of an intended crime, but only after lawful evidence of an offense actually committed. Cooley Const. Lim. Law. 370; Boyd v. U.S. 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524; Commonwealth v. Dana, 2 Met. 329; Glennon v. Britton, 40 N.E. 594.

The constitutional right to be secure against unreasonable searches and seizures is not violated by the seizure under a warrant of requisition based upon a forged certificate, the search being made upon probable cause, supported by affidavit, since the public has an interest in preventing the use of such warrant. Langdon v. People, 24 N.E. 877; Boyd v. U.S. supra; State v. Thoemke, 11 N.D. 386, 92 N.W. 480; O'Keefe v. State, 24 O. St. 175; State v. Kreig, 13 Ia. 462; State v. Waltz, 38 N.W. 494.

An affidavit on information and belief is insufficient to support a warrant of arrest in insolvency proceedings. Koeppler v. Red River Valley Nat'l Bank, 8 N.D. 406, 79 N.W. 869, and cases cited. Fisher v. McGarr, 61 Amer. Dec. 382.

Search warrants should be construed strictly. Larthel v. Forgay, 46 Am. Dec. 554; Sanford v. Nichols et al, 13 Mass. 286; Commonwealth v. Intoxicating Liquors, 109 Mass. 371; Commonwealth v. Intoxicating Liquors, 115 Mass. 145; State v. Robinson, 33 Me. 564; Jones v. Fletcher, 41 Me. 254; State v. Staples, 37 Me. 228; State v. Carter, 39 Me. 262; Sullivan v. City of Oneida, 61 Ill. 242.

Search warrants to be valid, the court must have jurisdiction to issue; there must be a strict compliance with the essentials of the statute, and the warrant must accurately describe the person, the place to be searched and the things to be seized. Reed v. Rice, 2 J. J. Marsh, 44; Jones v. Fletcher, 41 Me. 254; Sanford v. Nichols, 13 Mass. 286; Flaherty v. Langley, 62 Me. 420; Grumon v. Raymond, 1 Conn. 40; Ashley v. Peterson, 25 Wis. 621; State v. Markuson, 7 N.D. 155, 73 N.W. 82.

Geo. M. Register, state's attorney, and F. H. Register, for the respondent.

The injunctional order issued in this action was based upon a sufficient affidavit and complaint, and was, therefore, properly issued. Section 7605, Rev. Codes 1899.

This section expressly provides "that the affidavit, complaint or both, may be made by the state's attorney, attorney general or his assistants upon information and belief, and no bond shall be required." The affidavit of George M. Register made in this action upon which the search warrant was issued, complied with all the requirements of the above section. This affidavit shows and states that the defendants kept for sale and illegally sold intoxicating liquors, consisting in part of whisky and beer, on the premises particularly set out therein and in the search warrant, in the Northwest Hotel situated in the city of Bismarck, in that part of the basement thereof under the east wing of said hotel east of the barber shop therein and north of the hall in the basement thereof, running east from the near foot of the stairway leading into said basement from the office or lobby of said hotel. The above description is sufficient. Lowry v. Gridley, 30 Conn. 450.

Probable cause is defined to be, such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty. Anderson's Law Dictionary, 157; Bacon v. Towne, 4 Cush. 238; Heyne v. Blair, 62 N.Y. 22; Stacey v. Emery, 97 U.S. 647, 24 L.Ed. 1035; Wheeler v. Nesbitt, 24 How. 551, 16 L.Ed. 765; 2 Bouvier's Law Dictionary, 467.

The description of the property searched was as precise and accurate as the circumstances permitted, and this is all that is required. Black on Intoxicating Liquors, 408; State v. Thompson, 44 Iowa 339.

That the complaint was verified upon information and belief does not detract from its strength. This form is permitted in all cases by the attorney of the party to an action in this state. Such a complaint before a magistrate will authorize him to issue his warrant of arrest thereon. State v. Hobbs, 39 Me. 212.

Complaint is not required to allege that the complainant has probable cause to believe; it is sufficient to allege that he does in fact believe that intoxicating liquors are kept by a person in violation of law. State v. Welch, 79 Me. 99; State v. Devine, 13 A. 128; Commonwealth v. Certain Intoxicating Liquors, 110 Mass. 182; State v. Nowlan, 64 Me. 531.

The complaint itself may be considered as an affidavit. Harris v. Lester, 80 Ill. 311; Baker v. Williams, 12 Barb. 557; Barnes v. Doyle, 28 Wis. 463; State v. Davie, 22 N.W. 411; Commonwealth v. Leddy, 105 Mass. 381.

Reasonable searches are allowed, and if the thing sought is found it may be seized. Boyd v. U.S. 116 U.S. 616, 29 L.Ed. 746; Commonwealth v. Dana, 2 Met. 329; Glennon v. Britton, 40 N.E. 594; Co-operative Building and Loan Association et al v. State, 60 N.E. 146; Shuman v. City of Ft. Wayne, 26 N.E. 560; Levy v. Superior Court of City and County of San Francisco, 38 P. 965; Langdon v. People, 138 Ill. 382, 24 N.E. 874; Gindrat v. People, 138 Ill. 103, 27 N.E. 1085; State v. Mayhew, 2 Gil. 487; State v. Newman, 96 Wis. 258, 71 N.W. 438; In re Chapman, 166 U.S. 661, 17 S.Ct. 677; Boston Beer Co. v. Mass., 97 U.S. 25, 24 L.Ed. 989; Bartmeyer v. Iowa, 18 Wall. 129, 21 L.Ed. 929; U. S. v. Distillery No. 28, 6 Biss. 484; The Luminary, 8 Wheat. 407, 5 L.Ed. 647; Henderson's Distilled Spirits, 14 Wall. 44, 20 L.Ed. 815.

The disobedience of any order, judgment or decree of a court having jurisdiction to issue it, is a contempt of court, however erroneous or improvident the issuing of it may have been. In re Cohen, 5 Cal. 594; Tilton v. Paterson, 18 Abb. Pr. 245; Rapalje on Contempt, 19.

If a court having jurisdiction should issue an improper order, it is obligatory until reversed by an appellate court, and parties may be punished for disobedience or resistance to such order. Sullivan v. Judah, 4 Paige 442; Moat v. Halbein, 2 Edw. (Ch.) 188; People v. Bergen, 53 N.Y. 404; Franklin v. Smith, 49 Ga. 112; Smith v. Fitch, 1 Clark (N.Y.) 265; Rutherford v. Metcalf, 5 Hayw. 58 (Tenn.).

If the order is void for want of jurisdiction, disobedience of it is not contempt of court. Harris v. Haines, 35 Mich. 138; People v. Sturdevant, 9 N.Y. 263.

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