State v. District Court of Eighth Jud. Dist.

• Decision Date: 11 August 1925
• Docket Number: 1311
• Citation: 33 Wyo. 281,238 P. 545
• Parties: STATE v. DISTRICT COURT OF EIGHTH JUD. DIST. [*]
• Court: Wyoming Supreme Court

238 P. 545

33 Wyo. 281

STATE v. DISTRICT COURT OF EIGHTH JUD. DIST. ^[*]

No. 1311

Supreme Court of Wyoming

August 11, 1925

Original proceeding in prohibition by the state on the relation of Bert S. Yohe against the District Court of the 8th Judicial District in and for the County of Natrona, and Bryant S. Cromer as Judge thereof. Heard on motion to quash the alternative writ issued.

Petition dismissed.

David J. Howell, Attorney General and E. E. Enterline for the motion.

The police court had jurisdiction; Secs. 1902, 1909, 1915, 1916 C. S.; 7419 C. S. governs appeals therefrom; petition for the writ is insufficient, no objections being made below; State v. Dist. Court (Wyo.) 227 P. 378; petitioner's appeal bond did not stay execution; 6413 C S.; the Dist. Court had jurisdiction to make the order complained of and enforce it; the order was res adjudicata until reversed; Murdica v. State, 22 Wyo. 196; the appellant court will not inquire into the merits of the contempt order; 13 C. J. 80; O'Brien v. People (Ill.) 75 N.E. 108; 129 N.W. 400; Croft v. Croft (Wash.) 138 P. 6; State v. Dist. Court (Mont.) 79 P. 319; the Dist. Court had jurisdiction to hear and determine the petition for return of property; State v Peterson, 27 Wyo. 185; State v. George, 231 P. 683; petitioner had no right to deliver the liquor to successor in office; Ex Parte Kellogg (Cal.) 30 P. 1030; Burnett v. State (Okla.) 129 P. 1110; liquor unlawfully seized will be ordered returned even though contraband; McFadden on Prohibition, Secs. 197-200 and cases cited; petitioner resists the authority of the court on the ground that he is an agent of the City of Casper; however property unlawfully seized must be returned; State v. Peterson, supra; State v. George, supra; defendant should not be prohibited from proceeding against the relator for a violation of its order made on September 6, 1924.

R. M. Boeke and Kenneth W. McDonald contra.

Intoxicating liquors are contraband and their possession is unlawful until proven lawful; Laws 1921 Chap. 117; Secs. 25-35; State v. Kieffer, S.D. 196 N.W. 967; U. S. v. Jensen, 291 F. 668; U. S. v. Deiadus, 289 F. 637; U. S. v. Kaplan, 286 F. 963; People v. Pkgs. of Whiskey (N. Y.) 142 N.E. 298; State v. Pluth, (Minn.) 195 N.W. 789; Com. v. Wilkins (Mass.) 138 N.E. 11; Hall v. Com. (Va.) 121 S.E. 154; Rosanski v. State, (Ohio) 140 N.E. 370; Bank v. State, 24 A. L. R. 1359; People v. Mayen (Calif.) 205 P. 435; Voorhies v. U. S. 299 F. 275; U. S. v. Alexander, 278 F. 308; U. S. v. Cararota, 278 F. 388; City v. Walser, 187 N.W. 821; U. S. v. Fenton, 268 F. 221; Blakemore on Prohibition, (2nd Ed. 1925) 501; jurisdiction is never waived; 15 R. C. L. 482; in re Rosenheim, 23 P. 372; Blanchard v. Bryan, 200 P. 444; Bank v. Steinhoff, 11 Wyo. 290; the writ will issue even where jurisdiction of the person and subject matter exists, if there be no authority for issuance of the contempt order; Burke v. Court (Calif.) 93 P. 1058; Ruggles v. Court (Calif.) 37 P. 211; Ordman v. Ball (Ga.) 48 S.E. 383; State v. Wedge, 24 Minn. 150; People v. Carrington, (Utah) 17 P. 735; State v. Co., 72 N.W. 193; State v. Co. (Wash.) 71 P. 1095; Nichols v. Judge (Mich.) 89 N.W. 691; a writ is used frequently to settle matters of jurisdiction pertaining to liquor law violations; Hansen v. Dist. Court (Mont.) 233 P. 126; State v. Dist. Court, (Mont.) 232 P. 201; the Dist. Court is without jurisdiction over the person of the Chief of Police, he not being an officer of the court, and never having been before the court; Lewis v. McCarthy, 274 F. 496; In re Shue, 199 F. 282; the order being void cannot be made the basis for contempt proceedings; in Re Letcher, 190 S.W. 19; State v. Court, 202 P. 575; State v. LaFollette, 196 P. 412; Holbrook v. Co., 109 S.E. 164; Ark. Co. v. Lubers, 212 P. 848; In re Meade, 190 N.W. 235; Rudd v. Rudd, 214 S.W. 791.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an original proceeding in this court for a writ of prohibition. The facts are briefly as follows:

On March 27th, 1924, the relator herein, then and until sometime in 1925 chief of police of the city of Casper, after making search of the basement of a store building occupied by one R. J. Fuchs, and seizing intoxicating liquors therein, arrested said Fuchs for violating a city ordinance against possession of such liquors. The liquor seized consisted of rum, whiskey and wine, seemingly of good quality. When it was acquired by Fuchs does not appear. On April 1, of the same year, Fuchs was found guilty of violating said ordinance and was fined $ 100.00. From this judgment of the police court of said city, he appealed to the district court, as permitted by law. On June 21, 1924 Fuchs filed in said district court his petition for the return of said liquor so seized and for the suppression of evidence, setting forth among other things that applicant occupied the first floor of said store building to conduct the business of selling ladies' wearing apparel, and the basement thereof for storing goods used in connection with said business and to store personal property belonging to himself and family, and that said liquor, naming it, was kept in a trunk in said basement from which it was unlawfully seized by said chief of police under a void search warrant. To said petition so filed the plaintiff in said criminal case, the city of Casper, demurred. The demurrer being overruled, said plaintiff filed an answer, resisting said petition, alleging that said liquor was contraband, asking that the petition be dismissed and for such other and further relief as to the court would seem proper. The matter came on for hearing before said District Court and a judgment was entered for the suppression of evidence and for the return of said liquor to said Fuchs. An appeal was attempted to be taken from said judgment, but the attempt was abandoned. Said judgment not having been complied with, said Fuchs, on November 5, 1924, filed an affidavit in said court asking that said relator be cited to show cause why he should not be found guilty and punished as and for contempt of court for refusing to obey the order of the court directing the return of said liquor. Citation was accordingly issued and served upon relator. To said proceeding the city of Casper appeared, demurring to said affidavit, and filing an answer, after such demurrer had been overruled. Said relator also appeared, for the special purpose of challenging the jurisdiction of the court, among other reasons because said court had no jurisdiction over him as chief of police of said city, and because said court had no jurisdiction "over the intoxicating liquor which is the subject matter in controversy." The objections so raised by relator were overruled on March 25, 1925, and he was given ten days in which to answer. Further time was, on his application, subsequently given. Before the expiration thereof relator filed in this court his petition for a writ of prohibition to restrain said court and the judge thereof from entertaining, hearing or passing upon any further questions pertaining to said contempt proceeding. An alternative writ having been issued by two of the justices of this court, the respondent appeared and filed a motion to quash said alternative writ. The case was fully argued by counsel for both sides and submitted to the court. It is admitted herein by counsel for relator that the seizure of said liquor was unlawful because made under a search warrant that was void, and no question is raised as to the order of suppression of evidence. Two main points only are argued on behalf of relator: First, that said relator, chief of police of the city of Casper, was not an officer of the district court, and hence not subject to the orders of that court; second, that said intoxicating liquor was, as shown by the face of the proceedings leading up to the judgment ordering the return thereof, contraband under the statute, being kept in a place other than the home of Fuchs; that hence the court had no authority to order its return and its judgment is for that reason totally null and void, which may be collaterally attacked and upon which no contempt proceedings can be based. Cases are cited to the effect that a court must have "jurisdiction to render the particular judgment" in question, and it is claimed that the absence of such jurisdiction is clearly shown. Counsel appearing for respondent contend that the judgment of said court above mentioned is at most voidable and not void, and hence cannot be attacked collaterally, as is sought to be done herein, and counsel appearing for respondent other than the Attorney General, further contend that inasmuch as the said liquors were seized unlawfully, under a void search warrant, it was not only the right but also the duty of the court to order its return.

1. We cannot sustain the contention of counsel for relator that the chief of police of the city of Casper was not subject to the orders of the district court in the proceeding for the return of the liquor in question, because he was not an officer of that court. The case was commenced in the police court of the city of Casper for violation of an ordinance of the city. Such cases are prosecuted as criminal actions. Appeals are allowed to the district court, where the case is tried de novo. The chief of police was simply the agent of one of the parties to the action, and as such was subject to the proper orders of the court as to such a case in the same manner as the sheriff would have been in a criminal case originally commenced in that court. He had the property in question in his possession; he was the representative of his principal in connection with it, and his principal was properly reached...