State v. Heidt

• Decision Date: 21 June 1910
• Citation: 20 N.D. 357,127 N.W. 72
• Parties: STATE v. HEIDT.
• Court: North Dakota Supreme Court

20 N.D. 357

127 N.W. 72

STATE

v.HEIDT.

Supreme Court of North Dakota.

June 3, 1910.

On Denying Petition for Rehearing, June 21, 1910.

Syllabus by the Court.

Appellant was convicted in the district court of Stark county of a criminal contempt for violating an injunctional order enjoining him from maintaining a liquor nuisance in the city of Dickinson. He was sentenced to imprisonment in the county jail for the period of five months and fined in the aggregate sum of $650 with a proviso that, in the event of his failure to pay such fine, he be imprisoned for the additional period of 100 days. Judge Burr of the Ninth judicial district presided at the hearing of such contempt proceeding pursuant to the written request of Judge Crawford of the Tenth judicial district. Such request, omitting title and formal parts, is as follows: “You are hereby requested to act as district judge and take full charge of the above entitled action, including all matters and contempt proceedings therein which are now in issue or which may hereafter be brought before you by any person, authority or officer lawfully entitled to do so or otherwise as law and justice may require. By the Court, W. C. Crawford, Judge.” The assignments of error challenge (1) the jurisdiction of Judge Burr to hear and determine such contempt proceeding; (2) the sufficiency of the affidavits upon which the warrant of attachment was issued; (3) the authority of F. C. Heffron as Assistant Attorney General to institute and prosecute the proceeding; and (4) the validity of the judgment and sentence of the court. Held, for reasons stated in the opinion, that each of such assignments are untenable.

While a criminal contempt proceeding in which a warrant of attachment is issued is an original special proceeding under the provisions of section 7555, Rev. Codes 1905, it is not, strictly speaking, an independent proceeding as it grows out of, and is, to a certain extent, connected with the proceeding in the main action. Such contempt proceeding is dependent for its foundation upon the proceedings in the main action and the violation of the injunctional order therein issued. The written request of Judge Burr is sufficiently broad to confer authority upon him to assume and exercise jurisdiction, not only in the main action wherein the injunctional order was issued, but in any contempt proceeding arising out of a violation of such injunctional order, and this whether the contempt proceeding was pending or not pending at the date such request was made.

Section 6765, Rev. Codes 1905, provides: “No judge of the district court shall hear or determine any action, special proceeding, motion or application, or make any order or give any judgment in any action or proceeding not pending in the judicial district for which he is elected except in the following cases: (1) Upon the written request of the judge of the district in which such action or proceeding is at the time pending.” Held, construing said statute, that it was not the legislative intent thereby to restrict the jurisdiction of the judge thus requested to act in a district other than his own to causes only which were then pending. The words “in which such action or proceeding is at the time pending,” as used in the above section, were employed merely to designate the judge who could legally make such a request, and they have no reference to any particular subject-matter over which such requested judge may assume jurisdiction.

The affidavits on which the contempt proceeding is based examined and held, for reasons set forth in the opinion, to make out a prima facie case for the state.

The Attorney General, under the Constitution and existing statutes, has the undoubted authority, either personally or through his duly appointed assistants, to institute and prosecute persons for violating the prohibition law, and also to institute and prosecute for contempts growing out of violations of injunctional orders enjoining the maintenance of liquor nuisances. There is nothing to the contrary contained in the opinion in Ex parte Corliss, 16 N. D. 470, 114 N. W. 962, which case is distinguished from the case at bar on this point.

The judgment appealed from is not vulnerable to attack upon either of the grounds urged, which are, first, that such judgment designates the time when the imprisonment shall commence, whereas the sentence orally pronounced fails to make such designation; and, second, that the judgment is excessive as to the fine imposed. The fact that a portion of the fine consists of the costs is not material, provided the total fine imposed does not exceed the sum permitted by statute. Trial courts are vested with an absolute discretion in fixing the punishment in these cases so long as they keep within the limits prescribed by statute. In imposing a fine of $500 and the costs taxed at $150, it was clearly the intention of the court to impose an aggregate fine of $650. Such a fine is within the maximum limit fixed by statute.

Appeal from District Court, Stark County; A. G. Burr, Special Judge.

Daniel Heidt was convicted of criminal contempt for violating an injunctional order, and he appeals. Affirmed.

McFarlane & Murtha, W. F. Burnett, H. C. Berry, and L. A. Simpson, for appellant. Andrew Miller, Atty. Gen., Alfred Zuger, C. L. Young, and F. C. Heffron, Asst. Atty. Gens., for the State.

FISK, J.

This is an appeal from a judgment of the district court of Stark county adjudging appellant guilty of contempt of court in violating an injunctional order duly and regularly issued and served upon appellant in an action commenced in that court on June 1, 1909, for the purpose of enjoining defendant and others from maintaining a liquor nuisance upon certain premises in the city of Dickinson. By such judgment appellant was sentenced to imprisonment in the county jail for the period of five months, and fined in the sum of $500 and costs taxed at $150. In default of payment of such fine and costs he was adjudged to be confined in such jail for the additional period of not exceeding 100 days. No point is made as to the sufficiency of the proceedings in the main action, the appellant admitting the pendency of such action and the issuance and service of the injunctional order. On July 20, 1909, the Honorable W. C. Crawford, judge of the Tenth judicial district wherein such action was pending, made the following written request directed to the Honorable A. G. Burr, judge of the Ninth judicial district (omitting the title): “You are hereby requested to act as district judge and take full charge of the above entitled action, including all matters and contempt proceedings therein which are now in issue or which may hereafter be brought before you by any person, authority or officer lawfully entitled to do so or otherwise as law and justice may require. Dated July 20, 1909. By the Court, W. C. Crawford, Judge.” Thereafter, and on July 22d, the following affidavits, omitting formal parts, were presented to Judge Burr at Rugby:

“F. C. Heffron, being first duly sworn, does upon oath depose and say that he is Assistant Attorney General of state of North Dakota; that on the 1st day of June, 1900, as such officer, in the name of the State of North Dakota ex rel. F. C. Heffron, Assistant Attorney General for State of North Dakota, as plaintiff, he brought an action against William Heiser, Daniel Heidt, and Mary Willard, of Stark county, North Dakota, praying that the court grant judgment that the intoxicating liquor business carried on by the defendants be adjudged a common nuisance, and that the same be abated in due form of law, and that the defendants, their clerks, servants, agents and employés, be permanently enjoined from in any manner, personally or otherwise, on the following described premises, within the county of Stark and State of North Dakota, to wit, lot 4 in block 2, town of South Dickinson, and in the buildings thereon, known as Heiser & Heidt Saloon, selling or otherwise unlawfully disposing of intoxicating liquors, or being in any manner illegally concerned, engaged, or employed in keeping said liquors for sale, or keeping and maintaining a place where persons can resort for the purpose of drinking intoxicating liquors as a beverage; and that on the 9th day of June, 1909, the Honorable W. C. Crawford, judge of the Tenth judicial district court of Stark county, state of North Dakota, granted an injunction running to the said William Heiser, Daniel Heidt, and Mary Willard, their clerks, servants, agents, and employés, and each of them, be restrained and enjoined during the pendency of such action, and until the further order of the court, from selling, keeping for sale, giving away, or otherwise unlawfully holding or disposing of intoxicating liquors as a beverage, or keeping and maintaining a place where persons can resort for the purpose of drinking intoxicating liquors as a beverage, in said county of Stark in the state of North Dakota, at the premises aforesaid; that the summons, complaint, affidavit, and order containing said injunction was duly served on said William Heiser and Daniel Heidt at Dickinson, in Stark county, state of North Dakota, on the 9th day of June, 1909, by the sheriff of Stark county, state of North Dakota, as appears by the return of said sheriff now on file in the office of the clerk of the district court in and for said county. The affiant is informed and believes said William Heiser and Daniel Heidt have disregarded said injunctional order and disobeyed the mandate of the court herein, in this to wit: That on the 3d day of July, 1909, on the premises aforesaid, they sold beer to one J. C. Lemarr, to be drunk upon the premises where sold, and between June 9, 1909, and July 19, 1909, kept a place at and upon the premises aforesaid for persons to resort for the purpose of drinking intoxicating liquors as a beverage, affidavits as to such violations being hereunto attached, marked ...