State v. Markuson

• Decision Date: 28 October 1895
• Parties: STATE v. NORMAN MARKUSON
• Court: North Dakota Supreme Court

64 N.W. 934

5 N.D. 147

STATE v. NORMAN MARKUSON

Supreme Court of North Dakota

October 28, 1895

Error to District Court, Barnes County; Rose, J.

Norman Markuson was convicted of contempt of court, and brings error.

Affirmed.

Crum & Hanson and G. K. Andrus, for plaintiff in error.

A writ of error is the proper remedy by which to review a judgment for contempt. Sections 7499, 7500 and 7502, Comp. Laws; State v. Knight, 54 N.W. 413; State v Sweetland, 54 N.W. 416; Gandy v. State, 14 N.W 146; Myers v. State, 22 N.E. 43; In re Smith, 7 N.E. 685; Wyatt v. People, 28 P. 962; Cooper v. People, 22 P. 796; State v Davis, 2 N.D. 461. The appellate court will review the testimony in contempt cases, to determine whether the testimony showed a contempt, or jurisdiction. Ex parte Rowe 7 Cal. 176; Romeyn v. Caplis, 17 Mich. 454; Wyatt v. People, 28 P. 962; Peo. v. Kelley, 24 N.Y. 74; State v. District Court, 62 N.W. 832; Granholm v. Sweigle, 3 N.D. 476; In re Pryor, 26 Am. Rep. 747; Storey v. People, 22 Am. Rep. 158; Ex parte Grace, 79 Am. Dec. 529; McCredie v. Senior, 4 Paige 378. In order to give the court jurisdiction every jurisdictional fact must be set forth in the affidavit upon which the attachment for contempt issues. State v. Sweetland, 54 N.W. 415; Bachelder v. Moore, 42 Cal. 412; Wyatt v. People, 28 P. 961; Thomas v. People, 23 P. 326; Ralpalje on Contempts, § 94.

J. F. Cowan, Atty. Gen'l; Herman Winterer, States Atty., and Chas. A. Pollock, for defendant in error.

A judgment rendered in a contempt proceeding is not within the statute, and subject to review by writ of error, and in the absence of express statutory provision therefor the writ of error will not lie. State v. Galloway, 98 Am. Dec. 404; 5 Crim. L. Mag. 647; Rapalje Contempt, § 13; People v. Owens, 28 P. 871; Land and Water Co. v. S. Ct., 28 P. 813; Ex parte Tyler, 149 U.S. 180, 13 S. C. Rep. 77. The infliction of punishment for contempt of court is not an infringement of the constitutional guaranty of jury trial. 4 Blacks. Com. Ch. 20; 3 Am. & Eng. Enc. L. 721; 5 Crim. L. Mag. 515; Garrigus v. State, 93 Ind. 239; In re Terry, 128 U.S. 289; Eilenbecker v. Dist. Court, 134 U.S. 31; In re Debs, 158 U.S. 594; State v. Doty, 90 Am. Dec. 671; Neal v. State, 50 Am. Dec. 209; State v. Becht, 23 Minn. 411.

BARTHOLOMEW J. WALLIN, C. J. (concurring.)

OPINION

BARTHOLOMEW, J.

On the 12th day of December, 1894, an action in equity entitled "The State of North Dakota ex rel. Martin H. Wilberg v. Norman Markuson" was commenced by the state's attorney of Barnes County under the provisions of section 13, Ch. 110, Laws 1890, commonly known as the "Prohibitory Law." The relief asked was that certain premises occupied by the defendant in that action be declared a nuisance and abated as such. The usual preliminary injunction was granted, restraining the defendant, his agents, servants, and employes, from selling or keeping for sale any intoxicating liquors on said premises during the pendency of the action. The papers in the case--summons, complaint, injunctional order, affidavit for search warrant, and search warrant--were served upon the defendant on December 29, 1894. On June 11, 1895, the said state's attorney of Barnes County by affidavit brought to the attention of the court the fact that the defendant had violated and was violating the terms of the temporary injunction, in that he had sold intoxicating liquor on said premises, and asked an order of attachment against the body of the defendant, and that he be arrested and brought before the court to answer for contempt of court. The order was granted and the defendant was produced in court, and on June 28, 1895, a hearing was had, and evidence introduced by both the state and the defendant. The court found the defendant in contempt, and adjudged him to be imprisoned in the county jail of Barnes County for 90 days and pay a fine of $ 200,--the minimum punishment permissable under the statute. This judgment has been brought into this court for review upon a writ of error.

The first point to be considered relates to procedure. The defendant in error contends that contempt proceedings are not reviewable on writs of error. The cases are in conflict on this point. The briefs of counsel in this case furnish long lines of authorities from eminent courts on both sides of the question. At common law the position of defendant in error was doubtless correct, but in this country (particularly in the Western states, and under statutory provisions) the opposite practice largely prevails, in what are known as "criminal contempts" as distinguished from "civil contempts,"--a distinction which was clearly pointed out and discussed by Corliss, C. J., in State v. Davis, 2 N.D. 461, 51 N.W. 942, and which we need not further discuss at this time. Proceedings in criminal contempts were held properly reviewable by writ of error in Gandy v. State, 13 Neb. 445, 14 N.W. 143; Myers v. State, 46 Ohio St. 473, 22 N.E. 43; In re Smith, 117 Ill. 63, 7 N.E. 683; Cooper v. People, 13 Colo. 337, 22 P. 790; Wyatt v. People, 17 Colo. 252, 28 P. 961; and State v, Knight, 3 S.D. 509, 54 N.W. 412. The South Dakota statutes pertaining to writs of error are identical with the statutes of this state. In New Orleans v. Steamship Co., 87 U.S. 387, 20 Wall. 387, 22 L.Ed. 354, the Federal Supreme Court, speaking through Justice Swayne, said: "Contempt of court is a specific criminal offense. The imposition of the fine was a judgment in a criminal case. That part of the decree is as distinct from the residue as if it were an indictment for perjury committed in a deposition read at the hearing;" citing in support of the proposition Crosby's Case, 3 Wils. 188; Williamson's Case, 26 Pa. 24; and Ex parte Kearney, 20 U.S. 38, 7 Wheat. 38, 5 L.Ed. 391. See, also, Fischer v. Hayes, 19 Blatchf. 13, 6 F. 63. We think that under the statute under which the fine and imprisonment were imposed in the case at bar the proceedings were so far criminal in their nature that this judgment is peculiarly a judgment in a criminal case. The statute requires that the contempt "processes shall run in the name of the State of North Dakota," and "the accused may plead in the same manner as to an indictment, in so far as the same is applicable." It thus appears the contempt proceedings under this statute do not follow the title of the main case, but are distinct and separate, and carried forward entirely by the state for punitive purposes solely, and the judgment of the court is the final determination of the proceedings in that court. Section 7499, Comp. Laws, is as follows: "Either party may sue out a writ of error to remove to the Supreme Court, and therein to re-examine and review the record and bills of exception in a criminal action, upon matters of law decided in the District Courts, in manner as prescribed in this chapter." Section 7502 reads: "The writ may be sued out by the defendant: (1) From a final judgment of conviction. " Without further examination of authorities or elaboration, we hold that contempt proceedings in this case may be reviewed by writ of error. It is proper to add that the question will soon cease to be of any importance whatever in this state. The Revised Codes, which will go into effect at an early day, specifically provide the manner in which contempt proceedings may be reviewed. This court cannot, however, in a proceeding of this character, review any disputed question of fact. The unanimous voice of authorities forbids, unless express statutory authority be given. See State v. McKinnon, 8 Ore. 487; Romeyn v. Caplis, 17 Mich. 449; Wyatt v. People, supra; Cooper v. People, supra; Ex parte Smith, 53 Cal. 204.

But it is conceded that if a writ of error be proper in this case the appellate court may inquire (1) whether or not the act alleged to have been committed constitutes a contempt of court; (2) whether or not there is any evidence that the act was committed; (3) whether or not the court had jurisdiction of the contempt proceedings, and herein whether or not the affidavit which initiated the contempt proceedings contained the necessary jurisdictional averments, and whether or not the statute under which the court proceeded was a valid constitutional enactment.

The first inquiry is answered by section 13 of the prohibition law, which expressly declares that any person violating the terms of any injunction granted in an equity case shall be punished for contempt. The violation of an injunctional order, was, however, equally a contempt without the statute. The statute adds nothing to it as a contempt.

It is strenuously urged by plaintiff in error that there is an entire absence of evidence establishing the commission of the act constituting the contempt. A perusal of the record leads us to the opposite conclusion. The particular point made is that the restraining order prohibited the defendant from selling intoxicants upon certain premises described therein, and that the evidence entirely fails to establish a sale upon such premises. We have carefully read the record, and we find evidence tending to support the ruling of the trial court.

Under the third head of inquiry open to this court; it is claimed that the affidavit of the states's attorney upon which the contempt proceedings were based failed to state facts giving the court jurisdiction to proceed as for contempt, in that it did not state that the equity action in which the injunctional order was made was still pending when the contempt affidavit was made. It is conceded that the affidavit must contain all the allegations necessary to give the court jurisdiction. In other words, it must be such that if its allegations be established by proof, judgment may follow. Nor can it be aided by...