State ex rel. Heffron v. District Court

Beuce, J. (after stating tbe facts as above). Article 4, § 86, of the Constitution of North Dakota provides that “tbe supreme court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.” Section 7822 of the Code provides: “'The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Section 9374, which relates to injunctions issued in cases of violation of the liquor laws, among other things, provides: “Any person violating the terms of any injunction granted in such proceedings shall be punished for contempt, for the first offense by a fine of not less than two hundred nor more than one thousand dollars, and by [40] imprisonment in the county jail not less than ninety days nor more than one year/’ etc. This latter statute imposes duty upon tbe district judge in cases of contempt in injunctional proceedings in liquor cases which otherwise might be discretionary. The state of California has a statutory provision in relation to mandamus, which is similar to our own. See Civ. Code Proc. (Cal.) § 1085. In the case of People ex rel. Hamilton v. Barnes, 66 Cal. 594, 6 Pac. 698, it was held that a writ of mandamus lay to compel a justice of the peace to proceed with the preliminary examination of a person regularly charged with having committed a public offense, arrested and brought before him, and that a refusal to proceed with the examination was not justified by the mere statement of the counsel for the defendant that an examination for the same offense had been had before another magistrate, on which the defendant had been held to answer. The court, among other things, said: “The application here is for a writ of mandate, to compel the justice of the peace to proceed with the preliminary examination of Charles W. Pinney. This writ may be issued by this court to any inferior tribunal or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station (Civ. Code Proc. § 1085). . . . Peremptory language is used in all these sections [sections relating to preliminary examinations before justices of the peace]. The mandate is expressed by the word 'must.’ In § 858, 'the magistrate must immediately inform him of the charge against him,’ etc. In § 859, 'he must allow the defendant a reasonable time to send for counsel,’ etc. In § 860, 'the magistrate must, immediately after the appearance of counsel, or if, after waiting a reasonable time therefor, none appears, proceed to examine the case.’ The duties of the magistrate are pointed out in clear and distinct terms, and especially enjoined by imperative words. It is difficult to employ language more mandatory in its character. As to the further duties of the magistrate, the same imperative words are used. . . . We are of opinion that the magistrate was commanded by the law to proceed with the examination of the case before us, and that on his failure to do so the writ asked for to compel him is appropriate. The magistrate had nothing to do with what had transpired before any other magistrate. It was not a matter for his consideration, — was entirely foreign to his .duty in the premises. The discharge of the prisoners was [41] a failure to perform tbe duty which the law enjoined upon him.” In the case of State ex rel. McGovern v. Williams, 136 Wis. 1, 20 L.R.A.(N.S.) 941, 116 N. W. 225, it was held that “where an inferior court decides a jurisdictional question, or one preliminary to the main controversy submitted to it adversely to its jurisdiction, and refuses further action, such decision, although judicial in character, constitutes, if erroneous, a refusal to perform its duty with respect to the main controversy ; and in the absence of other adequate and sufficient remedy,” the supreme court can, under the superintending control granted in § 3, art. 7, of the Constitution, review such decision and consider whether or not it was the duty of the inferior court to entertain the controversy, and that performance of its duty by the inferior court in such a case can be compelled by mandamus. Nor does the fact that a charge of contempt embracing a shorter length of time than that stated in the subsequent charge had been dismissed prior to the institution of the subsequent proceedings in any way preclude a proceeding under the latter. Not merely did the second charge cover a 'longer period of time, but since the former proceeding was dismissed without any hearing on the merits or plea being filed, there was no former jeopardy, nor could the rule of res judicata apply. State v. Gilpin, 1 Del. Ch. 25; Vertner v. Martin, 10 Smedes & M. 103; 9 Cyc. 33 M; 12 Cyc. 261 B; State v. Winbauer, 21 N. D. 161, 129 N. W. 97. The order of the district court dismissing the proceedings to punish the defendant Charles Nolan for statutory criminal contempt under § 9374 is not appealable, since § 7573 of the Rev. Codes of 1905 only allows appeals in contempt cases where the defendant has been found guilty; and we held in the case of State ex rel. Morrill v. Massey, 10 N. D. 154, 86 N. W. 225, that in the absence of a statute authorizing appeals in criminal contempt cases, no appeal will lie. There was, therefore, no other adequate remedy, and the case is one which clearly comes within the superintending control of the supreme court and one in which mandamus may and should issue. State ex rel. Northern P. R. Co. v. Loud, 24 Mont. 428, 62 Pac. 497; People ex rel. Hamilton v. Barnes, 66 Cal. 594, 6 Pac. 698; Merced Min. Co. v. Fremont, 7 Cal. 130, 7 Mor. Min. Rep. 309; State ex rel. Red River Brick Corp. v. District Ct. — N. D. —, 138 N. W. 988; State ex rel. Sutton v. [42] District Ct. 27 Mont. 128, 69 Pac. 988. Tbis, of course, is not a case where it is sought by mandamus to control the decision of an inferior court upon the merits of a cause, but merely to proceed with a hearing when it has dismissed and refused to go into the merits of the same on account of an erroneous construction of a question of law and of practice preliminary to the final hearing. In such latter case mandamus will issue. High, Extr. Legal Rem. § 151; Raleigh v. First Judicial Dist. Ct. 24 Mont. 306, 81 Am. St. Rep. 431, 61 Pac. 991; State ex rel. Sorrel v. Foster, 106 La. 428, 31 So. 57; State ex rel. Northern P. R. Co. v. Loud, 24 Mont. 428, 62 Pac. 497; People ex rel. Hamilton v. Barnes, 66 Cal. 594, 6 Pac. 698; Ex parte Parker, 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 128; State ex rel. Shannon v. Hunter, 3 Wash. 92, 27 Pac. 1076; State ex rel. Keane v. Murphy, 19 Nev. 89, 6 Pac. 840; Merced Min. Co. v. Fremont, 7 Cal. 130, 7 Mor. Min. Rep. 309; Lindsay v. Wayne County Circuit Judge, 63 Mich. 735, 30 N. W. 590; State ex rel. Chism v. Twenty-Sixth Dist. Judge, 34 La. Ann. 1177; Ex parte State, 115 Ala. 123, 22 So. 115; 2 Spelling, Extr. Relief, §§ 1398, 1404; State ex rel. Red River Brick Corp. v. District Ct. — N. D. —, 138 N. W. 988; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 79 N. W. 1081, 51 L.R.A. 33, note; State ex rel. McGovern v. Williams, 136 Wis. 1, 116 N. W. 225, 20 L.R.A.(N.S.) 941, note. The trial court erred in holding that a dismissal or abatement of the original action in which the injunction was granted (if dismissal there was), abated and disposed of the attachment proceedings fox a contempt of court charged to have been committed while the injunction was in force. When once the contempt, if any there was, had been committed, it became a public offense which was separable and distinct from the action in relation to which it might have been committed. See State v. Nathans, 49 S. C. 199, 27 S. E. 52, 55; Gompers v. Buck’s Stove & Range Co. 221 U. S. 418, 451, 55 L. ed. 797, 810, 34 L.R.A.(N.S.) 874, 31 Sup. Ct. Rep. 492. So, too, there is no evidence in the record of any such dismissal, but merely of a promise by the court to dismiss the action upon the doing of certain things which it was for the court by a subsequent order to determine had been done. A promise to make an order rendering a certain judgment is not in law the making of such order or the entering of such judgment. The writ will issue as prayed for.