Lynch v. District Court

185 N.W. 303, 48 N.D. 431, 1921 N.D. LEXIS 61

• Court: North Dakota Supreme Court
• Decided: October 21, 1921
• Status: Published

Opinions

Robinson, J.

This is an application for a writ of prohibition to the district judge of Ward county to restrain him from proceeding under a writ of certiorari by him issued to the respondents. The petitioners are the police magistrate and police officers of the city of Minot. On May 16, 1921, a stranger named J. W. Baker made before the magistrate an affidavit:

“That stolen property, to wit, a Buick car, is present upon the following described premises: Lots 17 and 18 of block 21 in Brooklyn addition to the city of Minot — that the keeper of said stolen property is to this affiant unknown.”

The affidavit does not state that Baker knows anything of the car, its ownership, its value, or that he has any interest in the matter. However, the magistrate issued a warrant “to search the above-described premises for said stolen car and to bring it forthwith before me (the magistrate) at my office in the city of Minot.” Under that warrant the chief of police made return thus:

“I made search of the premises and took into my custody one Buick roadster and one Buick Six touring car.”

Then one Della Marsh proved that she owned the Buick Six and it was released to her. Now it appears the Buick roadster was taken from the possession and the garage of E. F. Tuepker, and on his affidavit the writ of certiorari was issued. The affidavit was made on August n, 1921, and it shows, among other things, that the police officers took and retained possession of said roadster and used it as their own car, and that they failed to make an inventory of the car and failed to deliver any inventory to said Tuepker, from whose possession he took it; that the magistrate failed to take any testimony in regard to the facts stated in such warrant or to reduce the same to writing, and that in several other respects the magistrate and police officers wholly failed to comply with the law; also that the police officers did remove from the car the license tags and an extra tire, which they used on other automobiles.

The writ of certiorari commands respondents to certify and return to the district court of Ward county all the records and proceedings in regard to the Buick roadster, and in the meantime to desist from using the same. By statute — § 8445, Comp. Laws 1913 (Laws 1919, c. 76)— the writ of certiorari may be granted by the Supreme Court and any district court when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, also when it is deemed necessary to prevent a miscarriage of justice. If it appeared to the district judge, as we presume it did, that the search warrant was issued without a proper showing, that no proper return was made to the magistrate or judgment rendered by him, and that the parties taking the roadster were using it as their own, that was cause sufficient for issuing the writ. By the Constitution unreasonable searches and seizures are forbidden. A warrant of seizure may not issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized. § 18. Respondents object that certiorari is not the proper remedy, and that a replevin suit would be a much better remedy, but to such a suit a valid objection would be that it is a collateral attack on the official action of the magistrate, while the certiorari affords the only direct, plain, speedy, inexpensive, and adequate remedy.

Hence the petition for the writ of prohibition is denied and dismissed.

Grace, C. J., concurs in the result.