Christianson, J.
In July, 1915, an equitable action was commenced by the state’s attorney of Burleigh county, against the defendant, Frank Finlayson, and one John B. Hoagland, under the provisions of the prohibitory laws of this state for the purpose of abating a certain common nuisance which it was alleged that the defendant, Frank Finlayson, was keeping and maintaining on lots 20 and 21 of block 41 of the original town site of the city of Bismarck;
The complaint was in the usual form, and prayed the usual temporary injunction, which was issued, restraining the defendant, his agents, attorneys, and servants, until the further order of the court, from using or permitting the premises in question to be used “as a [496] place where intoxicating liquors are or may be sold, bartei’ed, or given away as a beverage, or a place where persons are or may be permitted to resort for the purpose of drinking intoxicating liquors as a beverage; or a place where intoxicating liquors are kept for sale, barter, or delivery, in violation of law.” The papers in the case — summons, complaint, injunctional order, affidavit for search warrant, and search warrant — were served upon the defendant on August 28, 1915. In April, 191ÍT, the then state’s attorney of Burleigh county by affidavit brought to the attention of the court the fact that the defendant, Frank Finlayson, has violated and was violating the terms of the temporary injunction, in that he had sold intoxicating liquors on said premises, and had continued to keep a place thereon where persons were permitted to resort and did resort for the purpose of drinking intoxicating liquors as a beverage.
The affidavit of the state’s attorney recited a former conviction for contempt under the same statute, and asked that a warrant of attachment issue, and that defendant be arrested and brought before the court to answer for contempt of court. The state’s attorney’s affidavit was accompanied and corroborated by the affidavits of F. L. Watkins, Frank Toron, and Anton Melum. Upon these affidavits an attachment for contempt was issued against the defendant, and he was brought before the court.
Upon being arraigned, the defendant moved that the attachment be set aside and quashed. The motion was denied, and the court proceeded to hear the matter. Evidence was introduced by both the state and the defendant. The court made findings of fact and conclusions of law against the defendant, and judgment was pronounced thereon, declaring defendant guilty of contempt of court, as of a second offense, and sentencing him to imprisonment in the penitentiary for a term of two years. The case comes to this court on defendant’s appeal from the judgment. No statement of the case was settled, and no question is raised as to the sufficiency of the evidence to sustain the findings, or the sufficiency of the findings to support the judgment. '
Appellant’s first contention is that § 10,118, Comp. Laws 1913, under which defendant was convicted and sentenced, is unconstitutional for the reason that it denies to one proceeded against thereunder a trial by jury. The question raised is not a new one in this jurisdic[497] tion. In State v. Markuson, 5 N. D. 141, 64 N. W. 934 (decided October 28, 1895), this court, after a thorough consideration, held that, “in contempt proceedings under the statute above mentioned, the party charged with contempt is not entitled to have the charge tried to a jury.” The principle was reaffirmed in State v. Markuson, 7 N. D. 155, 73 N. W. 82, wherein a judgment sentencing the defendant to imprisonment in the penitentiary for contempt of court, as of a second offense, was affirmed. These former decisions are a complete answer to appellant’s contention in this case, and we shall refrain from entering into any discussion of the question further than to say that the principle announced in such former decisions has been accepted as the settled law in this state for more than twenty years, and meets with our approval, and has the support of the authorities. See Woollen & Thornton, Intoxicating Liquors, § 1232; Joyce, Intoxicating Liquors, § 612; 9 Cyc. 47; 4 Ene. U. S. Sup. Ct. Hep. 539.
Appellant also asserts that the proceedings against him were irregular; that the judgment should be reversed, because he was not served with a copy of the warrant of attachment and the affidavits on which it was based; and that no written interrogatories were filed “specifying the facts and circumstances of the offense charged against him.” In short appellant argues that the contempt proceedings in the case at bar are governed by art. 3, chap. 35 (§§ 8181-8201), Comp. Laws 1913, and cites Noble Twp. v. Aasen, 10 N. D. 264, 86 N. W. 742, in support of the proposition that under these provisions one being prosecuted for contempt, unless he admits the offense charged, is entitled to have interrogatories filed “specifying the facts and circumstances of the offense charged against him,” and that the right to have such interrogatories filed is not waived by mere silence or failure to object to the proceedings on the ground that none have been filed.
The case cited does not support appellant’s contention. On the contrary the holding in that case is expressly restricted to contempt cases properly triable under the provisions of the Code of Civil Procedure relating to contempts, and the court specifically disclaimed any intention of holding those provisions applicable to contempt proceedings initiated under the provisions of the state prohibitory law. And in the case of State ex rel. Morrill v. Massey, 10 N. D. 154, 86 N. W. 225 (decided contemporaneously with Noble Twp. v. Aasen), the [498] court expressly stated that tbe procedure in contempt proceedings for violation of injunctions issued under tbe state prohibitory law was governed by tbe special provisions found in tbe prohibitory law, and that tbe general procedure in contempt cases prescribed by tbe Code of Civil Procedure is not applicable to contempt proceedings under tbe prohibitory law. In this connection it is well to note that the state prohibitory law expressly provides that “in contempt proceedings arising out of tbe violation of any injunction granted under tbe provisions” of such law, “tbe defendant may be required to make answer to interrogatories, either written or oral, as in tbe discretion of tbe court or judge may seem proper.” Comp. Laws 1913, § 10,118.
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Christianson, J.
In July, 1915, an equitable action was commenced by the state’s attorney of Burleigh county, against the defendant, Frank Finlayson, and one John B. Hoagland, under the provisions of the prohibitory laws of this state for the purpose of abating a certain common nuisance which it was alleged that the defendant, Frank Finlayson, was keeping and maintaining on lots 20 and 21 of block 41 of the original town site of the city of Bismarck;
The complaint was in the usual form, and prayed the usual temporary injunction, which was issued, restraining the defendant, his agents, attorneys, and servants, until the further order of the court, from using or permitting the premises in question to be used “as a [496] place where intoxicating liquors are or may be sold, bartei’ed, or given away as a beverage, or a place where persons are or may be permitted to resort for the purpose of drinking intoxicating liquors as a beverage; or a place where intoxicating liquors are kept for sale, barter, or delivery, in violation of law.” The papers in the case — summons, complaint, injunctional order, affidavit for search warrant, and search warrant — were served upon the defendant on August 28, 1915. In April, 191ÍT, the then state’s attorney of Burleigh county by affidavit brought to the attention of the court the fact that the defendant, Frank Finlayson, has violated and was violating the terms of the temporary injunction, in that he had sold intoxicating liquors on said premises, and had continued to keep a place thereon where persons were permitted to resort and did resort for the purpose of drinking intoxicating liquors as a beverage.
The affidavit of the state’s attorney recited a former conviction for contempt under the same statute, and asked that a warrant of attachment issue, and that defendant be arrested and brought before the court to answer for contempt of court. The state’s attorney’s affidavit was accompanied and corroborated by the affidavits of F. L. Watkins, Frank Toron, and Anton Melum. Upon these affidavits an attachment for contempt was issued against the defendant, and he was brought before the court.
Upon being arraigned, the defendant moved that the attachment be set aside and quashed. The motion was denied, and the court proceeded to hear the matter. Evidence was introduced by both the state and the defendant. The court made findings of fact and conclusions of law against the defendant, and judgment was pronounced thereon, declaring defendant guilty of contempt of court, as of a second offense, and sentencing him to imprisonment in the penitentiary for a term of two years. The case comes to this court on defendant’s appeal from the judgment. No statement of the case was settled, and no question is raised as to the sufficiency of the evidence to sustain the findings, or the sufficiency of the findings to support the judgment. '
Appellant’s first contention is that § 10,118, Comp. Laws 1913, under which defendant was convicted and sentenced, is unconstitutional for the reason that it denies to one proceeded against thereunder a trial by jury. The question raised is not a new one in this jurisdic[497] tion. In State v. Markuson, 5 N. D. 141, 64 N. W. 934 (decided October 28, 1895), this court, after a thorough consideration, held that, “in contempt proceedings under the statute above mentioned, the party charged with contempt is not entitled to have the charge tried to a jury.” The principle was reaffirmed in State v. Markuson, 7 N. D. 155, 73 N. W. 82, wherein a judgment sentencing the defendant to imprisonment in the penitentiary for contempt of court, as of a second offense, was affirmed. These former decisions are a complete answer to appellant’s contention in this case, and we shall refrain from entering into any discussion of the question further than to say that the principle announced in such former decisions has been accepted as the settled law in this state for more than twenty years, and meets with our approval, and has the support of the authorities. See Woollen & Thornton, Intoxicating Liquors, § 1232; Joyce, Intoxicating Liquors, § 612; 9 Cyc. 47; 4 Ene. U. S. Sup. Ct. Hep. 539.
Appellant also asserts that the proceedings against him were irregular; that the judgment should be reversed, because he was not served with a copy of the warrant of attachment and the affidavits on which it was based; and that no written interrogatories were filed “specifying the facts and circumstances of the offense charged against him.” In short appellant argues that the contempt proceedings in the case at bar are governed by art. 3, chap. 35 (§§ 8181-8201), Comp. Laws 1913, and cites Noble Twp. v. Aasen, 10 N. D. 264, 86 N. W. 742, in support of the proposition that under these provisions one being prosecuted for contempt, unless he admits the offense charged, is entitled to have interrogatories filed “specifying the facts and circumstances of the offense charged against him,” and that the right to have such interrogatories filed is not waived by mere silence or failure to object to the proceedings on the ground that none have been filed.
The case cited does not support appellant’s contention. On the contrary the holding in that case is expressly restricted to contempt cases properly triable under the provisions of the Code of Civil Procedure relating to contempts, and the court specifically disclaimed any intention of holding those provisions applicable to contempt proceedings initiated under the provisions of the state prohibitory law. And in the case of State ex rel. Morrill v. Massey, 10 N. D. 154, 86 N. W. 225 (decided contemporaneously with Noble Twp. v. Aasen), the [498] court expressly stated that tbe procedure in contempt proceedings for violation of injunctions issued under tbe state prohibitory law was governed by tbe special provisions found in tbe prohibitory law, and that tbe general procedure in contempt cases prescribed by tbe Code of Civil Procedure is not applicable to contempt proceedings under tbe prohibitory law. In this connection it is well to note that the state prohibitory law expressly provides that “in contempt proceedings arising out of tbe violation of any injunction granted under tbe provisions” of such law, “tbe defendant may be required to make answer to interrogatories, either written or oral, as in tbe discretion of tbe court or judge may seem proper.” Comp. Laws 1913, § 10,118.
xlppellant also assails tbe affidavits which formed tbe basis for tbe waiTant of attachment. It is asserted that the affidavits are evasive and indirect, and do not set forth facts sufficient to constitute contempt. As already stated, there were four affidavits filed. The affidavit of tbe state’s attorney, McCurdy, stated fully and in detail and positively all tbe facts relative to tbe commencement of tbe equitable action for tbe abatement of tbe nuisance, the issuance of tbe injunction, the service of all papers upon tbe defendant; also, that “said in-junctional order so made bas not been dissolved or modified,” and “that heretofore, namely, on tbe 19th day of April, 1911, tbe said Prank Finlayson was convicted in tbe district court of Burleigh county, North Dakota, before Honorable W. H. Winchester, judge of the said sixth judicial district, of tbe crime of contempt of court, violating án injunctional order duly issued by tbe said W. H. Winchester running to Frank Finlayson and others restraining them, and their clerks, servants, and employees, and each of them, during tbe pendency of a certain action then pending, from selling or disposing of intoxicating liquors as a beverage at other premises in tbe county of Burleigh, state aforesaid; and that pursuant to said conviction said Frank Finlayson was, on the 9th day of April, 1911, duly sentenced, and that formal judgment was entered against him on tbe ,24th day of April, 1911, for contempt of court.” Tbe state’s attorney further states in bis affidavit that be is informed and believes that said Frank Finlayson bas disregarded and disobeyed tbe injunctional order and mandate of tbe court in this, — “that on tbe 24th day of November, 1916, on tbo premises aforesaid be sold beer to one F. L. Watkins, and that during [499] the month of January, 1917, on the premises aforesaid he, the said Prank Finlayson, sold whisky to one Anton Melum, as' a beverage, and that continuously since the 31st day of July, 1915, the said Frank Finlayson has kept a place at and upon the premises aforesaid, and in which said place persons were permitted to resort and did resort for the purpose of drinking said intoxicating liquors as a beverage.”
As already stated there were three corroborating affidavits signed respectively by F. L. Watkins, Frank Toron, and Anton Melum. These corroborating affidavits were attached to, and by reference thereto specifically made a part of, the state’s attorney’s affidavit.
The material part of the affidavit of Watkins was as follows: “F. L. Watkins, of lawful age,, being first duly sworn, says: ‘I know the defendant, Frank Finlayson, and have seen him at this place of business; said business is that of a liquor dealer in the city of Bismarck, in the county of Burleigh, and state of North Dakota, at lots 19 and 20 in block 41, original plat of the city of Bismarck, and at the building located thereon. I was at his place of business on November 24, 1916, at which time and in which place I bought four bottles of beer, which was intoxicating liquor.’ ”
The affidavit of Frank Toron is identical with the above affidavit, with the exception of the last sentence therein, and instead of such sentence the Toron affidavit contains the following: “I was at his place of business on March 15, 1917, at which time and in which place I saw William Bones buy whisky, which was intoxicating liquor.”
The Melum affidavit states in part: “I bought whisky from Frank Finlayson at said place many times.”
The record also contains an affidavit by F. L. Watkins, signed April 9, 1917, and filed before the taking of any testimony, which contains this positive averment: “I was at his (Finlayson’s) place of business November 24, 1916, at which time and place I bought four bottles of beer from Frank Finlayson.”
In State v. Heiser, 20 N. D. 357, 127 N. W. 72, this court was called upon to determine the sufficiency of affidavits constituting the basis for an attachment. An examination of the affidavits involved, and held to be sufficient, in that case will disclose that the affidavits assailed in the case at bar present a stronger positive showing of violation by the defendant of the injunctional order than those involved and [500] sustained in the Heiser Case. And on the authority of that case, the affidavits in this case are held to be sufficient.
One of the grounds of defendant’s motion to quash the warrant of attachment was that the equitable action had been dismissed, and hence, that the in junctional order which defendant was charged with violating had been annulled and set aside. In support of this proposition defendant submitted certain affidavits to the effect that II. B. Berndt, the state’s attorney who instituted the equitable action, stated to the defendant in June, 1916, that such equitable action would be considered as dismissed, and that as soon as he (Berndt) could conveniently do so he would draw papers dismissing the case. Berndt, who was succeeded by McCurdy as state’s attorney in January, 1911, died before the contempt proceedings were instituted, and no action had been taken by him for a dismissal, and there was absolutely nothing to indicate any intention on his part to dismiss the equitable action, but it remained pending to all intents and purposes; and (without expressing any opinion as to the propriety of the procedure adopted) we are wholly agreed that the trial court committed no error in refusing to quash the warrant of attachment on the affidavits submitted by the defendant in support of the motion to quash. In this connection it should be noted that, while no statement of the case has been settled, the clerk’s minutes of the tidal show that in all fourteen witnesses were called and examined in behalf of the state (including Watkins, Toron, and Melum, the three witnesses who made the corroborating affidavits, and that three witnesses were called and examined in behalf of the defendant. Inasmuch as no statement of case has been settled, we have no means of knowing what the different witnesses testified to, and must assume that the evidence adduced justified the court in making the findings it did. The findings show the commencement of the equitable action, the issuance of the temporary injunction therein, and the service thereof, together with the other papers upon the defendant, and the violation of the terms of the injunction by him; also, the former conviction of the defendant as set, out in the affidavit of the state’s attorney. The sufficiency of the findings is not questioned. And as already indicated, there is no contention that the evidence is insufficient to sustain the findings.
Appellant also contends that the warrant of attachment should have [501] been quashed for the reason that more than two years had elapsed since the alleged dates of the alleged offenses set out in the affidavits upon which the injunctional order was issued, and that any action thereon is barred by the statute. Appellant’s contention is clearly untenable. In this case the defendant is not asked to answer for the acts specified in the affidavits upon which the injunctional order was issued, but for acts committed subsequent to the issuance, and violative of the terms, of thé injunctional order. The affidavits which formed the basis for the warrant of attachment stated that the acts of the defendant which, constituted contempt of court were committed in November, 1916, andi in March, 1917. Manifestly these acts were alleged to have been committed within a period of two years prior to April, 1917.
Appellant also contends “that there is no allegation in the records anywhere as to any former conviction of a similar crime, and that therefore it was error to find him guilty of a second offense and punish him accordingly.” We have already set out the portion of the state’s attorney’s affidavit alleging the former conviction. The allegation is clearly sufficient. Comp. Laws 1913, § 10,128; State v. Webb, 36 N. D. 235, 162 N. W. 358.
This disposes of the questions presented on this appeal, and it.follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.
Geacb, J". I concur in the result.