City of Bozeman v. Ramsey

• Citation: 362 P.2d 206,139 Mont. 148
• Decision Date: 15 May 1961
• Docket Number: No. 10172,10172
• Parties: CITY OF BOZEMAN, a Municipal Corporation, Plaintiff and Respondent, v. Ralph Frederick RAMSEY, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 206

362 P.2d 206

139 Mont. 148

CITY OF BOZEMAN, a Municipal Corporation, Plaintiff and Respondent, v. Ralph Frederick RAMSEY, Defendant and Appellant.

No. 10172.

Supreme Court of Montana.

Submitted March 6, 1961.

Decided May 15, 1961.

Morrow, Nash & Thompson, Donald A. Nash, G. Page Wellcome, Bozeman, for appellant. Donald A. Nash argued orally.

Lovelace, Horkan & Berg, Bozeman, for respondent. Ben Berg, Jr., Bozeman, argued orally.

ADAIR, Justice.

This is an appeal taken by the defendant, Ralph Frederick Ramsey, from a judgment of the District Court for Gallating County, entered on a jury's verdict finding Ramsey guilty of operating a motor vehicle on East Main and North Rouse Streets in the City of Bozeman while under the influence of intoxicating liquor and in violation of the City's Ordinance No. 801.

Arrest. On Saturday, August 29, 1959, Ralph Frederick Ramsey, while driving a Buick automobile on the streets of the City of Bozeman, Montana, was apprehended by Robert Johnson, a city police officer and promptly taken to the City of Bozeman police court where the arresting officer reported and charged Ramsey with operating a motor vehicle within the corporate limits of the City of Bozeman, while under the influence of intoxicating liquor, in violation of section 1 of Bozeman Ordinance No. 801.

Release on Bond. On the same date, August 29, 1959, the police judge set 8:30 o'clock on Monday morning, August 31, 1959, for Ramsey's arraignment and fixed his appearance bond at $200. Ramsey deposited in police court as his bail the $200, whereupon he was promptly released from custody with orders to appear before the police judge on Monday morning, August 31, 1959, for arraignment.

R.C.M.1947, § 94-100-41, provides: 'The defendant at any time after his arrest, and before conviction may be admitted to bail. The provisions of this code relative to bail are applicable to bail in justices' or police courts.' Emphasis supplied.

On August 31, 1959, Ramsey, appeared in the police court at the time appointed for his arraignment. He was accompanied by his counsel who announced that his appearance there was 'special' to make objection to the whole proceeding on the grounds: (1) That no warrant had been issued for Ramsey's arrest; and (2) that there was no complaint on file in the cause.

Amended Complaint Filed and Served. Thereupon on motion of the City attorney for Bozeman and leave granted by the police judge, an amended complaint, duly subscribed and sworn to by Robert Johnson, the arresting police officer, was on that day, August 31, 1959, filed in the police court and further hearing in the cause was continued to September 3, 1959, on which latter date Ramsey, accompanied by his counsel, appeared before the police judge where, in open court, the defendant was personally served with a copy of the amended complaint. See R.C.M.1947, § 94-100-10.

The record before this court shows that upon being so served, the defendant, in open court and in the presence of his counsel, waived the reading of the amended complaint and also waived the formal particulars of the arraignment.

Motion to Dismiss Amended Complaint. Also on September 3, 1959, Ramsey's counsel, in open court, interposed a motion to dismiss the amended complaint on the alleged grounds: (1) That no warrant of arrest had been issued; (2) that there can be no amended complaint to the purported complaint theretofore filed which Ramsey's Counsel contended amounted to a nullity; and (3) that Bozeman Ordinance No. 801, while purporting to have been adopted as an emergency measure, was passed at a time when there was no emergency whatever and at a time when only the State of Montana had the power and authority to deal with the hear prosecutions for the crime of criving a motor vehicle while under the influence of intoxicating liquor.

After hearing the oral arguments of counsel on defendant's motion to dismiss the amended complaint the police judge, on September 8, 1959, denied the motion and ordered that Ramsey's arraignment be reset for September 11, 1959.

Demurrer to Amended Complaint. On September 11, 1959, at the time set for Ramsey's arraignment, his counsel served and filed a demurrer to the amended complaint contending: (1) That the police court has no jurisdiction of the offense charged; and (2) that the amended complaint fails to state facts sufficient to constitute a public offense.

Defendant's counsel argued that the city police court had no jurisdiction of the offense charged in the amended complaint contending: (a) That Chapter 201, Montana Session Laws of 1957, conferring upon municipalities concurrent jurisdiction in drunken driving prosecutions is unconstitutional; (b) that Ordinance No. 801 of the City of Bozeman, is invalid; and (c) that no warrant for the arrest of the defendant Ramsey was ever issued.

Ramsey's above demurrer was set for hearing for September 18, 1959, on which date it was fully argued by counsel for the respective parties and taken under advisement.

On September 22, 1959, the police judge made an order denying defendant's demurrer and directing that the defendant appear in police court on September 30, 1959, to plead to the amended complaint.

Alternative Writ of Prohibition. On September 23, 1959, being but seven days before he was to appear in police court to plead to the amended complaint, the defendant Ramsey, as petitioner, on petition filed that day in the District Court for Gallatin County, Montana, in district court cause No. 14205, procured the issuance out of such district court and the service upon the respondents named in such petition, of an alternative writ of prohibition directed to: The Police Court of the City of Bozeman, County of Gallatin; State of Montana, and Robert M. Holter, Judge thereof, and to Howard Erwin, Arnold H. Swanson, and Oswald E. Berg, Jr., Commissioners of the City of Bozeman, commanding that they, each and all, refrain from any further proceedings against the defendant, Ralph Frederick Ramsey under the amended complaint then pending in police court action No. 24-17840, until the further order of the district court and that on a day certain, the named respondents show cause in the district court for Gallatin County why they should not be absolutely restrained from any further proceedings in said police court action.

Writ Quashed. Thereafter, on motion of the above-named respondents the district court made an order quashing the alternative writ of prohibition and terminating district court proceeding No. 14205 wherein such writ had issued.

The Plea. It was not until January 22, 1960, that the defendant Ramsey entered his plea of not guilty to the charges set forth in the amended complaint that had been filed against him on August 31, 1959, in police court action No. 24-17840. Upon the entering of such plea the police judge promptly set a date for defendant's trial.

Trial in Police Court. On February 5, 1960, police court action No. 54-17840 came regularly on for trial. At the outset of such trial the defendant Ramsey, in open court, formally waived a trial by jury and the cause proceeded to trial and it was tried before the police judge sitting without a jury.

At the trial Police Officer Hanson and Police Officer Robert Johnson testified on behalf of the City of Bozeman and the City rested its case. While the record before this court shows that thereupon the defendant Ramsey rested his case such record fails to show that the defendant either testified or that he introduced any evidence whatever at his trial in the police court.

Police Court Judgment. On February 5, 1960, Ramsey was found and adjudged guilty as charged in the amended complaint of the offense of driving a motor vehicle within the corporate limits of Bozeman, while intoxicated. The defendant waived the time for the pronouncement of judgment and sentence whereupon he was sentenced to pay a fine of $200.

Appeal to District Court. Upon the pronouncement of the Police Court's judgment on February 5, 1960, defendant's counsel then and there gave proper and timely notice of his appeal to the District Court of the Eighteenth Judicial District of the State of Montana, in and for the County of Gallatin and the police judge set the amount of defendant's appeal bond which bond the defendant supplied.

On an appeal taken from a police court to a district court the entire case 'must be tried anew in the district court', R.C.M.1947, § 94-100-38, on the papers and files in the police court unless the district court allows other or amended pleadings.

On defendant's appeal to the District Court, Ramsey's counsel, on February 17, 1960, caused to be filed in that court the papers that had been filed and the docket entries that had been made in police court action No. 24-17840, which included, inter alia: (1) Defendant's notice of appeal to the District Court; (2) the amended complaint of August 31, 1959; and (3) a copy of the police court docket entries of the proceedings had and done in that court from August 29, 1959, to February 16, 1960.

On February 23, 1960, Ramsey's counsel filed in the District Court a demurrer to the City of Bozeman's amended complaint that had been filed in the Police Court on August 31, 1959. The demurrer so filed in the District Court urged: (1) That the City of Bozeman and its Police Court had and have no jurisdiction of the offense charged in the amended complaint; (2) that the facts stated in the amended complaint fail to constitute a public offense; and (3) that the proceedings in the Police Court were defective in: (a) that no warrant for defendant's arrest was issued by the Police Court; (b) that the City's first complaint against the defendant was defective in that it failed to name the defendant Ramsey as committing any crime and that there is no authority in law for the subsequent filing of the City's amended complaint of August 31, 1959; (c) that Bozeman Ordinance No. 801 is in...