Ex parte Farrell

• Decision Date: 03 December 1907
• Citation: 36 Mont. 254
• Parties: Ex parte FARRELL.
• Court: Montana Supreme Court

36 Mont. 254

Ex parte FARRELL.

Supreme Court of Montana.

Dec. 3, 1907.

Habeas corpus on application of William P. Farrell. Applicant discharged.

Jesse B. Roote, A. C. McDaniel, and Peter Breen, for applicant.

Albert J. Galen, Atty. Gen., and John G. Brown, Asst. Atty. Gen., for defendant.

BRANTLY, C. J.

On December 1, 1906, the complainant, having theretofore been tried and found guilty of forgery under each of two informations presented against him by the county attorney of Silver Bow county, was condemned to serve successive terms of 14 years each, at hard labor in the state prison, the second term to begin at the expiration of the first. For execution of the judgments he was committed to the custody of the sheriff, who now detains him in the county jail pending appeals to this court, the presiding judge having certified that there is probable cause therefor. It is alleged that this detention is illegal, in that the acts charged in the informations do not constitute forgery under the statute, and hence that the district court was without jurisdiction to try the complainant. The informations were drawn under section 840 of the Penal Code, which provides: “Every person who with intent to defraud another falsely makes, alters, forges or counterfeits any charter, letters patent, deed, lease, indenture, etc., *** or an auditor's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, etc., *** is guilty of forgery.”

At the time the alleged offenses occurred the complainant was chief deputy clerk of the district court. Following allegations of venue, etc., it is alleged in the first information that the said “William P. Farrell in his official capacity as such chief deputy clerk did willfully, unlawfully, feloniously, intentionally, fraudulently, and knowingly make, forge, alter, pass, and publish as true and genuine to the treasurer of Silver Bow county, a public corporation existing under the laws of the state of Montana, a certain writing on paper and juror's certificate of the tenor and effect as follows, to wit:

“To the Treasurer of Silver Bow County, Montana. No. 3,065.

“Butte, Montana, 3/22, 1905.

“I certify that the party named herein has served 19 days (57.00) as juror, and that he has traveled _____ miles for which you will pay to J. P. Sullivan _____ or order fifty seven & no/100 Dollars, the amount due him out of any money belonging to the General Fund.

“William E. Davies,

“Clerk Second Judicial District Court.

Presented and registered _____ 190_.

Not paid for want of funds.

By W. P. Farrell, Deputy.”

“__________, Treasurer.

By __________, Deputy,”

–which said juror's certificate and instrument in writing was then and there forged, fraudulent, false, and counterfeited, and the said defendant well knew the said juror's certificate and instrument in writing was fraudulent, false, and counterfeit,” etc. The writing set forth in the second information is the same, except as to the number, date, amount, the name of the person to whom it purports to have been issued, and that it appears to have been assigned to one Danzer.

It will be observed that the writings referred to have not impressed upon them the seal of the court, and upon this fact the complainant bases the contention, made in this court, that they are void, and hence do not support a charge of forgery. If this contention can be maintained, the complainant is entitled to his release; for, as was said in Ex parte Kearny, 55 Cal, 212, at page 228: “This is not the case of a complaint inartificially drawn, which intimates the existence of the facts necessary to the constitution of the offense, or even of an attempted statement, insufficient, but indicating a purpose to declare on the essential facts. It is a total failure to allege any cause of action, and, however objectionable the conduct imputed to the petitioner, he is no more, in the eye of the law, charged by the complaint with any crime than if the paper had ascribed to him the most innocent of deeds.” If it were a case of a defective information only, it might well be contended, as the Attorney General contends here, that the district court had jurisdiction, and that this court should require the complainant to seek relief through the medium of his appeals. But if an information states facts which do not constitute any crime known to the law, or undertakes to state such an offense, but the facts stated do not constitute the offense, and no addition to them, however full and complete, can supply what is essential, then the court is without jurisdiction to put the complainant on trial. In such case the judgment cannot be corrected. It is simply void. Imprisonment under execution thereon is illegal, and the complainant is entitled to his release, even though he might secure the same relief on appeal. State v. District Court, 35 Mont. 321, 89 Pac. 63. This court in State v. Evans, 15 Mont. 539, 39 Pac. 850, 28 L. R. A. 127, 48 Am. St. Rep. 701, held that to constitute forgery the false instrument must be one which, if genuine, would have legal validity. This rule we find laid down by the authorities generally. 1 Wharton's Criminal Law, § 680; 2 Bishop's Criminal Law, §§ 523, 524. If, therefore, an instrument be such that, though falsely made, it has no legal validity, and this is apparent from the face of it, it is not the subject of forgery. The Attorney General does not controvert the correctness of this proposition, but insists that the writing set out in the information purports to be, and is on its face, a valid charge against the county of Silver Bow, which the treasurer can be compelled to pay, even though the complainant failed to impress upon it the seal of the district court. The solution of this question depends upon the proper construction of the following provisions of the Political Code:

“Sec. 4645. The clerk must give to each juror at the time he is excused from further service a certificate taken from a book containing a stub with a like designation, signed by himself under seal, in which must be stated the name of the juror, the number of days' attendance, the number of miles traveled and the amount due, and on presentation of such certificate to the county treasurer the amount specified in the certificate must be paid out of the general fund, and the clerk must make a detailed statement containing a list of the jurors, the amount of fees and mileage earned by each, and file the same with the clerk of the board of county commissioners on the first day of every regular meeting of the board, and no quarterly salary must be paid the clerk until such statement is filed. The board must examine such statement and see that it is correct. The clerk must keep a record of the attendance of jurors and compute the amount due for mileage, and the distance from any point to the county seat must be determined by the shortest traveled route.”

“Sec. 4350. The county treasurer must: *** 5. Disburse the county moneys only on county warrants issued by the county clerk, based on orders of the board of county commissioners, or as otherwise provided by law.”

Is section 4645 directory merely or mandatory? The same rule of construction applies to the one section as to the other. The first not only prescribes the duty of the clerk in the matter of keeping correct accounts of the attendance of jurors, their mileage, etc., but also prescribes the mode of their payment, and the evidence upon which it must be made. The second declares how the moneys of the county must be disbursed. Since the payment of jurors' fees, etc., is not made on county warrants issued in the regular way, the mode prescribed in section 4645, supra, is the mode “otherwise provided by law” for their payment. The use of the word “only” in section 4350 limits the power of the treasurer to pay out the money of the county, both as to the amount and the precedent conditions of payment. He must not pay it out at all except upon county warrants issued as directed, or in case of jurors' fees, etc., upon a certificate issued by the clerk of the district court, as directed in section 4645. Section 4350 is therefore mandatory. So section 4645 is mandatory, both as to the duty of the clerk and of the treasurer; for the word “must” indicates that the duty of the clerk becomes imperative as soon as a juror is entitled to his pay. It also indicates that the duty of the treasurer is imperative as soon as a certificate, properly issued by the district court clerk, is presented to him. Since he cannot act at all until the proper demand is made upon him, and since the juror is entitled to his fees upon his discharge, it is certainly mandatory upon the clerk, not only to issue a certificate, but such a certificate as the law prescribes in order to effectuate payment to the juror. The paymentof jurors is thus lodged by the law in these two officers, without the intervention of any discretionary board or officer. The clerk ascertains and declares, under his hand and seal, that the precedent conditions of service have been fulfilled. Upon his certificate, duly executed, and upon this alone may payment be made. These officers act in this connection entirely in a ministerial capacity. No discretion is lodged in them. In all such cases their authority is the command of the statute, and it is the limit of their power. The treasurer cannot act until the clerk has performed his duty. The clerk must, therefore, perform his duty in the way prescribed. If the latter issues false certificates, he violates his duty. If the former pays upon any other demand than that prescribed, he does the like. It may be laid down as a general principle, that the limit of the power of a public officer...