In re Terrett

• Decision Date: 02 July 1906
• Parties: In re TERRETT.
• Court: Montana Supreme Court

34 Mont. 325

In re TERRETT.

Supreme Court of Montana.

July 2, 1906.

Original application by L. R. Terrett for a writ of habeas corpus. Denied.

Milburn, J., dissenting in part.

Sydney Sanner, Geo. W. Farr, F. H. Hathhorn, and F. V. H. Collins, for relator.

Albert J. Galen, Atty. Gen., E. M. Hall, Asst. Atty. Gen., and John C. Lyndes, for respondents.

HOLLOWAY, J.

On October 24, 1905, an information was filed in the district court of Rosebud county charging the petitioner, L. R. Terrett, with the crime of forgery. The petitioner was arrested and confined in the county jail. He thereupon made application to the Chief Justice of this court for a writ of habeas corpus, which writ was issued, and upon the return the matter was argued and submitted to the court. Two questions only need to be considered: (1) Are the statutes under which the prosecution is conducted valid? (2) Does the information state facts sufficient to constitute a public offense?

1. The particular legislative acts in question are an act entitled “An act to provide a bounty on certain stock–destroying animals and a fund for the payment thereof,” approved February 26, 1895. The several sections of this act are printed in the Political Code as sections 3070 to 3080, and an act of the Eighth legislative assembly, entitled “An act to amend section 1124 of the Penal Code of the state of Montana, and sections 3070, 3071, 3072, and 3073 of the Political Code of the state of Montana relating to the bounties of wild animals,” approved March 6, 1903. Sess. Laws 1903, p. 166. Objection is made to the act of February 26, 1895, which embraces what is now section 3078 of the Political Code. It is contended that the act comprehends subjects not expressed in the title of the act, contrary to the provisions of section 23, art. 5, of the Constitution. It must be conceded that a penalty clause may be incorporated in an act without being designated in the title of the act, and such provision does not violate the constitutional inhibition. This has been set at rest in this state by the decisions of this court. State v. Bernheim, 19 Mont. 512, 49 Pac. 441;Snook v. Clark, 20 Mont. 230, 50 Pac. 718.

But it is contended that section 3079 of the Political Code, which was section 10 of the act of February 26, 1895, above, is in fact the penalty clause of that act, and that the provisions of section 3078, above, cannot be included in such designation. But the mere division of a legislative act into sections is a matter of convenience only, and the intention of the Legislature is to be gathered from the entire act, irrespective of such divisions. Sections 3078 and 3079 are clearly intended as the penalty clause of that enactment. Their provisions are clearly intended to cover the various phases of crimes which might be committed with respect to the subject–matter of the act.

It is further claimed that the act of March 6, 1903, is unconstitutional in that its title contains more than one subject. It will be observed that it seeks to amend section 1124 of the Penal Code, and sections 3070, 3071, 3072, and 3073 of the Political Code. But section 1124 of the Penal Code was repealed by an act of the Fifth Legislative Assembly, approved March 8, 1897 (Laws 1897, p. 249), so that the attempt made in 1903 to amend a section already repealed was ineffectual, and to that extent the act of 1903, above, is inoperative. But this does not affect the act in so far as it relates to certain sections of the Political Code.

It is further contended that the act of March 6, 1903, is invalid, because the scope of the act is broader than the act of February 26, 1895, which it sought to amend, and broader than its own title. This contention is based upon the fact that the act of 1903 provides for an entirely new set of officers to administer the law to examine the hides and issue the bounty certificates. The act of February 26, 1895, designated the county clerk as the officer who should issue the certificate, and that officer and the county treasurer, or in his absence the district clerk, as the officers to examine the skins. The act of 1903 merely substituted for these officers others, designated “bounty inspectors.” The provisions of the amendatory act are germane to the subject treated in the orginal act and under the title of the amendatory act, any alteration by excision, addition, or subtraction might have been made, and any provision inserted which might have been incorporated in the original act under its title. 1 Lewis' Sutherland Stat. Constr. § 137. The act of 1903 dealt generally with the subject of bounties on stock–destroying animals, and under the title of that act provision was properly made for officers to carry out its provisions. This is clear upon principle and is generally recognized by the authorities. See extensive note to Crookston v. County Commissioners, 79 Am. St. Rep. 453 (s. c. 79 Minn. 283, 82 N. W. 586), and State v. McKinney, supra.

It is also said that the act of 1903 imposes upon the district judges the duty of appointing persons to select the bounty inspectors, and in so doing imposes duties not judicial in character. But this question cannot be raised by the petitioner here. Whether in a proper case a district judge could be compelled to perform this duty need not be considered. Terrett was at least a de facto officer, and in this proceeding he will be treated as such. The same thing may be said of the three persons who appointed the bounty inspectors. However, under section 7, art. 7, of the Constitution, the power to appoint or delegate the appointing power is reserved to the people, acting through the Legislature, in every instance, except in those enumerated in the Constitution. The appointment of these persons to select bounty inspectors could properly be delegated by the Legislature, as they are not officers whose appointment is otherwise provided for in the Constitution itself.

Certain sections of the bounty law as found in the Political Code were amended by an act of the Sixth legislative assembly, approved February 27, 1899. Sess. Laws 1899, p. 100. In the act of March 6, 1903, above, which also sought to amend some of the same sections, the amendments made in 1899 are ignored. However, this does not affect the questions presented in...