Rosebud County v. Flinn

• Decision Date: 09 January 1940
• Docket Number: 7969.
• Citation: 98 P.2d 330,109 Mont. 537
• Parties: ROSEBUD COUNTY v. FLINN et al.
• Court: Montana Supreme Court

98 P.2d 330

109 Mont. 537

ROSEBUD COUNTY v. FLINN et al.

No. 7969.

Supreme Court of Montana

January 9, 1940

Appeal from District Court, Custer County; Frank P. Leiper, Judge.

Action by Rosebud County, Montana, a municipal corporation, against M. E. Flinn, clerk ex officio Board of County Commissioners of Custer County, Montana, and others, to recover a portion of the expenses and costs incurred in the prosecution of criminal cases. From a judgment for plaintiff, defendants appeal.

Judgment ordered modified and, as modified, affirmed.

I. W Choate and Geo. W. Farr, both of Miles City, for appellants.

T. W Carolan and F. F. Haynes, both of Forsyth, for respondent.

ARNOLD Justice.

This appeal questions the validity of a judgment in favor of Rosebud county, Montana, against Custer county, rendered in the district court of the latter county. Some horses were stolen within Custer county and taken by the thieves to Rosebud county, Montana. Trials in Rosebud county resulted in convictions. The county attorneys of the two counties prosecuted the actions jointly.

In accordance with section 11712, Revised Codes, as amended by Chapter 21, Laws of 1937, the trial judge made an order apportioning all expenses of the trials, including expenses of investigation, equally between Rosebud and Custer counties. A claim in proper form was presented by Rosebud county to the commissioners of Custer county for the sum of $2,367.41, which the commissioners disallowed. An appeal followed to the district court of Custer county, whereupon the court struck out a number of items which it deemed improper and which totaled $238.54. Thereupon judgment in the sum of $2,248.14 was rendered against Custer county.

The appellants assign various errors which will be taken up in the order specified. First, that the law upon which the claim is founded is unconstitutional as being in conflict with the Fifth and Fourteenth Amendments of the United States Constitution, U.S.C.A., and section 27, Article III of the Montana Constitution.

This court has previously held that the due process clause is not applicable to subdivisions of the state, and, hence, that specification of error is untenable. Fitzpatrick v. State Board of Examiners, 105 Mont. 234, 70 P.2d 285.

The next specification of error recites that the Act above referred to is unconstitutional as being in conflict with section 4 of Article XII of the Montana Constitution, which provides that the legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town or municipal corporation for county, town or municipal purposes.

We see no force in this contention. The power to define crime and punish criminals is inherent in the state. Likewise such power necessarily includes the right to devise means, create agencies, designate proceedings for prosecutions and provide for the payment of the costs thereof, subject only to constitutional limitations. All counties in the state are subject to the law as set out in the foregoing section as amended. It is quite analogous to section 4953, Revised Codes, which provides that when a criminal action is removed for trial, the costs are a charge against the county in which the indictment was found or information filed. The legislature, cognizant of the fact that certain kinds of property may be readily removed from one county to another, has provided a means for trial in either county. This in reality results in less expense to either county.

Legislatures have frequently provided that knowingly receiving or concealing stolen property is a crime punishable to the same extent as the original asportation. Inasmuch as Custer county would have been liable for the costs of prosecution and trial, had the action been tried therein instead of in Rosebud county, which costs in the main are fixed by law and are uniform throughout the state, it is in no position to complain that an apportionment of such costs is the levy of a tax. State ex rel. City of Missoula v. Holmes, 100 Mont. 256, 47 P.2d 624, 100 A.L.R. 581. It is the obligation of the county, in the name of the state, to prosecute crime committed within its borders and pay the costs thereof provided by law. Here, where the crime is continuing in nature, the law provides for prosecution in either county.

The law upon which this action is based provides, among other things, that "when property taken in one county by burglary, robbery, or larceny has been brought into another, the jurisdiction of the offense is in either county. But if at any time before the conviction of the defendant in the latter, he is indicted or informed against in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former." We note that both counsel in referring to this section in their briefs mention "trial" instead of "conviction." We mention this to show the apparent defect in this law which might lead to confusion in other cases. A question might arise as follows: May a county attorney by filing an information divest a court of jurisdiction of defendant after a trial in another county is commenced, or even after a case has been submitted to a jury, at any time before conviction? It is thus seen that a serious question of double jeopardy might arise were a county attorney to file an information in such a case after a jury has been impaneled and evidence offered. However, in the case before us it is not necessary to pass upon this question.

We hold that the law in question does not violate section 4 of Article XII of the Montana Constitution.

The appellants complain that in the claim upon which the judgment is based the court allowed sums representing expense not usually referred to as costs, such as expense of investigation. These items include expense of the sheriff and county attorney for mileage, investigation, guards, meals and other material in the criminal cases, and represent a considerable amount of the claim. The question arises whether these items are allowable under the statute as "costs of the prosecution and trial."

"Trial" has been defined by this court when used in connection with criminal proceedings as ...