State ex rel. Johnson v. District Court of Eighteenth Judicial Dist. In and For Gallatin County, 11026

• Decision Date: 17 February 1966
• Docket Number: No. 11026,11026
• Citation: 410 P.2d 933,147 Mont. 263
• Parties: STATE of Montana ex rel. William H. JOHNSON, County Auditor of Gallatin County, Montana, Relator, v. The DISTRIC COURT OF the EIGHTEENTH JUDICIAL DISTRICT of the State of Montana IN AND FOR the COUNTY OF GALLATIN and the Honorable W. W. Lessley, Judge thereof, Respondents.
• Court: Montana Supreme Court

Page 933

410 P.2d 933

147 Mont. 263

STATE of Montana ex rel. William H. JOHNSON, County Auditor of Gallatin County, Montana, Relator, v. The DISTRIC COURT OF the EIGHTEENTH JUDICIAL DISTRICT of the

State of Montana IN AND FOR the COUNTY OF GALLATIN

and the Honorable W. W. Lessley, Judge

thereof, Respondents.

No. 11026.

Supreme Court of Montana.

Feb. 17, 1966.

Page Wellcome (argued), Bozeman, James R. Beck (argued), Forrest H. Anderson, Alfred B. Coate, Helena, relator.

Gene I. Brown (argued), Bozeman, for respondents.

JOHN C. HARRISON, Justice.

This proceeding was an original application for a writ of certiorari by the State, on the relation of William H. Johnson, County Auditor of Gallatin County, against the District Court of the Eighteenth Judicial District, in and for the County of Gallatin, ordering payment of attorney's fees in a misdemeanor case.

This is a matter of first impression in this court, though Montana has, since territorial days, paid for the defense of indigents accused in felony cases. The facts of this case are simple and undisputed.

William Pillow was arrested by officers of Gallatin County and charged in the Justice Court with the crime of petit larceny on September 9, 1965. When taken before Justice of Peace A. M. Schmall, where the charge was read to him, he requested that an attorney be appointed for him. At this appearance he refused to enter plea, based perhaps on lack of counsel, but at the time of the request, Justice of Peace Schmall explained that counsel is not provided in misdemeanor cases. On the following day he was returned to the Justice Court when he again asked for counsel and at that time he entered a plea of 'not guilty'. Trial was set. The following day trial was postponed indefinitely, and on September 27, 1965, Pillow petitioned the District Court for habeas corpus alleging, among other things, the lack of speedy trial, and the failure of the Justice Court to appoint counsel for him. Upon receipt of the petition, and after a hearing on the matter Judge W. W. Lessley issued an order on September 30, 1965, which reads in part as follows:

'NOW, THEREFORE, IT IS HEREBY ORDERED as follows:

'1. That GENE I. BROWN, a duly licensed and qualified attorney of the State of Montana, be appointed to defend the Petitioner against the charge of petty larceny filed in the Justice of the Peace Court of Township No. One.

'2. That the Petitioner be tried on the charge he is being held in custody on in accordance with the laws of the State of Montana in such cases made and provided, on or before October 6, 1965, or, in the alternative, if the Petitioner is not tried as herein provided, he shall be released immediately from custody.'

Upon the issuance of this order Page Wellcome, County Attorney of Gallatin County, applied to this court for a writ of prohibition or supervisory control which was denied without prejudice. State ex rel. Wellcome v. District Court, Eighteenth Judicial District, in and for County of Gallatin, 146 Mont. 319, 406 P.2d 164.

Following this order, William Pillow went before the Justice Court, with counsel Gene Brown, changed his plea from 'not guilty' to 'guilty' and was sentenced to thirty days in the county jail. On October 13, 1965, the Honorable W. W. Lessley, District Judge, issued an Order which reads:

'Now Therefore, It Is Hereby Ordered as follows:

'1. That the Treasurer of Gallatin County, Montana, pay to Gene I. Brown, an attorney of Bozeman, Montana, the sum of $50.00 dollars for services rendered in representing the said William Pillow in the Justice of Peace court against the charge of misdemeanor, to-wit, petty larceny.'

It is from this order of the district court that relator William H. Johnson, the County Auditor and responsible county official on all claims against the county, petitions for a writ of certiorari.

The question before us is whether or not the district court may order payment to counsel appointed by such district court to represent an indigent defendant in a misdemeanor case pending in the justice court. Before reaching a determination of that question we should first outline whether the district court has the power under the facts here present to appoint such counsel.

By Constitution, Article VIII, § 1, our court system was established and to each court, judicial power was vested. To these courts only such jurisdiction was conferred as was given by the Constitution or subsequent statutes passed pursuant thereto.

Concerning the jurisdiction of the two courts involved in this proceeding, the District Courts and the Justice of Peace Courts, our Constitution is most specific as to the jurisdictional requirements of cases to be considered by them.

Article VIII, § 11, covers District Courts:

'The district courts shall have original jurisdiction * * * in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for; * * *. They shall have appellate jurisdiction in such cases arising in justices and other inferior courts in their respective districts as may be prescribed by law and consistent with this constitution. * * *'

Article VIII, § 21, covers Justice of Peace courts:

'Justices' courts shall not have jurisdiction * * * in cases of felony, except as examining courts * * * but said courts shall have such jurisdiction in criminal matters, not of the grade of felony, as may be provided by law * * *.'

The crime of petit larceny here charged is one of those crimes provided for by the Legislature which is within the exclusive jurisdiction of the Justice Court. R.C.M.1947, § 94-4916.

Chief Justice Brantly in an early Montana opinion, in the case of Crawford v. Pierse, 56 Mont. 371, 185 P. 315, wrote: 'The district court is a court of general jurisdiction. It therefore has power to hear and determine all classes of cases, except petty cases, of which justices of the peace and police courts are by the Constitution (article 8, § 11) given exclusive cognizance.' Ex parte Sheehan, 100 Mont. 244, 49 P.2d 438.

Again, in the case of State v. Holt, 121 Mont. 459, 478, 194 P.2d 651, 662, this court said: 'But original jurisdiction for the violation of said statute, section 11, is not vested in the district court. Original jurisdiction of the offense defined in said section is vested in the justice courts. The district court has only jurisdiction of such offense on appeal thereto from the justice court.'

In State ex rel. Lay v. District Court, 122 Mont. 61, 70, 198 P.2d 761, 766, this court, concerning jurisdiction, stated: 'Jurisdiction is the power to hear and determine the particular action or proceeding as well as to make such orders and render such judgment therein as the law authorizes in the class of actions or proceedings to which it belongs.'

More recently, this court in exploring and defining the words 'jurisdiction' and 'judicial power', particularly as they affect the district courts and their judges, considered them in its opinion in State ex rel. Bennett v. Bonner, Governor, 123 Mont. 414, 214 P.2d 747, 753, wherein Chief Justice Adair wrote:

'Jurisdiction as applied to courts is the power or capacity given by law to a court to entertain, hear and determine the particular case or...