State v. Booher

• Decision Date: 21 October 1911
• Citation: 118 P. 271,43 Mont. 569
• Parties: STATE ex rel. BROWNE v. BOOHER, Police Judge.
• Court: Montana Supreme Court

118 P. 271

43 Mont. 569

STATE ex rel. BROWNE v. BOOHER, Police Judge.

Supreme Court of Montana

October 21, 1911

Application for prohibition by the State, on the relation of George T Browne, against Thomas J. Booher, as Police Judge of the City of Butte. Proceedings dismissed.

A. C McDaniel and Jesse B. Roote, for relator. H. L. Maury, John A. Smith, and N. A. Rotering, for respondent.

SMITH J.

On the 20th day of September, 1911. a complaint was filed in the police court of the city of Butte charging the relator with "keeping in connection with a saloon conducted by him rooms without doors, in which said rooms female persons were permitted to enter for the purpose of being supplied with wine, liquor, and beer, contrary to the provisions of section 1 of Ordinance 775 of the city of Butte." He has applied to this court for a writ to prohibit the further prosecution of said action. The points sought to be raised are (1) that the same act is also made an offense under section 8385 Revised Codes, and therefore the city of Butte has no authority to punish it; and (2) that the ordinance is void for the reason that it violates section 3265 of the Revised Codes, in that it contains more than one subject.

Section 7228, Revised Codes, provides that a writ of prohibition may be issued by the Supreme Court to any inferior tribunal in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. The Supreme Court of Washington under similar enactments and circumstances refused to issue the writ. The court said: "In this case the appellant had an adequate remedy in the ordinary course of law, either by appeal from an adverse judgment or by application for a writ of habeas corpus." It is to be remembered, also, that the relator may be acquitted of wrongdoing. In the case of State ex rel. Hainsworth v Shannon, 130 Mo.App. 90, 108 S.W. 1097, the St. Louis Court of Appeals refused to prohibit the prosecution of the relator in the police court for alleged violation of a smoke ordinance. It was contended that, for various reasons, the ordinance was void. The court said: "Relator had a perfect remedy by an appeal in the first instance to the circuit court, and later, if need be, to this court."

The Court of Appeals of New York, in People ex rel Livingston v. Wyatt, 186 N.Y. 383, 79 N.E. 330, 10 L. R. A. (N. S.) 159, said: "We are of opinion that the subp na issued by the...