State v. District Court of Second Judicial Dist.

• Decision Date: 18 May 1908
• Citation: 95 P. 841,37 Mont. 202
• Parties: STATE ex rel. CITY OF BUTTE v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.
• Court: Montana Supreme Court

95 P. 841

37 Mont. 202

STATE ex rel. CITY OF BUTTE v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al.

Supreme Court of Montana

May 18, 1908

Application by the state, on the relation of the city of Butte, for a writ of supervisory control to the district court of the Second judicial district and Hon. Michael Donlan, a judge thereof. Order of district court annulled and set aside.

E. S Booth and Wm. E. Carroll, for relator.

Mackel & Meyer, for respondents.

SMITH J.

This cause is before the court upon application for a writ of supervisory control. It appears from the relator's petition, and the return of the respondents to an order to show cause heretofore issued, that the city council of the city of Butte has heretofore by ordinance defined the offense of vagrancy and provided a punishment therefor.

On April 4, 1908, a complaint was filed before A. J. McGowan police magistrate of the city of Butte, charging one Barney Rabinowitz with the offense of vagrancy as defined by the ordinance. The defendant was found guilty, and sentenced to pay a fine of $100, and to be confined in the city jail until such fine was paid or otherwise satisfied. The action was prosecuted in the name of the city of Butte. Thereafter said Rabinowitz was released from custody upon the hearing of a writ of habeas corpus issued by the Honorable Michael Donlan one of the judges of the district court of Silver Bow county. This court is asked to set aside and annul the latter order.

It is contended by the respondents that Rabinowitz was properly released from custody, for the reason that the charge against him could not be prosecuted under the city ordinance, but should have been made under the state law and in the name of the state of Montana. This is the main contention, although other questions incidentally arise, and all will be considered together. We are of opinion that the district court and the judge thereof were in error in discharging Rabinowitz. The power to define and punish vagrancy is expressly given to cities and towns by paragraph 34 of section 4800 of the Political Code of 1895, as amended by Laws 1897, p. 206, which provides that city and town councils have power "to define vagrancy, and to restrain and punish vagrants, mendicants and persons guilty of disorderly conduct." Section 1155 of the Penal Code of 1895 also defines vagrancy, and provides as a punishment therefor imprisonment in the county jail not exceeding 90 days. The definition of the offense of vagrancy found in the city ordinance is somewhat more comprehensive than the definition of the crime found in the Code, but, so far as the complaint against Rabinowitz is concerned, the charging part embraces those elements of the offense common to both the Code and the ordinance definitions. Section 24 of article 8 of the Constitution of the state reads as follows: "The legislative assembly shall have power to provide for creating such police and municipal courts and magistrates for cities and towns as may be deemed necessary from time to time, who shall have jurisdiction in all cases arising under the ordinances of such cities and towns, respectively; such police magistrates may also be constituted ex officio justices of the peace for their respective counties." Section 4910 of the Political Code of 1895 reads as follows: "A police court is established in each city or town, which court must always be open, except upon nonjudicial days, and upon such days it must transact criminal business only." Section 4911, Pol. Code 1895, before amendment, read as follows: "The police court has concurrent jurisdiction with the justice of the peace of the following public offenses committed within the county: (1) Petit larceny. (2) Assault and battery. *** (3) Breaches of the peace, riots, affrays. *** (4) Of proceedings respecting vagrants, lewd, or disorderly persons. (5) The police judge shall have the same jurisdiction as is now conferred by law upon the justices of the peace in addition to the jurisdiction herein conferred. Such offenses must be prosecuted in the name of the state of Montana." The legislative assembly of 1903 amended section 4911, so that the same now reads as follows: "The police court has concurrent jurisdiction with the justice of the peace of the following public offenses committed within the county: (1) Petit larceny. (2) Assault and battery. *** (3) Breaches of the peace, riots, affrays. *** (4) Of proceedings respecting vagrants, lewd or disorderly persons. Such offenses must be prosecuted in the name of the state of Montana." Laws 1903, c. 16, p. 27. Paragraph 1 of section 4912 of the Political Code of 1895 reads thus: "The police court also has exclusive jurisdiction: (1) Of all proceedings for the violation of any ordinance of the city or town, both civil and criminal, which must be prosecuted in the name of the city or town." Section 27 of article 8 of the Constitution provides: "The style of all process shall be 'The State of Montana,' and all prosecutions shall be conducted in the name and by the authority of the same."

The first contention of the respondents is that in the amendment to section 4911 of the Political Code of 1895 as found in Sess. Laws 1903, p. 27, the words, "such offenses must be prosecuted in the name of the state of Montana," relate only to proceedings respecting vagrants and lewd and disorderly persons, mentioned in subsection 4, of which section the sentence last quoted appears, in the amendment to be a part. There is no merit in this position. In the original Code provision this sentence appeared in a separate paragraph following the...