State v. District Court of Lewis & Clark County

• Decision Date: 22 April 1914
• Docket Number: 3467,3462.
• Citation: 141 P. 151,49 Mont. 158
• Parties: STATE EX REL. LITTLE v. DISTRICT COURT OF LEWIS AND CLARK COUNTY ET AL. STATE EX REL. MCCONNELL, CO. ATTY., v. DISTRICT COURT OF LEWIS AND CLARK COUNTY ET AL.
• Court: Montana Supreme Court

141 P. 151

49 Mont. 158

STATE EX REL. LITTLE v. DISTRICT COURT OF LEWIS AND CLARK COUNTY ET AL.

STATE EX REL. MCCONNELL, CO. ATTY., v. DISTRICT COURT OF LEWIS AND CLARK COUNTY ET AL.

Nos. 3467, 3462.

Supreme Court of Montana

April 22, 1914

Petition by the State, on relation of Howard Little, for a writ of prohibition against the District Court of the First Judicial District of the State, in and for the County of Lewis and Clark, and J. Miller Smith, a judge thereof, consolidated with a petition by the State, on relation of A. H. McConnell County Attorney, for a writ of certiorari to the District Court of the First Judicial District, in and for the County of Lewis and Clark, and J. M. Clements, a judge thereof. Prohibition denied, and proceedings attacked by certiorari held void.

Brantly C J., dissenting in part.

E. A Carleton and O. W. McConnell, both of Helena, for relator.

A. H McConnell, of Helena, for respondents.

HOLLOWAY J.

On March 10, 1905, the district court of the First judicial district of Montana, Judges Henry C. Smith and J. M. Clements presiding, made and promulgated a code of rules for the government of the practice in that court, and which further assumed to apportion the business of the court between the judges. Rule 1 divided the court into two departments designated, respectively, department 1 and department 2. Rule 2 provided, "All criminal causes and matters of a criminal nature are hereby assigned to department 1."

On February 7, 1914, Hon. J. Miller Smith, the presiding judge in department No. 2, ordered a grand jury, which was duly impaneled and charged, and which thereafter, on March 5th, returned into court, and into department No. 2, certain indictments, by one of which Howard Little was accused of violating the antigambling law of this state. Upon being arrested and brought into court, and into department No. 2, for arraignment before Judge Smith, Little interposed the objection that under rule 2 of the rules of the court (123 P. ix) Judge Smith had no authority to proceed in the case, and asked that it be transferred to department No. 1. The objection was overruled, the motion denied, and, upon the refusal of Little to plead, a plea of not guilty was entered for him, and the cause set for trial in department No. 2 for March 13th. Immediately thereafter Little appeared before Judge Clements in department No. 1 and was again arraigned. A motion to quash the indictment was interposed, and thereafter this motion was sustained by the court in department No. 1, Judge Clements presiding, and an order was entered discharging the defendant and exonerating his bail. Anticipating that the court in department No. 2 would insist upon trying him on March 13th, the defendant Little applied to this court for relief. Before his application could be heard or determined, Andrew H. McConnell, the county attorney of Lewis and Clark county, applied for a writ of certiorari to bring before the court all of the record of the proceedings had in department No. 1 in the case of the State v. Little. The writ was issued, the return made, and the two causes heard together.

Strictly speaking, neither proceeding alone entitles the relator therein to the relief demanded; but the two together present all the records, facts, and circumstances involved, and, since the matter which it is sought to have determined is of public interest and concern, technical questions of practice will be disregarded, and the two proceedings will be deemed to be consolidated and treated as an application for a writ of supervisory control for all the relief demanded in both applications.

1. Upon the presentation of the indictment there was pending in the district court of the First judicial district of Montana, in and for Lewis and Clark county, a cause entitled "The State of Montana v. Howard Little." There is but one such court, and that it had jurisdiction to hear and determine all questions arising in the Little Case cannot be gainsaid. Article 8, § 11, Constitution of Montana; section 8416, Rev. Codes. Likewise that Judge Smith was authorized to call a grand jury is beyond dispute. Section 6367, Revised Codes, provides:

"In districts where there are two or more judges each judge may order a grand jury to be drawn and summoned to attend the session or term over which he presides, as provided in this article, but no more than one grand jury must ever be in attendance upon any district court at the same time."

Primarily, each of the two judges of the district court of the First district has all the power and authority conferred upon any district judge in this state, and, nothing further appearing, the court, presided over by either Judge Clements or Judge Smith, had complete jurisdiction to hear and try the cause of State v. Little, and the defendant could not complain that either one or the other of the judges presided, for no litigant or party to an action or proceeding has any vested right to have his cause heard before a particular judge.

2. "Every court of record may make rules not inconsistent with the laws of this state, for its own government." Rev. Codes, § 6293. Such rules, when duly promulgated, have the force and effect of statutes within the territorial limits of the district (Mont. Ore Pur. Co. v. Boston & Mont., etc., Co., 27 Mont. 288, 70 P. 1114; State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244), and are binding upon the judges of the court, as well as upon all other persons.

But it is insisted by counsel for relator Little that rule 2 above promulgated in 1905, not having been modified, repealed, or superseded, was binding upon Judge Smith, and by virtue of that rule the case of State v. Little was automatically assigned to department No. 1, and, since Judge Smith was not invited by Judge Clements to try this cause, and the cause was not transferred from department No. 1 to department No. 2, Judge Smith had no authority to arraign the defendant, or to preside at the trial of the case against him. Assuming the premise to be correct, the conclusion would follow as of course; but the premise is fundamentally erroneous, and the conclusion not less so. To distinguish between a court and a judge of the court would be idle pastime at this late day. The distinction is recognized by laymen, as well as by members of the legal profession. It is emphasized by the Legislature in many statutes, and in...