State v. Holland
| Decision Date | 18 July 1908 |
| Citation | 96 P. 719,37 Mont. 393 |
| Parties | STATE v. HOLLAND. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.
W. R Holland was convicted of wearing the badge of an organization of which he was not a member, and he appeals. Reversed and remanded.
C. A Spaulding, for appellant.
Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.
On May 4, 1908, the appellant was charged by complaint filed in a justice's court in Helena township, Lewis and Clark county, with a misdemeanor, in the violation of section 1192 of the Penal Code of 1895, as amended by Session Laws of 1907 (Sess. Laws 1907, p. 24), in that he did between certain mentioned dates during this present year wear upon the lapel of his coat an elk's head, knowing the same to be the emblem, insignia, badge, and button of the Benevolent and Protective Order of Elks of the United States of America, said order being of more than 10 years' standing in the state of Montana. Upon a trial by the justice he was found guilty and sentenced to pay a fine. Upon appeal to the district court he was again found guilty and sentenced to pay a fine. This appeal is from the judgment.
At the trial in the district court, the parties submitted to the court, without a jury, an agreed statement of the facts in order to clear the issues and obtain a decision upon the question of law involved, to wit, whether the statute under which the charge was brought is a valid exercise of legislative power. This statement is as follows:
The amended section reads as follows: Though the language of section 1192, as it stood prior to the amendment, is somewhat crude, its purpose is apparent. It is well known that one of the professed purposes of most of the fraternal societies, now grown so numerous, is aid and relief to unfortunate and distressed members and their families. In many of them the individual member, when overtaken by sickness and its resultant distress, is entitled to call for relief from the society as a matter of right. It may be, and generally is, temporary financial aid that is required, though the humane and charitable duty of relief extends also to the kindly office of visitation in sickness and of consolation and sympathy in case of death in the family or other similar misfortune. It goes even to the extent of requiring attention to the moral welfare of erring brothers, and the individual member is recreant to his duty under his oath, if, when it comes to his knowledge that a fellow member is inclined to evil ways, he does not exert himself by the use of all proper means to restore the wayward one to a sense of his duty and obligation to himself and his family. Most of them, also, inculcate the sentiment of patriotism, advocate obedience to the constituted authority of government, both federal and state, and encourage temperate and just conduct in private life. Some of them are of recent growth, but others have a long, honorable history. To this latter class belong those which by the character of their individual membership, measured according to a high standard of rectitude and moral fitness and services rendered to society, have won a high place in the estimation of the people. If we may judge by what we see of them, all of them make for good, in that they encourage the practice of charity and inculcate the broad principle of brotherhood and equality of mankind. It is not unnatural, then, that there should be found evil-disposed persons who, ever ready to prey upon the community, attempt by pretense and fraud to gain substantial benefits from these societies and their members to which members in good standing only are entitled. One of the means employed most frequently is the use of the badge or button of a particular society to support a pretension of membership in aid of the application for substantial relief. The average man, busy in the pursuit of his business and without time to investigate, but ready to relieve an apparently deserving unfortunate fellow member, is thus deceived and defrauded. It was to prevent this species of petty fraud that the provision was enacted. The amended section, however, goes very much further. Confining our analysis of its provisions to those especially applicable to the Protective Order of Elks of the United States of America, it declares it to be a misdemeanor, punishable by fine and imprisonment or both, for any one not entitled under the constitution, by-laws, rules, and regulations of the order (1) willfully to wear the badge or button of the order; or (2) to use its name to obtain aid or assistance in this state; or (3) to use the title of its officers, or its insignia, rituals, and ceremonials. The protection is apparently extended to those orders only which have maintained an organization in the state for the past 10 years. The added proviso excepts from the operation of the act the wives, daughters, sisters, and mothers of Elks in good standing. From the third prohibition mention of the name may be omitted as a repetition, because the second includes this; for use of the name to secure aid implies a willful use of it, whether it be for the purpose of defrauding members of any of these societies or to aid the pretense of moral character or social standing, which it is supposed the members of a particular order may have in file community. Making allowance for the foregoing express limitations, the purpose of the Legislature was to extend the application of the Code provision so as to include any sort of use of the badge or button, or of the name, rituals, or ceremonials of the order by any person not entitled to wear or use them under the constitution, by-laws, rules, or regulations of the order.
One of the contentions made by counsel for appellant is that the act is void because it manifestly delegates legislative power to file various orders mentioned. ...
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