State v. Smart

• Decision Date: 12 September 1910
• Docket Number: 641
• Citation: 18 Wyo. 436,110 P. 715
• Parties: STATE v. SMART
• Court: Wyoming Supreme Court

110 P. 715

18 Wyo. 436

STATE v. SMART

No. 641

Supreme Court of Wyoming

September 12, 1910

RESERVED QUESTIONS from the District Court, Albany County HON. CHARLES E. CARPENTER, Judge.

Heard on motion to remand.

W. E Mullen, Attorney General, for the motion.

It appears from the original papers that questions involving the sufficiency of the information are yet pending and undecided in the court below, so that, as decided in State v Kelley, 17 Wyo. 335, the constitutional questions reserved cannot be considered, and the case ought therefore to be remanded.

H. V. S. Groesbeck and S. C. Downey, contra.

The only ground of the motion to remand is that the court is without jurisdiction to decide the reserved questions. This is clearly insufficient, for a motion must state specifically the grounds or reasons on which it is based. (14 Ency. Pl. & Pr. 117, 118.) It is evident that the District Court did not consider as pertinent any of the questions involved excepting those relating to the constitutionality of the statute. It appears from the papers in the case that the District Court had passed upon the constitutional questions involved in another case, and it was the desire of the court and the contending parties to have the question finally settled. An elaborate brief on the constitutionality of the act has been presented by defendant's counsel in this case. Ever since the enactment of the statute in 1888 it has been usually ignored, or, when prosecutions have been based upon it, the statute has been held unconstitutional. The matter has been sent to this court in good faith and we do not think that the case of State v. Kelly applies, for it appears plainly in this case that only constitutional questions are involved. The general supervising power conferred upon this court over inferior courts is wisely invoked by this case. Hence, even if the motion is in such form that it can be considered it ought to be overruled.

BEARD, JUSTICE. POTTER, C. J., concurs. SCOTT, J., did not sit in the case.

OPINION

BEARD, JUSTICE.

The County and Prosecuting Attorney of Albany County filed an information in the District Court of said county, purporting to charge the defendant, Peter Smart, with a violation of Sec. 2643, R. S. 1899, which section provides, "Every person or persons, company or corporation, having a license to sell liquors under the laws of Wyoming, who shall keep open, or suffer his or their agent or employee to keep open, his or their place of business, or who shall sell, give away or dispose of or permit another to sell, give away or dispose of, on his or their premises, any spirituous, malt, vinous or fermented liquors, or any mixtures of any such liquors, on the first day of the week, commonly called Sunday, or upon any day upon which any general or special election is being held, shall be guilty of a misdemeanor, and upon conviction, shall be fined in any sum not less than twenty-five dollars, or more than one hundred dollars, or imprisoned in the county jail not to exceed three months."

The information charges that the defendant, Peter Smart, "on the 20th day of February, A. D. 1910, at the County of Albany and State of Wyoming, having a license to sell liquors under the laws of Wyoming, did then and there unlawfully keep open and suffer his agent and employee to keep open his saloon and place of business, where liquors are sold, on the 20th day of February, A. D. 1910, the said day then and there being the first day of the week, commonly called Sunday."

To this information the defendant, by consent of the parties, filed and submitted simultaneously a motion to quash the information, a plea in abatement, and a demurrer. No ruling of the District Court was made on either; but by consent and upon the motion of the respective parties, and by the court upon...