State v. Wiles

• Decision Date: 22 January 1935
• Docket Number: 7312.
• Parties: STATE v. WILES.
• Court: Montana Supreme Court

41 P.2d 8

98 Mont. 577

STATE v. WILES.

No. 7312.

Supreme Court of Montana

January 22, 1935

Appeal from District Court, Hill County; C. B. Elwell, Judge.

Prosecution by the State against Charles Wiles for the unlawful possession of moonshine whisky. From a judgment of dismissal after a demurrer to the information was sustained, the State appeals.

Affirmed.

Raymond T. Nagle, Atty. Gen., and E. V. Shern, of Havre, for the State.

Robert T. Merrill, of Havre, for respondent.

MATTHEWS Justice.

After leave of court secured, the county attorney of Hill county filed an information in the district court charging Charles Wiles with the unlawful possession of an unknown quantity of "moonshine whisky," in violation of the prohibition contained in chapter 105 of the Session Laws of 1933. To this information the defendant demurred specially on the ground that the court was without jurisdiction, "in that said offense is a misdemeanor and within the jurisdiction of the justices' courts." The demurrer was sustained and judgment of dismissal entered. The Attorney General has appealed from the judgment on behalf of the state on the theory that chapter 105, supra, impliedly confers upon the district court at least concurrent jurisdiction with the justices' courts over such cases as this. The defendant did not appear by brief or otherwise.

Our Constitution vests in our district courts jurisdiction "in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for" (section 11, art. 8), and declares that "justices' courts *** shall have such jurisdiction in criminal matters not of the grade of felony, as may be provided by law." Section 21, art. 8. Within the limitations prescribed by the Constitution, the Legislature may confer jurisdiction, in any class of cases, upon either the district courts or the justices' courts. See Oppenheimer v. Regan, 32 Mont. 110, 79 P. 695; State ex rel. Matthews v. Taylor, 33 Mont 212, 83 P. 484.

In conformity with the constitutional limitations, the Legislature, from the earliest days of statehood, has declared that the jurisdiction of our justices' courts shall extend to "all misdemeanors punishable by a fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both such fine and imprisonment" (section 11630, Rev. Codes 1921), and that "the district court has jurisdiction of all public offenses not otherwise provided for" (section 11631 Id.).

Notwithstanding the foregoing enactments, our Prohibition Act (chapter 143, Laws of 1917), having vested in the district court jurisdiction "in all criminal actions for violations of the provisions of this Act" (section 37), when the Legislature thereafter declared certain violations of the act but misdemeanors otherwise triable in the justice's courts, without repealing or amending section 37 (chapter 9, Laws Extraordinary Session 1921), it was held that those misdemeanors were properly triable in the district court. State v. Bowker, 63 Mont. 1, 205 P. 961; State v. Sorenson, 65 Mont. 65, 210 P. 752. Thereafter all provisions of our law respecting prohibition and its enforcement, with certain exceptions, were repealed by vote of the people at the November election, 1926. See Session Laws 1927, p. 603.

Chapter 105 of the Laws of 1933 is the "State Liquor Control Act," passed to "Limit, Regulate and License the Manufacture and Sale" of liquor, after the repeal of the National Prohibition Act. It sets up the "Montana Liquor Control Board" and provides for state liquor stores. Part 2, § 10. Liquor may be purchased only on permit. Section 18. Part 4 of the act is entitled "Prohibitions, Interdiction, Penalties and Procedure in Prosecutions and on Appeal." Section 45 (3) of part 4 provides that "no person shall have or keep" any liquor not purchased from proper authority. Section 71 of the act declares that "every person who violates any provision of this Act or the regulations made hereunder, shall be guilty of a misdemeanor unless other punishment is herein prescribed."

The act contains no specific provision for punishment for the violation of the prohibition against possession of illicit liquor. At the close of the act it is declared that "anyone violating any of the provisions of this Act shall be guilty of a misdemeanor and be subject to punishment not exceeding Five Hundred Dollars ($500.00) fine, or six (6) months' imprisonment, either or both; except where other penalties or punishment is herein expressly provided." Section 103.

Nowhere in the entire act is there such a provision as that contained in section 37 of the 1917 Enforcement Act, conferring jurisdiction on the district court, and, ordinarily, it would seem clear that the offense here charged came within the exclusive jurisdiction of the justice's court. However, the Attorney General contends that, as chapter 105 above contains many provisions similar to those of our former Prohibition Law, such as provisions for searches, seizures, and the forfeiture of property, and provision for an order of interdiction canceling any person's liquor permit (which is property), the act, by implication, confers jurisdiction upon the district court, as it was conferred by the Enforcement Act.

The mere fact that the Legislative Assembly of 1921 conferred jurisdiction on the district court in such cases is without significance here, for its repeal "had the effect of blotting it out as completely as if it had never existed." Westchester Fire Ins. Co. v. Sullivan, 45 Mont. 18, 121 P. 472, 473; State ex rel. Snidow v. State Board of Equalization, 93 Mont. 19, 17 P.2d 68, 18 P.2d 804; Standard Oil Co. v. Idaho Community Oil Co., 95 Mont. 422, 27 P.2d 173.

The Attorney General relies upon the statement that "a statute imposing forfeiture of property...