Town of White Sulphur Springs v. Voise, 9701

Citation136 Mont. 1,343 P.2d 855
Decision Date31 August 1959
Docket NumberNo. 9701,9701
PartiesTOWN OF WHITE SULPHUR SPRINGS, Plaintiff and Respondent, v. Milton VOISE, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Rankin & Acher, Helena, for appellant.

No appearance on rehearing, for respondent.

ADAIR, Justice.

On defendant's timely application therefor and rehearing allowed and had, this court's former opinion and decision pronounced and filed herein on June 24, 1957, is ordered withdrawn and the following opinion and decision is substituted therefor.

This is an appeal by the defendant, Milton Voise, from an order of the District Court for Meagher County, Montana, dismissing an appeal taken by defendant from a judgment of conviction entered against him in the Police Court of the Town of White Sulphur Springs, Montana.

The Facts. On May 29, 1955, a complaint was filed in the Police Court of the Town of White Sulphur Springs charging that on such date Milton Voise did unlawfully violate Section 1, Ordinance 210, of the Ordinances of said Town of White Sulphur Springs in that he did then and there, on a public street of such town, drive an automotive vehicle in a reckless manner. A warrant was issued for the arrest of the defendant Voise who was immediately taken into custody, brought into the police court of the town, given a hearing whereon his bond was fixed at $250 and he was then bound over for arraignment, which arraignment was had on June 2, 1955, at which time Voise entered a plea of not guilty. Thereupon his trial was set for the following day, June 3, 1955, on which date his trial was held before the police magistrate who adjudged Voise guilty of the charge and sentenced him to pay a fine of $150 and, if not paid, that Voise be committed to jail 'Laying out fine.'

Voise did not have sufficient money to pay the amount of the fine imposed whereupon he was promptly placed in jail to commence 'laying out' his fine for a credit thereof of $2 for each day served.

On June 4, 1955, being the day following his trial and conviction, the defendant Voise, then confined and held in jail, appealed to the District Court for Meagher County, Montana, from the judgment so entered against him, by filing with Fred LaRue, the police magistrate then, and at the time of defendant's trial, presiding in said police court, a written notice of appeal, as is provided for in R.C.M.1947, Sec. 94-100-34, which notice of appeal said magistrate admitted in writing he received on June 4, 1955. Then, there, and thereby the District Court for Meagher County acquired full and complete jurisdiction of the appeal and of the case.

Subsequent to the filing with the police magistrate, of defendant's timely written notice of appeal, the transcript of the police magistrate's docket and the files in the case were duly lodged with the clerk of the District Court for Meagher County where the case was docketed and assigned district court No. 472.

Thereafter the district court set a definite day for hearing the case and, on February 27, 1956, being the date so set, the defendant Voise appeared in the district court by his counsel, Joseph T. Wilson, Esq. The Town of White Sulphur Springs was there represented by its attorney, George Niewoehner, Esq., who then and there filed in the office of the clerk of the district court in said cause No. 472, and served upon defendant's counsel, a typewritten motion for an order dismissing defendant's appeal upon various grounds, the last whereof urges that the defendant's fine was paid in the police court and that such payment effected a waiver of defendant's appeal and rendered the cause moot in the district court.

Defendant's counsel resisted and argued against the granting of the motion to dismiss his appeal, but after hearing further argument of counsel for each party litigant, the district judge made this ruling and order, viz.:

The Court: 'Let the record show that plaintiff's motion made on behalf of the Town of White Sulphur Springs in cause No. 472 to dismiss the appeal of the defendant, Milton Voise, and it appearing to the Court and the records and the files therein that the defendant was tried in the Police Court of the City of White Sulphur Springs on the charge of a misdemeanor as set forth in said complaint on the 3rd day of June 1955, on which said charge the defendant was found guilty and judgment entered that he be fined the sum of $150.00, and that the fine, if not paid, be served out under the statute, it appearing from the transcript filed in this court on the appeal that the said defendant had served ten days and been given credit on the fine of $2 per day, making a total sum of $20.00, and had also paid the sum of $130.00, thus satisfying the judgment entered in said action in said Police Court; the Court finds that the judgment in the lower court has been satisfied and the appeal abandoned, and it is ordered that the motion of the Town of White Sulphur Springs to dismiss the appeal is hereby sustained, and the appeal is accordingly dismissed for the reason that the defendant has abandoned said appeal by satisfying the judgment entered in the lower court, and that there is no legal question involved in this court, the question being moot. And now your motion is out of the way.'

From the foregoing order of the district court dismissing his appeal therein, the defendant, Milton Voise, has appealed to this court.

Where, as here, the judgment of the police magistrate imposes a fine and orders 'the defendant to be imprisoned until the fine is paid, he must be held in custody during the time specified in the judgment, unless the fine is sooner paid.' R.C.M.1947, Sec. 94-100-40.

The defendant Voise did not have sufficient money or credit to pay the $150 fine imposed, so he was held in jail as a prisoner serving out his fine for a credit of $2 per day for each day served until such time as his credits, so earned by serving in jail, reduced the unpaid balance of his fine to the size of his purse which required serving ten days in jail for a $20 credit, at the expiration of which time he purchased his liberty by handing over to the city magistrate all his money in the sum of $130 thereby complying with the judgment entered.

On June 4, 1955, when he delivered to and filed with the police magistrate his written notice of appeal, the defendant had served but one day of his sentence for a credit of only $2 on the fine imposed, leaving an unsatisfied balance of $148 still due and unpaid.

The law says: 'All cases on appeal from * * * police courts must be tried anew in the district court.' Emphasis supplied. R.C.M.1947, Sec. 94-100-38.

As used by the Legislature in its above enactment, the word 'all' means all; the word 'must' means must, and the word 'anew' means anew, de novo, from start to finish,--from beginning to end.

The district judge did not observe or follow the plain mandate of section 94-100-38. He did not try the police court case against the defendant Voise anew or de novo or at all. He was side tracked by a side issue and the defendant's case was not tried anew as is required by the statute.

On June 4, 1955, at the time he took and perfected his appeal to the district court, the defendant Voise was then in durance vile,--restrained of his liberty, and in the custody of a jailer. The appeal was timely and proper and it clothed the district court with the jurisdiction and power to try defendant's case anew.

The result of the appeal was to abrogate the police court's judgment. Hosoda v. Neville, 45 Mont. 310, at page 313, 123 P. 20, at page 21.

The district court does not, on appeal from a police court, sit as a court of review, but it tries the cause de novo. State v. O'Brien, 35 Mont. 482, at page 491, 90 P. 514, at page 516; In re Graye, 36 Mont. 394, at pages 397, 398, 93 P. 266; State ex rel. Borberg v. District Court, 125 Mont. 481, 240 P.2d 854, at page 861; and State v. Benson, 91 Mont. 109, 5 P.2d 1045.

In Commonwealth v. Fleckner, 167 Mass. 13, 44 N.E. 1053, Justice Oliver Wendell Holmes, speaking for the court said: 'We should be slow to suppose that the legislature meant to take away the right to undo the disgrace and legal discredit of a conviction (Pub.St. C. 169, Sec. 19) merely because a wrongly convicted person has paid his fine or served his term. The fact that no indemnity is provided by this act is far from enough to lead us to that conclusion. Of course, the payment of the fine in accordance with the sentence was not a consent to the sentence, but a payment under duress.'

In Garabedian v. Commonwealth, 336 Mass. 119, 142 N.E.2d 777, 778, it is said:

'No contention has been made, nor could one rightly be made, that the case is moot. Although there is no way to restore time lost while serving sentence, a person is entitled to an effacement of the obloquy and stigma of an illegal conviction. [Citing cases.].'

In United States v. Morgan, 346 U.S. 502, 512, 513, 74 S.Ct. 247, 253, 98 L.Ed. 248, 253, 257, Mr. Justice Reed, speaking for the majority of the United States Supreme Court, said:

'Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.'

In Village of Avon v. Popa, 96 Ohio App. 147, 121 N.E.2d 254, 255, 256, the court said: 'No statute in this state, in terms, precludes an appeal from a final order of conviction of a criminal offense in which an imposed penalty has been satisfied, whether voluntarily or involuntarily. * * * Certainly an erroneous judgment of conviction of a criminal offense against a man is an injury per se, 'from which the law will intend he is or will be damnified by its continuing against him unreversed.' [Citing cases.] * * *

'While was might base our decision in the instant case on the...

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    ...MT 132, ¶ 17, 332 Mont. 327, 137 P.3d 557. A de novo review is one that is "anew" from beginning to end. White Sulphur Springs v. Voise , 136 Mont. 1, 5, 343 P.2d 855, 857 (1959). ¶15 Amendment of a zoning designation constitutes a legislative act. Section 7-1-104, MCA ; Schanz v. City of B......
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    ...cites and relies upon this court's opinions in City of Billings v. Herold, 130 Mont. 138, 296 P.2d 263, and Town of White Sulphur Springs v. Voise, 136 Mont. 1, 343 P.2d 855. Neither of these cases is in point. Neither involves the application or construction of the provisions of Chapter 26......
  • State v. Superior Court of Maricopa County
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    ...is authority to the contrary, we believe that the better reasoning would allow an appeal in such a case. Town of White Sulphur Springs v. Voise, 136 Mont. 1, 343 P.2d 855 (1959); Burns v. People 9 Ill.2d 477, 138 N.E.2d 525 (1956); State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 80......
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