*1 pro- the effect of the wanted State than one rather
visions other, hold that the
vision fall because it is must as unit Clause Equal Protection violation of to the Con- Amendment
of the Fourteenth the United States.
stitution of petitioners for a application determining quo warranto
writ of
respondent senators hold the office of senator Dakota,
Constitution State senators from ousting each the said
office, things is in all denied. PAULSON,
ERICKSTAD, TEIGEN KNUDSON, JJ., concur. MINOT, municipal corpora-
The CITY OF tion, Appellant, Plaintiff and
Raymond KNUDSON, O. Defendant Respondent. No.
Cr. 411.
Supreme Court of North Dakota.
Feb. 1971. *2 Knutson, Minot, plaintiff
K. M. appellant. Minot, Kenner, suppress sample evidence for defend- of the blood &
Waldron analysis. Subsequently, Knudson respondent. ant and
found guilty motor under the influence of PAULSON, Judge. liquor. intoxicating then ap- Mr. Knudson *3 pealed County to District the Ward Court Dakota, has Minot, North City of The and a de novo trial was demanded. When of the district the order from appealed the reached the case was for trial in dis- Dakota, County, North court of Ward court, trict Mr. renewed his Knudson mo- 1, 1970, that cer- and from July on entered tion quash complaint suppress to the and to of court the Ward of district tain order granted the evidence and order was 1970, 27, amending August County dated pursuant to a motion quash to the com- 1, July of correcting the said and plaint vacate of and the the de- of the 1970, the motion and complaint municipal court. The was Knudson, quash to fendant, Raymond O. quashed by the district court for the reason municipal court the complaint filed in the court, namely, stated that the arrest Mr. Knudson charging City of of Minot the illegal was because had been made with- driving a vehicle of offense with the warrant, night, aout violation of §§ in- influence of the a while under street 29-06-16, 29-06-08 and North Dakota of this case liquor. The facts toxicating Code; Century suppress and the to motion City the of stipulated both have been granted. the was The district evidence Knudson. Minot and Mr. that, notwithstanding court subsec- held tion an arrest 6 of § 1969, 20, Mr. Knudson was December On a for a misde- without warrant City in the accident involved in a one-car while under meanor violation officer was dis- police A Minot. Minot beverages the influence of would accident, patched but he the scene the to illegal be an arrest when violation had the actually Knudson did not observe Mr. presence committed been in the the talking to Mr. operating his vehicle. After arresting officer. After the of Minot him, observing and while Knudson and Court, appealed Supreme had to the Mr. accident, the investigation of the making an a Knudson filed motion with this court to he police had rea- officer determined grounds dismiss the on the that the that Mr. Knudson to sonable cause believe Supreme jurisdiction Court without to the operated his while under had hear this in that the of Minot liquor. po- intoxicating The statutory is without or constitutional au- Knudson without arrested Mr. lice officer thority perfect an appeal in this case. p. shortly on De- after 6:16 m. warrant The motion further states that Mr. Knud- scene of the acci- at the cember son placed jeopardy by been had once in implied consent to the dent. Pursuant and, the municipal trial court his Dakota, Mr. of North Knudson released, having bond been it would consti- requested permit sample blood to tute double and would contravene for alcoholic con- analyzed be taken and the Fifth Amendment of the United States complied re- with this tent. Mr. Knudson and Constitution Section 13 the North quest. hearing A held in Minot Mu- grant appellant Dakota Constitution to Knudson, nicipal upon ar- and Court Mr. a reversal district review court, raignment municipal moved day argu- oral decision. On set for complaint ground that the on court, prior ment to hear- before illegal; he also arrest was moved arguments reference to the oral analysis suppress as the chemical evidence case, parties both were merits of his blood it was not obtained because their re- given opportunity present subsequent legal municipal arrest. of, support spective judge refused to contentions dismiss
(}1
offense,
same
compelled
Considera-
Knudson’s motion.
nor be
against,
arguments
motion and
be
case to
against
tion
witness
himself,
encompass
legal
the same
is-
deprived
merits
nor
life, liberty
on the
sues,
property
be combined for
process
and therefore will
without due
law.”
opinion. Neither of
purposes
of this
Century
litigants
issue with
has raised
Code:
sufficiency of
“rea-
reference
“Particular
general.
controls
—When-
the arrest was
cause” under which
sonable
ever
general provision
in a statute
constitutionality
made, or
to the
subsec-
shall be
special pro-
in conflict with a
tion 6
N.D.C.C.
statute,
vision in the
same
in another
construed,
the two shall be
primary
possible,
issue is whether
*4
may
so that
given
effect
be
appeal from an
to both
right
of Minot has the
visions, but
if the conflict between
a com-
a motion
provisions
and,
spe-
so,
is irreconcilable the
plaint;
arrest be made
can an
provision
cial
prevail
shall
and shall be
for
the influence of
night,
at
under
exception
construed as
police
a
beverage, by
officer
an alcoholic
provision,.
general provision
he has
unless
a warrant
not wit-
without
when
shall be
later
enacted
shall be
the driver
the vehicle in
nessed
legislative
gen-
intent
such
question.
manifest
provision
prevail.”
eral
shall
relevant
The
constitutional
statu-
29-06-08,
Century
Section
North Dakota
tory provisions are as follows:
Code:
Article V of the Amendments to the
felony
“When
made
arrest
—Mis-
United States Constitution:
may
for a felony
demeanor.—An arrest
person
“No
shall be held to answer for
day
be made
any
any
and at
time
crime,
capital,
a
or
infamous
otherwise
day
night.
or
An arrest for a mis-
presentment
on a
or
unless
indictment of
night only upon
demeanor
made at
can be
Jury, except
a
arising
Grand
in cases
in
magistrate
direction
endorsed
forces,
land or
Militia,
naval
or in the
upon the warrant.”
in
when
in time of
service
orWar
29-06-15,
Century
Section
North Dakota
public danger;
any person
nor shall
be Code:
subject for the same
offense
be twice
peace
“Arrest without warrant. —A
limb;
in
put
jeopardy
or
of life
nor shall
warrant, may
without
arrest
compelled
be
in
Criminal Case to be
person:
against himself,
a witness
nor be de-
life,
prived of
liberty,
property,
or
with-
3|C
n
n
n
>fi
process
law;
out due
private
nor shall
charge,
On a
made
reason-
“6.
property
use,
be
public
taken for
cause,
able
or
ac-
just compensation.”
tual
control of a vehicle while
under the influence of alcoholic bev-
Section 13 of the
Dakota
Constitu-
erages.”
tion :
29-06-16,
Section
Century
North Dakota
“In
prosecutions
court Code:
whatever,
party
accused shall have
“Arrest
cause.—
right
—Reasonable
trial;
to a speedy
public
A
night may
officer
arrest
to have the process of the court to com-
person
for a
offense without a
pel the attendance of witnesses in his
warrant, if:
behalf; and
appear
and defend in
person and
person
with counsel. No
“1. The
offense
committed
put
shall
twice
presence;
for the
attempted in
then,
course,
right,
to be-
He has reasonable cause
have such
Mr.
“2.
that the
arrested has com- Knudson
entitled
a dismissal of the
lieve
felony, though
agrees
it afterwards
The
of Minot
that the
mitted
felony
right
appeal ordinarily
com-
is limited
those
appears that
law; and,
grounds expressly
authorized
mitted.”
further,
there is no statute which
Century
provides
specifically
appeal by
for an
Code:
from an
adverse
involving
alleged
district court in a case
may appeal.—
the state
“From what
ordinance.
by the state
may be taken
An
'urges
support
of its
it is
contention that
from:
right
appeal by
to a
virtue of the
entitled
quashing an informa-
“1. An order
authority granted under
N.D.
any count there-
tion or indictment
substance,
provides,
C.C.
of;
may
that an
be taken
the state
He
[*]
[*]
[*]
[*]
[*]
»
from an order
indictment,
and cites State v.
quashing
an information or
Hart,
(N.D. 1968),
N.W.2d 499
in which
question of
Knudson be
*5
quash
court held that a motion to
is avail-
the
ing
jeopardy should
placed in double
jurisdictional
legal
test
the
able to
is
court be reversed
order
the district
of
sufficiency of an amended
com-
case because a
issue in this
not
valid
plaint
equivalent
information)
of
(the
an
pro
defendant
constitutional
waives
charging a defendant
the
with
commission
placed
jeop
against
in double
being
tection
of a
an
offense.
It follows that
ardy
against
judgment
or
after a verdict
granting
quash
motion to
a com-
instance, either
is set aside at his own
him
plaint
appealable, just
is
as is an order
by a
by
a trial court or
successful
motion in
granting
a motion
209,
an information.
appeal.
Am.Jur.2d,
Law
21
Criminal
§
253;
p.
Law and
1
Criminal
Wharton’s
court,
in two cases decided in the
142, p.
The United
Procedure
336.
§
year
is, City
1955—that
of Minot v. Kitz
held,
in United
Supreme
States
Court
man,
City
(N.D.)
We are next things confronted with the “There are then that dis- two issue of whether the tinguish previous- Minot has a case from the right appeal in this If ly strongly upon by case. it does not cited so relied cases distinguishing The first court, the movant. shouldn’t appeal appeal is that in this case the feature allowed this case? We think so » * * * appeal being questioned that court, to this the district court from adopt reasoning We of Bis- municipal appeal from dis- Materi, supra. marck v. court, distinguishing trict and the second Having may appeal decided that the City judgment is that in this case the feature case, in this we must now consider is- appealed judgment from is a dismissal sue raised appeal; that is: Does sub- .on upon ground ordinance based section 6 apply of § upon and not itself is unconstitutional night? to an arrest at We conclude that was not vio- finding that the ordinance N.D.C.C., does. Section lated. vides that without a war- features, “Noting distinguishing those rant, may arrest a charge, prohibited from con- are we nevertheless cause, made reasonable sidering on its merits for of a appears to exist reason no statute while under the alcoholic bev- specifically provides for an erages. part city on the of a from an adverse N.D.C.C., Although 29-06-15(6), rendered a district court § ais statute dealing specifically involving alleged in a case an automobile while ordinance? under the beverages, influence of alcoholic “Before question we answer that 29-06-16, N.D.C.C., is govern a statute important think it to note that if we were procedure arrest apply procedure appro- the criminal State North Dakota. Section *6 priate appeal by in an the State from an N.D.C.C., requires that the two statutes order a motion to an compared. general must be rule on information or an in district indictment statutory construction is set forth in 82 court, appeal would lie. Statutes as follows: § C.J.S. “See special and “General statutes should pertinent part of which reads: harmonized, together be read pos- sible; but, to the extent any neces- may From what the state ‘29-28-07. them, sary repugnancy between spe- appeal may be taken —An cial prevail statute will general over the the state from: appears unless it that legislature T. An quashing an information intended to make the act con- any thereof; indictment or count trolling.” >» * * * held, This court in Walker [City supra Bismarck v. 177 Weilenman, 143 N.W.2d (N.D. 691 N.W.2d 536.] 1966), paragraphs in 1 sylla and 2 of the bus : bar, the case at Minot has a In ordinance an prohibiting act which is also “1. an Where Act the Legislature prohibited by state and the law commission ambiguous, give courts will weight provides which a penalty, may to the practical and contemporaneous include As stated in incarceration. placed upon by construction it the Attor- Materi, supra Bismarck v. 177 N.W.2d at ney charged General the officers 537: with its administration. reasoning “Under the “2. Generally, the mere fact that the Whitfield
applying procedure to municipal Legislature enacts an amendment 64 other rant whether is an indication
existing statute original time. change intended thereby
Act.” question, it is reply your “In direct 29-06-15(6) opinion that section our held, in Walk further in the event of an arrest controlling Peterson, (N.D. 167 N.W.2d er v. night on the made at sylla 2 of the 1 and paragraphs 1969), influence of while under bus: beverages.” bewill Legislature of the An Act “1. practical in a Legislature cognizant was courts The 1969 construed used largest percentage the words the fact that the manner in their ordi- be understood for motor vehicle will violations while under the of alcoholic nary bev sense. erages night. Legisla occur at judicial notice take will Courts “2. carefully ture also considered the fact that officers, public acts of official since the law being changed was then of this State. public laws and of provide intoxication was also be taken notice will Judicial times offense, longer a criminal it was be which con- of such occurrences lieved necessary provide a different and of history of this State stitute arresting method who was history of North contemporaneous apparent intoxicated and in aof in- legislative determining the Dakota vehicle, peace but whom the officer had including the up to and leading tent actually observed law.” passage of a control of a 11, 1970, the Office On March Thus, Chapter intoxicated. section 4 Dakota Attorney General (Senate 91 of the Laws Bill 1969 Session attorney’s state’s Ramsey County vided 286), creating No. subsection 6 of 29-06- § regard opinion §§ office with 15, N.D.C.C., added Bill Senate In N.D.C.C. 29-06-15 Therefore, No. 286. the intent of the stated: Attorney opinion, General Legislature light, was clear. In that conclude that 6 of subsection noted, 6 of subsection you “As have N.D.C.C., permits subsequent enacted 29-06-15 *7 warrant, to arrest a at night for If 29-06-15. to the enactment of section driving the offense of a vehicle while conflict, provisions of there beverages, under the influence of are prevail. would We 29-06-15 long so as officer has made however, impressed, even more the arrest reasonable cause. For the specific statute 6 is a fact subsection opinion, reasons stated the order of applies directly to the the district court is reversed and the case con- physical in actual remanded for trial. under the influ- trol of a vehicle while beverages. ence of alcoholic STRUTZ, J., ERICKSTAD, J., C. having general 29-06-16 statute concur. specific particular reference specific prevails charge. A over statute TEIGEN, Judge (dissenting). in case of an irre- jurisdictional I dissent on grounds concilable conflict. See section 1-02-07. my the reasons set dissenting opin- forth clearly in- Legislature believe the We ion in of Bismarck v. dicated that an arrest for or be- (N.D.1970). 530-546 N.W.2d in actual of a KNUDSON, J., joins under the influence of alcoholic dissent of beverages TEIGEN, could be made without war- J.