*1 282 “special prosecutor” present
eration when Small room. The district court’s order to set aside tbe indictments entered opinion prosecution accordance with this for the will not bar charged. offenses E. C. M. sec. 94-6605. cases will county attorney be ordered resubmitted accordance with 94-6604, filing section E. C. M. of such informa- justice tions as necessary he believes in the or to interest of another if in the discretion of the district court one necessary. is believed to be
ME. CHIEF JUSTICE ADAIE and ASSOCIATE JUS- TICES ANGSTMAN and BOTTOMLY concur.
ME. JUSTICE FEEEBOUEN:
I concur in because, the result reached since atf torney and, law, could have under the should have attended grand jury, presence special prosecutor of a was unneces- sary express and in direct violation of statute.
STATE ex ADAMI, AND CLARK v. LEWIS rel. Relator
COUNTY, DISTRICT COURT OF FIRST JUDICIAL Respondents
DISTRICT et al., No. 8981 July Submitted June 1950. Decided (2d) *2 Wellington Rankin, Loble, Helena, for Mr. D'. Mr. Lester H. argued orally. petitioner. Mr. Rankin and Mr. Loble Magnuson, County Attorney, E. Har- Mr. Melvin Mr. John C. County Chilton, Dep- rison, Deputy Attorney, Mr. Michael G-. Floyd Small, Sp. Prosecutor, uty County Attorney, Mr. O. all Magnuson Helena, respondents. Mr. and Mr. Small for orally. argued Toomey, Wagner,
Mr. Edmond G-. Mr. Charles N. Mr. Carl Raseh, Patterson, Luxan, Jr.,'Mr. P. Mr. Thomas Mr. H. J. Sam Goza, Jr., Kottas,
D. Weir, Mr. Leo J. Mr. T. B. Mr. Newell Jr., Gough, Matson, Ford, Mr. E. K. Mr. Sam C. Mr. Victor H. Fall, Hugh Galusha, Jr., Mr. D. Hickman, Mr. Gordon R. Mr. Erickson, Lief Mr. Brown, Helena, William A. all of amici argued orally. curiae. Mr. Erickson MR. JUSTICE METCALF: original
This is an proceeding taxpayer a resident and Lewis and county Clark on behalf of himself and tax- other payers of county, praying enjoining Lewis and Clark for a writ restraining county the defendant Lewis and Clark appropriating expending any officers from further money county tax purposes expenses any kind or character whatever. questions
Two are petition: raised the relator’s alleges 1. The relator appointment a special prosecutor to attend and advise the Lewis and Clark illegal presence and that his before the *3 has by grand vitiated all jury, indictments returned thus causing expense taxpayers useless to the of Lewis and Clark county, special prosecutor and that if the con- to tinue to meet with and advise the ex- additional penses will be incurred and county more of the funds of the question wasted. This is discussed in State ex rel. v. Porter Court, District 124 220 249, (2d) Mont. Pac. 1035. grand jury, July
2. That the 7,1949, impaneled called on and July on 25, 1949, legal ceased to exist as valid and expiration at the of the term of court which the was called. jurisdiction
This court accepted the action and issued an why show prayed order for the defendants to cause the relief granted. for should not be county defendant Lewis and Clark ap-
The and its officers peared, represented attorney, his assistants and special prosecutor. The defendants demurred to the grounds petition jurisdic- on the that this relator’s court has no subject persons tion over the the defendants or the matter of petition the action and does not state facts sufficient quash to constitute a cause of A action. motion to the order proceedings filed, show cause and dismiss the was also mak- ing objections demurrer, same made and in addition contending'that all the issues raised were determined adverse- ly plaintiff to the Knapp al., Porter 123 Mont. v. et (2d) upon 765. That case was dismissed plaintiff’s prejudice motion without and is not decisive issue there objections raised. Other necessary were made which are not disposition discuss either because of the made of this case or because were discussed in ex the case of State rel. Porter v. District Court, 8987, supra. No. prejudice
Without to the consideration of defendant’s de- quash murrer and motion to the order and dismiss proceed- ings, the defendants were ordered to file an answer to the petition on the merits. necessary alleged facts as petition and admitted the answer are: July 7, was called on
1949, by order of judges both of Lewis and county. Clark It regularly organized and impaneled and properly instructed began July deliberations
On December judges judicial district of the first district made fixing and entered an order the terms of court for Broadwater and Lewis and Clark counties 2, 1949, December fixing like order was made the terms of court for 1950.
The order for the 1949 part: terms of court inis “In the Fixing Matter of Terms
of Court for the Year 1949.
Order *4 provisions “Pursuant to the of Section Revised Codes Montana, 1935, the State of County terms court for the Clark, of Lewis and Montana, the State of hereby are fixed year for the as follows:
TEEMS DAY FIEST January 10th April 11th June 13th September 12th “Each opening term shall until the of the succeed- continue ing term; being hereby it Lewis intention that the Court in and Clark'County, Montana, always be in for the shall session business, except legal holidays transaction of and non- judicial days.” except order terms of court is the same
The the terms are: DAY
TEEMS FIEST January 16th' n April 17th 19th June September 18th grand July 25, from has in continuous session been 1949, until present except time for intermittent recesses pursuant to the vote of the members. plaintiff'is the real defendants’ answer denies that the any
party in and has been financial loss interest that there county from taxpayers of Lewis and Clark will if to continue. or that there be county petition filed with the Eecords of Lewis and Clark through May 1950 expenses of show that signed judges $24,652.52. A statement of the two amounted 13, 1949, December declared an of the district court dated $15,000.00would neces- emergency to exist and stated that grand jury. sary expenses On to meet the thereafter judges 19th, same district the resolu- December withdrew emergency, said, declaring “such an resolution tion solely purposes of approved this Court presented and keeping facilitating matter of books records of the board and not clerk and the office because *5 287 emergency budget appropriation necessary for or was deemed purpose obtaining money expenses opera- the of Court, any agency tion of said or thereof.” The court district expenditures any agency then ordered for the court or incurred regard any the court to paid emergency ap- without to propriations. Court,
As State ex rel. 8987, supra, Porter v. District No. 17 petitioned members of the Lewis Clark and bar to appear as amici were to curiae file briefs and argue the cause.
The demurrer and"the petition motion to dismiss the chal- lenge jurisdiction of prohibition this court to issue a writ of any against or grand jury. writ directed prohibition writ of is one of the remedial writs which this empowered
court is to issue under the Montana Consti tution and VIII, statutes. 3, Art. sec. Constitution; R. C. M.
1947, 93-214; sec. State ex rel. Hogan, Scharnikow v. 24 Mont. 379, 62 493, Pac. 51 L. R. A. prohibition 958. The writ of is defined 93-9201, section 1947, R. C. M. as a writ that “ar rests proceedings any tribunal, corporation, board, or person, exercising whether judicial functions ministerial, proceedings when such jurisdic are without or in excess of the tion tribunal, of such corporation, board, person.” The writ litigation be issued to end expense. and save State ex rel. King v. Court, District 107 476, (2d) Mont. 86 Pac. 755. A writ prohibition was found to be proper remedy where a challenge jury panel to a interposed upon was ground persons composing array improperly were illegally attending upon the court jurisdic and the court was without tion jury. select State ex rel. Clark Court, v. District 86 509, Mont. taxpayer 266. A has sufficient beneficial interest to bring Milligan such a suit. City v. Miles al., et 51 Mont. 153 Pac. L. 1916C, R. A.
A grand jury a part of the court and must conduct itself complanee with the statutes and Constitution
288 judicial system. 38 part as other C.
same manner
Jur.,
Jury,
S.,
Juries,
b, page 981; 24 Am.
Grand
J. Grand
1
see.
subject
grand jury is
this
2, p.
sec.
832. The
control
acting
jurisdic-
prohibition
when it is
without
court’s writ
jurisdiction.
Burney,
tion or
ex rel. Hall v.
in excess of
State
(2d) 659;
State,
App.
84 W.
Walton v.
Mo.
S.
Miss.
erations county. That judicial Clark *6 first district in and Lewis and September 11, 1949, September be- term and the term ended gan 12th. September Constitution, VIII, 17, provides: The sec. Montana Art.
“ * * * united, In two or more each district where counties are by law, judges of provided until such district otherwise the court, provided fix be shall the of that there shall term [court] year county.” at four a in least terms held each 93-315, provides 1947, B. for the terms of court Section C. M. “ * ** as each district where two or counties follows: In more judge must fix term of are united the thereof the court each seat, county county the district, in his which must held at be county. year in be terms a each and there must at least.four days the judge must, The of such within ten after district day year, an order which must first of December of each make designate held times which the terms of court are to be at during coming year, begin- each his district ning January following *(cid:127)**.” day the first such with of order statutory pro- compliance
In with these constitutional judicial district, com- judges of the visions the district first prising counties, Lewis and Clark Broadwater fixed the in the terms of court above orders. grand jury contention called petitioner’s
It that is the by discharged operation term of during June of court 11,1949, expiration at the of term. September law on that statutory regulation length only term of the directs 1947, M. which jury 94-6314, R. C. grand is section ® “* * the business before completion On the discharged court; but, whether by the them, they must by discharged the final they are completed not, or business court.” court, order Court, Mont. v. District State ex rel. Clark The case of application for a writ was an 3 Ann. Cas. involving validity returned of an indictment prohibition jury jury prepared by grand jury a new list was after It. required by 93-1406,R. C. M. 1947. section commission as jury list was returned after new was there contended that list could no members of a drawn from the old be drawn from the longer serve and a new must long jurors, as holding list. was that so current they they trial, qualified were when were drawn could continue jurors In so far as trial were concerned this has been serve. jury present so that at the time a trial altered amendment days be held over but 90 new list is re after the by Chapter statute, turned. That 93-1406as Laws amended * “* * 1947, says: jurors, if shall continue to serve as requires jury, the business of the court the attendance of a for a provided exceeding ninety further, how period (90) days; not ever, notwithstanding service, such com limitation of duly impaneled posed jurors, try cause, of such shall *7 discharged by continue to serve in such cause until the court ** juries *.” quoted portion pertains trial are who during any year liable held for service term of and the ninety days jury over for list. after the return of new grand jurors “discharged by But serve until the court” or discharged “whether completed not, the business is are by adjournment the final of the court.” discharged by it has not been the court and discharge itself. We then with
cannot are concerned the mean- ing “discharged by adjournment court” and final of the discharged. whether this has been so system Our grew England of terms up of court in where there year. were four terms began a Each term and ended on a certain ninety-one date so that days there were but in each year that courts were in session. In America the business the courts has increased to such an in courts are extent Many constant session. states, including Montana, still have terms by of court by fixed the Constitution or statute. Califor- by nia its Constitution of 1879 abolished terms of court. But description of how operated the California courts prior to the abolition revealing of terms of court is meaning as to the adjournment of “final of the court” as in used both Montana’s and California’s statutes.
The case of Gannon, In re 541, 11 Cal. Pac. 241, cited and upon relied in State ex Court, supra, rel. Clark v. District was one where the contention was that impaneled during July in authority session 1885had not to examine a witness summoned before it in March 1886.
The court said: “The basis of the contention is that superior court which the was convened works under a system adjournments of terms and final court, by of the which jurisdiction its as a court temporarily to transact business is sus- pended by term, the end of its the final court; and until reconvening of the court at the com- mencement of new term, authority hear and determine ceases, causes authority and the of a upon attendance also, body ends and is dissolved law. Such a system was, undoubtedly, part of the constitution of the courts formerly which adoption existed the state before the present constitution; many provisions of the Codes system which the was established upon are still to be found the statute books. But the constitution of 1879 abolished, not only courts, system the former but also the of terms and final adjournments judges which opened under thereof courts for judicial business, the transaction of superior substituted courts, ‘always which it ordained open,’ legal should be holi-
291 (Article 5, Const.) days non-judicial days excepted, sec. and this command of the constitution was enforced ' legislative Code Crim. enactments [of sections] * * *” Proc. grand jury the common law the term service of the Under expiration in which it ended at the of the term court contrary, was called. “In the absence statute to the grand jury usually during entire term of serves court at attend, and, which it has been summoned unless sooner dis charged by court, legally does not to be a constituted cease body expiration period. until In of that the absence of statutory contrary, grand jury provision to the the life of the expiration terminates on the for of the term which it is sum ” * * * S.j Juries, moned. page C. J. Grand sec. 1022. right “The of a to remain in session does as not general beyond adjournment rule extend the final court term, expressly statutes sometimes declare that on adjournment final discharged. of the court the is Such statutes declaratory have been held to be of the common law.” S., 38 C. Juries, 33, page J. Grand sec. very language of section 94-6314 indicates that t he
legislature intended the to serve for a limited period. discharged by must be the court when completed. discharged business is It before its completed by business is court, order but whether its completed business is it not or whether is ordered dis charged by discharged by adjourn or not it final is ment. At common law that meant final contemporaneous term. That was the construction of the phrase adopted by when it though Montana. So that even longer strictly we no adhere the common-law rules for terms look of court we must to them -meaning to ascertain designating period statute grand juries. of service for express is Where there no command statute the business of the court continues from term to term. But where the term recognized it is still period as a measure for the of service
used *9 applied to make effective such statutes. jury grand composed of There are that hold that a eases qualified hold jurors, duly impaneled, continue to over validity grand as and the after the term a “de facto” grand jury questioned such a motion to set aside a cannot be on pro- collateral corpus the conviction or writ of habeas or other ques- ceedings. Gannon, supra, In re was such a case and the grand jury ex rel. tion of a de facto was there discussed. State attack. rel. Clark v. District Court was a collateral State ex 776, 41 Noyes, 386, Dunn N. 27 L. R. A. v. 87 Wis. 58 W. example. People Morgan, 133 Rep. 45, Am. St. is another v. theory under a applied
Mich. 95 N. W. the de facto Michigan quite statute that is from Montana’s. different instant confronted with a direct at-
But case we are jury. petitioner validity grand tack on does of the any were found not seek to set aside of the indictments that discharged by grand jury alleges operation it was after he alleged illegal attempting put of law. He is to an end to the body immaterial or not continuation of the itself. It is whether grand jury would by a “de facto” be held indictments found only attack affirmed. On this direct valid convictions justified grand question continuance of a is whether the law jury beyond in which was called. the term it (2d) 298, 299, Harr, 332 Pac. 2 A.
In
v.
Shenker
grand
retain the
Pennsylvania
the court to
statute
”
“
if the business of the court
‘for an additional week’
held to be
required
17 P.
sec. 1351. This statute was
it.
S.
discharge
directory only
require the
of the
and did not
investigation upon which
were launched was
jury if the
jurisdiction while
In
the court retained
unfinished.
that case
investigation in
grand jury
complete its
which
to
permitting
go
not to
term came to an end but
engaged when the
it was
tendency
“A
establish
The court said:
to
new matter.
into
repugnant
in a
anything approaching permanency
individual
government and subversive of
scheme of
to our
rights.
opinion
We are
that the continuance
session of the
subject
present
litigation has
which is the
of the
investigation
permissible limit,
about reached its
that the
which
’’
* * *
conducting
promptly
it is
should be
concluded.
Mississippi
A
like declaration was made
“* * *
supra:
State,
Walton v.
the Constitution intended to
establishing
lists
provide
legal
for a
method of
suitable
**
*
jurors,
drawing
such
from
lists
at each term of the
jurors
body
court.
from
These
were to
taken
only necessary
right
people. This is not
to
full
secure the
jury trial,
right
having
and to secure the
pass upon
sufficiency
evidence,
probable
to constitute
cause,
being placed
felony.
trial
person
warrant
for a
Perpetual
terms of the court
not contemplated,
were
neither
*10
perpetual
were
juries,
professional jurors.”
or
Miss.
[147
Jury major one responsibilities service is of the of the citi- lay When work, zen. summoned must his he aside often at a personal sacrifice, Except considerable and serve his state. military service, jury duty demanding per- is the most of the required sonal services of a citizen. Jurors are drawn from the body taxpaying population. qualified of the All citizens duty be called. It was never intended that this arduous be performed by year. group require a small over the entire To long period injus- to be in attendance for such a is an juror tice to the and the accused alike. on grand jury
North Dakota’s statute the term of the is 10655, Comp. 1913, D., similar to Montana’s. Section Laws N. completion provides: “On the them, of the business before whenever the court opinion public shall be of that the interests will not be subserved session, further continuance of the discharged court; must but whether completed not, they the business is discharged are by adjournment final of the court.” Supreme
The North Dakota Court that said the above section respecting common-law “is in fact a re-enactment of the rules grand juries.” the North Dakota court or- Under this section beyond dered a continued in that session the end of Court, term discharged. State ex rel. Jacobson v. District N. D. 277 N. W. 849. analysis jurisdictions is A further of cases from other unnecessary. uniform is in the rule that absence of contrary discharged by opera statute to the tion of law at the end of the term of court for which it was says they discharged by the Montana’s statute are called. adjournment court, final whether the business is com pleted mandatory. adjournment or not. This is Final Gannon, In court means the final for the term. re supra; Pritchett, 648, 30 Loud v. 104 Ga. S. E. began September September 12, 1949,
When the term adjourned. automatically State, June term was Walton v. supra. adjuornment expiration
The final of the court was at the September 11,1949. June term on was dis- charged by operation on that date. of law peremptory
It is that a writ issue forthwith. ordered MR. ADAIR and CHIEF JUSTICE ASSOCIATE JUS- FREEBOURN and BOTTOMLY concur. TICES (dissenting): ANGSTMAN MR. JUSTICE questions pre- I not consider think this court should here presented until after been sented have first consid- trial ered court. I questions,
But if consider the think we are *11 holding strict of terms of court has common-law rule abrogated 93-315, M. part been Montana as section R. C. 1947,will disclose. fixing specific the terms was in stat-
The order of the court always “shall ing court Lewis and Clark that the business, except legal for the transaction of holi- in session non-judicial days.” I days think whether there ever was meaning a “final of tbe court” witbin tbe of sec- 94-6314, tion 1947, depends upon R. C. M. tbe intention of tbe judges district and tbe record bere discloses that never adjournments. final intended
HARRER, Respondent CO., v. MONTGOMERY WARD &
INC., et al., Appellants No. 8942 April 14, July Submitted 1950. Decided (2d)