205 P. 955 | Mont. | 1922
delivered the opinion of the court.
This is an original application for a writ of supervisor}' control directed to the district court of Pondera county and Hon. William E. Carroll, judge presiding.
On October 5, 1921, the county attorney of Pondera county filed in the district court a written accusation against James T. Green, praying his removal as county clerk for neglect
Honorable John J. Greene, the judge of the nineteenth judicial district, being disqualified, Honorable C. W. Pomeroy, judge of the eleventh judicial district, appeared in court prepared to try the cause. The defendant demanded a jury trial. This the court denied. The defendant then filed an affidavit charging Judge Pomeroy with bias and prejudice. At the instance of the governor, Honorable William E. Carroll, a judge of the second judicial district, on the tenth day of January, 1922, appeared and assumed jurisdiction of the cause. The defendant entered a plea of not guilty and again demanded a jury trial. Judge Carroll annulled the order of Judge Pomeroy denying defendant a trial by jury, and set the cause for trial on Monday, February 6, 1922,
The relator’s contention is that, the charges to be tried being for misconduct involving willful refusal and neglect to perform official duty, the defendant Green is not entitled to a jury trial. The respondents insist that the charges involve a “criminal prosecution” under section 3 of Article III of the Constitution, and that Green is entitled to a jury trial as a matter of right.
Since the attempted disqualification of Judge Pomeroy, this court has held that in removal proceedings a judge may not be disqualified for imputed bias and prejudice. (State ex rel. Houston v. District Court, 61 Mont. 558, 202 Pac. 757.)
By the provisions of section 9006 of the Revised Codes of
For the purpose of fixing penalties for all crimes and offenses punishable at all, section 8107 of the Revised Codes of 1907 was enacted. In that statute death is prescribed as the penalty for murder in the first degree; for lesser crimes and offenses, fine and imprisonment; and lastly, for misconduct or malfeasance in office, removal therefrom and disqualification to hold public office again. By the provisions of Chapter 25, supra, the offender has a right to a jury trial upon a charge for the collection of illegal fees. For neglect,
The right of the legislature to enact these statutes comes from the exigencies of government and inherent legislative power. Therein no attempt is made to go beyond conviction and removal of the guilty. When the judgment is entered and executed by removal from office, the statute has spent its force without loss to the accused of any of the constitutional guaranties, including the right to a trial by jury in a “criminal prosecution.” (State ex rel. Payne v. District Court,
The order made by Judge Pomeroy denying the defendant a trial by jury was proper under the law, and therefore the order of Judge Carroll is hereby annulled and set aside, and that made by Judge Pomeroy reinstated.