30 Mont. 442 | Mont. | 1904
delivered the opinion of the court.
Application for writ of supervisory control. Under one of the rules adopted by the district court of Silver Bow county for the dispatch .of business, all criminal causes and all matters of a criminal nature are assigned for hearing and determination to Department 3 of said court. The court consists of three departments, each presided over by a separate judge. About December 23, 1903, Hon. E:. W. Harney, one of said judges, who
It is charged in the petition that the action of said Harney in refusing to. transfer the cause, and in assuming jurisdiction thereof, and in proceeding to hear1 and determine it in Department 1 of the said court, is in plain violation of the rule of court-established to regulate, proceedings in said court, and is a violation and abuse of judicial discretion, and that the said Harney is acting in excess of his lawful authority and jurisdiction as judge of said court. It is further alleged that relator has no plain, speedy or adequate remedy at law or by appeal, and that,
The only question presented is whether or not this court is justified in using its extraordinary power at this stage of the proceedings in the district court to compel the presiding judge to obey one of the rules of that court.
The accusation was presented against the relator under the authority of Section 1531 of the. Penal Code. The chapter of that Code in which this section is found authorizes proceedings for the removal of district, county, township" and municipal officers for-corrupt misconduct or malfeasance in office, and prescribes. the mode of procedure to be pursued. Stection 1543, found in the same chapter, provides: “From a judgment of removal an appeal may be taken to the supreme court, in the same manner as from a judgment in a civil action, but until such judgment is reversed, the defendant is suspended from his office. Pending the appeal, the office must be filled as in case of a vacancy.”
The theory of the relator’s application is that when a district court has adopted rules, under the provisions of Section 111 of the Code of Civil Procedure, “for its own government and the government of its officers,” such rules- have the force and effect of statute law, and may not be disregarded by the judges or the officers. He relies upon the decisions of this court to support the position which he assumes. (Montana Ore Purchasing Co. v. Boston & Montana C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114; State ex rel. King v. District Court, 25 Mont. 202, 64 Pac. 352.) - Assuming, without deciding, that the rule in question is so far binding upon the court as to give to litigants and those charged with crimes the right to be tried by one of the judges to the exclusion of the others, nevertheless we do not think that at this juncture in the proceedings this
The application presents a question very similar to- the one presented in the. case of State ex rel. Shores v. District Court, 27 Mont. 349, 71 Pac. 159, in which this court was asked for a writ to compel the district court of Silver Bow county, lion. John B-. McClernan presiding, to vacate an order setting a disbarment proceeding for trial, and directing the district judge to grant a postponement to enable the accused to prepare for trial. With reference to it, it was said: “If the judgment in the case should be adverse, an appeal from it would furnish a remedy as complete and adequate as the court can furnish in any case, and would be preventive of any wrong whatever, except such as would he an incidental result of any erroneous judgment, for which, owing to the imperfection of human institutions, no remedy has as yet been devised, execept to correct it by the ordinary procedure in the trial court, or upon review by the appellate court.”
The writ is denied.
Writ denied.