14 Mont. 383 | Mont. | 1894
This is an application for discharge from imprisonment, through the writ of habeas corpus.
It appears that relator was indicted and convicted under the provisions of section 261, page 578, of the Compiled Statutes, which reads as follows: “That hereafter it shall be unlawful
The first point insisted on by prisoner’s counsel as ground for discharge is that by reason of having produced said bond, and the same having been approved by the court, and filed, the court, in effect, by implication, granted a stay of execution pending the determination of the motion for new trial; or, as otherwise stated, that the court, while retaining defendant’s bond or stay, could not lawfully imprison him on the judgment during the pendency of said motion for new trial.
The facts shown hardly bear the interpretation insisted on by defendant’s counsel. It does not follow that because certain things were done looking toward a stay of the execution, the court, by implication, had granted such stay. If so, the moving for some order which the court may grant or refuse, and the filing of a bond in the premises, which the court might readily approve if requested so to do, while still considering the propriety of granting the order sought, would cdmrnit the court as having granted the order moved for, unless the court made some special order, annulling the bond, to escape from the implication that the motion had been granted. This view is wholly untenable.
Thirdly, petitioner’s counsel urge the proposition that the provisions of said statute are unconstitutional because, in effect, it prohibits a certain class, i. <?., women, from being employed in a place’ where intoxicating liquors are sold, and therefore restrains such persons from engaging in a lawful employment. This statute does not forbid the employment of women or minors, but it does prohibit all persons and companies from selling intoxicating liquors in a place where women or minors are enqdoyed or assembled for the purposes of the business. There appears to be wisdom and propriety in this provision, as a police regulation, and we fail to find in it the infringement of any provision of our constitution. The California court, in cases cited on this point, had under consideration constitutional provisions which are not found in the constitution of this state, and which also appear to have been greatly modified by revision of the California constitution since the cases relied on were decided.
Other points were urged, relating to procedure, which are not pertinent to the inquiry on habeas corpus. Besides, the record of court proceedings is not px’operly before us in this proceeding. (In re McCutcheon, 10 Mont. 115.)
Finding no ground for discharge of petitioner he must be remanded to custody, and the order of this court will be entered accordingly. Prisoner remanded.