230 P. 1089 | Mont. | 1924
delivered the opinion of the court.
On June 9, 1924, W. L. Kinsey made affidavit to the effect that on June 6 he purchased one drink of intoxicating liquor from Ole Skrukrud in a soft-drink establishment at 116 South Merrill Avenue, Glendive, Montana. Apparently nothing further was done until July 5, when the sheriff of Dawson county made affidavit to the effect that he had reason to believe and did believe that intoxicating liquors were then unlawfully kept,
The attorney general appeared for the respondent court and judge, and submitted the matter upon a motion to quash the alternative writ of prohibition heretofore issued.
Counsel for the relator assail the search-warrant proceedings upon four grounds:
1. It is contended that the statute which confers upon a justice of the peace jurisdiction to issue a search-warrant in a case of this character (Chap. 116, Laws of 1923) is unconstitutional. So much of the Act as is involved here follows: “Whenever complaint is made in writing, verified by affidavit, to # * # any justice of the peace, that complainant has just and probable cause to believe and does believe, that intoxicating liquor is manufactured, kept for sale, sold, exchanged, used or disposed of, in violation of any law of this state, in any house, building, premises, boat, receptacle, or any other place whatsoever (partially describing and designating the same) with the facts upon which such belief is based, the * * # justice may, with the approval of the county attorney, issue a search-warrant as hereinafter provided,” etc.
This last provision is a part of our Bill of Rights; but it is also a limitation upon the law-making power. It does not assume to deal, however, with the contents of the application for a search-warrant, except to require that it shall be in writing supported by oath or affirmation. It is directed primarily to the search-warrant itself, while the legislature is left free to prescribe the contents of the application for the warrant. The legislature has not undertaken to make valid a search-warrant which does describe the place to be searched or the person or thing to be seized; on the contrary, the form of the search-warrant prescribed by Chapter 116 requires that the place to be searched shall be described “with particulars as to its location sufficiently to identify it.” The statute is not open to the attack made upon it. It is, however, defective. The word “particularly” should have been used where the word “partially” appears; but even so the error does not affect the search-warrant which was issued in this instance, and which does contain a sufficient description of the place to be searched.
2. It is next contended that jurisdiction over the seized ar tides was lost upon failure of the justice of the peace to certify the proceedings to the district court for eleven days, and State ex rel. Ewald v. Certain Intoxicating Liquors, ante, p. 79, 227 Pac. 472, is cited, but that case had to do with forfeiture proceedings, and is not authority here. If the articles were seized without the violation of any substantial right of the owner, they are admissible in evidence against him, and the failure of the justice of the peace to certify the proceedings within the time allowed by law cannot render them inadmissible.
3. The record does not disclose that the approval of the county attorney was procured before the search-warrant was issued. Our Constitution does not attempt to define the jurisdiction of justice of the peace courts, except to say that in felony cases they shall act as examining courts, and that they shall have concurrent jurisdiction with the district courts in cases of forcible entry and unlawful detainer. (Sec. 21, Art. VIII.) With these exceptions the legislature was left free to prescribe the jurisdiction and to state the terms upon which it might be exercised; and it is a general rule that, where jurisdiction is thus prescribed by statute, it must be exercised in the manner and within the limits stated.
In State ex rel. Collier v. Houston, 36 Mont. 178, 12 Ann. Cas. 1027, 92 Pac. 476, this court said: “Justices’ courts are of limited jurisdiction, having only such powers as are conferred upon them by the statute. [Citing cases.] In the exercise of the powers granted, they must pursue the statute, for that is the charter of their powers, not only as to the classes of cases which they may hear and determine, but as to the procedure they must observe.”
To appreciate the significance of the language employed in Chapter 116 above it is necessary to bear in mind that prior to the enactment of that statute jurisdiction to issue a search-warrant in a case of this character was vested in the district courts exclusively. (See. 11104, Rev. Codes.) The manifest purpose of the new legislation was to make available the more easily accessible courts of justices of the peace and thereby avoid delays necessarily incident to every application made to a district court in a county without a resident judge. But for reasons sufficient unto themselves the legislature refused
Since it was the purpose of Chapter 116 to confer jurisdiction where none existed before, and since the legislature prescribed the terms upon which the newly conferred jurisdiction might be exercised, its language that a justice of the peace “may with the approval of the county attorney issue a search-warrant ’ ’ must be held to mean that without such approval the authority does not exist.
But it is argued by the attorney general that it does not appear that the approval of the county attorney was not obtained in this instance, and State v. Tesla, 69 Mont. 503, 223 Pac. 107, is cited in support of the argument that the presumption will be indulged that it was obtained, in the absence of any showing to. the contrary. But the search-warrant involved in the Tesla, Case was issued by the district court of Silver Bow county, a court of general jurisdiction, with respect to which the statutory presumption is always indulged. A justice of the peace court, on the contrary, is a court of limited jurisdiction, and no presumption will be indulged in favor of its jurisdiction, but every fact necessary to confer jurisdiction must appear affirmatively. (Miller v. Miller, 47 Mont. 150, 131 Pac. 23; Jenkins v. Carroll, 42 Mont. 302, 112 Pac. 1064.)
In the absence of any showing that the approval of the county attorney was obtained before the search-warrant in question was issued, the record stands as though it were a fact that such approval was not obtained; hence the justice of the peace was without authority to issue the warrant, and the search and seizure made under it were illegal and void.
This disposes of the case before us, but in passing we merely notice the last contention which, stated in the form of a question, is as follows: Does the affirmation of the bare fact
The peremptory writ will issue in conformity to the prayer of the petition.
Writ issued.
