219 P. 1096 | Mont. | 1923
delivered the opinion of the court.
This is an action brought under the statute to obtain a judgment of forfeiture of certain intoxicating liquors and personal effects on the theory that the liquor and property had been used in violation of the law prohibiting the sale of intoxicating liquors, authorizing confiscation without warrant where the offense occurs in the presence of an officer. No property other than “certain intoxicating liquors” is joinéd in the proceeding.
It appears that on November 27, 1922, N. J. Sero and Al. Bentley appeared before Joseph R. Jackson, one of the judges of the district court of Silver Bow county, and made affidavit which, omitting the formal portions, recites: “That on the 14th day of September, 1922, N. J. Sero was duly and regularly appointed special prohibition law enforcement officer for the state of Montana; that on said 14th day of September, 1922, said N. J. Sero duly and regularly qualified as special prohibition law enforcement officer for the state of Montana, and ever since has been and now is a duly and regularly appointed, qualified, and acting special prohibition law enforcement officer for the state of Montana; that on the 14th day of November, 1922, Al. Bentley was duly and regularly appointed deputy special prohibition law enforcement officer for
To this complaint there was attached a return particularly describing the property seized, subscribed as follows: “N. J. Sero, a Special Prohibition Law Enforcement Officer; Al. Bentley, a Deputy Special Prohibition Law Enforcement Officer.”
A warrant was thereupon issued commanding the holding of the property by “the said N. J. Sero, special prohibition law enforcement officer for the state of Montana, and the said Al. Bentley, deputy special prohibition law enforcement officer for the state of Montana.”
On November 21, 1922, after seizure of such property, W. E. Carroll, one of the district judges of Silver Bow county, upon application of the defendant 0. Rouleau, issued an order to show cause and temporary injunction directed against N. J. Sero, restraining him from removing the property described or any portion of it, or in any way interfering with Rouleau’s possession and control until after hearing set for November
The case came on for hearing before Judge Jackson, sitting without a jury, on December 29, 1922, on the complaint filed herein by N. J. Sero and Al. Bentley, as aforesaid, and the verified claim of the defendant Rouleau. Testimony was offered by the state and excluded by the court, and offers of proof in support of the state’s ease denied. Whereupon, on motion of the defendant Rouleau, the proceedings were dismissed, and the property ordered to be returned to Rouleau on the ground of failure of proof to establish a ease justifying the confiscation or condemnation of any of the property. Judgment was entered accordingly.
In the judgment it is recited that the testimony taken at the hearing “did not, show that either N. J. Sero or Al. Bentley was- ever at any time or at all a special prohibition law enforcement officer for the state of Montana, or that any violation of any provision of the laws of this state relating to intoxicating liquors had occurred in the presence of any sheriff, constable, marshal or other officer having the power to serve criminal process or any other officer and did not warrant a judgment forfeiting any of the property described in the verified claim of 0. Rouleau or an order that any part of it be destroyed.” The defendant Rouleau was awarded costs taxed at $55.50.
The record embodies two bills of exception, one as to the proceedings at the trial, and the other with respect to the taxation of costs. Twenty-four specifications of error are assigned, presenting but two questions necessary for decision, viz.: (1) Was the evidence offered by the state sufficient to show that the alleged offense was committed in the presence of an officer; and (2) Did the court err in taxing costs against the state?
From a reading of this statute it will be noted that an arrest and seizure without a warrant are not justified unless the offense shall occur in the presence of a “sheriff, constable, marshal or other officer having power to serve criminal process.” So that we must determine whether tbe proof offered
The statute relative to appointment of special officers for the purpose of enforcing the laws relative to intoxicating liquors reads: “The state board of examiners may appoint such special officers, not to exceed six in number, for the purpose of enforcing the laws relating to intoxicating liquors; such special officers shall have the same powers as sheriffs concerning the enforcing of the laws relating to intoxicating liquors, and shall receive such compensation as the board of examiners may prescribe, which shall be paid out of the ‘law enforcement fund’; provided, however, that such special officers shall not b.e
No question arises as to the authority of the board of examiners to appoint such officers; but was the evidence of the appointment sufficient under the statute? The offer of proof made of the appointment of such officers and the rulings of the court thereon necessary to be considered are as follows:
“Mr. Tyvand: We now offer to prove by the witness on the stand the contents of the following paper, marked ‘Plaintiff’s Exhibit 1 for Identification,’ which is as follows:
“ ‘Helena, Mont., Aug. 21, 1922.
“ ‘The state board of examiners met in special session this day at 2:30 o’clock P. M. Present, Jos. M. Dixon, chairman, and Secretary of State C. T. Stewart, secretary. The appointment of the following enforcement officers with the date of service of each set forth was approved by the board as follows : W. H. Countryman, Sept. 14, 1922, until revoked. N. J. Sero, Sept. 14, 1922, until revoked. There being no further business to come before the board, the meeting adjourned.
“ ‘Jos. M. Dixon, Chairman.
“ ‘C. T. Stewart, Secretary.
“ ‘I, A. E. McFatridge, clerk of the state board of examiners, do hereby certify that the above is a true and correct copy of the minutes of the proceedings of the state board of examiners held August 21, 1922, as pertains to the appointment of W. H. Countryman and N. J. Sero, special law enforcement officers; and I further certify that their commissions have not been revoked to date.
“ ‘A. E. McFatridge,
‘Clerk, State Board of Examiners.
“ ‘County of Lewis and Clark, — ss.
“ ‘A. E. McFatridge, being duly sworn on his oath, deposes and says: That he is the duly appointed, qualified and acting clerk of the state board of examiners of the state of Montana and that he was such clerk of the state board of examiners on August 21, 1922, and as such clerk is custodian of all books and records belonging to the office of state board of examiners.
“ ‘A. E. McFatridge.
“ ‘Subscribed and sworn to before me this 18th day of December, 1922.
“‘[Seal.] L. A. Foot,
“ ‘Notary Public for the State of Montana, Residing at Helena, Mont.
“ ‘My commission expires May 23, 1923.’
“The Court: Let the record show that this exhibit is offered for the purpose of proving the official authority of the witness on the stand, N. J. Sero. (Document marked ‘Plaintiff’s Exhibit 2 for Identification.’)
“Q. I hand you Plaintiff’s Exhibit 2 for Identification, and ask you if you have ever seen that paper before ? A. Yes, I have.
“Q. When and where did you see that before? A. Something over a week ago. The 16th of December, 1922.
“Q. Where? A. Helena, Montana.
“Q. Who is the person named therein as N. J. Sero? A. That is myself.
“Q. And where did you see that paper about 10 days ago? A. This paper was handed to me by the deputy secretary of state for Montana at Helena, Montana.
“Mr. Tyvand: At this time we offer in evidence Plaintiff’s Exhibit 2 for Identification.
“Mr. Baldwin: To which the claimant, 0. Rouleau, objects, on the ground and for the reason that it is incompetent, irrelevant and immaterial; purporting to be a certified copy of an oath of office, taken by Mr. Sero, and there being no show
“The Court: If this contained copy of the appointment of Mr. Sero it would be competent; as it is, I must sustain the objection. It has to be in writing. (To which ruling of the court counsel for plaintiff asked and was granted an exception.)
“Mr. Tyvand: We offer to prove by the witness on the stand, through this Plaintiff’s Exhibit No. 2 for Identification, the following:
“ ‘Department of the Secretary of State of the State of Montana.
‘Certificate.
“ ‘United States of America,
“ ‘State of Montana, — ss.
“ ‘I, C. T. Stewart, secretary of state of the state of Montana, do hereby certify that I have compared the annexed copy of oath of office of N. J. Sero with the original thereof filed in my office on the 15th day of September, 1922, and that the same is a correct transcript thereof, and of the whole of said original. In testimony whereof, I have hereunto set my hand and affixed the great seal of the state of Montana, this 16th day of December, A. D. one thousand nine hundred and twenty-two.
“ ‘ [Seal] C. T. Stewart.
“ ‘By Clifford L. Walker, Deputy.
“ ‘State of Montana,
“ ‘County of Lewis and Clark, — ss.
“ ‘I, N. J. Sero, do solemnly swear that I will support, protect and defend the Constitution of the United States and the Constitution of the state of Montana, and that I will discharge the duties of my office of special state prohibition officer with fidelity, and that I have not paid or contributed or promised
“ ‘ [Signed] N. J. Sebo.
“ ‘Subscribed and sworn to before me this 14th day of September, 1922.
“‘[Seal.] Helena 0. Stellway,
“Notary Public for the State of Montana, Residing at Helena.
“ ‘My commission expires May 19, 1923.
“ ‘Filed Sept. 15, 1922. 0. T. Stewart, Secretary of State, VFH.’
“(Document marked ‘Plaintiff’s Exhibit 3 for Identification.’)
“Q. I hand you Plaintiff’s Exhibit 3 for Identification, and ask you if you have ever seen that paper before? A. Yes; I did.
“Q. When and where did you see it before? A. Sixteenth day of December, 1922.
“Q. Where? A. Eighteenth day of December, at the office of the clerk of the state board of examiners of the state of Montana, at Helena, Montana.
“Q. And whose signature is on there? A. A. E. MeFatridge.
‘' Q. Who is A. E. MeFatridge ? A. Clerk of the state board of examiners.
“Q. How do you know that is the signature of A. E. MeFatridge? A. I saw him write it on there.
“Q. How long have you been personally acquainted with A. E. MeFatridge? A. Several months.
“Q. Who is the person referred to in there as ‘Al. Bentley’? A. The gentleman sitting back in the courtroom there.
“The Court: Is that identical with Exhibit 1, except the name?
“Mr. Tyvand: Not exactly, your honor.
“Mr. Baldwin: We make the same objection that we made to the introduction of offered Exhibit 1.
“The Court: Sustained.
“Mr. Tyvand: We offer to prove by witness on the stand, through Plaintiff’s Exhibit A for Identification, the following:
“ ‘Helena, Mont., Nov. 22, 1922.
“ ‘The state board of examiners met in special session this day at 2:30 o’clock P. M. Present: Lieut. Gov. Nelson Story, "Jr., chairman pro tern. Attorney General Wellington D. Rankin. The appointment of Al. Bentley as a special law enforcement officer for a term beginning November 14, 1922, and ending November 26, 1922, was ratified by the board. There being no further business before the board, the meeting adjourned. Nelson Story, Chairman pro tern.
“ ‘Wellington D. Rankin,
“ ‘Attorney General.
“ ‘I, A. E. McFatridge, clerk of the state board of examiners, do hereby certify that the above is a true and correct copy of the minutes of the proceedings of the state board of examiners held November 22, 1922, as pertains to the appointment of Al. Bentley, special law enforcement officer.
“ ‘A. E. McFatridge,
“ ‘Clerk, State Board of Examiners.
“ ‘State of Montana,
“ ‘County of Lewis and Clark, — ss.
“ ‘A. E. McFatridge, being first duly sworn on his oath, deposes and says: That he is the duly appointed, qualified and acting clerk of the state board of examiners of. the state of Montana and that he was such clerk of the state'board o£ examiners on November 22, 1922, and as such clerk is eus
“ ‘A. E. McFatridge.
“ ‘Subscribed and sworn to before me this 18th day of December, 1922.
“‘[Seal.] L. A. Foot,
“ ‘Notary Public for the State of Montana, Residing at Helena, Mont.
“ ‘My commission expires May 23, 1923.’ ”
Does this offered evidence suffice to establish prima facie the fact that N. J. Sero and Al. Bentley were appointed in writing as special officers for the purpose of enforcing the laws relating to intoxicating liquors, and that they took the necessary oath of office? If so, the judgment should be reversed; otherwise it must be affirmed.
Section 426 of the Revised Codes of 1921 provides for the commissions of officers which must issue from the governor, and section 427 prescribes the form thereof. Then follows section 428, which reads as follows: “The commissions of all other officers, where no special provision is made by law, must be signed by the presiding officer of the body or by the person making the appointment.”
We must now turn to the Chapter providing for the board of examiners, and we find by section 233 that “the governor is the president and the secretary of state is the secretary” of such board, and it is required to “keep a record of all its proceedings.” {Id., sec. 234.) No provision is specially made by '¡aw for the appointment of “clerk to the state board of examiners,” nor are his duties prescribed. The only statutory provision bearing upon the subject, being the authority of the board to appoint necessary clerks {Id., sec. 268), and provision that “the annual compensation allowed to the following named state officer and clerks at the state capitol, is as follows: State board of examiners, clerk, three thousand dollars * * * ” {Id., sec. 437).
The correct rule is well stated by Professor Wigmore in
When question arises as to whether a particular person is a public officer, the record is the best evidence, and parol evidence will be excluded where the statute expressly provides the method of appointment. (22 C. J. 1004.) Here the statute
The legal presumption contended for by the Attorney Gen-
2. This brings us to a consideration of the question of costs.
“Remedies are divided into two classes: Actions, and special proceedings.” (Id., sec. 8996.) “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (Id., sec. 8997.) “Every other remedy is a special proceeding.” (Id., see. 8998.)
Here the proceeding is entirely in rem, wholly based upon statute; it is neither a civil nor criminal action (Id., sec. 8999), and must be classed as a special proceeding. (State ex rel. Prato v. District Court, 55 Mont. 560, 179 Pac. 497; State v. Kelly, 57 Mont. 123, 187 Pac. 637.) Costs are expressly authorized to be taxed against the state in prosecuting and defending actions. (Sec. 9810, Rev. Codes 1921.) In this case the claimant, Rouleau, was made a party defendant to the
The judgment is affirmed.
'Affirmed.