State v. King

Police Officer — Failure, to Make Arrest — Criminal Prosecwtion —Information — Constitutional Question — When. Determined. . 1. Laws of 1903, Chapter CXI, Section 1, declares that it shall he the duty of every policeman or other peace officer, upon being informed by a citizen that any offense is being or is about to be committed within such officer's jurisdiction, to immediately proceed .to the place where the alleged offender is to be found, with the informant, if he so requests, and to arrest such offender, etc. " Held, that an information against a policeman, alleging that he refused to proceed to the place where alleged offenders were to be found, was insufficient, the statute enjoining but one duty, which was to mate ah arrest, failure to perform which was the gist of the officer’s offense. 2 A court will not pass upon the constitutionality of a statute unless it is absolutely necessary to a decision of the ease.

Appeal from District Court> Lewis and Clarice County; II. C. Smith, Judge. S. R. KiNG was informed against for a violation, of official duty as a policeman in failing to make an arrest, and on demurrer to tbe information was discharged, from which action of the court the state appeals. There are three duties which may be imposed upon a peace officer by House Bill 345 by any citizen of the state, and for failure to- perform any one or more of them he is guilty of a violation of said law, as follows: (1) TJpon receipt of the requisite information to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found. (2) To proceed- in company with the informant, if he so requests. (3) To arrest the alleged offender or offenders wherever they may be found. In the present information, the defendant is charged with a neglect to perform' the first of these duties only, and that offense is clearly and without ambiguity stated in the information. It cannot be urged that the information is bad for failure to charge that the defendant refused to make an arrest, for, as a matter of fact, he did not refuse to make an arrest, except by refusing to go to'the place where the arrest might be made. By refusing to go to such place he clearly violated his duty as an officer, and under the provisions of said House Bill 345 liable to the penalty prescribed in Section 2 thereof. Constitutional provisions bave not tbe slightest bearing upon the information in this- case, although they might have if the information charged' the officer with a refusal to make an arrest, or if the question were raised by a person who might have been arrested by such officer, as, for instance, in habeas corpus proceedings. (Nelson v. People, 33 Ill. 397.) The question of the constitutionality of a law; cannot be raised by anyone not having an interest in the matter, or not being in point of fact affected by the act. (Cooley on Const. Lim., 196, and cases cited in note 3; 6 Am. & Eng. Ency. Law, p. 1090.) A question involving the constitutionality of a statute should be determined only when it is impossible to dispose of the case on its merits otherwise, and a court will be especially reluctant to investigate or determine the constitutionality of a statute on-preliminary motions * * (6 Am. & Eng. E'ncy Law, p, 1084, and cases cited in note 5; see, also, Cooley on Const. Lim., pi 196; Nelson v. People, 33 Ill. 390; Stale■ v. Curler, 67 Pac. 1075 (Nev.); MacGinnis v. Dams, 65 Pac. 364 (Ida.) On the prosecution of an officer for accepting a bribe for omitting to seize gambling devices, the officer cannot question the constitutionality of the statute authorizing the destruction of the property. (Newman v. People, 23 Co-lo. 300, 47 Pac. 278.) .¡i.-'' But assuming that the question can be raised by the defendant in this case by demurrer to the information, and conceding, for the sake of argument, that House Bill 345 is in conflict with the constitutional provisions invoked, in so* far as- said bill makes it the duty of the officer “to arrest such offender or offenders wherever they may be found,” still we maintain that the bill is unconstitutional only to the extent that it is repugnant to the constitution. Where part only of a statute or section is unconstitutional that part only is void, unless the other provisions are so dependent or connected that it cannot be presumed the legislature would have passed one without the other. (Sedgwick, Constr. St. & Const. Law, p'. 413, and oases cited; Sutherland, St. Constr. See. 169; People v. Hill, 7 Cal. 97; Nelson v. People, 83 Ill. 390; Commonwealth v. Hitchmgs, 5 Gray, 482; Mayor v. Dechart, 32 Md. 369; Mobile, etc. B. B. y. State, 29 Ala. 573; Lynch y. Steamer Economy, 27 Wis. 69; v. TFAueZer, 25 Conn. 290; 6 Am. & Eng. Ency. Law, 1088.) “With the wisdom or expediency of a law- the judiciary has nothing to do; such questions address themselves solely to the law-making department of the government.” (6 Am. & Eng. Ency. Law, p. 1086.) When the statute is otherwise free from objections on constitutional grounds, the courts cannot avoid its application and enforcement because it is absurd or unreasonable, nor because, in their judgment, it is an unwise enactment. (Ibid., citing: Flint Biver Steamboat Co. v. Foster, 48 Am. Dec. 248; Merchants' Union Barb Wire Co. v. Brown, 18 Hep: 591; see, also, Cooley, Const. Lim. p. 220.) It is not within the province of the judiciary to inquire into the motives actuating the law-making body. (Cooley, Const. Lim. p. 220; 6 Am. & Eng. Ency. Law, p-. 1087, and eases cited in note 5; Ex parte Newman, 9 Cal. 502; McCulloch v. State, 11 Ind. 424; Stoclcton, etc. B.,B. Co. v. Stocldon, 41 Cal. 147.) If it be argued that it would be a vain thing to require an officer to proceed to the place where the offense was being committed without making it his duty to arrest the offenders if he should find them, and that the legislature would never have imposed that duty upon the officer without also requiring him, to make an arrest, and that, therefore, the act in question is not separable, then the reply is that when the officer reaches the point where the breach of the peace is alleged to' be occurring, if he finds that his information is true and that the offense is being committed at that time, or is about to be committed, it is then his duty,-under Section 1632, to arrest the offenders without a warrant; and for a failure to- make an arrest under each circumstance he is punishable, under Section 270, Penal Code, (3 Cyc. Law, p. 883, and eases cited in note 78.) By tbe use of tbe word “arrest” tbe legislature undoubtedly intended it in its legal significance. Tbe constitutional pro-ylsions cited do not contain tbe word “arrest,” but use tbe words “unreasonable searches and seizures.” Tbe word “arrest” is defined by Section. 1630, Penal Code, as “taking a person into custody in tbe case and in tbe manner authorized by law.” That section further provides that “an arrest may be made by a peace officer or by a private person.” Substituting for tbe word “arrest,” as used in tbe statute under consideration, tbe definition of that term, we find that by House Bill 345 it is made tbe duty of tbe peace officer “to take into custody in tbe manner authorized by law such offender or offenders wherever they may be found.” Tbe law in question 'does not pretend to define either tbe case or tbe manner in which tbe arrest shall be made. It does not authorize, or pretend to authorize, tbe officer to arrest for an offense which has been committed, unless, of course, such offense is a felony and be has reasonable grounds for suspecting tbe person arrested to be tbe offender. There is no intent apparent on tbe part of tbe legislature to authorize or require tbe officer to arrest a person who may be pointed out by tbe informant because tbe informant may not accompany tbe officer, and if be does accompany tbe officer it is only for tbe purpose of guiding him to tbe place where tbe offense is. being committed or about to be committed. Tbe presumption of a legislative intent to violate the constitution is never to be assumed if tbe language of tbe statute can be satisfied by a contrary construction. Tbe application of this rule requires that wherever a statute is susceptible of two constructions, of which one would' make it unconstitutional and tbe other constitutional, tbe latter is to be adopted. (Endlicb, Constr. St, 178, and cases cited.) Laws are presumed to be passed with deliberation and with' knowledge of all existing laws on tbe subject. (Sutherland, St Const., Sections 137 and 333.) In interpreting any clause of a statute it should be construed in connection with existing laws and should be interpreted in tbe light of tbe objects and purposes that tbe legislature bad in view in its enactment. (Ter. v. Gommfrs Cascade Co., 8 Mont. 407; see, also, Section 15, Political Code.) It will be presumed in construing’ a statute that tbe legislature did not intend it to bave an effect which would have rendered it unconstitutional. (Gillette v. Hibbard, 2 Mont. 415.) Every presumption is in favor of tbe constitutionality of a legislative enactment, and tbe judicial department will be justified in pronouncing it unconstitutional only when it becomes a manifest usurpation of power. (6 Am. & Eng. Ency. Law, p. 1086, and cases in note 1; Cooley, Const. Lira., p. 218.) Tbe power of tbe judiciary to declare a statute unconstitutional should never be exerted except where tbe conflict between it and tbe constitution is palpable andi incapable of reconciliation. (Stockton, etc. B. B. Co. v. City of Stockton, 41 Cal. 147.) Tbe unconstitutionality of a statute must be clear and manifest before a court should declare it, soi that where any reasonable doubt exists as to its constitutionality it should be upheld. (6 Am. & Eng. Ency. Law, p-. 1085; People v. Van Gaskin, 5 Mont. 352; People v. By. Go., 35 Cal. 606; (Ex parte Newman, 9 Cal. 502.) “An intention to take away or destroy individual rights is never presumed, and to give effect to a design so unjust and so unreasonable would require the support of tbe most direct and explicit affirmation declarative of such intent.” (6 Am & Eng. Ene. Law, p. 924.) At common law, as a general rule, an arrest could not be made, without warrant, for an offense less than felony, except for breach of tbe peace. (3 Cyc., 880, citing: Bobertson v. State, 29 So. 535; Commonwealth v. "Wright, 158 Mass. 149, 33 N. E. 82, 35 Am-. St. Rep. 475, 19'L. R A. 206; Scott v. (Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R A. 379 ; Commonwealth v. O'Connor, 7 Allen, 583; Matter of Way, 41 Micb. 299, 1 N. W. 1021; Quinn v. Heizelj 40 Micb. .576; Butolph v„ Blust, 5 Lansing, 84; King y. Poe, 15 L. T. Rep. N. S. 37; 3 Cyc., 881, and cases cited.) A peace officer, in tbe light of tbe constitutional provisions (Article IV of tbe Amendments to tbe IT. S. Constitution; Section 7, Article III, Constitution of Montana), bas no right to make an arrest without a warrant upon information or mere suspicion that a misdemeanor bas been committed, and a statute which directs this to be done by a peace officer and provides penalties for bis failure so to do, is unconstitutional and cannot bo upheld. (In re Kellam, 55 Kansas, 700, 41 Pac. 960; Pvn-Tcerton v. Verberg, 78 Micb. 573, 18 Am. St. Rep. 473; Staten-burg v. Frazer, 16 Appeal Oases (D. C1.), 229 ; People v. Clenr non,, 74 N. Y. Supp. 79; Pickett v. State, 25 S. E. 608; Black’s Const. Law, pp. 435, 440; Cooley’s Const. Lim. (6th Ed.), 364.)