State Ex Rel. Swanson v. District Court , 107 Mont. 203 ( 1938 )

I dissent. There is a legislative omission or a defect in the legislative procedure provided, whichever you choose to call it, relative to the enforcement of a decree of a district court in a water right action where the decree is made in one jurisdiction and service of process becomes necessary in another. The statutes do not specifically authorize sheriffs and constables to serve process or make arrests outside of their respective bailiwicks, and section 7143, Revised Codes, vests in water commissioners only such powers as are exercised by sheriffs and constables. The powers of executive officers must be expressly set down in the statutes or clearly implied.

Section 7136 does not either expressly or by clear implication empower the district judge to appoint a water commissioner to administer appropriated waters or serve his processes outside the jurisdiction of the county where he sits when making his decree. Section 11, Article VIII of the Constitution, provides that the processes of the district courts shall reach to every part of the state, but the processes, when issued, must be served, and it is the mode of service of the process that is involved here, not the power to issue it.

The binding effect of the decree of July 11, 1911, adjudicating the waters of Sun River is not questioned in this proceeding. It may be enforced in any county in the state, but the enforcement thereof is an act that, according to the general rule, must be performed by some executive officer duly authorized by statute to enforce process at the place of enforcement. If a mortgage be foreclosed on land lying in two counties, a transcript of the judgment must be filed in the county outside the county where the judgment was obtained, and execution of the judgment had by process enforced by the executive officers of that county.

This court, speaking through Chief Justice Brantly, in Stateex rel. Mannix v. District Court, 51 Mont. 310, 152 P. 753,755, said: "``The judicial powers of the district judge for each district are committed to one chosen person, with the provision that "any judge of the district court may hold court for any other district judge." Under that provision it is clear that any district judge may go into another district and hold court for another judge. It is equally clear, also, that without a provision of law authorizing it, a district judge would not have authority to go into another district and exercise his judicial functions. The jurisdiction must be conferred by law.' Primarily, though he is classed as a state officer, he is such only for the purpose of administering justice in his own district. And, though the process of his court extends to all parts of the state (Const., Art. VIII, sec. 11), ordinarily the exercise of his power is limited to the territorial boundaries of his district." This decision holds that "without a provision of law authorizing it," the judge would have no power to go into another district and exercise his judicial functions. If he may not go into another district and appoint a water commissioner to enforce his processes, it is not logical to hold that he may appoint one in his own district to enforce his processes in another.

The decisions cited from Colorado courts have no application here, for the reason that water districts are created by statutes in that state, the boundaries of each district described, and some judge in each district is vested by statute with jurisdiction to adjudicate all water rights in his district and appoint the commissioner. In other words, the Colorado statutes make water rights a state matter, while under ours it is a matter of determination under general water right laws.

It was further said in the Mannix Case, supra, that "a judge cannot act officially in another district, except when requested by proper authority to do so; and the power with which he thereby becomes vested, except as hereafter noted, continues only while he is actively engaged in exercising his judicial functions pro tempore."

Section 508 of Mechem's Public Office and Officers says: "The authority of public officers, being derived from the law, it necessarily follows that the authority cannot exist in places where that law has no effect. The authority of all public officers is, therefore, limited and confined to that territory over which the law, by virtue of which they claim, has sovereign force. But not only this, for public officers in general, and particularly those chosen within and for the lesser municipal subdivisions such as counties, towns and cities, are elected or appointed such in and for some specified district or territory as such county, town or city, and, unless greater authority is expressly conferred upon them, it is the general rule that their official authority is limited to the district within and for which they were chosen. Thus a state officer can exercise no official authority beyond the confines of the state. So, without express authority, a sheriff cannot execute civil process beyond the limits of his county; a justice of the peace cannot hold court or exercise judicial functions or take acknowledgments outside of the county within and for which he was elected; a constable is not vested with official character when acting in a county to which he does not belong; a United States Marshal cannot execute process beyond his district." Section 511: "Express grants of power to public officers are usually subjected to a strict interpretation, and will be construed as conferring those powers only which are expressly imposed or necessarily implied." This, I think, is fundamental, and unless, as I have said before, power to execute process outside of jurisdiction is clearly granted by our Constitution or statutes, it does not exist.

Not many recent decisions are found in the books bearing directly upon the question. One, it seems to me, must inevitably conclude from reading the authorities that the rule is too well established to the effect that the process server must come from his county under our system of serving process, to admit of doubt.

In Whitehead v. Collingwood, 220 Mich. 504, 190 N.W. 239, in speaking of the statutes of that state, it is said: "No express provision will be found authorizing service outside the county in which the writ issues. * * * While the jurisdiction of circuit courts is general over the subject-matter here involved, in respect to persons and property it cannot be exercised beyond the limits of the county, except in cases where special provision is made therefor. (Turrill v. Walker, 4 Mich. 177, 180.) Civil process may be served by any competent person, except where seizure of person or property is commanded therein. A sheriff is a county officer, and has no jurisdiction to serve process outside the limits of his county, unless specially authorized to do so. The fact that special authorization is conferred in certain cases tends to negative the claim that such authority exists in other cases. The rule is thus stated: ``The sheriff being a county officer, his authority extends over the entire county; and as a general rule his authority is limited to his own county.' (35 Cyc. 1528.) ``An officer has no right to make an arrest under civil process beyond the limits either of his own jurisdiction, or those of the officer or court issuing the process, except on fresh pursuit after an escape.'" (5 C.J. 507; see, also, In re Baum, 61 Kan. 117, 58 P. 958; Ahlrep v.Hughes, Sheriff, 18 Wyo. 51, 102 P. 659, Ann. Cas. 1912B, 1375; Baker v. Casey, 19 Mich. 220.)

In Sossamon v. Cruse, 133 N.C. 470, 45 S.E. 757, it was held in substance that, unless made a statutory exception, even fresh pursuit will not justify a peace officer in making an arrest beyond his bailiwick.

In the action at bar it is contended that the water commissioner has the same powers of arrest as sheriffs and constables, who, under our statute (sec. 7143, Rev. Codes), must be appointed by the district court of Cascade county, which court made the decree adjudicating the waters of Sun River. If such commissioner, appointed by the district court of Cascade county, has the power of arrest in Lewis and Clark county in enforcing the decree of the Cascade county district court, it is a clear exception to the powers of sheriffs and constables and all other peace officers, and should not be left to any alleged statutory power which must be held to exist, if at all, by implied construction of the statute, but should be specially granted in explicit terms. Such implied power out of jurisdiction is so clearly a departure from traditional American government that it should not be recognized by courts, except upon an absolute and emphatic grant by legislative Act. It is by just such infringements upon old, established and well-grounded theories and practices that vital and well-established rules and principles are invaded and broken down, and courts should be the last to give countenance and effect to such departures from the general rule by enlarging the implied powers of any officer.

Rehearing denied September 27, 1938.