In re Terrett , 34 Mont. 325 ( 1906 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

On October 24, 1905, an information was filed in the district court of Rosebud county charging the petitioner, L. R. Terrett, with the crime of forgery. The petitioner was arrested and confined in the county jail. He thereupon made application to the chief justice of'this court for a writ of habeas corpus, which writ was issued, and upon the return the matter was argued and submitted to the court.

Two questions only need to be considered: 1. Are the statutes under which the prosecution is conducted valid? 2. Does the information state facts sufficient to constitute a public offense?

1. The particular legislative Acts in question are an Act entitled “An Act to provide a Bounty on certain Stock Destroying Animals and a Fund for the Payment thereof,” approved February 26, 1895. The several sections of this Act are printed in the Political Code as sections 3070 to 3080; and an Act of the Eighth Legislative Assembly, entitled “An Act to amend section 1124 of the Penal Code of the State of Montana, and sections 3070, 3071, 3072 and 3073 of the Political Code of the State of Montana relating to Bounties of Wild Animals,” approved March 6,1903. (Session Laws, 1903, p. 166.)

Objection is made to the Act of February 26, 1895, which embraces what is now section 3078 of the Political Code. It is contended that the Act comprehends subjects not expressed in the title of the Act, contrary to the provisions of section 23, Article Y, of the Constitution. It must be conceded that a penalty clause may be incorporated in an Act without being designated in the title of the Act, and such provision does not violate the constitutional inhibition. This has been set at rest in this state by the decisions of this court. (State v. Bernheim, 19 Mont. 512, 49 Pac. 441; Snook v. Clark, 20 Mont. 230, 50 Pac. 718.)

But it is contended that section 3079 of the Political Code, which was section 10 of the Act of February 26, 1895, above, is in fact the penalty clause of that Act, and that the provisions of section 3078, above, cannot be included in such designation. But the mere division of a legislative Act into sections is a matter of convenience only, and the intention of the legislature is to be gathered from the entire Act, irrespective of such division. Sections 3078 and 3079 are clearly intended as the penalty clause of that enactment. Their provisions are clearly intended to cover the various phases of crimes which might be committed with respect to the subject matter of the Act.

It is further claimed that the Act of March 6, 1903, is unconstitutional in that its title contains more than one subject. It will be observed that it seeks to amend section 1124 of the Penal Code, and sections 3070, 3071, 3072 and 3073 of the Political Code. But section 1124 of the Penal Code was repealed by an Act of the Fifth Legislative Assembly, approved March 8, 1897 (Laws 1897, p. 249), so that the attempt made in 1903 to amend a section already repealed was ineffectual, and to that extent the Act of 1903, above, is'inoperative. But this does not affect the Act in so far as it relates to certain sections of the Political Code.

It is further contended that the Act of March 6, 1903, is invalid, because the scope of the Act is broader than the Act of February 26, 1895, which it sought to amend, and broader than its own title. This contention is based upon the fact that the Act of 1903 provides for an entirely new set of officers to administer the law — to examine the hides and issue the bounty certificates. The Act of February 26, 1895, designated the county clerk as the officer who should issue the- certificate, and that officer and the county treasurer, or in his absence the district clerk, as the officers to examine the skins. The Act of 1903 merely substituted for these officers others, designated “bounty inspectors.” The provisions of the amendatory Act are germane to the subject treated in the original Act and under the title of the amendatory Act any alteration by excision, addition or subtraction might have been made, and any provision inserted which might have been incorporated in the original Act under its title. (1 Lewis’ Sutherland on Statutory Construction, sec. 137.) The Act of 1903 dealt generally with the subject of bounties on stock destroying animals, and under thé title of that Act provision was properly made for officers to carry out its provisions. This is clear upon principle and is generally recognized by tbe authorities. (See extensive note to Crookston v. County Commissioners, 79 Am. St. Rep. 453 (s. c., 79 Minn. 283, 82 N. W. 586), and State v. McKinney, 29 Mont. 375, 74 Pac. 1095.)

It is also said that the Act of 1903 imposes upon the district judges the duty of appointing persons to select the bounty inspectors, and in so doing imposes duties not judicial in character. But this question cannot be raised by the petitioner here. Whether in a proper case a district judge could be compelled to perform this duty need not be considered. Terrett was at least a de facto officer, and in this proceeding he will be treated as such. The same thing may be said of the three persons who appointed the bounty inspectors. However, under section 7, Article YII, of the Constitution, the power to appoint or delegate the appointing power is reserved to the people, acting through the legislature, in every instance, except in those enumerated in the Constitution. The appointment of these persons to select bounty inspectors could properly be delegated by the legislature, as they are not officers whose appointment is otherwise provided for in the Constitution itself.

Certain sections of the bounty law as found in the Political Code were amended by an Act of the Sixth Legislative Assembly, approved February 27, 1899. (Session Laws, 1899, p. 100.) In the Act of March 6, 1903, above, which also sought to amend some of the same sections, the amendments made in 1899 are ignored. However, this does not affect the questions presented in this instance.

2. Does the information state a public offense? Stripped of the merely legal and technical verbiage, the information charges, substantially, that Terrett, while acting as a bounty inspector in Rosebud county, made and delivered to one Sam Shaver a bounty certificate for 43 coyote, and 11 wolf skins, and in the certificate certified that on October 15, 1903, Shaver exhibited such skins to him and filed the necessary affidavits, and that he (Terrett) as sueh inspector examined and marked the skins as required by law; whereas, in truth and in fact, Shaver did not exhibit such skins, or any of them, to Terrett, and did not make the necessary affidavits, or any affidavit; nor did Terrett examine or mark the skins, or any of them, and the statements in the certificate so falsely made were known 'by Terrett to be false. Do these facts, then, when set forth in an information in which it is charged that Terrett feloniously did falsely make, forge and counterfeit said certificate, state a public offense?

Section 3078 of the Political Code, above, provides that any person who shall falsely make, alter, forge or counterfeit a certificate, such as the one mentioned in this information, is guilty of forgery. It is urged with much force and with abundance of authorities that there is a very marked difference between falsely making a certificate and making a false certificate; and, as an abstract proposition, we agree with this, although there are authorities to the contrary. The telling of a lie does not necessarily constitute forgery, merely because the lie is reduced to writing. But we are of the opinion that this matter is to be determined upon a principle to which little, if any, attention was given on oral argument.

It is to be observed that Terrett is charged with having made this certificate while acting as a bounty inspector. In other words, he was merely the agent of the state, with limited authority. He could make this certificate only after the performance of certain precedent conditions, viz., the exhibition to him of the hides, the examination and marking of them by him, and the filing with him of the necessary affidavits. A certificate made without these precedent conditions having been fulfilled is falsely made. It purports to be, what it is not, a certificate duly issued according to law. This is the view taken by certain' courts of this country in cases to all intents and purposes identical with the one at bar. (Ex parte Hibbs, 26 Fed. 421; United States v. Hartman, 65 Fed. 490; Luttrell v. State, 85 Tenn. 232, 4 Am. St. Rep. 760, 1 S. W. 886; Commonwealth v. Wilson, 89 Ky. 157, 25 Am. St. Rep. 528, 12 S. W. 264; Moore v. Commonwealth, 92 Ky. 630, 18 S. W. 833. See, also, Biles v. Commonwealth, 32 Pa. St. 529, 75 Am. Dec. 568.)

Numerous cases are cited by counsel for petitioner, apparently holding a view contrary to the one here announced. Some of them are directly in point and illustrate the conflict in the authorities. Others are upon statutes so different from our own as to be of no weight as precedents in this case; while in most, if not all, of them the particular principle relied upon in the cases cited above, and which we deem conclusive here, apparently was not considered.

The crime is not committed by making the false statements of fact in the certificate, and therefore this offense does not necessarily fall within section 294 of the Penal Code, but by making the certificate when the precedent conditions had not been fulfilled. The offense charged is purely statutory. It is not, therefore, necessary to allege in the information extrinsic facts to show wherein or whereby this certificate might apparently be of legal efficacy or the foundation of a legal liability. To falsely make one of these certificates is declared to be forgery.

We are of the opinion that the statutes under which this prosecution is being conducted are valid, and that the information states a public offense.

The writ of habeas corpus.heretofore issued is quashed, and the petitioner remanded to the custody of the sheriff of Rosebud county.

Mr. Chief Justice Brantly concurs.