State ex rel. Geschwender v. La Rowe , 136 Mont. 591 ( 1959 )

MR. JUSTICE CASTLES

delivered the Opinion of the Court.

This is an appeal from a judgment of the district court of McCone County, which judgment affirmed a judgment of a justice court, entered on a plea of guilty to a complaint which charged that the relator did "commit the crime of misdemeanor (sale of liquor to an interdicted person), in that he did then and there wilfully, wrongfully and unlawfully, sell a pint of Old Sunnybrook liquor to one Martin Stack, said person being then and there an interdicted person by order of the District Court.”

The relator had sought a writ of review by the district court, in which application he asserted that he was a licensee of the State of Montana to sell beer and liquor, and that he entered a plea of guilty relying on the representations of the county attorney that he would not be subject to suspension or revocation of his licenses, but was subsequently informed by the State Liquor Control Board of a hearing to determine whether or not his licenses should be suspended or revoked. His application for the writ of review then alleged that the judgment in the justice court was void, in spite of the guilty plea, because-the justice court was wholly without jurisdiction.

The district court denied the application for the writ in an order which it subsequently revoked at the suggestion of the relator’s counsel and entered a judgment affirming the justice court judgment, apparently done so that an appeal might be had to this court to determine whether or not jurisdiction of the charge lodged in the justice court or exclusively in the district court. We seriously question whether or not this is a proper appeal, but since the state in its brief has not raised the point, or moved to dismiss the appeal, and requests this court to decide the jurisdictional question, we shall attempt to do so.

We recite this unusual procedure, because the complaint was not tested in any ordinary or proper manner to determine its sufficiency or the jurisdiction question in the first instance. And, in order to have the matter reviewed at all, counsel sought a writ of review which was denied but then upon counsel’s suggestion the denial was set aside and a judgment affirming was entered. Certain facts which the complaint did not contain, such as the licensee status of the relator, then are made to appear by the relator himself, and under a guilty plea.

But one question is presented, viz: Did the justice court have jurisdiction to act upon the complaint charging the defendant with sale of liquor to an interdicted person?

The appellant contends that the charge of a sale of liquor to an interdicted person has exclusive jurisdiction in the district court, and that the justice court was without jurisdiction, hence, the sentence imposed was null and void, having been pronounced by a court acting without its jurisdiction.

To arrive at this contention, the appellant asserts that the prosecution was attempted under the Retail Liquor License Act instead of under the Montana Liquor Control Act. Under the Liquor Control Act the prosecution is in the district court and under the Retail Liquor License Act it is in the justice court.

The Liquor Control Act was originally enacted in 1933 and now appears as R.C.M. 1947, sections 4-201 to 4-241. The Retail Liquor License Act was enacted by referendum vote in 1938 and now appears as R.C.M. 1947, sections 4-401 to 4-441.

Referring back to the assertion by the appellant that the state attempted to charge under the licensing act, the appellant in his reply brief asserts that the complaint did not designate the defendant as a licensee and therefore he was not charged as a licensee. But, as related before, rather than attempting to withdraw the plea of guilty on some ground consistent with prior rulings of this court in the interest of justice, and attempting to challenge the form of the complaint, the defendant attempted to obtain a writ of review. In his application he asserted the very thing now claimed to have been omitted, that is, his status of a licensee. The plea of guilty to the complaint still stands. The challenge is as to the jurisdiction of the justice court or the district court. The judgment of guilty by the justice court was affirmed by the district court at the suggestion of appellant’s counsel in order that this appeal might be taken.

We will consider whether a licensee under the retail licensing statute can be charged in justice court with selling liquor to an interdicted person.

The sections of the Retail Liquor License Act applicable are as follows: R.C.M. 1947, section 4-413, (the licensing act) provides :

“No licensee or his or her employee or employees, nor any other person, shall sell, deliver, or give away or cause or permit to be sold, delivered or given away any liquor or wine to:

“1. Any person under the age of twenty-one (21) years.

“2. Any intoxicated person or any person actually, apparently or obviously intoxicated.

“3. A habitual drunkard.

“4. An interdicted person.

“5. Any minor, or other person who knowingly misrepresents his or her qualifications for the purpose of obtaining liquor, beer or wine from such licensee shall be equally guilty with said licensee and shall, upon conviction thereof, be snbject to the penalty provided in section 4-439 provided, however, that nothing herein contained shall be construed as authorizing or permitting the sale of liquor, beer or wine to any person in violation of any federal law.” Emphasis supplied.

R.C.M. 1947, section 4-402, defines an interdicted person as:

“8. ‘Interdicted person’ means a person to whom the sale of liquor is prohibited under the laws of Montana.”

R.C.M. 1947, section 4-439, provides a penalty.

Under the Liquor Control Act, R.C.M. 1947, sections 4-201 to 4-205, provide for interdiction proceedings of the “interdicted persons” referred to in section 4-402, subd. 8, of definitions. Such sections (sections 4-201 to 4-205), also provide a prohibition against sale of liquor to an interdicted person and a penalty. As related before, under these sections, exclusive jurisdiction is in a district court.

However, we have held in State v. Holt, 121 Mont. 459, at 478, 194 Pac. (2d) 651, and State v. Morrissey, 122 Mont. 246, 199 Pac. (2d) 964, in eases involving sale of liquor to minors, that section 4-413 applied and that “Original jurisdiction of the offense defined in said section [11, Chap. 84, Laws of 1937 as amended, now R.C.M. 1947, section 4-413] is vested in the justice courts.” However, for subsequent cases reflecting amendments, as to sale to minors, see State v. Paskvan, 131 Mont. 316, 321, 309 Pac. (2d) 1019; State v. Winters, 129 Mont. 207, 285 Pac. (2d) 149.

The same reasoning as set forth in State v. Holt, and State v. Morrissey, supra, applies here. Our interpretation of the conflict between the State Liquor Control Act and the Retail Liquor License Act applies. Where a special statute conflicts with a general one, the special statute prevails, as to the point in conflict. The only conflicting point is as to jurisdiction. As to that, the special act controls, that is, the Retail Liquor License Act.

In this connection, in the Holt case, supra, 121 Mont, at page 478, we said:

“By the provision of section 2815.148, Revised Codes 1935 [now section 4-223, R.C.M. 1947], the district court is given original jurisdiction ‘in all criminal actions for violations of the provisions of this act.’ ‘This act’ is the ‘State Liquor Control Act.’ The Act which the evidence tends to show was violated by appellants, was section 11 of Chapter 84, Laws of 1937, as amended [now section 4-413, R.C.M. 1947],

“But original jurisdiction for the violation of said statute, section 11, is not vested in the district court. Original jurisdiction of the offense defined in said section is vested in the justice courts. The district court has only jurisdiction of such offense on appeal thereto from the justice court.

“The Montana Constitution vests in the district courts jurisdiction ‘in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for, ‘sec. 11, Art. VIII, Mont. Const., and it provides that ‘justices5 courts * * * shall have such jurisdiction in criminal matters, not of the grade of felony as may be provided by law.5 Art. VIII, sec. 21.

‘ ‘ It has been provided by law at all times since the adoption of the Codes in 1895 that ‘justices5 courts shall have jurisdiction of * * * all misdemeanors punishable by a fine not exceeding five hundred dollars, or imprisonment not exceeding six months, or both such fine and imprisonment.5 Sec. 11630, Rev. Codes of Montana, 1935 [now R.C.M. 1947, section 94-4916],55

Our position and reliance on these decisions is strengthened by what we said in State v. Winter, and State v. Paskvan, supra.

For the foregoing reasons, the judgment of the district court is affirmed.

MR. CHIEF JUSTICE HARRISON concurs.