State Ex Rel. Leonidas v. Larson

MR. JUSTICE ERICKSON delivered the opinion of the court. This is an application for a writ of certiorari to have annulled the proceedings of respondents wherein relator was adjudged insane, ordered to be confined to the State Hospital for the Insane, which proceedings were approved by the respondent district court by appropriate order. Prior to the filing of his application for this writ, relator was paroled and released from the hospital. The hearing relative to relator’s sanity was conducted by the respondent Larson, as chairman of the board of county commissioners, under the provisions of sections 1431 to 1443, both inclusive, of the Revised Codes. Section 1431 provides that whenever it appears to the satisfaction of a magistrate of a county that any person within the county is so far disordered in his mind as to endanger health, persons or property, he must *72 issue and deliver to some peace officer for service a warrant directing that such person be arrested and taken before a district judge, or, in the absence of a judge from the county, before the chairman of the board of county commissioners. The certified transcript of the sanity proceedings discloses that by reason of a complaint filed, a justice of the peace of Judith Basin county issued a warrant of arrest, commanding that relator be brought before respondent to answer the charge contained in the complaint. There is no return of service made on the warrant of arrest, and there is no proof in the record that the warrant was ever served upon relator. The hearing on the complaint charging insanity of relator was held on the 10th day of June, 1938, which date both the complaint and warrant of arrest bear. It appears from the record that the filing of the evidence reduced to writing, the orders, etc., with the clerk of the district court was delayed many months after the examination, and it does not appear that any transcript was made on the record of probate proceedings in the district court, as required by section 1443, supra. It also appears that the proceedings were not presented to the district judge at the first term following the commitment, as required by law, and that the approval of the district court was not had until the second term of court following the commitment of relator. The petition for the writ was denied in an opinion filed on January 25, 1939; thereafter a petition for rehearing was presented by relator, which was granted and the cause resubmitted. On the original hearing and in the petition for rehearing, relator raised many questions as to the constitutionality of section 1431, supra, and related sections. These questions are based on the theory that section 1431 fails to provide for due process, as provided in the Fourteenth Amendment to the Constitution of the United States, and in the constitutional provisions of this state. It is not necessary to pass on the constitutionality of the Act in these proceedings. Furthermore, since the Act has been amended to provide for notice, it is *73 not necessary for the guidance of the courts or the bar of the state to pass on the question. This court, in an early case — Territory ex rel. McCann v. Sheriff of Gallatin County, 6 Mont. 297, 12 Pac. 662, 663— construing the original Insanity Act, noted that the proceedings are summary in nature, “but, providing as it does, for such summary proceedings, we must hold that it was thé intention of the legislature that they should be strictly pursued,— that there should be a strict compliance with every requirement of the law. * * * In a law providing for proceedings of this summary character, the requirements are mandatory.” In a subsequent case — In re Kane’s Estate, 12 Mont. 197, 29 Pac. 424, 425 — this rule was recognized by the court, it saying: “The statute concerning the insane must receive a strict construction, and its requirements are mandatory.” In the present case, although a warrant for arrest was issued by the justice of the peace, there is no return on the warrant showing its service upon relator. Since the respondent county commissioner was sitting in a sanity matter as a tribunal of very limited powers, no presumption exists that his proceedings were regular, nor that he had jurisdiction to enter the judgment sought to be reviewed. (15 C. J. 832; 5 C. J. S., Appeal and Error, sec. 1536, p. 287; Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334.) As was properly said in the case of State ex rel. Thompson v. District Court, 75 Mont. 147, 242 Pac. 959, 961, speaking of a tribunal acting with special and limited powers: “Its jurisdiction must appear on the record and cannot be presumed.” It is true that the Bullerdick and Thompson Cases have been overruled as to the proposition that the district court sitting as a probate court is one of limited jurisdiction, but they have not been overruled as to the proposition herein stated. We cannot indulge in any presumption, by reason of relator’s presence before the chairman of the board of county commissioners, that service of the warrant was had upon him as in section 1431, supra, provided. Service of the warrant must appear affirmatively in the record, and it does not so appear. *74 There are additional irregularities which constrain us to grant the writ. Section 1443 provides that the transcript of the proceedings, including the evidence reduced to writing, orders, etc., shall be filed in the office of the clerk of the district court of the proper county, and that the clerk shall enter upon the journal of the minutes of the probate proceedings a transcript of all proceedings had by the chairman of the board of county commissioners at the examination, and that it shall be the duty of the district judge at the first term of court after the examination to examine and approve the proceedings. From the record it appears that nothing was filed with the clerk of the district court until long after the examination, and no entry was made in the journal of the minutes of the probate proceedings, as in the Act required, Further, it appears that the matter was not called to the attention of the district judge until the second term of court after the examination. The provisions of the statute are clear on all of these points, and noncompliance with these provisions was substantial. In view of what this court said in the McCann Case, supra, we must hold that the respondent commissioner was without jurisdiction to make the order of commitment, and his order finding relator insane and committing him to Warm Springs is a nullity. It is therefore ordered that the proceedings had before the respondent Larson be, and they are hereby, annulled. Mr. Chief Justice Johnson and Associate Justice Angst-man concur.