State ex rel. Leach v. Olson

Grace, J. This is a proceeding by habeas corpus to test the sufficiency of the criminal complaint. The complaint is as follows: “Harry Heskett being first duly sworn says that on the 24th day of July, a. n. 1919, in said county, the above-named defendants did commit the crime of maintaining an unlicensed ferry, committed as follows, to wit: that at said time and place the said Joe Leach and William Friesham, then and there being, did wilfully and unlawfully maintain and operate a ferry boat for profit and hire upon the waters of Missouri river, and did then and there transport and carry passengers, automobiles, teams, and wagons across the said river on said ferry for profit and hire from Morton county, North Dakota, to city of Bismarck, North Dakota, without having first obtained a license to operate the said ferry from the board of county commissioners of Morton county, against the peace and dignity of the state of North Dakota. Wherefore complainant prays that defendants, Joe Leach and William Friesham, may be arrested and dealt with according to law.” Upon the filing of this complaint, the warrant of arrest was issued by one Henke, the justice of the peace for the arrest of these relators and they were taken into custody and brought before said justice of the peace. The defendants demurred to the complaint upon two grounds. (1) That the complaint does not substantially conform to the requirements of the Code of Criminal Procedure of the state of North Dakota in that it does not particularly set forth the facts constituting the alleged defense; that it does not allege there was a landing of the ferry alleged to have been operated either in the county of Morton, or in the city of Bismarck. (2) That the facts stated in said complaint do not constitute a public offense or any offense against the laws of the state of North Dakota. The demurrer was overruled and the defendants held to answer, the offense charged in the complaint. The justice court fixed the bail at $200. The defendants did not procure any bail and were committed to the custody of Mr. Olson, the sheriff of Morton county. The rela369 tors then applied to the judge of the district court of Morton county for a writ of habeas corpus which was issued. The matter was heard before said judge, and the writ of habeas corpus theretofore issued by it was quashed. Thereafter the defendants applied to one of the justices of the supreme court for a writ of habeas corpus which was issued and made returnable on the 5th day of September, 1919. The defendant, Sheriff Olson, has made his return to that writ and justifies his custody of the plaintiffs by reason of proceedings had in the justice court and by virtue of the commitment of the plaintiffs therein issued. The relators, Leach and Friesham, maintained their imprisonment, detention, and restraint is illegal for three reasons: First, that the facts stated in the criminal complaint do not constitute . a public offense; second, that the provisions of § 9777 of the Compiled Laws of 1913, are unconstitutional as being contrary to the provisions of § 61 of the Constitution; third, that for these reasons, the justice of the peace has no jurisdiction over the persons of the petitioners and had no right or authority to issue the warrant of arrest or warrant of commitment of the relators. There is no merit to any contentions of the plaintiffs and relators. The complaint filed with the justice of the peace properly charged a public offense, and the demurrer to it was properly overruled. The warrant of arrest and the warrant of commitment were each lawfully and properly issued. One of the landings of the ferry in question is within the corporate limits of the city of Bismarck, Burleigh county, North Dakota. The city of Bismarck and the county of Burleigh are on the east side of the Missouri river. The other landing of the ferry is on the west side of the- Missouri river, approximately opposite Bismarck, but the same is not within the corporate limits of any city, town, or village, but is within the limits of Morton county. The relators procured a license from the city of Bismarck for the operation of the ferry, but did not procure a license from the commissioners of Morton county. Section 2063, Comp. Laws 1913, of North Dakota, authorizes the board of county commissioners of the county to whom application shall [370] be made for a ferry, to grant a lease of such ferry for the time, and upon tbe terms in said section set forth. The relators did not procure a license from the commissioners of Morton county, and hence had no right or authority to operate a ferry, or haMe a landing within the jurisdiction of Morton county. The relators, however, claim the right to operate the ferry between Bismarck and Morton county by reason of the license procured from the city of Bismarck, and based such claim of right on the following provision in the above section: “Provided . . . that the mayor and city council of any incorporated city, and the board of trustees of any incorporated town or village in the state of North Dakota, within whose corporate limits the landing of any ferry shall be situated, shall have the sole authority to grant a lease of such ferry and the right to fix the rates for crossing such ferry, etc.” This provision of the law, as we view it, gives the city exclusive authority to grant a lease of the ferry, and fix the rates as against the county only in which such city is located. In other words, the landing on the east side of the river is within the corporate limits of the city of Bismarck. It is also within the corporate limits of Burleigh county. Hence, as between the city of Bismarck and Burleigh county, the exclusive right is given to Bismarck as against Burleigh county to authorize the ferry and to fix the charges for crossing such ferry. It is plain, however, that neither the city of Bismarck nor Burleigh county could make any lease of ferry or fix charges which would be of any binding legal effect within the jurisdiction of Morton county. The jurisdiction of Bismarck or the county of Burleigh extends no further than the center of the Missouri river. On the westerly side of the river, Morton county has jurisdiction from where it borders on the river to the center thereof. It would seem, therefore, that the ferry on the westerly side of the Missouri river, and the landing of such ferry being within the exclusive jurisdiction of Morton county, the county commissioners of Morton county- would have the exclusive right to grant the lease of such ferry within the jurisdiction of Morton county. The relators had not procured a license from Morton county to operate such ferry and, as we view it, were acting in direct violation of the provisions of § 9117, Comp. Laws 1913. The proper author [371] ities to lease ferries are those denominated in § 2063, and the method of leasing and fixing charges is that prescribed by the same section. The authorities who lease ferries and the method of fixing charges was not changed by the amendment of § 2062 by the 16th Legislative Assembly. Section 2062, before its amendment by the 16th Legislative Assembly, contained the following which were left out of the amendment and re-enactment of the law by the 16th Legislative Assembly, to wit: “And when any ferry lease has been granted, no other lease shall be granted within a distance of 2 miles thereof across the same stream.” It is clear that the writ of habea's corpus issued by this court should be quashed, and it is so held. Costs are awarded neither party. Christianson, Ch. L, and Birdzell and Eobinson, JJ., concur.