#### STATE, Appellant, *v.*KING, Respondent.

(No. 1,944.)

(Submitted May 25, 1903.

Decided June 1, 1903.)

*Police Officer*— Failure, *to Make Arrest*— Criminal *Prosecwtion —Information*— *Constitutional Question*— *When. Determined.*.

*2691. Laws of 1903, Chapter CXI, Section 1, declares that it shall he the duty of every policeman or other peace officer, upon being informed by a citizen that any offense is being or is about to be committed within such officer's jurisdiction, to immediately proceed .to the place where the alleged offender is to be found, with the informant, if he so requests, and to arrest such offender, etc. " *Held,*that an information against a policeman, alleging that he refused to proceed to the place where alleged offenders were to be found, was insufficient, the statute enjoining but one duty, which was to mate ah arrest, failure to perform which was the gist of the officer’s offense.

2 A court will not pass upon the constitutionality of a statute unless it is absolutely necessary to a decision of the ease.

*Appeal from District*Court> *Lewis and Clarice County; II. C.*Smith, *Judge.*

S. R. KiNG was informed against for a violation, of official duty as a policeman in failing to make an arrest, and on demurrer to tbe information was discharged, from which action of the court the state appeals.

Affirmed.

*Mr. James*Donovan, *Attorney Qen-eralj*for the State.

There are three duties which may be imposed upon a peace officer by House Bill 345 by any citizen of the state, and for failure to- perform any one or more of them he is guilty of a violation of said law, as follows: (1) TJpon receipt of the requisite information to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found. (2) To proceed- in company with the informant, if he so requests. (3) To arrest the alleged offender or offenders wherever they may be found. In the present information, the defendant is charged with a neglect to perform' the first of these duties only, and that offense is clearly and without ambiguity stated in the information. It cannot be urged that the information is bad for failure to charge that the defendant refused to make an arrest, for, as a matter of fact, he did not refuse to make an arrest, except by refusing to go to'the place where the arrest might be made. By refusing to go to such place he clearly violated his duty as an officer, and under the provisions of said House Bill 345 liable to the penalty prescribed in Section 2 thereof.

*270Constitutional provisions bave not tbe slightest bearing upon the information in this- case, although they might have if the information charged' the officer with a refusal to make an arrest, or if the question were raised by a person who might have been arrested by such officer, as, for instance, in *habeas corpus*proceedings. *(Nelson*v. People, 33 Ill. 397.)

The question of the constitutionality of a law; cannot be raised by anyone not having an interest in the matter, or not being in point of fact affected by the act. (Cooley on Const. Lim., 196, and cases cited in note 3; 6 Am. & Eng. Ency. Law, p. 1090.)

A question involving the constitutionality of a statute should be determined only when it is impossible to dispose of the case on its merits otherwise, and a court will be especially reluctant to investigate or determine the constitutionality of a statute on-preliminary motions * * (6 Am. & Eng. E'ncy Law, p, 1084, and cases cited in note 5; see, also, Cooley on Const. Lim., pi 196; *Nelson*v. People, 33 Ill. 390; *Stale■*v. *Curler,*67 Pac. 1075 (Nev.); *MacGinnis*v. Dams, 65 Pac. 364 (Ida.)

On the prosecution of an officer for accepting a bribe for omitting to seize gambling devices, the officer cannot question the constitutionality of the statute authorizing the destruction of the property. *(Newman*v. People, 23 Co-lo. 300, 47 Pac. 278.) .¡i.-''

But assuming that the question can be raised by the defendant in this case by demurrer to the information, and conceding, for the sake of argument, that House Bill 345 is in conflict with the constitutional provisions invoked, in so* far as- said bill makes it the duty of the officer “to arrest such offender or offenders wherever they may be found,” still we maintain that the bill is unconstitutional only to the extent that it is repugnant to the constitution.

Where part only of a statute or section is unconstitutional that part only is void, unless the other provisions are so dependent or connected that it cannot be presumed the legislature would have passed one without the other. (Sedgwick, Constr. *271St. & Const. Law, p'. 413, and oases cited; Sutherland, St. Constr. See. 169; *People*v. *Hill,*7 Cal. 97; *Nelson*v. *People,*83 Ill. 390; *Commonwealth*v. *Hitchmgs,*5 Gray, 482; *Mayor*v. *Dechart,*32 Md. 369; *Mobile, etc. B. B.*y. *State,*29 Ala. 573; *Lynch*y. *Steamer Economy,*27 Wis. 69; v. TFAueZer, 25 Conn. 290; 6 Am. & Eng. Ency. Law, 1088.)

“With the wisdom or expediency of a law- the judiciary has nothing to do; such questions address themselves solely to the law-making department of the government.” (6 Am. & Eng. Ency. Law, p. 1086.)

When the statute is otherwise free from objections on constitutional grounds, the courts cannot avoid its application and enforcement because it is absurd or unreasonable, nor because, in their judgment, it is an unwise enactment. *(Ibid.,*citing: *Flint Biver Steamboat Co.*v. *Foster,*48 Am. Dec. 248; *Merchants' Union Barb Wire Co.*v. *Brown,*18 Hep: 591; see, also, Cooley, Const. Lim. p. 220.)

It is not within the province of the judiciary to inquire into the motives actuating the law-making body. (Cooley, Const. Lim. p. 220; 6 Am. & Eng. Ency. Law, p-. 1087, and eases cited in note 5; *Ex parte Newman,*9 Cal. 502; *McCulloch*v. *State,*11 Ind. 424; *Stoclcton, etc. B.,B. Co.*v. *Stocldon,*41 Cal. 147.)

If it be argued that it would be a vain thing to require an officer to proceed to the place where the offense was being committed without making it his duty to arrest the offenders if he should find them, and that the legislature would never have imposed that duty upon the officer without also requiring him, to make an arrest, and that, therefore, the act in question is not separable, then the reply is that when the officer reaches the point where the breach of the peace is alleged to' be occurring, if he finds that his information is true and that the offense is being committed at that time, or is about to be committed, it is then his duty,-under Section 1632, to arrest the offenders without a warrant; and for a failure to- make an arrest under each circumstance he is punishable, under Section 270, Penal Code, (3 Cyc. Law, p. 883, and eases cited in note 78.)

*272By tbe use of tbe word “arrest” tbe legislature undoubtedly intended it in its legal significance. Tbe constitutional pro-ylsions cited do not contain tbe word “arrest,” but use tbe words “unreasonable searches and seizures.” Tbe word “arrest” is defined by Section. 1630, Penal Code, as “taking a person into custody in tbe case and in tbe manner authorized by law.” That section further provides that “an arrest may be made by a peace officer or by a private person.” Substituting for tbe word “arrest,” as used in tbe statute under consideration, tbe definition of that term, we find that by House Bill 345 it is made tbe duty of tbe peace officer “to take into custody in tbe manner authorized by law such offender or offenders wherever they may be found.” Tbe law in question 'does not pretend to define either tbe case or tbe manner in which tbe arrest shall be made. It does not authorize, or pretend to authorize, tbe officer to arrest for an offense which has been committed, unless, of course, such offense is a felony and be has reasonable grounds for suspecting tbe person arrested to be tbe offender. There is no intent apparent on tbe part of tbe legislature to authorize or require tbe officer to arrest a person who may be pointed out by tbe informant because tbe informant may not accompany tbe officer, and if be does accompany tbe officer it is only for tbe purpose of guiding him to tbe place where tbe offense is. being committed or about to be committed.

Tbe presumption of a legislative intent to violate the constitution is never to be assumed if tbe language of tbe statute can be satisfied by a contrary construction. Tbe application of this rule requires that wherever a statute is susceptible of two constructions, of which one would' make it unconstitutional and tbe other constitutional, tbe latter is to be adopted. (Endlicb, Constr. St, 178, and cases cited.)

Laws are presumed to be passed with deliberation and with' knowledge of all existing laws on tbe subject. (Sutherland, St Const., Sections 137 and 333.)

In interpreting any clause of a statute it should be construed in connection with existing laws and should be interpreted in *273tbe light of tbe objects and purposes that tbe legislature bad in view in its enactment. *(Ter.*v. *Gommfrs Cascade Co.,*8 Mont. 407; see, also, Section 15, Political Code.)

It will be presumed in construing’ a statute that tbe legislature did not intend it to bave an effect which would have rendered it unconstitutional. *(Gillette*v. *Hibbard,*2 Mont. 415.)

Every presumption is in favor of tbe constitutionality of a legislative enactment, and tbe judicial department will be justified in pronouncing it unconstitutional only when it becomes a manifest usurpation of power. (6 Am. & Eng. Ency. Law, p. 1086, and cases in note 1; Cooley, Const. Lira., p. 218.)

Tbe power of tbe judiciary to declare a statute unconstitutional should never be exerted except where tbe conflict between it and tbe constitution is palpable andi incapable of reconciliation. *(Stockton, etc. B. B. Co.*v. *City of Stockton,*41 Cal. 147.)

Tbe unconstitutionality of a statute must be clear and manifest before a court should declare it, soi that where any reasonable doubt exists as to its constitutionality it should be upheld. (6 Am. & Eng. Ency. Law, p-. 1085; *People*v. *Van Gaskin,*5 Mont. 352; *People*v. *By. Go.,*35 Cal. 606; *(Ex parte Newman,*9 Cal. 502.)

“An intention to take away or destroy individual rights is never presumed, and to give effect to a design so unjust and so unreasonable would require the support of tbe most direct and explicit affirmation declarative of such intent.” (6 Am & Eng. Ene. Law, p. 924.)

*Messrs. Nolan & Loeb,*for Respondent.

At common law, as a general rule, an arrest could not be made, without warrant, for an offense less than felony, except for breach of tbe peace. (3 Cyc., 880, citing: *Bobertson*v. *State,*29 So. 535; *Commonwealth*v. *"Wright,*158 Mass. 149, 33 N. E. 82, 35 Am-. St. Rep. 475, 19'L. R A. 206; *Scott*v. *(Eldridge,*154 Mass. 25, 27 N. E. 677, 12 L. R A. 379 ; *Com**274*monwealth*v. *O'Connor,*7 Allen, 583; *Matter of Way,*41 Micb. 299, 1 N. *W.*1021; *Quinn*v. *Heizelj*40 Micb. .576; *Butolph*v„ *Blust,*5 Lansing, 84; *King*y. *Poe,*15 L. T. Rep. N. S. 37; 3 Cyc., 881, and cases cited.)

A peace officer, in tbe light of tbe constitutional provisions (Article IV of tbe Amendments to tbe IT. S. Constitution; Section 7, Article III, Constitution of Montana), bas no right to make an arrest without a warrant upon information or mere suspicion that a misdemeanor bas been committed, and a statute which directs this to be done by a peace officer and provides penalties for bis failure so to do, is unconstitutional and cannot bo upheld. *(In re Kellam,*55 Kansas, 700, 41 Pac. 960; *Pvn-Tcerton*v. *Verberg,*78 Micb. 573, 18 Am. St. Rep. 473; *Staten-burg*v. *Frazer,*16 Appeal Oases (D. C1.), 229 ; *People*v. *Clenr non,,*74 N. Y. Supp. 79; *Pickett*v. *State,*25 S. E. 608; Black’s Const. Law, pp. 435, 440; Cooley’s Const. Lim. (6th Ed.), 364.)

MR COMMISSIONER, CLAYRERG-

prepared tbe opinion for tbe court.

Information was filed against tbe respondent in tbe district ci urt of Lewis and Clarke county, by which it was attempted to charge him with a violation of official duty, in tbe following language: “[Title of court and cause.] In tbe district court of tbe Eirst judicial district of tbe state of Montana, in and for tbe county of Lewis and Clarke, on this., tbe 7th day of April, A. D. 1903, in tbe name and on behalf and by tbe authority of tbe state of Montana, S. R. King is accused by tbe county attorney of Lewis and Clarke county, Montana, by this information, of tbe crime of neglect of duty as peace officer, committed as follows: That at tbe county of Lewis and Clarke, in tbe state of Montana, on or about the 26th day of March, A. D. 1903, and before tbe filing of this information, tbe said S. R. King, who was then and there a peace officer, to-wit, a special policeman of tbe city of Helena, said county and state,' and while tbe *275said Si R. King was on duty as snob peace officer, was informed by one R. A. Barret, wbo was then and there a citizen of tbe state of Montana, that an offense against tbe laws of the state of Montana, to-wit, tbe crime of conducting a gambling game, was being committed within tbe.limits of such officer’s jurisdiction, to-wit, at that certain public place known as tbe Capital Music Hall, in tbe said city, county, and state; that tbe said S. R. Ring did, then and there, willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, or at all, proceed to tbe said Capital Music Hall, or to tbe place where said alleged offender or. offenders were to be found; all of which is contrary to tbe form, force, and effect of tbe statute in such case made and provided, and against tbe peace and dignity of tbe state of Montana. Lincoln Working, County Attorney of Lewis and Clarke County, Montana.”

Respondent interposed a demurrer to such information upon three separate grounds, viz.: (1) That tbe facts stated do not constitute a public offense; (2) that tbe Act of the Legislature under which tbe information was filed violated tbe Constitution of tbe Hnited States; (3) that such Act violated tbe Constitution of tbe state. This demurrer, after argument, was sustained generally, tbe respondent discharged, and bis bond exonerated. From this action of tbe court tbe state appeals.

It was conceded by counsel for both parties, in their briefs and in tbe argument, that tbe information was filed under tbe provisions of House Bill 345, enacted by tbe last legislative assembly (Laws of 1903, Chapter CXI), and its sufficiency must therefore be tested by tbe provisions of that Act, and none other. So much of this Act as is important to tbe consideration of tbe questions involved in this appeal is as follows:

“Section 1. It shall be tbe duty of every sheriff, under-sheriff, deputy sheriff, constable, city marshal, chief of police, city detective, policeman, or other peace officer, upon being-informed by any citizen of this state that any offense against tbe laws of this state is being committed, or is about to be commit*276ted, by any person or persons, within the limits of such officer’s jurisdiction, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found, in company with the informant, if he so> requests, and to arrest such offender or offenders wherever they may be found.”

The first question is whether the information states a public offense, under the terms of the above Act. We find upon examination of the Act that it attempts to impose an official duty on the part of peace officers, and provides a punishment for neglect or violation of the same. What is the duty thus imposed, and is a violation of such duty: alleged in the information ?

A careful reading discloses that the Act seeks to impose the duty upon peace officers^ when “informed by any citizen of this state that any offense against the laws of this state is being committed or is about to be committed, * * to immediately and expeditiously proceed to the place where the alleged offenders are to be found,” and to arrest them.

It is perceived that the duty is not alone to proceed “immediately and expeditiously to the place where the alleged offenders are to be found,” but also to arrest them. Were it not for the insertion of the words “immediately, and expeditiously” the only duty imposed would be the arrest, because of.-the impossibility of making an arrest without going to the place where the offenders are to be found. These words evidently were inserted only for the purpose of compelling prompt action on the part of the officer.

Counsel for the state argues that this Act imposes three several and distinct duties upon peace officers, as follows: “(1) Upon receipt of the requisite information, to immediately and expeditiously proceed to the place where the alleged offender or offenders are to be found; (2) to proceed in company with the informant, if he so requests; (3) to arrest the alleged offender or offenders wherever they may be found.” We cannot agree with counsel’s contention. We are firmly of the opinion that the purpose of the statute is to provide for the arrest of the offender, and the making of such arrest is the ultimate duty im*277posed. Tbis duty consists of several steps or acts, and these steps or acts are each and all parts and portions of this ultimate duty. None of them are separate or distinct duties in themselves, and therefore a violation of one or more of them, except possibly the final one, can be punished only upon an alleged violation of the duty to arrest. The public offense declared by the statute is the violation of this ultimate duty.

It appears from the information that the violation of duty charged is “that the said S. E. King did then and there willfully and wrongfully fail, neglect, and refuse to immediately and expeditiously, of at all, proceed to- the Capital Music Hall, or to the place where said alleged offender or offenders were to be found.” This is not sufficient, because it only charges a violation of one of the steps preliminary to the ultimate duty.We are therefore clearly of the opinion that the facts stated in the information do not constitute a public offense, and that the demurrer was properly sustained.

We shall not consider the questions raised as to the constitutionality of the Act. It is well-settled law that a court will not pass upon the constitutionality of any Act of the legislature unless it is absolutely necessary to a decision of the case. It is not necessary here, and we do not even intimate an opinion upon this question.

We are of the opinion that the demurrer was properly sustained, and that the judgment of the court below should be affirmed.

Pee Cubiam. — For the reasons stated in the foregoing opinion, the judgment of the lower court is hereby affirmed.