The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-03-01
Supreme Court Affirms the De-
cision in the Clancy Case.
ERRORS NOT MATERIAL
The Court Sustains the Arid Land Com
mission Law in an Opinion by
Chief Justice Pemberton.
A Friendly Suit.
sneclal Dispatch 10 the standard.

year sentence for robbery committed in
Silver Bow county. In an opinion by Jus
tice Pigott the court affirms the judgment
of the district court of Silver Bow. None
of the errors assigned by Clancys coun-
sci are deemed reversible. The chief err
ror that his counsel alleged was in Judge
clancys refusal to set aside the informa-
ton upon which the convicted man was
tried. 1t was claimed that this was not in
strict conformity with the constitutional
provision which requires that no warrant
TO seize any person shall issue without It
being supported by oath or affirmation:
In other words, without being verified.
The manner in which the court disposes
of this question, very important one.
which has never been presented to the
court before. will interest every one.
For the purposes of this case we shall
assume, without deciding. that the ques
tion was properly raised by motion and
that the action of the lower court is pre-
sented to us for review" says the court.
I'VE have given the question which Is
one of first impression in this court the
most careful consideration No useful
purpose would be subseryed by a detailed
statement of the reasons which constrain
us to the decision reached. Some cases are
to be found which seem to conflict with
the CONCLUSION at which we have arrived,
and of these we have not been unmndful.
The statute law of the state. while max
ing provision in regard to the contents of
an information as well as TO its formal
parts, and requires II to be signed by the
county attorney. is silent with respect to
verification. 1t Is not upon slight or doubt
full considerations that court will de-
clare that the legislature has disobeyed
the constitution. tState VS.. Camp Sing, Is
Mont. 1921 And this argument would be
entitled to some weight were IL doubtful
hat har ha al
invoked required a specific oath in veriti-
cation of an information upon the princi-
pie that IL is not to be presumed that the
legislative assembly has deliberately omit
ted to provide for an essential and indis-
pensable requisite to the validity OF an in
formation. In other words if the matter
were involved In doubt. the meaning given
10 the constitutional provision. and it's
construction by the law-making power.
would be not without weight. But We
do not think such doubt exists. That por-
tion of section 7 Which Is pertinent to the
question before us prohibits the issuance
of "A warrant TO seize any person unless
probable cause therefor be reduced to
writing and be supported by oath.
1.-THE duties of the county attorney are
prescribed by law. Among other duties he
is. under certain circumstances, required
TO file informations. He has taken and
subscribed to an oath to perform the du-
AtfS iAiipoHFh upon slAttis AL tlA6 AVIS III
such officer are performed under his oath
of office, and every duty he discharges Is
pursuant to- and In conformity with. the
mandates of this oath. lie cannot in any
thing he does escape from the binding
force of Its obligation. The probable cause
which Is required by the constitution Is
made to appear by the information in
writing filed by him. This probable cause
is necessarily supported by his official
oath. which attends upon and accompa-
MES all his acts, each of which Is per-
formed under the sanction of that oath.
We are of the opinion. upon reason
well as upon the authority of adjudicatcd
cases, that the requirement of the consfi-
tuition that no warrant shall issue with
out probable cause reduced TO writing and
supported by oath or affirmation is. prima
facie. satisfied and complied with when
an information charging public offense
is filed by the county attorney, and we
are entirely satisfied that such an infor-
nation IL. prima facie. the statement OF
probable cause under oath, equally with
an indictment presented upon the oath of
grand jurors. In the one case the proba-
BILE cause is reduced TO a written informa-
tion supported by the official oath OF the
county attorney: In the other. TO an In
dlctment, supported by the oath of the
jurors"
Another error alleged by the appellant
was the matter of the lower courts addi-
tional instructions upon the subject of
reasonable doubt" The supreme court
dsposes of that error briefly as follows.
and at the same time rather intimates
that the supreme courts previous an
on that point had better be
followed:
''The rights OF the defendant were NOT
prejudiced by this instruction when the
whole charge in considered (State VS..
Gibbs, supra.) II Is d matter of regret.
however. that certain trial courts con-
tinue TO seek instructions upon the sub
jeet of reasonable doubt other than
those which have received the approval
of the supreme court. and this matter
was adverted to in the last case cited.
Hugh j. Rogan. a rancher living near
Helena. had his judgment against the
Montana Central for $1,000 damages at
flrmed He sued for s5o.n0o.
The court. In an opinion by Chief JUS
tice Pemberton. declined to issue the writ
of prohibition applied for by {. b. Nolan
as a member Of the state board of exam
liners. 10 restrain the arid land commits
sion from doing the following in cennee-
tion with the work on the proposed ca
nal in Yellowstone county:
First-From establishing the district as
hereinhefore set forth, that Is To say
from establishing a district comprising
sections detached and removed from each
other rather than a compact. continuous
superficies.
Seeond-That said commission be pro-
hihited from contracting to CONSTRUCT said
canal Of capacity only sufficient 10 irri-
gate the lands to which title may be Sc
cured under the provisions of the Carey
act.
Third-To prohibit the making of con-
tract by the Northern Pacific Railroad
company for the enlargement of the ca
nal so intended to be constructed as
aforesaid.
FoGrfh-To prohibit the issuance OF
bonds for said district expressly specify
ing upon their face that the lien of said
bonds should only attach 10 the lands 10
which title might be secured under the
provisions of the Carey act. and the ga
nal and water appurtenant thereto.
Fifth-Te prohibit the said commission
from constructing said canal 80 that the