The opinion of the court was delivered by
The respondent was prosecuted before a justice of the peace for being found intoxicated. The complaint alleged two prior convictions of. the respondent for a like offence. He was found guilty as- charged in the complaint, and sentenced by the justice as required for a third conviction. From this conviction and sentence the
If the justice of the peace did not have jurisdiction, the motion should have been granted.
At the time the alleged offence was committed the justice did not have jurisdiction of it, except to bind over a respondent for his appearance at the county court, nor did he have jurisdiction other than this at the time of the trial before him, uniess it was conferred by St. 1890, No. 41, which provides that justices of the peace shall have concurrent jurisdiction with the county court of offences'for intoxication under Section 3,8x2 of Revised Laws, as amended by St. 1888, No. 36. This act conferring jurisdiction was passed and went into effect after the commission of the alleged offence, but before the commencement of the prosecution.
I. The respondent contends that this statute was intended to confer jurisdiction only in prosecutions for intoxication committed after the time when it took effect, and that it should be so construed as to apply only to such prosecutions.
It is not by its provisions limited to prosecutions for future offences. Its language is comprehensive enough to cover prosecutions for all offences of this kind, whether past or prospective. Hence, standing upon its terms, it is broad enough to include prosecutions for offences which had been committed and which were subject to prosecution at the time it went into effect. The statute is remedial. In such case the rule of construction to be adopted is that stated in Hine v. Pomeroy, 39 Vt. 211, viz : “Ordinarily statutes are held to operate prospectively, and not retrospectively, unless it appears that they were designed to have the latter operation. When it is sought to have such operation given to a statute .to the impairment of an existing right, or the infliction of a
“When, without such consequences, the intention is apparent that the law should have such operation, such intention would prevail. Again, if such intention was not manifested by the form and 'language of the enactment, still, if the. just results would constitute a reason for giving it such operation, and it was not restrained in this respect by some provision of it, such reason would be permitted to operate, and the act to have such effect.”
The St. 1890, No. 41, relates solely to 'the remedy. Its manifest purpose was to enlarge the remedy already existing for the punishment .of offences against the public. Prior to, its passage the question ’ had arisen whether the binding over of a respondent charged with being found intoxicated, for his appearance to the county court, by a justice of .the peace, if done within thirty days after the offence was committed, was a commencement of the prosecution within thirty days, as required by Revised Laws, § 3,812, so as .to save the running of the statute. No. 41 was intended to remove all doubt on this point, and to prevent the operation of the statute of limitations, when the alleged intoxication occurred thirty days or more prior to- the next stated term of the county court. It was also intended to prevent the expense and delay attendant upon the examination and binding over of the respondent to the county court. It was not a departure from the policy of the legislature in respect to conferring jurisdiction upon justices of the peace in prosecutions for alleged violations of the provisions of our statutes relating to the traffic in intoxicating liquors, but on the contrary, it was in the line of the policy which had already conferred jurisdiction upon justices in all criminal cases arising under such statutes, except prosecutions for intoxications.
Having regard to the terms and provisions of this act, to
II. The respondent also contends that, if this act is retrospective, then it is an ex -post facto law, and therefore void as to this respondent. The contention is not sound. It is well settled that the provision in the constitution of the United States, prohibiting the enactment of such laws either by the States or Congress, is confined to laws respecting the punishment of crimes, and has no relation whatever to retrospective legislation of any other description. Cooley’s Con. Lim. (4th Ed.) 323.
In the leading case of Calder v. Bull, 3 Dall. 390, Judge Chase, in delivering the opinion of the court, defines an cx Ipost facto law within the words and intent of the prohibition tobe: “1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence, in order to convict the offender.” This classification of ex fost facto laws seems to -have been generally-accepted. Cooley Con. Lim. (4th Ed.) 325.
The statute in question has none of the elements essential to make it an ex ftost facto law. It does not change the punishment, the-rules of evidence, nor what constitutes the crime or offence. It relates solely to the remedy by which
The defendant in his brief admits that the legislature has power to pass acts touching the remedy, process or procedure, provided it affects no. vested right and is not ex -post facto. This is true as applied to the enforcement of contracts, with the modification that the new law must give the parties a substantial remedy. Cooley Con. Lim. (4th Ed.) 350. Richardson v. Cook, 37 Vt. 599; Hine v. Pomeroy, supra. A respondent has no vested right to be tried in any particular court. Cooley says: ‘‘‘But so far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence when its facts arose. The legislature may abolish courts and create new ones, and may prescribe altogether different modes of procedure in its discretion, though- it cannot lawfully, we think, in so doing dispense with -any of those substantial protections with which the existing law surrounds the person accused of crime.”' Cooley’s Con: Lim. (4th Ed.) 331. If the legislature may create a new court to try existing of-fences, it is clear that it may confer jurisdiction on a court already existing to try the same offences.
It is urged that this law is ex post facto, because if the prosecution is commenced before a justice, a respondent, if there convicted for an offence committed prior to the time when the law became operative, would have to pay more costs, in case he appealed to the county court and was there convicted. To this claim it may be said that the costs of a prosecution are only an incident of it, and in every case are
The respondent also insists that by holding that the justice had jurisdiction he is deprived of the right of having either the state’s attorney or a grand jury determine whether he ought to be prosecuted or not. He seems to have forgotten, at least in connection with this contention, that this prosecution was commenced by a complaint preferred to the justice by the state’s attorney, who presumably had investigated the case before he instituted the prosecution. The offence charged being a misdemeanor, the respondent has no constitutional right which protects him from prosecution unless indicted by a grand jury. R. L. § 1,618; State v. Haley, 52 Vt. 476.
A majority of the court are of the opinion that the justice’s court had jurisdiction of the offence charged in the complaint, and that the respondent’s motion was properly overruled by the county court.