author: MR. JUSTICE MILBURN Me. Ciiiee Justice Beantly: Me. Justice Pigott:

text:
    WHALEN et al., Respondents, v. HARRISON, Appellant.
    (No. 1,302.)
    (Submitted November 19, 1901.
    Decided February 24, 1902.)

      Contracts — Public Policy — Public Buildings — Competitive Biddings — Appeal—Bill of Exceptions — Time of Filing— Directing Verdict — Nonsuit.
    1. It is not error for the court to deny a motion for a continuance on account of the absence of tbe defendant, where the defendant fails to show diligence.

      2. where, in a suit on an alleged contract,' plaintiff alone testifies in support of his case, and his evidence, though uncontroverted, is confusing, it is error to direct a verdict for him, as the jury should determine the weight of his testimony, and the amount, if any, which is due to plaintiff under proper instructions of the court.
    3. under Code of Civil Procedure, Sec. 1736, providing that on appeal from a final judgment any statement used on a motion for a new trial may be used equally as on appeal from an order granting or refusing a new trial, a bill of exceptions used on motion for new trial may be used on appeal from the judgment, though no appeal is taken from the order denying the motion.
    4. under Code of Civil Procedure, Sec. 1173, providing that, when a motion for new trial is made on a bill of exceptions, the party shall have the same time, after service of the notice of intention to move for a new trial, to serve such bill, as is provided after entry of judgment by Section 1155,— that is, 10 days, — and 10 days after service of such notice to serve a statement of the case, and in either case the judge may extend the time for 30 days in addition to the statutory time, where a judgment is entered on June 9th, notice of intention to move for new trial is served on the 16th, and on the 25th the judge extends the time to serve the bill of exceptions to July 26th, the service of the bill on July 24th is in time, and it may be used on appeal from the judgment.
    5. where bidders for a school building, after the rejection of their separate bids and consultation with the members of the board, agree to reduce their bids, and that in consideration of a bonus part of the bidders would let another have the contract for furnishing stone, pursuant to which they procure the contract without readvertisement, such agreement is void, as against public policy, and affords no basis for an, action by one of such bidders against the other.
    6. Evidence reviewed and 7ieW, that the court erred in denying a motion for nonsuit on the ground that the contract sued upon was void as against public policy.

      Appeal from District Oourt, Lewis and Clarice County; 8. H. Mclntire, Judge.

    ActioN by Stephen F. Whalen and James S. Grant, partners as Whalen & Grant, against William Harrison. From a judgment in favor of plaintiffs, defendant appeals.
    Reversed.

      Messrs. Walsh & Nexornan and Mr. A. J. Craven, for Appellant.
    The demurrer to' the first cause of action should have been sustained. The objection to the introduction of tetstimony on the first cause of action should have been sustained. These two propositions involve the same question, viz.: That the complaint does not state facts sufficient to constitute a cause of action. (Cummer v. Butts, 40 Mich. 322; Ahlstrom v.
      Fitzpatrick, 17 Mont. 295; Davie v. Lumberman! s Mining Oo., 93 Mick. 491, 53 N. W. 625; Fx parte Baxter, 2 Q. B. 478, 1892; Storey on Contracts, 5th Ed., Sec. 830; Addison on Contracts, bottom p. 292-296; 5 Lawson’s R. & B. Sec. 2313; King v. Ruickman, 20 N. J. E. 316; Abeel v. Radcliff, 13 Johns. 216; Van Slyke v. Broadway Ins. Go., 115 Cal. 644, 47 Pac. 689; Dude v. Ford, 8 Mont. 233, 240; Ryan v.'Dum-phy, 4 Mont. 354; Mayger v. Cruse, 5 Mont. 497.)
    The court erred in striking out- that part of the answer setting forth that the alleged contract was not made, delivered or intended by the parties to be a final contract, or as containing all the stipulations and agreements intended by the parties. (Code of Civil Procedure, Secs. 3132, 628; Commercial Telegram Co. v. Smith, 47 ILnn. 494; Burke v. DuLaney, 153 IJ. S. 228; Ware v. Allen, 128 IT. S. 590; Wharton on Contracts, Sec. 202; Wharton on Evidence, Sec. 927.)
    The alleged contract is against public policy and illegal, null and void. (Hannah v. Fife, 27 Mich. 172; Hunter v. Pfeifer, 9 Northeast, 124, 108 Ind. 197; McMullan v. Hoffman, 69 Fed. 509; Hoffman v. McMullan, 83 Fed. 372; Boyle v. Adams, 52 N. W. 860; Moore v. Bennett, 29 N. E. 888; Bank v. Holm, 71 Fed. 489; Church v. Proctor, 66 Fed. 240; Sharp v. Wright, 35 Barbour, 236; Culiclc v. Ward, 18 Am. Dec, 389; Pac. Factor Co<. v. Adler, 90 Cal. 110; Morrison v. Bennett, 20 Mont. 560; Atcheson v. Maltón, 43 N. T. 147; Tool Co. v. Norris, 2 Wall. 45; Swan v. Chorpening, 20 Cal. 182; Brooke v. Cooper, 21 L. R. A. 617; Greenhood on Public Policy, 178, 179.)
    It is the duty of the court whenever and however the illegality of a contract appears, to dismiss the suit, although the question may not be raised by the pleadings, and both parties waive the illegality. (Wight v. Rindskoff, 43 Wis. 344; Os-canyon v. Winchester Arms Co¡., 18 Fed. Case 863, No. 10,600; Same case affirmed, 103 IT. S. 261; Hall v. Coppell, 7 Wallace, 542; Maguire v. Corwin, 101 TJ. S. 108.)
    The court erred in instructing the jury to return a verdict in favor of the plaintiffs. In this the court invaded the province of the jury. The jury were the sole judges of the weight of testimony and the credibility of witnesses. The court may instruct a jury to return a verdict where the court can say as a question of law that there is no' evidence to sustain a controverted allegation; but where an issue of fact is raised in an action at law, and a jury is impaneled to try that issue, the jury, and not the court, must judge of the credibility of the witnesses and the weight of the evidence. (Sec. 23, Art. Ill, Constitution of Montana; Code of Civil Procedure; Secs. 1080-3390; Wastel v. M. Ü. By. Go., 17 Mont. 213; Knowles v. Nixon, 17 Mont. 473; Saor v. Fuller, 71 Iowa, 425; Rhodes v. Lowry, 54 Ala. 4; Stewart v. Bussell, 38 Ala. 619; Bank v. Donaldson, 6 Penn. St. 179; King v. Kline, 6 Penn. St. 318; People v. Webster, 111 Cal. 381.)

      Mr. William Wallace, Jr., for Respondents.
    A bill of exceptions not served within ten days after the judgment will not be considered on appeal from judgment. (Sec. 1155, Code of Civil Procedure; 3 Enc. PI. & Pr. pp. 459, 460; Pla.yne New. Trial & App1. Sec. 257, p. 769; Sec. 250, p. 753.) Here notice of motion for a new trial was served on the eighth day after verdict and seventh after judgment, and the bill therefore settled in time for new trial proceedings, but too late for simple judgment appeal. .Quaere: Does Section 1736, Code of Civil Procedure; providing that “any states ment used on motion for new trial may be used on appeal from final judgment,” etc., make this bill of exception part of the record for purposes of a judgment appeal;, or, to become so, must it have been prepared within ten days, or within an extension period, under order made within ten days after judgment? (The new trial proceedings were not prosecuted beyond the district court.)
    But for Section 1736 a separate bill would be required on the two appeals. The object of the section clearly was to do away with double sets of papers. It was not intended to permit a person, after losing a right to make a bill of exceptions on appeal, to gain it again under pretense of following up motion for new trial proceedings. Tbe proceedings are separate, and only by virtue of tbe statute can tbe bill of exceptions in one be used in tbe other. Tbe defendant could have preserved bis rights along both lines by taking an extension of time to prepare tbe bill within ten days after tbe judgment. Then tbe bill would have been in time for either an- appeal from tbe judgment or an order overruling a motion for new trial, and, by virtue of Section 1136, could be used for both purposes without being twice copied in tbe record. But when defendant allowed tbe ten days after judgment to go by without preparing tbe bill or getting an extension order, be lost tbe right to have any bill of exceptions in connection with tbe appeal from tbe judgment, and could not use any other bill therefor not prepared in time for this purpose. (People v. Creme, 60 Cal. 279, 280.) He could not have bad this bill of exceptions settled after tbe time to appeal from an order overruling a motion for new trial if tbe motion bad been beard on affidavits. (Turner v. Hearst, 115 Cal. 399.)
    There was in tbe one instrument a general demurrer to each of tbe two causes of action. Tbe court’s ruling was general on tbe whole demurrer; and there was only a general exception to this general 'ruling, and a general- specification of error. If, then, tbe demurrer was properly overruled as to either cause of action, tbe exception fails. (Kleinsciimidt v. Iler, 6 Mont. 122; 8 Enc. PL & Pr. 167, note 7 and cases.)
    Tbe interpretation of this contract is for tbe court, which, to place itself in the parties’ position, must consider all tbe circumstances under which it was made, including tbe situation of tbe subject matter’, and tbe parties. (Sec. 3136, Code of Civil Procedure, a continuation of Sec. 632, Compiled Statutes.) And “Where technical terms are used in a written-agreement, or abbreviations, parol evidence is admissible to show their meaning.” (Beach on Contracts, Sec. 581 and cases; 'Newell v. Nicholson, 17 Mont. 389 (43 Pac. 181); Sec. 3137, C. C. Pi’oc., a continuation of Sec. 633, Comp. Stat.)
    “It is proper bere to state that a greater degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to' be the basis of an action at law for damages. The action at law is founded upon the mere non-performance by the defendant, and the negative conclusion can often be established without determining all the terms of the agreement with exactness.” (Note I to Sec. 72, Beach on Mod. Law of Contr.) “Where the contract is not expressed in precise terms, the facts and circumstances surrounding the subject matter it contains may be looked to in aid of construction; and the acts of the parties to ihe instrument are entitled to great weight.’’ (Oartwright v. Galloway Co., 10 Mo. 663, quoted in Beach on Mod. Law of Cont. Sec. 73, note 4; 11 Am. & Eng. Enc. Law, pp. 512, 513.)
    The doctrine of tire authorities on the subject of uncertainty may be epitomized thus: If the court, by traversing the entire field within which it may pursue its investigations, i. e., the circumstances under which the instrument was made, the facts and circumstances surrounding its subject matter at the time, and the situation and surroundings of the parties, can give meaning to the words employed, it is bound to do so; and it is only when, after exhausting all its legal resources, it finds an instrument on its hands that remains unintelligible, it will refuse to enforce it as a contract.
    Again, such an agreement was not within the Statute of Erauds. So, if appellant were correct, and the instrument pleaded in paragraph 8 were no contract, we would not be without a remedy, if our pleading otherwise set forth the facts entitling us thereto, (for, of course, limitation would have long since cut off the right to file another complaint). (Beach on Mod. Law Cont. See. 73 foot.) It was not permissible for defendant to allege or prove matters to destroy this contract in the face of the contract itself. (Banh v. Stone,, 59 Cal. 183; Worr'all v. Murni, 5 N. T. 229, 238; Cocks v. Barker, 49 N. T. 107, 110; Beach on Modern Law of Contracts, Sec. 64, note 2, pages 82-85.)
    'The contract was not void as ag'ainst public policy. All tbe «ases cited by counsel for appellant are those of agreements made before the bidding. Here it was never disputed by defendant, either in pleading or in proof, but that the bids had all been received by the board under their advertisement, and acted on, before this particular contract was even thought of. (Whalen v. Brennan, 51 N. W. 759; Flanders v. Wood, 18 S. W. 572; Breslin v. Broiun, 24 Ohio St. 565, 570; Greenhood on Public Pol. p‘. 181; Briggs v. Tillotson, 8 Johns. 304, 305.)
    On the instruction to jury to render verdict for plaintiff, see Thompson v. McConnell, 107 Fed. 33, 40, foot; Arthur v. Jacoby, 103 TJ. S. 678; Singer Co-. v. Hester, 6 Fed. 804, 808 top; Pierce v. Canada, etc. By., 22 Mont. 448, foot, 56 Pac. 868, right, and cases cited; Laidlaw v. Sage, 52 N. E. 686, left top; Grisioold v. Boley, 1 Mont. 546, 10 Mont. 563; N. P. v. Sullivan, 53 Fed. 222, and cases; N. P. B. B. v. Bank, 123 IT. S. 727, 733; Delaware B. Co-, v. Converse, 139 IT. S. 469; • Many cases in Yol. 8, Notes U. S. Sup. Ct. Reports, page 505, under “Trial,” p. 506; Fagundes v. C. P. B. B., 21 Pac. 437, 438 (Cal.).
    Reply Brief of Appellant:
    Counsel for die Respondents, in his brief, suggests a question of practice, which, he says, has never been adjudicated. In our opinion, the question has been fully settled by the Code and by the decisions of the supreme court. The California decisions, which he cites,, are not authority on the proposition, because there is a difference between the California Code and our Code. Our Code dispenses with the bill of exceptions and says, in plain, unmistakable language, that none is required. (Code of Civil' Procedure, Sec. 1151.) Section 1155 of the Code of Civil Procedure, cited by counsel for respondents, expressly applies to exceptions taken at tbe trial, and not to exceptions deemed to have been taken. In order to make tbe. matter more emphatic, and to leave no room for discussion as to whether or not a bill of exceptions shall be required for matters deemed excepted to, Subdivision II of Section 1196 of the Code of Civil Procedure, defines what shall constitute the judgment roll in cases where the defendant has appeared. (Klein-schmidt v. McDermott> 12 Mont. 315; Sanderson v. Billimgs Water Power Go., 19 Mont. 238; New Orleans B. B. Go. v. Albritton, 15 Am. Dec. 98; Wasil v. Montana U. By. Go., 61 Pac. 9.) But, independent of the provisions of the Code, if there was no bill of exceptions, the court could review the action of the lower court, in striking out a part of the answer. {Dodson v. Nevitt, 5 Mont. 518, and Bank of Commerce v. Fuqua, 11 Mont. 285-293; Power v. Gumm, 6 Mont. 5; Barber v. Briscoe, 8 Mont. 222; Jones v. City of Petaluma-, 36 Cal. 230; Smith v. Lawrence, 38 Cal. 28.)
    We may go even further and say that if the court could not review the action of the lower court, in striking out these matters, without a bill of exceptions settled, as counsel contends it should be settled, yet in this case, the whole matter is brought up for review l>v the motion for nonsuit, upon the ground that the testimony shows that the contract was against public policy and void. Had the defendant’s rights been lost on the preliminary proceeding upon this question, they would have been preserved by that motion. We contend, however, that the bill of exceptions and statement was served in time. A motion for a new trial brings the whole matter before the court for review. It matters not whether the case is tried at one session of the court or at various sessions. Prom the commencement until the final disposition of the case in court, there is but one trial. There are trials of the issues of the law, and of the issues of fact. (Code of Civil Procedure, Secs. 1030, 1031, 1032 and 1033.)
    An error, occurring upon a ruling on the pleadings, although made long before tbe trial of tbe case upon tbe merits, is an error occurring at tbe trial. In this casei notice of intention to move for. a new trial was served in due time, tbe time for settling tbe bill of exceptions was extended by an order of tbe court, and the statement and bill of exceptions 'was served within tbe time granted by tbe court. (Section 1113 of tbe Code of Civil Procedure.)
    Upon the illegality of tbe contract, we wish to add to our former brief tbe case of Hoffman* v. McMillan, 83 Fed. 372, reversing McMillan v. Hoffman, 15 Fed. 547, and see same case cited in our former brief, 69 Fed. 509.
   MR. JUSTICE MILBURN

delivered the opinion of tbe court.

This case is prosecuted by the plaintiffs upon two causes of action, one being to recover $1,333.50 and interest, claimed to be due upon an alleged contract, set forth in tbe complaint.

It is 'alleged by tbe plaintiffs, in substance, that tbe defendant made a proposition to tbe board of school trustees of school district No. 1, at tbe city of Helena, to furnish and deliver all cut, carved, and rubble stone for tbe Helena High School Building for $22,598, which bid was rejected; that plaintiffs made a bid to1 tbe said board to erect tbe building and furnish all labor and materials for $63,100, and defendant offered to furnish to plaintiffs all sandstone for $19,000, and all rubble granite at $1.45 per perch, and on this basis plaintiffs made their bid; that this offer was rejected by tbe board because another bad offered to erect the building for $63,050, and tbe board asked plaintiffs to reduce their bid below $>63,050; that they could not do so without sustaining financial loss, unless they obtained tbe granite and sandstone for $19,000; that, to induce tbe plaintiffs to agree to construct the building and furnish tbe rest of tbe materials for $40,152, tbe defendant agreed to contract with tbe board to furnish all cut stone and rubble granite for $22,248, and, in consideration that plaintiffs would con-stimct tbe building and furnish all tbe rest of tbe materials for $40,152, and use tlie stone furnished by defendant, be would pay them the difference between $19,000 plus $350, and $22,248, which difference amounted to $2,898; that thereupon the defendant contracted with the school board to furnish’ said cut stone and nibble granite for $22,248, and that plaintiffs thereupon agreed to furnish all the rest of the material and construct the building for $40,152; that defendant furnished the stone, and received from the school board $22,248, and plaintiffs accepted the stone, and constmcted the building according to their contract; that defendant thereby became indebted to plaintiffs in the sum of $2,898, less a credit for 850 perches of granite, amounting to $1,232, leaving a balance due of $1,665.50; and that other credits were allowed, which reduced the amount claimed to $1,335.50. It is then alleged that the contract was reduced to writing, and is set forth in the complaint as follows:

“HeleNA, Montana, July 31st, 1890.
“Memo, of agreement and understanding pending execution of contract on the basis hereof:
Whalen & Grant’s bid H. S. S. $63,100 00
They agree to dis. 330 00
$62,750 00
William Harrison’s bid. $22,598 00
He agrees to dis. 350 QO
$22,248 00
Building to cost around. $63,100 00
Less $330.00x2 .' 700 00
$62,400 00
“William Harrison agreed to furnish W. & Gr. cut stone for $19,000.00, which they agreed to accept. Wm. Harrison will receive from school committee $22,248.00. This figure including an estimate on the rubble (granite). W. & Gr. are entitled from Wm. Harrison to the difference between $19,000 plus $350.00, above shown disc., and $22,248.00, which sum is $2,898.00; said Whalen & Grant having to furnish granite rubble for H. S. S., which Wm. Harrison agrees to deliver f. o. b. N. P. P. P. for $1.45 per perch of 2,240 pounds. The above is our understanding and agreement.
“War. Harrison,
“StepheN P. Whalen,
“James S. Grant/'

Their second cause of action is set forth, claiming a balance due for work and labor amounting to $188.95.

The defendant demurred to each cause of action for want of substance. The 'demurrer was overruled. The defendant thereupon answered denying each and every allegation in the complaint. It is. not necessary to state anything further contained in the answer.

There is no serious attack made upon the judgment, so far as the second cause of action is concerned, and we find no error as to it except as appears hereinafter.

A motion having been made for a continuance on account of the absence of the defendant, we find that the court did not err in denying it, as the defendant, in our opinion, did not show diligence.

A motion for a nonsuit was made after plaintiffs submitted their case, and the same was denied. Thereupon the defendant offered no testimony, and the court, on motion of plaintiffs, directed a verdict for the plaintiffs upon both causes of action. In thus directing a verdict the court erred. There was only one witness, — plaintiff Whalen, — and he was a largely interested party, who was cross-examined at length, and whose testimony was not clear, hut somewhat confusing. Under the circumstances of this particular case, we think that the court should not have taken up- the duty of the jury, but should have left it to them to- determine the weight to he given- to his evidence, and the amount, if any, which was due to the plaintiffs under proper instructions of the court.

The plaintiffs make the point that the bill of exceptions used on motion for new trial, not having been submitted within ten days after the judgment was rendered, therefore cannot be used on appeal from the judgment. No appeal was taken from the order wbicb was made denying tbe motion' for a new trial. Counsel inquires whether any statement used on motion for new trial can be used under Section 1736 of the Code of Civil Procedure, if the new trial proceedings be not prosecuted beyond the district court. This section is as follows: “On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” Under the language of this section we cannot see any reason why the bill of exceptions in this case may not be used on appeal from the judgment. The record was made within the time fixed, and while the facts were fresh in the mind of the judge; and, the purpose of the section being to prevent multiplication of the records, and this object having been attained, we cannot see any reason why such bill of exceptions may not be used on appeal from the judgment for all purposes for which a bill of exceptions may be properly used on appeal from the judgment.

Having made the inquiry above referred to, counsel proceeds to argue that the bill of exceptions was not served in time; that is, within ten days after entry of judgment. But, as is well said by counsel for appellant, Section 1173 of the Code of Civil Procedure provides that, when a motion for a new trial is made upon a bill of exceptions, the party shall have the same time after service of the notice of intention' to move for a new trial to serve his bill of exceptions, as is provided after entry of judgment by Section 1155, and he shall have ten days after service of such notice to serve a statement of the case, and in either case the judge may extend the time not more than thirty days in addition to the statutory time. Judgment was entered June 9, 1897. Notice of intention to move for a new trial was served and filed June 16. On June 25 an order was made by the judge extending the time until July 26 to prepare and serve bill of exceptions and statement on motion for new trial. Such service was made on July 24. Section 1136, supra, certainly, by its plain language, permits sucli bill of exceptions so saved and used on motion for new trial to be “used on appeal from a final judgment equally ’as upon appeal from tbe order granting or refusing a new trial” for all purposes for which a bill of exceptions containing matter which a, bill of exceptions may properly present on appeal from the judgment alone may be used. The words “any statement,” as used in the section, include a bill of exceptions. We therefore do not consider this point of respondent well taken.

We are of the opinion that the court should have granted the motion for a nonsuit as to the first cause of action, as prayed by defendant’s counsel. The testimony of the plaintiff Whalen, after showing that plaintiffs’ bid for1 $63,100 and that of defendant for $22,598, with one of a stranger, were rejected by the board, discloses the fact that plaintiffs and defendant, after the rejection of their separate bids, made pursuant to advertisement of the board, got together for consultation, all the parties hereto having been interviewed by members of the board, who had said that the bids must be reduced or the plan of the building altered. Whalen testifies that: “It seemed that the school boárd had been talking to Harrison, too, and we spoke to him about it, — that they were going to readvertise for bids, and do something, if they could not get a lower bid, — and asked Harrison what he thought he could do about it; and we told him that we were going to talk with those other parties; and finally he just came right out, and [we] agreed that we would stand $350 if he would stand that, and let it go at that; and, if the school board would stand that, that it was agreeable to us if it was to him.” He also testifies that: “We lost the proposition on the first bid, but afterwards, through an agreement, we were awarded the contract on account of agreeing to make this reduction. They intended to readvertise for bids, but they did not do it.” Also that: “We had an arrangement with Mr. Harrison whereby he was to refund to us tbe difference between $19,000 and tlie amount tbat lie bad previously put in a bid for.” Whalen also states in evidence that: “Before we made a bid we had a little conversation with Harrison about furnishing cut stone for this building. We figured like this: If we could get a satisfactory bid, we would use it; if we couldn’t, we figured that- we could furnish the stone ourselves, and open a quarry; and we had a quarry picked out.”

From the foregoing it seems to be very apparent that both the plaintiffs and the defendant were desirous to prevent the board from doing their duty under the law, to-wit, to re-advertise for bids from all who desired to compete; the bids received under the first advertisement having been all rejected, as conclusively appears. Besides this, Whalen and Grant evidently did not wish to be compelled to put in a new bid including prices for stone, thereby competing with Harrison. The plan was to avoid competition, and to deprive the people of any opportunity to possibly secure the construction of the building for less than $62,400.

We think that such a plan as disclosed by the evidence of the plaintiff Whalen is against public policy. The cases in the reports of decisions are many upon this subject, and the weight of authority is in support of the propositions: (1) As between bidders, each bidder must be left free to act according to his own judgment; (2) it is not the results of the agreement, but the object and possible effect thereof, that determines its validity; and (3) any agreement which, in its objector nature, is calculated to diminish competition for the obtainment of a public contract to the detriment of the public, is void. The authorities are so numerous in support of these principles that we forbear to collate them here, but refer to the discussion of this subject in Greenhood on Public Policy, p-. 178 ei seq.j and the cases cited. Our attention has not been called to any opinion or reasoning which conflicts with the views herein expressed.

Respondents refer us to Briggs v. Tillotson, 8 Johns. 304. In tbis case competition was complete, and the contract complained of was made after full competition was established, certain persons competing for bounty for the manufacture of specimens of cloth; the court holding that, if the contract had been made before complete manufacture of the cloth which was to compete, the contract would have been void. This appears to be against respondents, and not in their favor.

They also cite Whalen v. Brennan, 34 Neb. 129, 51 N. W. 759. But in this case also the law is laid down as we have endeavored to show it to be; for while the court in that case does quote with approval words from another court, to-wit: “You are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty in contracting, and that their contracts, where entered into freely and voluntarily, shall be held sacred, and shall be enforced in courts of justice,” — language which is broad enough, if good law, to make a contract to murder the president of our nation an enforceable agreement. Still the same court does, as we do, declare that “the rule, no doubt, is that any agreement entered into by parties for the purpose of preventing competition in the letting of public contracts is void; and a like rule obtains where the necessary tendency or effect of the contract would be to stifle competition.” This case, therefore, does not support the respondents’ contention under the pleadings and the evidence;

The third case brought to our attention by respondents as authority is the ease of Breslin v. Brown, 24 Ohio St. 565, 15 Am. Rep. 627. In the opinion in that case the court uses this language: “The public policy which, it is supposed, avoids this contract, is that which favors fair and honest competition at public sales, and forbids all contracts and combinations between bidders which stifle competition. We unhesitatingly admit the rule to be that any agreement entered into for the purpose of preventing competition at such sales is * void. * * * So, also, any contract tbe effect of wbieb, or even tbe neeessary tendency of wbieb, is to stifle competition. Sncb contracts are absolutely void as between tbe parties thereto, because tbey are fraudulent as against tbe seller.” Tbis language used in tbis case cited by respondents certainly does not support tbeir contention, but tbe contrary.

Tbe fourth supposed authority named by respondents is Greenhood on Public Policy, page 181. Tbis a reference in Greenhood to tbe case of Breslin v. Brown, supra, in which tbe court, although it laid down tbe law in tbe words we have quoted, decided tbe case, under tbe peculiar facts therein, in favor of the plaintiff, who sued on tbe alleged void contract; but on tbe next page of Mr. Greenhood’s work (page 182) we find that be disapproves of tbe said decision as made. Thus we find no authority cited by respondents supporting tbeir views that the contract under consideration is not void.

Tbe fact is that plaintiffs practically said to Harrison tbis: “We do not wish you again to put in your bid for tbe stone in opposition to us. If you do, we shall be forced to underbid you, if we can, as we have a quarry selected; and then you may not sell any stone at all. If you will put in a bid, and give us a bonus of so much, — that is, tbe difference between $19,000 and tbe face of your bid, $22,248, — we will not bid on tbe stone at all, and thus you and we will prevent any advertising being done, now that tbe first advertising has failed; and so we will get tbis work ourselves in a way not known to tbe law. You will get your money directly from tbe board, and we will prevent any bid being made by others for less than $62,400.” In reason and upon authority we believe such a contract to be void.

We therefore are of tbe opinion that tbe court erred in denying the motion for a nonsuit as to' tbe first cause of action, as the evidence shows tbe contract to be void for tbe reasons above stated.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

Reversed and. rema/nded.

Me. Ciiiee Justice Beantly:

I concur.

Me. Justice Pigott:

I concur specially. With the holding that the court below did not err in refusing a continuance, I agree. I also- agree that the statement and bill of exceptions used on motion for a new trial are properly before us and must be considered on appeal from the judgment. I concur also in the holding that the credibility of the witness Whalen and the weight of his testimony were for the jury, not the court, and that the court erred in directing a verdict for the plaintiffs. For this error the judgment must be reversed. But from the decision that the court below should have nonsuited the plaintiffs in respect of the first cause of action, I respectfully dissent.


source: Caselaw Access Project

author: ME. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    STATE, Respondent, v. STEVENSON, Appellant.
    (No. 1,724.)
    (Submitted January 20, 1902.
    Decided March 3, 1902.)

      Criminal Law — Larceny—Evidence—Corroboration of Testimony of Accomplice — Conspiracy—Possession of Associates ■ — Res Gestae■ — Instructions—Improper Remarles of Counsel • — Exceptions—Review.
    1. under Penal Code, See. 2089, providing that a conviction cannot be had on an accomplice’s testimony unless, he is corroborated by other evidence which in itself tends to connect accused with the commission of the offense, corroborating evidence tending to establish, independently of the accomplice’s statements, the commission of the offense and accused’s connection therewith, is sufficient, though, if the accomplice’s testimony were not considered, the corroborating evidence would be insufficient to convict.
    Where, by a prearranged plan, accused and his associates were to commit 2. a larceny, and sell tlie property, possession of tlie property by the associates pursuant to the criminal purpose may be properly considered against accused, as any incriminating act or statement done or made by one of the parties to a criminal conspiracy during the pursuit of the common purpose is competent against the others as res gestae.

    3. On a prosecution for larceny of five horses pursuant to a prearranged plan to collect a band of horses and sell them, an instruction referring to possession of the stolen property generally, and not to that alleged in the information, is not prejudicial, though erroneous, where the evidence tended to show that the whole band, including the five horses described in the information, was stolen and went into the actual possession of accused.
    4. Although an instruction in a criminal case may be bad, and even prejudicial to the appellant, nevertheless if, so far as criticised by the appellant it is not prejudicial to him, it will hot work a reversal of the judgment.
    5. The prosecution’s reference in argument on trial for larceny to accused’s stealing other property is not reversible error where the court cautioned the jury to be governed by the evidence, and admonished counsel to keep within the record, and accused reserved no exceptions, nor requested any instruction that the jury disregard the remarks.

      Appeal from, District Court, Teton County; D. F. Smith, Judge.

    Jaimes B. SteveNSON was convicted of grand larceny, and from tbe judgment and an order denying bim a new trial be appeals.
    Affirmed.

      Mr. J. G. Blair, for Appellant.
    Tbe testimony corroborative of that of Jacobson was insufficient to convict Stevenson with tbe commission of tbe offense as charged. (Sec. 2089 of tbe Penal Code; Wharton’s Criminal Evidence, 9th Edition, pages 379, 380; State v. Scott, 42 Pac. 1; Poscoe, Criminal Evidence, Yol. I, page 133; State v. Geddes, 55 Pac. 919; State v. Spotted Hawlc, 55 Pac. 1026; State v. Carr, 42 Pac. 215; State v. Welch, 55 Pac. 927.)
    There was prejudicial error on tbe part of tbe court in not promptly stopping counsel and reprimanding bim for bis improper remarks. (Hudson v. State, 28 S. E. 1010; State v. Wright, 42 S. W. 934, 141 Mo. 333; Herren v. People, 62 Pac. 833; Seller v. People, 22 Colo. 11; State v. Stubblefield, 157 Mo. 360.)

      Mr. James Donovan, Attorney General, for tbe State.
   ME. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The defendant was by information charged, jointly with George Jacobson and John Sullivan, with the crime of grand larceny, committed in Teton county on November 28, 1900. The subject of the larceny is alleged to have been five horses branded J. H. L., the property of one Hill and one Messaear. The defendant demanded and was awarded a separate trial. The jury returned a verdict of guilty, whereupon the defendant was sentenced to imprisonment at hard labor in the state prison for the term of 14 years. From the judgment and an order denying him a new trial he has appealed.

The points upon which appellant relies for a reversal of the judgment and order are that the verdict is contrary to the evidence, that the court misdirected the jury in matters of law, and that there were irregularities in the proceedings during the trial by which the defendant was prejudiced.

1. The principal witness for the state was George Jacobson, one of the defendants. It is argued that the evidence is not sufficient to warrant a verdict of guilty, because that portion of it introduced by the state in corroboration of the testimony of Jacobson, an avowed accomplice, does not meet the requirements of the rule of law applicable to such eases. From a patient reading of the record many times we find that the corroborative evidence tends to establish, independently of Jacobson’s statements, not only the commission of the larceny as charged, but also the defendant’s connection therewith. It is true, as counsel contends, that, if the testimony of the accomplice were taken out of the case altogether, and not considered, there would not be sufficient left upon which to submit the case to the jury upon the question of the defendant’s3 guilt; but we do not understand that the statute (Penal Code, See. 2089) requires this amount of corroborative evidence. Its requirement is fully met by evidence which in itself, and without the aid of that of the accomplice, tends to connect the defendant with the commission of the particular offense. (State v. Ged des, 22 Mont. 68, 55 Pac. 919.) Tbe rule contended for by counsel would prevent a conviction upon tbe testimony of an accomplice in any case where there was not a substantial corroboration of it upon every material point. Were this tbe rule, tbe testimony of tbe accomplice would generally be of no value, whereas it is often tbe case that, subject to tbe restriction of tbe statute, it is tbe only evidence upon which tbe state may rely. As was said in State v. Calder, 23 Mont. 504, 59 Pac. 903, tbe statute does not, except by implication, require evidence from independent sources, with respect to tbe corpus de-licti. But, conceding for tbe purposes of this case that it does, tbe evidence adduced by tbe state also meets this requirement; for it tends strongly to show, independently of tbe evidence of Jacobson, that tbe particular larceny testified to by him was in fact committed.

2. Tbe evidence tends to show that tbe larceny was committed by Jacobson and Sullivan in the absence of tbe defendant, but in pursuit of a prearranged plan by which they were to gather a band of horses from tbe range in Teton county, and drive them to Galata, on tbe line of the. Great Northern railway, in Chotean county, where tbe defendant would meet and assist them to load the animals into cars for shipment to market, be having agreed to have cars ready for that purpose. It appears that tbe arrangement was carried out; that Jacobson and Sullivan gathered about 175 animals, including tbe five described in tbe information; that they drove them to' Galata; that they were there met by tbe defendant; that tbe three loaded the horses on the cars; and that, after signing tbe shipping contract under assumed names, all traveled with tbe horses to Sioux City, Iowa, where a sale was effected, and tbe proceeds divided. Tbe defendant was shown to have assumed control of tbe shipping arrangements and to have directed tbe sale. He admitted in giving bis Testimony that be assumed possession with tbe defendants from that point, claiming that be did so on behalf of bis firm in Sioux City.

Touching tbe possession of tbe stolen property as an incriminatory circumstance, tbe court instructed the jury as follows:

“The possession of stolen property by the defendants, or either of them, if believed by you, is a circumstance proper to be considered by you in determining the guilt or innocence of the defendants, or either of them. Corroborating circumstances may consist of any acts, conduct, or declarations of the defendants, or either of them, or any other circumstances tending to' show the guilt of the accused.” Counsel insists that this instruction is erroneous, in that it authorized the jury to consider the possession of the horses by either Jacobson or Sullivan as evidence of the guilt of the defendant, whereas possession by himself only should be considered. As has been said, however, there was evidence tending to show a prearranged plan by defendant and his associates to commit the larceny and to sell the fruits of it. The cause was submitted to the jury upon the theory that the defendant, if guilty at all, was guilty by reason of his having joined in this plan with a view of profiting by the sale. Upon this view of the case the possession by one of the associates of the property stolen in pursuit of the common criminal purpose was the possession of them all, and, as an incriminatory fact, was properly to be considered as against the defendant. Any incriminatory act or statement done or made by one of the parties to a criminal conspiracy during the pursuit of the common purpose is competent as against any of the others as part of the fes gestae. (State v. Byers, 10 Mont. 565, 41 Pac. 708; Wharton’s Criminal Evidence, Sec. 693.) Furthermore, the defendant’s joint possession with his codefendants from the time he appeared at Calata stands as an admitted fact in the case. This being true, the possession of all was the possession of each of them. Upon this theory, and so far as the criticism in question is concerned, fault in the instruction was not prejudicial.

It is also said that the instruction is prejudicially erroneous in that it refers to stolen property generally, and not to that alleged in the information to have been stolen by the defendant. As we understand the purport of this criticism, it is to the effect that the court should have told the jury that possession by the defendant of the property alleged to have- been stolen by him,, if shown, was a fact to be considered by them in the light of the other evidence in arriving at their verdict. As an abstract proposition, the criticism is well made. Generally speaking, the possession of stolen property other than that involved in the case would be no evidence of guilt of the larceny charged. Under the facts of this case, however, no injury could have resulted from the language as used by the court. In other instructions it was fairly submitted to the jury whether the particular animals described in the information were stolen as charged. The evidence which tended to show that they were stolen also' tended to the same extent to show that all the rest of the band wás stolen. The same evidence tended to show that the whole band, including the five described in the information, went into the actual possession of the defendant. If there was any larceny at all, there was a larceny of the whole band, and it was impossible to prove the larceny of the five without proving the larceny of the rest. The possession of the whole band, so- far as it was an accusatory fact in the case, was competent to establish the larceny of the five particular animals described in the charge. The jury could not have found upon the evidence that the defendant and his associates came honestly by the five, but that the rest of the band were stolen: There was no evidence in the case that they, or any one of them, had in their possession any other property than that involved in the larceny of the whole band. The jury could not, therefore, have been misled as to the application which they should make of the language used by the court. For other reasons, which are apparent, the instruction is, to say the least, not a model. We do not approve it. It may have been prejudicial; but, so far as it is criticised by. counsel, we do not think the defendant was prejudiced by it. -

3. During the argument of counsel to the jury one of counsel for the prosecution made use of the following language: “I shall show you (meaning the jury) before I leave Chotean (tlie place of trial) that this defendant, Stevenson, bas not only stolen and skipped from Teton county 175 bead of borses, but that be bas stolen and skipped from this county many times tliat many liorses.” Counsel for tbe defendant objected to tbe irse of this language, and called tbe attention of tbe court to it. Thereupon the court cautioned tbe jury to be governed, in arriving at tlieir verdict, by tbe evidence and tbe law only, and not by remarks of counsel, and admonished counsel to keep within tbe record. It is said by counsel for tbe defendant that, conceding the judgment of conviction to be warranted in other respects, it should be reversed on account of this misbehavior of counsel for tbe state. We have set forth all that occurred at- tbe time. It _ will be observed that tbe court, while not reproving counsel as much as be undoubtedly deserved for overstepping' tbe bounds of propriety -in using tbe language complained of, did stop him from further statements of tbe same character, and cautioned tbe jury to be governed in arriving at tlieir verdict by tbe evidence and tbe law only, and not by tbe remarks of counsel. It appears that for tbe time being counsel for tbe defendant were satisfied with tbe action of tbe court. At any rate, no exception was taken, nor do we find in tbe instructions any request by counsel for a formal instruction to tbe jury to disregard the remarks counsel made- during tlie argument. The court therefore neither failed nor refused to do its duty in tbe premises, and counsel are in no position at this time,-upon tbe record before us, to say that tbe court permitted any prejudicial error to come into tbe case during tbe progress of tbe trial. It is only where tbe court bas failed to do its duty in such cases, and such failure is made to appear in tbe record by proper bill of exceptions, that this court may interfere. It is only tbe action of tbe trial court that this court may review, and not tbe action of tbe prosecuting attorney. So, if it does not appear that tbe trial court bas been guilty of any neglect of duty in the premises, there is nothing before this court for review. (State v. Biggerstaff, 17 Mont. 510, 43 Pac. 709; State v. Cadotte, 17 Mont. 315, 42 Pac. 857 v. State v. Gay, 18 Mont. 51, 44 Pac. 411; State v. Bloor, 20 Mont. 574, 52 Pac. 611; State v. Hurst, 23 Mont. 484, 59 Pac. 911.)

The judgment and order appealed from are affirmed.

Affirmed.

Rehearing denied March 31, 1902.


author: MR. JUSTICE MILBURN

text:
    STATE, Respondent, v. TOWNER, Appellant.
    (No. 1,728.)
    (Submitted January 20, 1902.
    Decided March 3, 1902.)

      Criminal Law — Gambling—Sentence—Payment of Fine — Imprisonment on Default — General Act — Special Statute — Repeal — Effect— Construction of Statutes.

    1. Tenal Code 1893, Sec. 2224, which permitted the court in every case where a defendant, on a conviction of crime, was adjudged to pay a fine, to also imprison him until both fine and costs were satisfied, not exceeding one day for every $2 of the fine and costs, was not in any manner repealed by Laws 1897, p. 81, providing for the imprisonment of one convicted of gambling until the fine and costs were paid, not exceeding five years in the state penitentiary, for the latter act did nothing more than exempt judgments on convictions of gambling from the operation of the general law; and hence, after its repeal, a person convicted of gambling was properly sentenced under the general law.
    2. Penal Codé 1895, See. 2224, permitted the court in every case where a defendant, on conviction of crime, was adjudged to pay a fine, to also imprison him “until the fine and costs were satisfied,” not exceeding one day for every $2 of the fine and costs. Laws 1901, p. 167, Sec. 2, provided for the punishment, on conviction of gambling, by a fine and “imprisonment until the fine and costs were paid.” UelU, that the word “paid” in the latter act was synonymous with the word “satisfied” as used in the general act, and hence a person convicted of gambling could be imprisoned not to exceed one day for every $2 of the fine and costs.
    3. A person cannot complain that lie has been committed for a shorter time than the maximum authorized by law in default of the payment of the fine and costs assessed against him on conviction of a crime.

      Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge.

      T. O. TowNer was convicted of gambling, and appeals.
    Affirmed.

      Mr. G. M. Parr, Mr. Robert B. Smith, Mr. G. M. Sinclair, and Mr. W. H. Levy, for Appellant.
    Tbe title of tbe act of 1897 declares its enactment to be for tbe purpose of repealing “all laws in conflict witb tbis act.” Section 2224 being a law, and in conflict witb tbe act, is by tbe title and Section 11 of tbe act repealed; and thereupon ceased to exist so' far as tbe law of gambling is concerned. Section 2224 was also repealed, regardless of tbe question of whether there was a conflict or not, by tbe fact that- tbe act of 1897 was a general revisory act, which covered the whole subject, crimes, jienalties and all, of gambling. The rule of construction is that, where a later act of tbe legislature covers the entire ground of the subject matter of former laws, as the acts of 1897 and 1901 do, penalties and all; and where they were evidently intended as a substitute for the former law, the same will be repealed though there may be no express words to that effect. (Inman v. State, 47 S. W. Pep. 558; Pulaski v. Doioner, 10 Ark 589; Blackwell v. State, 47 Ark. 488; In re Fordon, 57 Pac. Pep. 376; Little v. Goggsiuell, 20 Ore. 325; Ins. Go. v. Riggon, 48 Pac. Pep. 476.)
    “When it is apparent that a later statute is revisory of the entire matter of an earlier one, and is designed as a substitute therefor, the later substitute will prevail and the earlier one will be held to have been superseded; though there may be no inconsistencies cr repugnancies between them.” (Mack v. Jas-tro et al., 58 Pac. Pep-. 372.) In this case the court said: “We are of the opinion that it was the intention of the legislature to make a new law, so that the present law differed from the former, and that the new law, embracing all that was intended to be preserved, of the old, omitted what was not so intended, because complete in itself, and repealed all other laws on the subject embraced within it. The authorities on this subject are clear and uniform.” (Murdoch v. City of Memphis, 20 Wall. 500; Pierpont v. Crouch, 10 Cal. 315; and County of Sacramento v. Bird, 15 Cal. 295; State v. Conhling, 19 Cal. 501; Charnoch v. Nose, 70 Cal. 189; Black Inter. Laws, page 11G; Sedg. St. and Const, Law, page 124; Fish v. Henarie, 142 II. S. 459; King v. Cornell, 106 U. S. 395; Nisi, of Col. r. Huiton, 143 U. S. 18.) “It is not so much a repeal by implication as it is that the legislature having made a new and complete expression of its will upon the subject, this last expression must prevail, and whatever is excluded therefrom must be ignored.” (Idem; Bemvors v. State, 26 So. Hep. 942; Mercer v. State, GO Pac. Pep. 348.) “An act which repeals by direct reference nearly all the laws on the subject, and then adds a general clause, ‘together with all acts and parts of acts inconsistent herewith,’ and which embraces the entire subject matter of certain prior acts not referred to directly, making changes on the point in question, and adding other provisions, operates as a repeal of such prior acts.’’ (U. S. v. Cheeseman, 3 Sawyer (IT. S.), 424; Peoples. Tinsdale, 57 Cal. 104; State v. Whitworth, 8 Port. (Ala.) 434; 23 Ene. Law, 497, and cases cited.) “The act prohibiting gambling covers the whole ground of the previous statute and includes every offense (and penalty) connected with the subject matter; and as it provides a different and in some respects a milder punishment for these offenses than the previous statutes, it repeals them as far as the same offenses are intended to be punished by it.” (State v. Whitworth, 8 Port. (Ala.), 434; Comm. v. Davis, 11 Gray (Mass.), 48.) “A later statute, the evident intention of which is to furnish the exclusive rule governing a certain, case, repeals by implication an earlier law on the same subject.” (23 Enc. Law, 484; People v. Lytle, 1 Idaho, 143; Druggist Cases, 85 T'enn. 449.) “The general rule that where a statute, not merely cumulative of common law, or of previous statutes, and not made to cure deficiencies therof, is designed to create a new and independent system, and to dispose of the whole subject of legislation, it is the only law upon the subject, and, without express repealing clause, displaces the old rules and statutes.” (Baker v. Bell, 46 Ala. 221; Towle v. Marrett, 14 Am. Dec. 206; 23 Enc. Law, 487, and cases cited.) “Two different punishments for precisely the same offense, with no variation in its elements, and no modifying discretion in the court cannot, in the nature of things, subsist together * * ■ and a milder new punishment repeals a' severer old.” (Bish. Stat. Crimes, Sec. 168.) “Though a subsequent act be not re^ pugnant to a prior one relating to the same subject, if it was clearly intended to prescribe the only rule in relation to the subject it repeals the earlier law.” (Anderson v. Gity of Gam-den, 33 Atl. Hep. (N. J.) 846; People v. Medill, 36 N. Y. S. 534.) “A general revision of an act repeals by implication all former acts on the sainé subject, whether repugnant thereto or not.” (Jernicjan v. TIolden, 16 So. Hep. 41; Buchanan v. Gomm., 25 S. W. Pep. 265; Mersereau v. Mersereau, 26 Atl. Kep. (N. T.) 682.) “The repeal of a statute which was a revision of, and a substitute for, a former act to the same effect which was therefore repealed, cannot be deemed to- revive the previous act, for this would be plainly contrary to the intention of the legislature.’’ (Suth. Stat. Const. Sec. 168; Butler v. Bussell, 3 Cliff. 251; Moody v. Seaman, 46 Mich. 74; Goodno v. Oshkosh, 31 Wis. 127; People v. Supervisors, 67 N. Y. 100; Hams v. Supervisors, 33 Ilun. 279; Milne v. Huber, 3 McLean, 212; State v. Haughter, 70 Mo. 484; State v, Gonlcling, 19 Cal. 501; People v. Tyler, 36 Cal. 522.)
    We contend that the action of the court in calling to its aid Section 2224 of the Penal Code designating the manner in which and the time of imprisonment was wholly unauthorized, because, so far as the act of 1901 is concerned, and the legislation respecting gambling, Section 2224 of the Penal Code has been repealed, not only by necessary implication, but by the exact and expressed provisions of the act of 1897. But the method of enforcing the payment or settlement of a fine under Section 2224 of the Penal Code is so directly and emphatically-in conflict with the method of enforcing payment prescribed in the act of 1901 that Section 2224 would necessarily be repealed by implication, if it had not already'been repealed by the 1897 law, and was not expressly repealed in the 1901 act. Upon this question we desire to submit to the court a few authorities which we believe to be absolutely conclusive of this question: Bright-man v. Kirner, 22 Wis. 55; Somers v. Commonwealth, 33 S. E. 381; Dickinson v. State, 41 S. W. 759; Rogers v. Watro-us, 8 Tex. 62; Cain v. State, 20 Tex. 355 ; Tunstallr. Wormley, 54 Tex. 476; Stirman v. State, 21 Tex. 734; Dillon v. Bicknell, 4-7 Pac. 937; Sedgwick on Statutory Law; Commonwealth v. Kelliher, 12 Allen, 481; United States v. Reese, 92 IT. S. 214; Barnet v. Muncie NatT Bank, 98 U. S. 558; Sutherland on Statutory Construction, Secs. 137, 139; Sacramento v. Bird, 15 Cal. 295-6; Sedgwick on Statutory Construction, page 100 and note; Sedgwick on Statutory Construction, pages 104-5; United States v. Barr, 24 Federal Oases, 14527; Ogden v. Witherspoon, 18 Eed. Cases, 10461.)
    “Penal statutes are to be strictly construed. That is, construed strictly in those parts‘which are against the defendant, but liberally construed in those parts which are in his favor, that is for his ease and exemption. No person is to be made subject to such statutes by implication; and where doubts arise concerning their interpretation such doubts are to weigh only in favor of the accused.” (Hilburn v. St. Paul Ry. Co., 23 Mont. 241; State v. Bryant, 90 Mo. 534, and 2 S. W. R. 836; Bish. Stat. Crimes (2d Ed.), Secs. 193, 194 and 227; Terr. v. Hopkins, 59 Pac. Rep. 976; Enc. Law (2d Ed.), V. 23, page 298, and cases cited; Newell U. Mill Co. v. Muxloiu, 115 N. Y. 170.)
    We confess that an extended reseach has failed to find any authorities bearing directly on this question. Our Penal Code, including Section 2224, we take from that of the state of California. There ¿s a line of decisions of the supreme court of the state beginning with Ex parte Harrison, 63 Cal. 299 ; and end-iug witli Ex parte Sing Ah Tong, 24 Pac. Eep. 181, construing a section similar to our Section 2224 in relation to’ other sections of the same Code. But never, to our knowledge, have the California courts been called upon to construe such a section of the code as to its bearing on the provisions of another and later system of law. On December 3, 1890, the supreme court of the state of AVashington decided the case of Foster v. State, 25 Pac. Pep. 459. In that case the court was called upon to construe somewhat similar sections of the Penal Code. (Code of AYashington of 1883.)

      Mr. Jamas Donovan, Attorney General, for the State.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

Defendant'was convicted of a violation of Section 2 of the Act of the legislature approved March 15, 1901, respecting gambling (Laws of 1901, page 1G6). lie was sentenced-to pay a fine of $100, and to be imprisoned in the county jail until the fine was paid, the imprisonment not to exceed one day for every $2 of said fine. lie appeals from the judgment.

He assigns as error that the court erred in entering judgment. He inquires: “Did the trial court err in sentencing the defendant to imprisonment at the rate of two dollars per day V’ Having argued ihat this question, which is quoted, must be answered in the affirmative, appellant concludes that the judgment is absolutely void.

The validity of the statute is thus attacked, but whether in whole or in part there is no specification to indicate. In the argument, however, we find this language: “Therefore we contend that the judgment of the court pronounced in this cause is absolutely void, and that, so far as the provisions of this Act referring [to] the method of enforcing the payment of the fines prescribed is concerned, the act is unconstitutional and void in that resjiect.” The argument, extending over all of the 37 pages of the brief, -excepting two pages of statement, is devoted to an attempt to show that the passage of Section 1 of the Act of 1897, as to gambling (Laws of 1897, page 81), providing that one fined for a violation of the section “must be imprisoned until sncli fine and costs ai*e paid, such imprisonment not to exceed five years in the state penitentiary,” had the effect of repealing, so far as gambling is concerned, Section 2224 of the Penal Code of 1895; and that the repealing of the Act of 1897 did not reenact said Section 2224; and, further, that the present Act of 1901, so far as it provides that “every person convicted of a violation of Section 2 of this Act must be imprisoned until such fine” and costs are paid,” is unconstitutional and void, said term of imprisonment being perpetual in the case of those amable to pay. Section 2224 of the Penal Code of 1895 is as follows: “A judgment that the defendant pay a fine and costs may also direct that he be imprisoned until both fiare aiad costs are satisfied, specifying the extent of the imprisonment, avhich must not exceed one day for every tavo dollars of the fine and costs.”

A Ye do not believe that the enactment of the statute of 1897, supra, providing in Section 1 that the defendant, if convicted, should be imprisoned until the fine and costs are paid, such Imprisonment not to exceed five years in the state penitentiary, repealed Section 2224 in any avise. It is better to say that, if it affected Section 2224 at all, it excepted the judgment under said section of the gambling laav from its operation.

If the Act of 1897 excepted gambling cases as a class from the operation of said Section 2224, ave are of the opinion that after the repeal of the statute of 1897, making the exception, the general statute, avhich avas in force all the time, avould then be applicable to all cases according to its terms, as is held in Smith v. Hoyt, 14 Wis. 252, and Goodno v. City of Oshkosh, 31 Wis. 131. The repealing of the exception avould leave no exception.

The section (2224) permits the court, after adjudging a defendant to pay d fine, to direct that he be imprisoned until both fine and costs are satisfied, specifying the extent of the impris-eminent, which must not exceed one day for every $2 of the fine and costs.

Upon the question whether said section now applies to the mode of enforcing the collection of the fine and costs under the present law appellant says that upon an extended research he has failed to find any authorities directly upon the matter.

Do' the words “satisfied” (Section 2224, 'Penal Code) and “paid’’ (Section 2, Act of 1901) mean the'same thing? If these words were not intended by the legislature to mean the same in the matter of the penalty for the said offense., then Section 2224 would not apply, because the fine and costs would have to be paid in money, and not satisfied by lapse of time. If, however, the -word “pay” means “satisfied,” as appears to be its meaning (Webster’s International Dictionary; Century Dictionary), then there is no conflict between said Section 2224 and that part of the law of 1901 referred to. If the fine and costs must be paid in money before-the release of the prisoner, then the penalty, in the case of one unable to thus pay, means imprisonment for life, unless the executive interfere to pardon the delinquent offender. But if the law, so far as the mode of collection of the penalty is concerned, is unconstitutional and void, then would not the Section 2224 apply?'But we do not think it necessary to decide whether the law is thus unconstitutional. If it be so, then it would be, in respect of the mode of collection, as if it had never been enacted, and Section 2224 would fix the manner of enforcing satisfaction of the judgment. If it be valid, and the words “satisfied” and “paid” were intended to be and are synonymous in this behalf, then that part of the section of the law of 1901 providing that the defendant shall be imprisoned until the fine and costs be paid is unnecessarily inserted in the Act, as it mean simply imprisonment until satisfaction of .the judgment is made according to law, the law being said Section 2224, and Sections 2225, 2226, 2221, 2228, 2241 and 2242 of the Penal Code.

We are of the opinion that the word “satisfied” in Section 2224 of the Penal Code of 1895 and the word “paid” in the said section of '.he Act of 1901 mean the same thing; that the said section of the Penal Code applies to the enforcing of the penalty under Section 2 of the said Act of 1901; and that the judgment complained of is not invalid, and must be affirmed.

In the oral argument some point was made upon the fact that there is no mention in the judgment of the matter of costs. The defendant cannot complain that the judgment ordered him committed for a less time than might have been ordered in default of the payment of costs.

Affirmed.


text:
    STATE, Respondent, v. WOODMAN, Appellant.
    (No. 1,742.)
    (Submitted January 21, 1902.
    Decided March 10, 1902.)

      Gambling — Niclcel in the Slot Machines — Distribution of Cigars — Constitutional Laiu — Glass Legislation — Statutory Construction.

    1. Conceding that Laws oí 1001, p. 166, See. 2, punishes proprietors of games of chance, while patrons of the game enjoy immunity, it is not unconstitutional as class legislation, no exception being made of the persons who fail within its operation.

      2. Laws of 3001, p. 166, Sec. 2, prohibits the conduct of games of chance, and, among others, that of running a nickel in the slot machine, “for money, checks, credits, or any representative of value, or for any property or thing whatever.” Held, that a nickel in the slot machine, involving in its operation the element of chance as to whether the player obtained in cigars more or less than the value of his money, was prohibited thereby.
    3. The rule of construction that, where general words follow particular ones, they must be construed as applicable to things of the same class, is a rule to be used as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention of a statute or of confining its operation to narrower limits than the legislature intended.

      Appeal from District Court, Leiuis and Glarke County; Henry G. Smith, Judge.

    Elmer E. WoodmaN was convicted of running a nickel in the slot machine in violation of the law, and be appeals.
    Affirmed.

      Messrs. Nolan <& Loeb, for Appellant.
    The law under consideration is unconstitutional, for the reason that it is class legislation. (In re Langford, 57 Eed. 574.) Assuming, however, that the constitutional objection urged is not well taken, we insist that under well settled rules of statutory construction, the use of the nickel in the slot machines for the distribution of merchandise or cigars is not prohibited by the law under consideration. It seems to us that the doctrine of ejusdem generis, universally recognized, would exclude from the operation of this law the use of the nickel in the slot mar-chines for the distribution of cigars. (People v. New York, 84 N. T. 565; People v. Richards, 108 N. Y. 137; State v. Gilmore, 11 S. W. Rep. 620; Com. v. Kemmerer, 13 S. W. Rep. 108; State v. Black, 75 Wis. 492; Alabama v. Montague, 117 IT. S'. 609; Shirk v. People, 121 Ill. 65; Rennick v. Boyd, 99 Penn. St. 555; McDade v. People, 29 Mich. 44; McIntyre v. Ingraham, 35 Miss. 53; Gity of Lynchburg v. Norfolk, etc., 56 A. M. Rep. 592, 80 Ya. 237; State v. McGarry, 21 Wis. 503; American, etc. Go. v. Moore et al., 5 Mich. 368; White v. July, etc., 34 Ga. 199; Com. v. Dejardin, 126 Mass. 47; City of St.

      Louis v. Laughlin, 49 Mo. 559; Power v. Commissioners, 7 Mont. 86.)
    A penal statute must be strictly construed, and no consideration of public policy will allow a court to construe a statute to embrace an offense not clearly within its terms. (Ming v. Truett, 1 Mont. 326; State v. Hays, 13 Mont. 119.)

      Mr. James' Donovan, Attorney General, for the State.
   ME. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The defendant was charged by information with a violation of the Act of the Seventh Legislative Assembly (Laws 1901, p. 166), by willfully and unlawfully running and conducting, and permitting to be run and conducted, a certain nickel in the slot machine for cigars, in his cigar store in the city of Helena. A general demurrer was interposed to the information, and overruled. Thereupon the defendant entered his plea of not guilty. A trial was had, which resulted in a verdict of conviction. A motion in arrest of judgment was overruled, and the defendant Avas sentenced to pay a fine. The facts submitted to the jury Avere embodied in an agreed statement, signed by counsel, and are as folloAvs:- “On the 23d day of September, 1901, Elmer E. Woodman Avas running a cigar store in the city of Helena, LeAAÚs and Clarke county, Montana. On said day he had on his counter Avhat is known as a ‘nickel in the slot machine.’ This machine is a contrivance Avhich has a pack of cards on. rollers, exhibiting five cards at a time, and Avith an aperture for the deposit of a nickel. When the nickel is deposited a spring is pressed, wdiich sets the roller revolving, and when the revolution ceases five cards are brought into AÚeAv out of the fifty-two cards in the pack. Under rules Avhich govern the machine, if in those five cards thus.appearing a pair of kings appears, the player gets one cigar; if a pair of aces, tAvo cigars are paid; if tAvo pairs are shoAvn in the five cards, the player gets two cigars; if three of a kind are sIioaaui, the player gets three cigars; if a straight (that is, five cards of consecutive numbers) or a flush (that is, five cards of the same suit) is shown, the player gets five cigars; if a full hand (that is, three of one kind and a pair) is shown, the player gets ten cigars; and if a straight flush (that is, five cards of consecutive numbers of the same suit) is shown, the player gets twenty-five cigars; and if a royal flush (that is, an ace, king, queen, jack, and ten spot of the .same suit) is shown, the player gets one hundred cigars for five cents. If of the five cards then exhibited in the manner above set forth none of the above combinations appear, the player gets nothing; but the player takes the chance of getting for five cents one cigar, or for five cents he may get two cigars, or for five cents he may get three cigars, or for five cents he may get five cigars, or for five cents he may get ten, cigars, or for five cents he may get twenty-five cigars, or for five cents he may got one hundred cigars, or for five cents he may get nothing. The cigars distributed sell for and are worth twelve and one-half cents each.

On the 23d day of September, 1901, Knute Opheim went into the store of Elmer E. Woodman, and commenced playing the nickel in the slot machine above described. On this occasion he played ten nickels. Eor some of said nickels he received nothing whatever. With some of the nickels the cards appearing were in such combinations that he got nothing whatever, and in one instance the combination of tire cards was such that for the nickel he got two cigars. On the same day August Eack put one nickel into -the slot machine and got nothing whatever, and he put in a second nickel and two pairs of cards were exhibited, and he got two cigars. On the third nickel placed in said slot machine he got nothing whatever. On the fourth nickel he got 'nothing whatever. On the fifth nickel so* placed in said slot machine he got three cards of the same kind, and received three cigars, making a total of five cigars that he got for the five nickels that he deposited. Ed. S. Walker deposited several nickels in said machine on the above-named date, and received nothing whatever for the same. Others on the same occasion deposited nickels in tbe said machine, pressed tbe lever, tlie cards revolved, but they received nothing whatever for the money so deposited. Others deposited nickels in the said machine, and the cards so appeared that they received cigars greater in value than the nickels so deposited. No checks of any kind were used or issued by the defendant Elmer E. Woodman while said machine was being played. This machine was placed, operated and conducted in the city of Helena, Lewis and Clarke county, state of Montana. At the time of the passage of the law under which this prosecution is brought, there were in use and operation in the city of Helena and elsewhere in Montana nickel in the slot machines of different kinds, in the operation of which the player was paid in money instead of cigars; that is, money exclusively.”

The defendant has appealed from the judgment, and, not challenging the sufficiency of the information in other respects, presents for determination two questions raised by his demurrer and motion in arrest of the judgment upon the validity and construction of that section of the statute under which the conviction was had. These questions are: (1) Is'section 2 of the Act unconstitutional because it is class legislation? And, (2) admitting the constitutionality of this section, does the use of a nickel in the slot machine for the distribution of cigars, as shown by the facts in this case, fairly fall within its terms ?

1. The Act is entitled “An Act to prohibit gambling within the state of Montana, to provide penalties for violations of this act,” etc. The parts of it pertinent here are the following:

“Section 1. Every person who deals plays, carries on, opens or causes to be opened, or who conducts or causes to be conducted, either as owner or employee, any game of monte; lans-quentet [lansquenet], rouge et noir, dondo, tan', fan-tan, percentage, stud horse poker, craps, seven and a half, twenty-one, or any banking or percentage game, or any game commonly known as a sure thing game, for money, checks, credits, or any representative of value, or for any property or thing whatever, any peeposcope or nickel-in-the-slot machine, exposing to view lewd, indecent or obscene pictures, is punishable by a fine of not less than' five hundred dollars nor more than one thousand dollars, and every person convicted of a violation of this section must be imprisoned until such fine and costs are paid.
“Sec. 2.' Every person who candes on, opens or causes to be opened or who conducts or causes to be conducted, any game of faro, roulette, drarv poker, stud horse poker, or what is commonly called round-the-t able poker, or solo, or any game of chance played with cards, dice or any device whatever, or who runs or conducts any nickel-in-the-slot machine or other similar machine or permits the same to be run or conducted, other than the games commonly known as sure-thing games, for money, checks, credits, or any representative of value, or for any property or thing whatever, and any person owning or in charge of any saloon, beer hall, bar room, cigar store or other place of business or any place, where drinks are sold or served, who permits any of the games mentioned in this section to be played in or about such saloon, beer hall, bar room, cigar store or other place of business, or place where drinks are sold or served, is punishable by a fine of not less than $100.00 nor more than $1,000.00; and every person convicted of a violation of Section 2 of this Act must be imprisoned until such fine and costs are paid/’

Erom an inspection of these provisions it is apparent that the purpose of the legislature in enacting the first section was to prohibit entirely the games of chance enumerated therein, as well as all similar ones, and to declare guilty of a misdemeanor all persons engaging in them, including the proprietor’s as well as those playing on the outside. All of these games, besides involving the vice of gambling, also afford to the proprietor or dealer an undue advantage over one playing on the outside, enabling him, at will, by fraudulent dealing or the use of unfair devices, to ffeece the unwary. No fault is found with this section, except that it is suggested that the mention of peeposcopes or nickel in the slot machines exposing to view-lewd pictures, etc., extends it to a subject not mentioned in the title, and that it is therefore void to the extent of the provision on this subject. IJpon this point we express no opinion, as no “question concerning it arises here.

Counsel calls attention .to the fact that this section denounces as misdemeanants both the proprietor of the games and those who play at them as patrons, and says that in this respect it makes no discrimination as between persons who engage in the prohibited games, whereas the second section punishes the proprietor only, and grants immunity to the patrons; thus making an unjust discrimination between persons who are under like circumstances fwith reference to the subject of the legislation. In other words, the argument is that, because the second section does not make special mention of the patrons of the games enumerated therein, it affords them immunity, and therefore in this respect contravenes constitutional provisions prohibiting special legislation. There is, perhaps, ground for argument that, though the section does not in terms include the patrons, they might still be held guilty of aiding in the commission of the act declared a misdemeanor, and punished under Sections 19 and 1225 of the Penal Code. These latter provide for the conviction and punishment of misdemeanants, and their aiders and abettors, in cases to1 which no special provision of law is applicable. But disregarding this suggestion, and reserving any opinion thereon, we do not think the objection to the second section on the ground uiged is maintainable. Conceding that the patrons of the games enumerated in this section enjoy immunity, the provision is not obnoxious to any provision of our constitution.

The intention of the legislature, as expressed in this section, was clearly to prohibit proprietory games; that is, to prohibit the opening and running of gambling houses, as well as pro-prietory games in beer halls, bar rooms, cigar stores, or other places of business, or places where drinks are served or sold, for the purpose of gain, either by means of the games themselves or from extra custom attracted by them. The design was - to prohibit the resorts to which those individuals minded to engage in gaming are attracted by means of tlie associations and facilities afforded. It makes no exception of tbe class of persons wbo fall witbin tbe scope of its operation, but' applies to all wlio are brought witbin tbe relations and circumstances provided for by it. Sucb statutory enactments are not special, witbin tbe meaning of tbe clause of tbe constitution prohibiting special legislation. (State ex rel. Lloyd v. Rotwitt, 15 Mont. 38, 37 Pac. 845.) Very many laws do not operate alike upon all citizens of tbe state. They are nevertheless general in their application, because they include all citizens wbo are in a like situation. For example, tbe Penal Code (Section 749) denounces as a felony tbe engaging in, promoting, encouraging, or .instigating a prize fight. It also provides (Section 750) that one who is -willfully present as a spectator at sucb a fight shall be deemed guilty of a misdemeanor only. Tbe validity of this legislation has never been questioned, yet it clearly discriminates between tbe classes of citizens connected with tbe same violation of tbe law. But be wbo engages in or promotes tbe crime actively is properly held to be worthy of a more severe punishment, because be lias enticed others to lend their presence and encouragement to bis criminal enterprise.

It is tbe duty of tbe legislature to recognize tbe different relations tbe citizens bear to tbe subject-matter of tbe particular legislation, and to shape it so as to make it uniform as to all persons in tbe same class. Having done this, it is free to make sucb discrimination as it deems proper between tbe different classes, so¡ long as it violates no express or necessarily implied constitutional prohibition. In this instance, as in many others which might be cited as examples, it has done this, and no just complaint can be made of its action on tbe ground that it has discriminated in favor of a particular class of citizens.

2. Tbe prohibition in tbe statute is against tbe conducting, directly or indirectly, any of tbe enumerated games “for money, checks, credits, or any representative of value, or for any property or thing whatever.” Counsel invoke tbe rule of construction that, where general words follow particular ones, they must be construed as applicable to things of the same class, and contend that inasmuch as the general expression, “any property or thing whatever,” follows the particular words, “money,, checks, credits,” etc., it must be held to include only things ejusdem generis with those specifically named. It follows from an application of this rule, they say, that the general expression does not suggest any special legislative intent, and therefore that nickel in the slot machines for the distribution: of cigars or other merchandise do not fall within the prohibition. As to the character of the machines, the use of which is prohibited,, it is clear from the context that the legislature had in mind those similar to the one shown by the evidence to have been in use by the defendant, the operation of which involves the element of chance. It is not possible that it was purposed to pre>-vent the use of automatic machines to sell gum, salted peanuts,, and other such articles, which always deliver the same amount when the specified price is deposited. Assuming, therefore,, that the statute has no application to, machines of the latter, class, which is the rule of construction applicable to) the expression, “any property or thing whatever” ? In the connection in which it is found, does it include cigars and other articles of merchandise ? We think it does. The rule invoked by counsel is well established. (Sutherland, St. Const. Sec. 268 et seq.) It is, however, but a rule of construction to' be used as an aid in ascertaining the legislative intent, and not for the purpose of controlling the intention of a statute or of confining its operation to narrower limits than the legislature intended. (Id. Sec. 279.) It must be used in connection with other rules of equal importance, such as that the meaning of a statute is to be gathered from the languge employed in it, and that every word of it must be taken in its ordinary signification, unless it was clearly the intention of the legislature, as gathered from the context, to restrict its meaning. (Id. Sec. 279; Black, Interp. Law, Sec. 63; State ex rel. Knight v. Cave, 20 Mont. 468, 52 Pac. 200.) In our opinion, the expression involved here does not call for an application of the rule. It must signify something beyond the specific articles enumerated, or else it must be rejected entirely, as having no import whatever. The enumeration includes every species of property of the classes to which ihe particulars belong. “Money” includes all money; “checks” includes all kinds of articles embraced under that designation; “credits” is a tenn of universal application to obligations due and to become due; and when we consider the expression, “any representative of value,” there is nothing left of any of the classes of property enumerated; and unless the words, “any property or thing whatever,” were designed to include merchandise, such as cigars and similar articles, then, as we have said, it must be rejected entirely as of no import whatever. This may not be done. (State ex rel. Knight v. Cave, supra.)

The evidence submitted shows clearly that the defendant was conducting, by the use of his machine, a species of gambling game which it is the intention of the statute to prohibit. Each person who played with it deposited his money in it upon the chance of obtaining more than he had staked, and he was in fact paid more than the amount of his deposit, or nothing, according to the value of the hand of cards automatically dealt to him. That he was paid in merchandise instead of money does not alter the result.

The conviction was proper, and the judgment must be affirmed.

Affirmed.


author: MR. JHSTIOE PIGOTT

text:
    In re REILLY'S ESTATE. MADIGAN, Appellant, v. HARRINGTON et al., Respondents.
    (No. 1,521.)
    Oat Motion to Dismiss Appeals.
    (Submitted March 5, 1902.
    Decided March 10, 1902.)

      Appeal — Time—New Trial — Notice of Intention — Affirmance or Dismissal — Procedure.
    1. under Code of Civil Procedure, Secs. 1722, 1723, as amended by Laws. 1899, p. 146, providing-that an appeal may be taken from a judgment or order concerning the validity of a will within 60 days after it is made or entered or filed with the clerk, an appeal taken January 5th, 1900, from a judgment refusing revocation of the probate of a will entered on April 8th, 1899, will be dismissed.
    2. Since the notice of intention to move- for a new trial is not one of the-papers required to be sent up by copy by Code of Civil Procedure, Secs. 1176, 1738, but should be embraced in the statement or bill of exceptions, which are of the required papers, where it is not so embraced, though all the papers required by statute are before the court, the dismissal of the appeal is not the proper remedy, but the order denying the motion for a new trial will be affirmed.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Proceedings by Mary Madigan against P. S. Harrington, executor of James M. Reilly, deceased, and others, to revoke the probate of a will. From a judgment for defendants, and from an order refusing a new trial, plaintiff appeals.
    Appeal from the judgment dismissed, and the order denying the motion for new trial affirmed.

      'Mr. D. II. Kehoe, for Appellant.

      Messrs. McIIatton & Cotter, for Respondents.
   MR. JHSTIOE PIGOTT

delivered the opinion of the court.

On the 8th day of April, 1899, there was entered in the district court of Silver Bow county a judgment declaring that a paper purporting to be the last will and testament of James hi. Beilly, deceased, was his last will and testament, and that the will was duly executed, published and witnessed as required by law, and denying the petition of Mary Madigan to revoke the probate thereof. A motion for a new trial was denied. On the 5th day of January, 1900, Madigan filed and served her notice of appeal to the supreme court from the judgment and the order refusing a new trial.

JL. The respondents move that the attempted appeal from the judgment be dismissed, for the reason that it Avas not taken Avithin sixty days after the entry of the judgment. Sections 1722 and 1723 of the Code of Civil Procedure, as amended by House Bill No. 124 (LaAvs of 1899, page 146), provide that an appeal may be taken from a judgment or order against or in favor of the validity of a Avill, Avithin sixty days after it is made or entered, or filed Avith the clerk. The judgment in this case Avas in favor of the validity of a will, and was entered on April 8, 1899. The supposed appeal Avas taken on January 5, 1900, more than sixty days therafter; hence the appeal from the judgment must be dismissed.

2. The respondents move to affirm the order refusing a neAV trial, or (in the alternative) to dismiss the appeal therefrom, upon the ground that the notice of intention to move for a new trial is not contained in any statement on motion for a new trial or bill of exceptions. We are of the opinion that the motion to affirm should be granted. As Ave have repeatedly declared, such notice is not part of the judgment roll, nor one of the papers required by Sections 1176 and 1738 of the Code of Civil Procedure to be sent up by copy. The statement or bill of exceptions on motion for new trial should embrace the notice of intentiou to' move for a neAV trial, Avhich is the initial step toAvards securing a re-examination of an issue of fact. The giving of such notice may, of course, be waived, and the omission from the bill of exceptions or statement on motion for a neAV trial of such a notice, when one has been given, may also be waived. (Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642.) But there is nothing in this case to show a waiver. The very question here raised was decided in Grinnell v. Davis, 20 Montana Reports, 222, 50 Pacific Reporter, 556. We are aware of the contrary rule which prevails in California, and which is announced in Pico v. Cohn, 78 California Reports, 384, 20 Pacific Reporter, 706, and in Kahn v. Wilson, 120 California Reports, 643, 53 Pacific Reporter, 24. We prefer to- follow Grinnell v. Davis, for the reason that the practice should be, settled, and for the further reason that we are inclined to believe the Grmnell Ca¿e is correct on principle.

Counsel for the appellant does not make any pertinent objection to, or argument, or suggestion against the granting of, the motion. Indeed, he frankly admits that unless the notice of intention is properly before us, the cause cannot be heard or determined on its merits. Under these circumstances it should seem manifest that the order appealed from ought to be affirmed. Dismissal of the appeal is not the technically accurate remedy, for the transcript contains the copies of the paper's required by Sections 1176 and 1738 of the Code of Civil Procedure to be furnished on appeal. The requisite papers have been furnished by copy; the defect or omission is in an original paper, namely, the statement on motion for a new trial,

The appe;al from the judgment is dismissed, and the order denying the motion for a new trial is affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT

text:
    BURNS, Plaintiff, v. NAPTON, Judge, Defendant.
    (No. 1,694.)
    (Submitted January 27, 1902.
    Decided March 10, 1902.)

      Bill of Dxcepiiotis — Settlement.
    Where a proposed bill of exceptions and amendments proposed by the adverse party, but not adopted, were neither presented to tae judge within ten days after the proposed amendments were served, nor delivered to the clerk for him within that time, as Code of Civil Procedure, Sec. 1155, requires, the court properly refused to settle the bill, the time not having been extended, and no excuse for the delay being shown.
    Maxdamus by Felix Burns against Welling Napton, judge of tlie Third judicial district.
    Alternative writ quashed, and jn'oceeding dismissed.

      Mr. C. M. Parr, for Plaintiff.

      Mr. Geo. B. Winston, for Defendant.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Mandamus. Original. This is a proceeding in mandamus. Upon application of the plaintiff an alternative writ was issued commanding the defendant, as judge of the district court of Powell county, to settle and sign a bill of exceptions in the, case of Burns v. Kelly et al., or show cause xvhy he did not dc so. The defendant answered, and the cause has been submitted upon the application and answer. On these the plaintiff demands a peremptory writ We have not had the benefit of any argument, oral or written, in behalf of the defendant.

So far as it is deemed necessary to state them, the facts áre these: On May 8, 1901, judgment against the plaintiff was entered in Burns v. Kelly et al. On May 9 the plaintiff pexr-fected an appeal from the judgment. On May 15 the parties to that action stipulated in writing’ that the plaintiff should have twenty days’ additional itme within which to “prepare, serve and file statement on appeal.” On June 3 the plaintiff served on the defendants a draft of his proposed bill of exceptions, and on June 4 delivered it to the clerk of the district court. On June 11 the defendants served on the plaintiff their proposed amendments, expressly reserving the right to object upon several grounds to the settlement of the bill. On June 14 the plaintiff served notice that the proposed amendments would not be adopted. The plaintiff did not within ten days after the service of the amendments, either present the proposed bill and amendments to the judge or deliver them to the cleric for the judge. On June 25, — ¡fourteen days after the amendments were served, — counsel for the plaintiff notified the defendants by letter that he had written to* the “judge asking if he will settle the bill of exceptions in the case of Burns v. Kelly et al." on July 1. The matter of the settlement coming on to be heard on July 1, the defendants objected to a settlement upon many grounds, one being that the plaintiff did not within ten days after service of the proposed amendments present the bill and amendments to the judge upon five days’ notice to the defendants, nor deliver them to the clerk for the judge within ten days after the service of the amendments. The judge sustained the objections and refused to settle the bill.

Section 1155 of the Code of Civil Procedure provides: “When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days after the entry of judgment, if the action was tried with a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action was pending, or a judge thereof, may allow, prepare the draft of a bill, and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken upon which the party relies. Within ten days after such service the adverse paziy may propose amendments thereto- and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter be presented by the party seeking the settlement of the bill, to the judge who 'tried or heard the case, upon five days’ notice to the adverse party, or be delivered to the clerk of the court, or judge. When received by the clerk he must immediately deliver them to the judge, if he be in the county; if he be absent from the county, and either party desire the papers to be forwarded to the judge, the clerk must, upon notice in writing of such parties, immediately forward them by mail, or other safe channel; if not thus forwarded, the clerk must deliver them to the judge immediately after his return to- the county. When received from the clerk, the judge must designate the time at which he will settle the bill, and the clerk must immediately notify the parties of such designation. * * * If no amendments are served, or if served are allowed, the proposed bill may be presented, with the amendments, if any, to the judge or referee, for settlement without notice to the adverse party. * &

It is the settled law in this jurisdiction that the party seeking the settlement of a bill where all the amendments are adopted by him, has a reasonable time within which to present the bill and amendments for settlement and is not limited to the ten day period prescribed for cases where amendments are rer jected. (Woodard v. Webster, 20 Mont. 279, 50 Pac. 791.) If, however, the amendments are not agreed to, the party seeking settlement must, unless the time be enlarged or sufficient excuse for delay be shown, do one of two things within ten days after the service of the proposed amendments: First, he must present the proposed bill and amendments — not one, but both— to the judge upon five days’ notice h> the adverse party; or, secondly, he must deliver the proposed bill and amendments— not one, but both — to the clerk of the court for the judge. Such is the plain language and meaning of Section 1155, supra. In the case at bar the plaintiff neither presented the proposed bill and amendments to the judge (on notice or without notice) nor delivered them to the clerk within ten days after June 11, which was the day on which the amendments were served. We remark, in passing, that if the delivery of the proposed statement on June 4-, had been followed by a delivery of the proposed amendments within the ten days succeeding the service of them, with the avowed intention on the pail; of the plaintiff to leave both the statement and amendments for the judge, the statute might have been satisfied in the respect mentioned; the delivery of the amendments to the clerk for the judge would doubtless be tantamount to a new delivery of the statement. It does not appear that the plaintiff ever delivered the amendments to the clerk. It does not appear that there was any extension of time agreed upon between the parties or granted by the court; nor did the plaintiff offer any excuse for his omission. It was therefore not the duty of the judge, the defendants objecting, to settle the bill proposed. It is hardly needful to cite cases in support of this conclusion; there are many such: Harding v. McLaughlin, 23 Montana Reports, at page 336, 58 Pacific Reporter, at page 865; Henry v. Merguire, 106 California Reports, 142, 39 Pacific Reporter, 599; Connor v. Southern California Motor Road Co., 101 California Reports, 429, 35 Pacific Reporter, 990; Tregambo v. Comanche M. & M. Co., 57 California Reports, 501; Higgins v. Mahoney, 50 California Reports, 444.

In the consideration of this case we have assumed that the stipulation of May 15 with respect to the preparation and service of a “statement on appeal” was sufficient to authorize the service of the proposed bill of exceptions, and that the letter •of June 25 was, in form, sufficient notice of an intended pre-' sentation of the bill and amendments for settlement. These •questions we do not decide but expressly reserve, the determination of either being unnecessary.

The alternative writ of mandate is quashed and the proceeding is dismissed.

Dismissed.