author: MR, JUSTICE1 HOLLOWAY

text:
    WALKER, et al., Appellants, v. PENNINGTON et al., Respondents. BLACKBURN et al., Intervenors and Respondents.
    (No. 1,676.)
    (Submitted January 6. 1903.
    Decided January 19, 1903.)

      Mining Glaims — Location—Declaratory Statement — Description of Corners — Sufficiency.
    Political Code, Section 3611, declares that the locator of a mining claim must define the boundaries by marking a tree or rock or setting a post or stone at each corner, and that, when a post is used, it must be at least 4 inches square by 4 feet 6 inches in length set 1 foot in the ground with a mound of earth or stone 4 feet in diameter by 2 feet high around it. Section 3612 provides that within ninety days of posting the location notice on a claim there must be filed in the * county clerk’s office a declaratory statement, which must contain, among other things, “the location and déscription of each corner, with the markings thereon.” A declaratory statement described each corner as “a stake over four inches square, set at least one foot in the ground, and surrounded with a mound of earth and stone 4 feet in diameter and 2 feet high,” etc. The corner posts were in fact 4% feet high. Held¿ that the description of the corner posts was a substantial compliance with the statute, and not fatally defective for failure to state, that the corner posts were 4% feet high.

      Appeal from District Court, Madison CountyM. H. Parker, Judge.

    Aotion by William Walker and others against M. PL Pennington and others. Prom a judgment for defendants, plaintiffs appeal.
    Reversed.

      Mr. W. A. Clark, and Mr. Lew L. Callaway, for Appellants.

      Mr. J. N. Kirk, for Defendants and Respondents.

      Mr. G. M. Parr, for Intervenors and Respondents.
   MR, JUSTICE1 HOLLOWAY

delivered the opinion of the court,

In this action the plaintiffs claim ownership and right of possession of tbe Dictator lode mining claim, situate in Madison county; Montana, and brought this action to recover damages for trespass upon and for ores extracted from sucb claim, and to secure an injunction restraining defendants from a repetition of tbe acts complained of. Tbe answers of tbe several defendants (some of whom are designated “intervenors”) deny the ownership of tbe plaintiffs to tbe ground in controversy, and put in issue tbe validity of the location under which tbe plaintiffs claim, and set up claim to the same ground as follows: Defendant Pennington, by virtue of the Excelsior lode mining claim, located upon tbe same ground; tbe defendants John E. Deno, Frank B. Deno, and Mack El Stacy, by virtue of the Mountain View lode mining claim, located upon tbe same ground; and tbe defendants George M. Barry and George E. Blackburn, by virtue of the Copper Bell lode mining claim, located upon the same ground. Upon tbe trial of tbe cause tbe plaintiffs offered in evidence their declaratory statement which bad been made and filed by them in tbe office of the county clerk and recorder of Madison county, and which is as follows:

“Notice of Location and Declaratory Statement of Discovery and Claim to Quartz Lode Mining Claim. Dictator Lode Mining Claim, unorganized Mining District, Madison County, State of Montana.
“Tbe undersigned, who are citizens of tbe United Statesj hereby declare and give notice to all persons concerned that they did, on tbe eighth day of November, A. D. 1899, discover a quartz lode or vein bearing gold, silver, cinnabar, lead, tin, copper, and other valuable metals and deposits, to be known as the 'Dictator Quartz Lode Mining Claim/ and did on said day duly locate and claim, by virtue of chapter 6 of title 32 of the Revised Statutes of the United States (U. S. C'omp. St. 1901, p. 1422) and the laws of the state of Montana, three hundred feet in a northerly direction and twelve hundred feet in a southerly direction from the center of tbe discovery cut and shaft (at which cut and shaft this notice and statement, is posted), and three hundred feet on each side from the middle' or center of said lode or vein at tbe surface; comprising in all 1,500 feet in length along said vein or lode, and 600 feet in width. The general course of said vein or lode is northerly and southerly. This lode is situated in (unorganized) mining district, in the county of Madison and state of Montana, and is about one-half of a mile wést of the dwelling house of Alex. McKay, on Bevin’s Gulch, in Madison county, Montana, and joins the Bell Union lode claim on the north. The exterior boundaries of this location are distinctly marked by posts or monuments at each corner of the claim, so that its boundaries can be readily traced, viz.: Beginning at a red pine tree in center of north end line, 300 feet north of discovery shaft and cut, and running thence in a westerly direction 300 feet to corner No. 1, northwest location corner, a stake over four inches square, marked ‘Cor No. 1, N. W. Cor., Dictator Lode, Located Nov. 8th, 1899, William Walker and Lane Walker, Locators;’ thence running in a southerly direction 1,500 feet to southwest location corner, cor. No. 2, a stake over four inches square, marked ‘Cor. No. 2, S. W. Cor., Dictator Lode, Located Nov. 8th, 1899, William Walker and Lane Walker, Locators;’ thence running in an easterly direction 600 feet to S. E’. location cor., cor. No. 3, a stake over four inches square, marked ‘Cor. No. 3, S. E. Cor:, Dictator Lode, Located Nov. 8th, 1899, William Walker and Lane Walker, Locators;’ thence in a northerly direction 1,500 feet, to northeast location cor., cor. No. 4, a stake over four inches square, marked ‘Cor. No. 4, N. K'. Cor., Dictator Lode, Located Nov. 8th, 1899, William Walker and Lane Walker, Locators;’ thence in a westerly direction 300 feet to center red pine tree, place of beginning, a red pine tree over four inches square, marked ‘Center Stake, Dictator Lode, Located Nov. 8th, 1899, William Walker and Lane Walker, Locators.’ Each of said corner stakes and end stake is set at least 1 foot in the ground, and -surrounded with a mound of earth and stone foiir feet in diameter and .two feet high. The dimensions of the discovery cut and shaft are as follows: Cut 35 feet long and four feet wide along the vein, and a shaft four feet deep at end of cut. That in said discovery cut and shaft is shown a welbdefmed crevice and valuable deposit of gold, copper, and silver bearing ore. Tbe undersigned intend to bold tbis claim, with all tbe rights and privileges as to surface ground and lodes, veins, or ledges within tbe boundaries of said claim and otherwise, and the metals, minerals, and valuable deposits of every kind contained in said veins, lodes, or ledges, or within said boundaries, which are given or allowed by the laws of the United States aforesaid, or of the state of Montana; and to record this notice and statement, under oath, in the county recorder’s office of said county, as provided by law.
“Dated this thirteenth day of December, 1899, and signed.
“J. L. Waleer,
“WlLLIAM WALKER,,
“Locators and Claimants.”

(With proper affidavit.)

To this offer the defendants objected on the ground that it was incompetent, irrelevant, and immaterial, and further upon the ground that such declaratory statement does not comply with the requirements of Sections 3611 and 3612 of the Political Code of Montana, which objection was by the court sustained. Plaintiffs then made the following offer to prove: “Now come the plaintiffs, and offer to prove by the witness William Walker, now on the stand, the following facts: That upon the 8th day of November, 1899, he discovered a vein or lode upon what is known and called the ‘Dictator Lode,’ situated in unorganized mining district in Madison county, Montana, about one-half mile westerly from the dwelling house of Alexander McKay. That upon that day he posted upon said claim a notice containing the name of the lode, the name of the locators, the date of the location, and the number of linear feet claimed in length along said lode on each side from the point, of discovery. That within ninety days thereafter he staked the boundaries of said lode by putting at each corner of the claim a stake five and one-half feet in height, four inches square, set one foot in the ground, surrounded by a mound of earth four feet in diameter and two feet high; each of said corner stakes being marked with the geographical name of the corner, the number of the corner, the date of the location, the name of the location, and the names of tbe locators. That within said ninety days he caused a cut to be run upon said Dictator lode claim, — a cut along the vein thereof 35 feet long, 4 feet wide, and 4 feet deep; and that in said cut or shaft was a well-defined crevice or valuable deposit of gold, copper, and silver bearing ores. That within the said ninety days he caused to be made and filed 'for record in the office of the county clerk and recorder of Madison county, Montana, a notice of location of the Dictator lode. That at the time he made the location and discovery of the Dictator lode the ground located by him as said Dictator lode was open and unappropriated mineral ground of the United States. That he entered into possession of the said Dictator lode, and proceeded to work and mine the same. That on or about the 27th day of November, 1899, and prior to the commencement of this action, the said defendants Pennington, Prank B. Deno, John £. Deno, and Mack El Stacy, Frank Dean, and Thomas Murphy, entered upon said premises claimed by plaintiffs as the- Dictator lode, and proceeded to mine and extract therefrom valuable ores, and did mine and extract therefrom valuable ores to the value of $200, and that the plaintiffs were damaged by the acts of these defendants in the sum of $200, and that this damage has never been paid,” — to which defendants objected on the ground that the evidence was incompetent, irrelevant, and immaterial; which objection was sustained by the court, and thereupon a motion for nonsuit was interposed and sustained, and a judgment for costs rendered against the plaintiffs, from which judgment this appeal is prosecuted.

The only questions presented here are: First, did the court err in excluding the declaratory statement? and, second, did it err in excluding the offered testimony, in granting the motion for nonsuit, and in entering judgment against the plaintiffs for costs?

The objection made to the introduction of the declaratory statement is predicated upon the proposition that it does not comply with the requirements of Section 3612 of the Political Code. Unless one had been enlightened, it is no easy task to discover the defect claimed to exist, but a careful examination of tbe declaratory statement discloses tbe fact that in describe ing tbe corners of tbe claim no mention is made of the length of the posts used, and tbis is tbe only defect in tbe statement to wbicb tbe attention of tbis court bas been drawn'.

Section 3611 of tbe Political Code provides, among other things, that tbe locator of a mining claim must define -the boundaries of bis claim by marking a tree or rock in place, or by setting a post or stone at each corner or angle of bis claim. When a post is used, it must be at least four inches square by four feet six inches in length, set one foot in the ground, with a mound of earth or stone four feet in diameter by two feet in height around tbe post. Section 3612 is as follows: “Within ninety days of tbe date of posting the location notice upon tbe claim, there must be filed in tbe office of tbe county clerk of tbe county in wbicb tbe lode or claim is situated, a declaratory statement, wbicb must contain: (1) Tbe name of tbe lode or claim. (2) Tbe name of tbe locator or locators. (3) The date of location, and such description of tbe location of said claim with reference to some natural object or permanent monument as will identify tbe claim. (4) If a lode claim, tbe number of lineal feet claimed in length along tbe course of the vein each way from tbe point of discovery, with tbe width on each side of tbe center of tbe vein, and tbe general course of tbe lode or vein as near as may be. (5) If a placer or mill site claim, tbe number of acres or superficial feet claimed. (6) Tbe dimensions and location of tbe discovery shaft, or its equivalent, sunk upon lode or placer claims. (7) Tbe location and description of each corner, with tbe markings thereon. Such declaratory statement must be verified by the oath of the locator, or one of tbe locators, and in case of a corporation by an officer thereof duly authorized to act.”

Tbe declaratory statement under consideration, then, is conceded to meet fully all tbe requirements of tbis section, except such as are contained in subdivision 7 thereof, which subdivision requires that tbe declaratory statement shall show on its face: (a) the location of each corner,- (b) tbe description of each corner; and (c) tbe markings on each corner. There is no contention made that the declaratory statement under consideration does not meet fully the requirements “a” and “c,” above, and the case then hinges upon the interpretation of the phrase “the description of each corner,” and its application to the facts in the case at bar.

What is the description of each corner as given in this declaratory statement? A consideration of the description of one of the corners as contained in this declaratory statement will apply to all, and will be sufficient for this discussion, as the description is alike to all, except that the geographical initials are different, on the different posts to indicate; their positions. The northwest corner is thus described: “A stake over four inches square, set at least one foot in the ground, and surrounded with a mound of earth and stone four feet in diameter and two feet high, and marked 'Cor. No. 1, N. W. Cor., Dictator Lode, located Nov. 8th, 1899, Win. Walker and Lane Walker, Locators.’ ” Is this a description within the meaning of that term as used in Subdivision 7 of Section 3G12, above ? It is certainly a description; but it is contended by respondents that, as Section 3G11 requires that such corner posts must be at least- four feet six inches in length, that fact must also appear from the face of the declaratory statement, and, if it does not, the statement is absolutely void. In support of this contention the case of Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153, is cited. In that case the declaratory statement offered contained the following: “This location is distinctly marked on the ground, so that its boundaries can be readily traced, by a stake set at discovery shaft, where this notice and statement is posted this 15th day of October, A. D. 1895, and by substantial posts or monuments^ of stone at each corner of the claim; and the exterior boundaries of the claim, as marked by said posts or monuments, are as follows, to-wit: Beginning at the N. E. corner, No. 1, a nut pine tree on the south bank of Cataract creek, about V> mile S. W. of Mammoth Lake, and extending 1,500 feet in a westerly direction to N. W. corner, No. 2, on the southwest bank of Cataract Lake; thence southerly direction, GOO feet, to corner No. 3 ; thence easterly 1,500 feet to corner No. 4, which corner is a balsam a fir tree,; tbence north 600 feet, to place of beginning.” The decision of this court in Pwrctum, v. Laddin, above, is, in effect, that the declaratory statement offered in evidence in that case was not a substantial compliance with the requirements of Section 3612, and nothing more. In that case it was said: “In granting a new trial, the district court did not err. Section 3612 of the Political Code provides that within ninety days from the date of posting upon the claim the location notice required by Section 3611 there must be filed with the county clerk a declaratory statement, which must contain, among other things: ‘(7) The location and description of each comer, with the markings thereon.’ The statute is mandatory, and substantial compliance with its provisions is necessary to perfect a valid location.” Prom that declaratory statement it will be observed that no attempt is made at any description whatever of at least two of the corners. It cannot be ascertained whether they are trees, rocks in place, or posts, and no statement of the markings on any of the corners is pretended to be made; and, if it be conceded that the description of the corners in the declaratory statement offered in evidence in this case might have been made more exact by giving the length of the corner posts, it cannot be said that the omission to do so renders it absolutely void, or that no description is given because of such omission.

In.the judgment of this court the decisión in the case of Purdum v. Laddin, above, has little or no application to the facts in this case; but, so far as the statement contained therein to the effect that the provisions of Section 3612, above, are mandatory, and that substantial compliance therewith is necessary to perfect a valid location, is concerned, we have no> hesitancy in here reaffirming it.

In discussing the same sections (Sections 3611, 3612) of our Code, as well as the statutory requirements of other states upon the same subject, Mr. Lindley, in his work on Mines, says: “While the requirements of these several laws should be fulfilled to a reasonable degree, a substantial compliance, where the good faith of the locator is manifest, would undoubtedly be held sufficient. Such statutes are, as a rule, liberally construed. Slight variations should not be permitted to invalidate a location otherwise valid.” (Lindl. Mines, Sec. 374.) And ag’ain: “To hold him [the miner] to absolute technical strictness in all the minor details, would be practically to defeat the manifest end and object of the law. The pioneer prospector, as a rule, is neither a lawyer nor a surveyor. Neither mathematical precision as to measurement nor technical accuracy of expression in the preparation of notices is either contemplated or required. The law, being designed for the encouragement and benefit of the miners, should be libei'ally interpreted, looking to substance, rather than shadow, and should be administered on the lines of obvious common sense.’ Mere imperfections in the certificate will not render it void.” (Id. Sec. 381.)

We conclude, therefore, that the declaratory statement offered in evidence by the plaintiffs was a substantial compliance with the requirements of Section 3612, above, and that in excluding it the trial court committed error.

No contention is made that, as a matter of fact, the comer posts on the claim were not four feet six inches in length; on the contrary, the plaintiffs offered to prove that to be the fact, but this evidence, along with the other evidence necessary to make out plaintiffs’ prima* facie case, was excluded evidently upon the ground that, the declaratory statement having been excluded, it was not competent for the plaintiffs to prove the facts contained in their offer to prove by oral testimony. In this, we think the district court erred, and, as the judgment of nonsuit is based upon the failure of plaintiffs to prove the very facts contained in their declaratory statement and offer to prove, it follows that the judgment itself was erroneously entered.

The judgment is reversed, and the cause remanded, with directions to the district court to proceed in accordance with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: MR. JUSTICE MILB'URN

license: Public Domain

text:
    STATE, Respondent, v. COURTNEY, Appellant.
    (No. 1,760.)
    (Submitted January 5, 1903.
    Decided January 21, 1903.)

      Statutes — Implied Repeal — Constitution—Enactment of Statutes — Subject Expressed in Title — Sufficiency—Amendatory Act — Liquor Licenses.

    1. Political Code, Section 4063, declares that every person who sells intoxicating liquors in less quantities than one quart must obtain a license at specified rates therefor. Section 4064 provides that every person who, at a fixed place of business, sells any merchandise, wines or liquors, shall pay a license of a smaller sum. Section 4065 declares that the sale of liquors by persons licensed under the preceding section must not be in less quantity than one quart. House Bill No. 162 of the session of 1807, was entitled, “An Act to amend Sections 4063, 4064, 4065, 4068 and 4083 of the Political Code,” etc., and Section 4063 was in fact amended by putting sellers of all kinds of intoxicating liquors into two classes, towit, those who sell in quantities less than one quart, and those who sell in quantities not less than one quart. Section 4064, though mentioned in the* title of *the amend-atory act, was not mentioned in the body of the act; but Section 4065 was amended so as to leave out all reference to Section 4064, and those who sell liquors under the provisions of that section. Held, that, though not mentioned, Section 4064 was amended by implication, so that after the passage of the act of 1897 a person was not entitled to sell liquors under the merchant's license provided for in Section 4064.
    2. As Section 4064 was impliedly amended so as to remove wholesale liquor dealers from the purview of that section, there is no conflict between it and Section 4063, so that Section 5165, declaring that, if conflicting provisions are found in different sections of the same chapter or article, the provisions of the section last in numerical order must prevail, etc., does not apply to the two sections.
    3. House Bill No. 162 of the legislative assembly of 1897 was entitled “An Act to amend Sections 4063, 4004, 4065, 4068 and 4083 of the Political Code, and to add to Article II, Chapter XII, Title X, Part III, of the Political Code, a section to be numbered 4084 regarding licenses.” • The sections referred to contained provisions relative to licenses of wholesale and retail liquor dealers and retail merchants, etc. Held, that the" subject of the act was clearly expressed in its title, so as not to be within the prohibition of Constitution, Art. Y. Section 23, declaring that no bill shall be passed containing more than one subject, which shall be clearly expressed in its title.
    4. Under the direct provisions of Constitution, Art. V, Section 23, declaring that no bill shall contain more than one subject, which shall be expressed in its title, if any subject is embraced in an act which is not expressed in its title, such act is void only as to so much as is not so expressed.
    5. House Bill No. 162 of the legislative assembly of 1897 is entitled “An Act to add to Art. II, Chapter XII, Title X, Part III, of the Political Code, a section to be numbered 4084.” Section 6 of the act purports to add a section, to be numbered 40S4, to Article II, Chapter XIII, Title X, Part III, of the Political Code. The proposed Section 408^= adds a penalty of 10 per cent to the amount of certain liguor licenses in case acf'on is brought to collect the same. Political Code, Section 4044, directs $15 damages to be included in the judgment in case of a suit on liguor license and a recovery. In a suit to recover a liguor license after the passage of the proposed amendment, judgment was rendered for $15 damages, which was less than 10 per cent of the amount of the license. Held, that on appeal it" was unnecessary to decide whether the failure to mention Section 4084 properly in the title would render the section invalid, as the amount of damages awarded did not exceed that authorized by Section 4044.

      Appeal from District Court, Silver Bow Countyy John Lindsay, Judge.

    ActioN by the state of Montana, against Dennis C. Courtney, as administrator of the estate of Thomas F. Courtney, deceased. From a judgment for plaintiff, defendant appeals.
    Modified and affirmed.

      Messrs. McHatton & Cotter, and Mr. George F. Shelton, for Appellant.
    In the title to House Bill 162 the specific changes proposed are designated. The amendment of certain sections being specifically limited to the sections named, any further changes are precluded hy the specific enumeration of those sections. {Board v. Aspen M. & S. Co. (Colo'.), 32 Pae. 717; Fx parte Hewlett ^{Hqy.~); 40 Pac. 96; Sutherland on Stat. Constr. Sec. 87; Cooley on Const. Lim. 178; State v. Bankers, etc. Mut. Ben. /lssbi,, 23 Kan. 499; State v. Board of Commissioners, (Nev.), 41 Pac. 145.)
    The title is misleading. The act does not conform to the constitutional requirements; it contains numerous subjects not germane to each other on the subject matter of the act, and is therefore null and void. {People v. Flemming (Colo.), 3 Pac. 70; Callahan v. Jennings (Colo.), 27 Pac. 1055 ; Armstrong v. Mayer (Neb.), 83 Nl TV. 401; Howard v. Schneider (Kan.) 62 Pac. 435.)
    Under the constitution of Montana the title is an indisqiensa-hle part of the act. The true and actual subject of the act must be clearly expressed. To constitute a sufficient reference to the subject in the title within the constitution, there must be a reference to specific sections and a statement of the object. An act to amend certain sections of tbe Code, which, refers in the title to sections by number, without specifying the subject of the legislation, is null and void. (State v. Mitchell, 17 M'ont. 67-76; State v. Anaconda G. M. Go., 23 Mont. 498; Webster v. Powell, 36 Fla. 703, 18 South. 441; People v. Judges, etc., 39 Mich. 195; Wall v. Garrison, 11 Colo. 575, 19 Pac. 469; People v. Hills, 35 N. Y. 449; Tingue v. Village of Fort Ches-ter101 N. Y. 294; Harland v. Terr. Wash., 13 Pac. 453; People v. Godway (Minn.), 28 N. W. 101; State v. Smith, 35 Minn. 257, 28 N. W. 241; State v. Bowers, 14 Ind. 195; Boring v. State, 144 Ind. 640, 41 N. E. 270; Gunter v. Texas L. & M. Go., 82 Tex. 496, 17 S. W. 840.)
    Where the title of the act indicates more than one subject, the act must fail. Where, however, the title of the act only indicates one subject, and more than one subject is embraced within the provisions of the act, if these subjects are separable and distinct, the act may be sustained as to the subjects mentioned in the title and declared null as to the others. (Skinner v. Wil-heinn, 63 Mich. 568; State v. Ferguson, 104 La. 249, 28 So. 917; Cooley on Const. Lim. 177; Antonio v. Gould, 34 Tex. 49; State v. McCracken, 42 Tex. 283; Board v. Aspen, etc. Go. (Colo.), 32 Pac. 717.)
    As the title of the act refers to a chapter of the Political Code that has no existence, the provision is void; one Chapter of the Code cannot be amended or changed by an act professing in its title to amend or change another chapter. (State v. Tibbets, 52 Neb. 228, 71 N. W. 990; Weis v. Ashby (Neb.), 81 N. W. 318; Fx parte Hewlett (Nev.), 40 Pac. 96; Cooley on Const. Lim. p. 172.)
    Section 4064 is not mentioned in the body of the act, consequently there is no amendment thereof under the provisions of Constitution, Article Y, Section 25. (In re Buelow, 98 Ped. 86.)
    Sections 4063 and 4064 must both stand unless there is an irreconcilable inconsistency between the two. (Orosby v. Patch, 18 Cal. 439.)

      Repeal of a statute by implication is not favored, and it will not be presumed tbat by a subsequent act the legislature intended to* repeal a former law unless the repugnancy between the two acts is irreconcilable or the latter revises the whole subject matter of the former. (Jobb v. County of Meagher, 20 Mont. 424-433; Gongdon v. Railroad Go., 17 Mont. 481; State v. Anaconda G. M. Go., 23 Mont, 498; Sutherland on Stat. Con. Sec. 152.)

      Mr. James Donovan,-Attorney General, for the State.
   MR. JUSTICE MILB'URN

delivered the opinion of the court.

This is an appeal from the judgment of the district court against the administrator, substituted for the intestate, against whom suit was commenced in his lifetime. The cause, after the overruling of a demurrer to the complaint, was tried and determined upon the facts set forth in a statement agreed to by the parties.

During all of the time mentioned in the complaint, said Thomas E. Courtney did business in Butte as a merchant, having a fixed place of business, selling divers kinds of merchandise, including spirituous, malt, vinous and fermented liquors and wines in quantities not less than one quart; the sale of such wines and the like being a small part of his general business. He had a license duly issued under the provisions of Section 4064 of the Political Code, the amount paid for the license being that required by subdivision 1 of the section. He did not at any time have a license such as is mentioned in Section 4063 of the Political Code^ as amended by House Bill 162 of the Fifth session of the legislative assembly of 1897, which was in force during all the time mentioned in the complaint. The county treasurer demanded that he take out a wholesale liquor license under said Section 4063, but he refused to do so-, claiming that he had all the license which the law required, in that he had a license to conduct the business of a general merchant, including the privilege of selling bis stock of general merchandise, — 'wines and the like being part thereof; and he relied upon Section 4064, supra. The court adjudged that the defendant pay a liquor license fee of $450, the sum of $3 for issuance of the license, and the penalty of $15, — total, $468, — with interest and costs as prayed.

The alleged errors are: (1) Overruling the demurrer; and (2) rendering judgment for the plaintiff.

House Bill 162 is entitled: “An Act to amend Sections 4063, 4064, 4065, 4068 and 4083 of the Political Code of Montana, and to add to Article II, Chapter XII, Title X, Part III, of the Political Code, a Section to be numbered 4084 regarding licenses.” It is contended by appellant that the act is null and void under Section 23, Article V, of the Constitution of the state, which is as follows: “No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subj ect which shall be clearly expressed in its title; but if any subject shall he embraced in any act which shall not be expressed in the title, such act shall be void only as h> so much thereof as shall not be so expressed.”

The points made by the appellant under the two assignments are that the complaint does not state a cause of action, “that the title of said act does not clearly express the subject thereof, that there are subjects embraced in said act which are not expressed in the.title thereof, and that the said act contains numerous subjects which are not germane to each other, or to the section of the Code which they purport to amend.”

This Act amends Section 4063 of the Political Code. Section 4064 of that Code is as follows: “Every person who at a fixed place of business sells any goods, wares or merchandise, wines or distilled liquors, drugs or medicines, jewelry or wares of precious metals, whether on commission or otherwise, and all butchers, must obtain from the county treasurer in which the business is transacted, and for each branch of such business, license, and pay quarterly therefor an amount of money to be determined by the class in which such person is placed by the county treasurer; such business to be classified and regulated by tbe amount of tbe monthly average sales made, or hiring done, and at tbe rate following: Those who are estimated to make average monthly sales to tire amount: " * * (7) Of ten thousand dollars, and less than twenty thousand dollars, constitute the seventh class, and must pay twelve dollars per month. * * *” Although mentioned in the title of the Act of 1897 amending the license laws, Section 4064 is not expressly referred to in the body of the Bill by number or otherwise. Appellant is of the opinion that therefore Section 4064 is not amended, but stands as enacted in the Political Code of 1895. The position of the appellant is that tire Act comes within the inhibition of the constitution, and is altogether void, but, if it be sustained in any part, such part of it as is susf tained will not support the judgment.

Section 4063 of the Political Code, of 1895 was the liquor license law, governing sales of quantities less than one quart. It said nothing about sales in quantities of one quart or more. In the Act of 1897 this Section 4063 was amended, and sellers of all kinds of wines and the like were in the section put, respectively, into two classes, A and B, — to-wit, those who sell in quantities less than one quart, and those who sell in quantities not less than one quart. Clearly, under the Code of 1895 (Section 4064), a merchant’s license, graduated according to the amount of monthly sales, was all that could be required of one who sold “wines or distilled liquors” in quantities not less than one quart,- — -using the words of the section, — whether or not he sold groceries or any other merchandise at the same “fixed place of business.” But under the Act of 1897, at the time mentioned in the complaint, Section 4064 had been amended. As we have said, although mentioned by its number in the title, it is not so referred to in the Act. But Section 4065 in the Code of 1895 refers expressly toi the preceding section, 4064, and declares that the‘Vines and distilled liquors alluded to shall not be sold in.quantities less than one quart; thus clearly making an ordinary merchant’s license the proper and only one to be had for such sellers. The Act of 1897 leaves out all reference to- Section 4064, and those who sell wines and liquors under .the provisions of the latter section. Considering. these facts, and the further one above stated, — 'that class B of Section 4063, as amended in the Act, treats only of such liquor sellers as were formerly included in the provisions of Section 4064, — it is clear that at the time mentioned in the complaint the last utterance of the will of the people, through the legislature, was that all sellers of wines, liquors, and the like, whether grocers or others, should pay a liquor seller’s license. Section 4064 is clearly amended, so far as the sellers of wines and distilled liquors are concerned, by necessary and very strong implication; the conflict clearly appearing in the then last utterance of the legislature in the Act of 1897, although said section is not mentioned or expressly alluded to by its number in the Act.

Appellant relies upon Section 5165 of the Political Code, which reads: “If conflicting provisions are found in different sections of the same chapter or article, the provisions of the section last in numerical order must prevail, unless such construction is inconsistent with the meaning of such chapter or article.” Why does the section last in numerical order prevail ? Because, if not inconsistent with the meaning of the chapter or article, it is the last utterance on the subject. If the legislature in the Act of 1897 had not amended Section 4063 to include wholesale liquor dealers, formerly included in Section 4064 of the Code of 1895, then the rule expressed in Section 5165 might apply, as contended for; but the legislature, with Section 4064 before it, evidently considered it when it so' amended Sections 4063 and 4065, although it hunglingly failed, in express terms, to amend Section 4064 by striking out the words “wines and distilled liquors.”

This being our view of the law respecting the amendment of Section 4063, if the Act be vali<¿ under the constitution, we hold that the complaipt states a cause of action.

Is the Act valid, or is it, as appellant believes, void, as falling under the inhibition of said Section 23 of Article V of the Constitution ? Does tbe title of tbe Act, above stated, clearly express tbe subject of tbe Act ?

Tbe Minnesota constitution (Article IV, Sec. 27) provides that “no law shall embrace more than one subject, which shall be expressed in its title.” In Kelly v. City of Minneapolis, 57 Minn. 294, 59 N. W. 306, 26 L. R. A. 97, 47 Am. St. Rep. 605, tbe supreme court, in a long opinion, covering several points, summarily disposed of tbe point that tbe act under consideration was void, in tbe following language: “Appellants claim that said Chapter V, Sp. Laws 1885, is unconstitutional, because tbe subject of tbe act is not expressed in the title. Tbe title to tbe act is An act amending section 2 of chapter 8 of tbe charter of tbe city of Minneapolis.’ Tbe title is sufficient. (State v. Madison, 43 Minn. 438, 45 N. W. 856; Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626.)”

The title of tbe Act before us is not skillfully drawn. There is no' comma after “4084” in tbe title as it appears in the original bill in the secretary of state’s office, or as it appears in tbe printed laws. But tbe insertion or absence of punctuation marks is not always fatal to a correct understanding of what language is intended to mean. In Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624, the supreme court of the United States said that punctuation “is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail, but the court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent on judicially inspecting tbe whole, tbe punctuation will not be suffered to change it.” (Wade v. Lewis and Clarke County, 24 Mont. 335, 61 Pac. 879.) It ought to have been obvious to a legislator to whose attention the bill was brought by the reading of the title that the subject of the bill was licenses. There is a multitude of authorities all of which hold that an Act amend-atory, as tbis is, has a sufficient title, under a constitutional provision like ours, if it cite the number of the section and the chapter of the Code to be amended and affected thereby. (Commonwealth v. Brown, 91 Va. 762, 21 S. E. 357, 28 L. R. A. 113, citing Missouri, Indiana, Iowa, Tennessee, Wisconsin; Dogge v. State, 17 Neb. 140, 22 N. W. 348; Muldoon v. Levi, 25 Neb. 457, 41 N. W. 280.) “This is tbe general bolding of tbe courts on tbe subject,” says tbe United States circuit court of appeals in Steele County v. Erskine, 39 C. C. A. 180, 98 Fed. 221, considering “An act to amend Section 10 of Chapter 38, Laws of 1887, being Section 545 of tbe Compiled Laws,” and construing and applying a provision of tbe constitution of North Dakota similar to ours, except that tbe word “clearly” appears before tbe word “expressed” in tbe Montana constitution, and citing City of Omaha v. Union Pac. Ry. Co., 36 U. S. App. 615, 20 C. C. A. 219, 73 Fed. 1013; Swartwout v. Railroad Co., 24 Mich. 389; People v. Pritchard, 21 Mich. 236; People v. Kirsch, 67 Mich. 539, 35 N. W. 157; State v. Read, 49 La. Ann. 1535, 22 South. 193; and State v. Stewart, 52 Neb. 243, 71 N. W. 998. “There has been a general disposition to construe tbe constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to tbe accomplishment of tbe beneficial purposes for which it has been adopted,” says Mr. Cooley in bis work on Constitutional Limitations (175), citing a very large number of cases. When we reflect upon the meaning of tbe word “express,” we cannot bold that tbe word “clearly,” above referred to, makes tbe numerous decisions and opinions to which we have referred inapplicable to tbe Act before us.

Tbe title refers to licenses, and points out sections of a certain Code to be amended, and was sufficient to inform tbe legist lators as to what was before them, and was sufficiently expressive of tbe subject. Tbe matters treated of in'the Act all refer to licenses, and are germane, and not foreign, to tbe subject of tbe title.

It is not necessary for us to consider tbe question whether Sections 4075 and 4079, appearing in full in tbe Act, but not mentioned in tbe title, are valid, as legally enacted, or not, as they have nothing to do with liquor dealers’ or merchants'’ licenses, although they are germane to tbe subject expressed in tbe title. Tbe failure to make reference to them in tbe title does not invalidate tbe Act as to other matters therein germane to the subject expressed in the title.

Section 6 of the Act purports to add a section to be numbered 4084 to Article II, Chapter XIII, Title X, Part III, of the Political Code. The title gives notice of a Section 4084 to be added to Chapter XII of the same Article, Title and Part of the Code. Appellant contends that tbe Act is void as to such addition because of this failure to mention it in the title of the Act. Respondent resists this and says, besides, that, being a penalty clause, it need not be mentioned in the title, and cites In re Ryan, 20 Mont. 64, 50 Pac. 129. This ease is not in point. The proposed section adds a penalty of 10 per-cent to the amount of the license. In the judgment in this case the items comprising the sum of $468, besides interest and costs, are $450 for license for three semesters, $15 “damages,” and $3 issue fee. Section 4044 of the said chapter on “Licenses” directs “fifteen dollars damages” to he included in the judgment in ease of suit and recovery. Failure to mention the proposed new Section 4084 properly in the title will not invalidate the whole Act, and whether or not it was necessary to mention it all (being a penalty section) in the title, or whether said Section 4084 is valid or not, need not he decided herein, as the amount charged, $15, is less than 10 per cent of the amount of the license, and not more than the penalty provided for in Section 4044, and therefore appellant is not injured. If Section 4084 is not in operation, then Section 4044 is.

Section 8 of the Act purports to repeal Section 4048, which fixed a fee of $1 for issuing a license, and Section 4070 relating to license for standing stallions, jacks and other male domestic animals. We need not pass Upon the question whether the latter section is repealed or not The appellant asserts that Section 4048, which fixes the fee of $1 for issuing such license is not repealed, because.not mentioned in the title of the Act of 1897, and that the whole Act is void. Respondent says that it is repealed, although not mentioned in the title. Holding, as we do, that Section 4064 is amended, and that judgment for the amount of the license for a period covering three semesters was lawfully rendered for tbe plaintiff, it is unnecessary for ns to pass upon tbe question wbetber Section 4048 is repealed or not, for respondent claims tbat it is, and therefore abandons tbe $8 charge. Without bolding tbat tbe court was in error in allowing such charge, we may therefore order tbat tbe judgment be modified by striking out this item. We have nothing to do with Section 8, so far as it purports to repeal Section 4070.

For tbe reasons stated herein, let tbe judgment be modified by striking out- tbe item of $3, sufra,, and, as modified, let it be affirmed.

Modified and affirmed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    HARLEY et al., Respondents, v. MONTANA ORE PURCHASING CO. et al., Appellants.
    (No. 1,574.)
    (Submitted January 21, 1903.
    Decided January 26, 1903.)

      Injunction — Trespass on Mining Glatim. — Gontempi—Violation of Restraining Order — Denial of Hearing — Invasion of Constitutional Right.

    1. The fact that a mining prospector, with his assistants, has entered upon another’s property, held under application for a patent as a placer mining claim, and is sinking three shafts, the debris being deposited about their openings, and has carried away an assay sample, will not warrant an injunction to restrain the trespass; it not appearing that the prospector is insolvent, and his operations not tending to destroy or materially injure the substance of the estate.
    2. The entry on another’s placer mining claim for the mere purpose of posting notices of a discovery of quartz lodes, with the intention of locating them, is not a violation of a restraining order issued to prevent the continuation of a trespass consisting of the sinking of shafts, etc.
    3. Code of Civil Procedure, Section 2179, provides that one adjudged guilty of a contempt not committed in the presence of the court may be fined not exceeding $500, or imprisoned not exceeding five days, or both. Held, that it was error, on the hearing of an order to show cause why an injunction should not issue, to reject defendant’s evidence and issue the injunction because defendant was in contempt for violating a restraining order.

      4. The action of the court, on the hearing of an order to show cause why an injunction should not issue, in rejecting defendant’s evidence and issuing an injunction because defendant was guilty of contempt in violating a restraining order, is a denial of due process of law.

      Appeal from District Court, Silver Bow Countyj Willia/m Clancy, Judge.

    Suit by Lyman M. Harley and another against tbe Montana Ore Purchasing Company and others. Prom an order granting a temporary injunction, defendants appeal.
    Reversed.

      Mr. George M. Bourquvn, and Messrs. Clayberg & Gunn, for Appellants.

      Messrs. Forbis & Evans, and Mr. T. Bailey Lee, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought to' obtain a judgment for damages alleged to have been committed by the defendants upon the “Washington Placer,” situate in Silver Bow county. It is alleged, in substance, that the plaintiffs are, and were at the times mentioned in the complaint, the owners in possession and entitled to the possession of the said premises, and that the defendants, with a large number of men, wrongfully and unlawfully entered thereon during the month of December, 1899, and January, 1900, and made excavations and sunk shafts therein, and by these acts, and by scattering the debris from the said excavations so made upon the surface of the land, damaged the plaintiffs in the sum of $500.

In a second cause of action, relief is sought by way of injunction pendente lite, upon a reiteration of the foregoing allegations, with the additional averment that the defendants were at the time the action was commenced continuing the acts of trespass complained of, thus destroying the substance of plaintiffs’ estate.

Upon the filing of the complaint, supported by an affidavit of one Meyer Genzberger, the court issued an order requiring the defendants to appear and show cause why an injunction should not issue to restrain the acts complained of until final hearing. The defendants were by the order in the meantime restrained from pursuing their operations until the hearing under the order to show cause. The action was commenced on January 5, 1900. The hearing under the order was fixed for January 13, 1900. Various proceedings were had in the cause after the last-mentioned date until March 30, 1900, when the order to show cause finally came on for hearing. Detailed notice of these proceedings is not now pertinent. A full statement of them may be found by reference to State ex rel. Gemmell, v. Clancy, 24 Mont. 359, 61 Pac. 987. In the meantime the defendant George Gemmell appeared and filed his answer, controverting the allegations of the complaint, except as to the doing of the acts complained of, and set up. matters by way of affirmative defense attacking the validity of plaintiffs’ title. At the hearing .the plaintiffs introduced evidence tending to show that the ground in controversy had been located by their predecessors in interest as a gold placer, that the same had been entered by them for patent under the mineral laws of the Dnited States, and that they held a receiver’s receipt showing them to be entitled to a patent therefor. Other evidence introduced tended to show that the ground was not actually occupied until the defendant Gemmell entered thereon some time in December, 1899, with his employes, his codefendants, to explore the ground in order to -discover quartz lodes believed by him to- exist therein, and that at the commencement of the action he and bis codefend-, ants were engaged in sinking three different shafts through the surface deposits of clay and gravel in order to accomplish their purpose; depositing the debris therefrom upon the surface immediately about these shafts. It appeared affirmatively from this evidence that no ore of value had been found, and that nothing except an assay sample had been taken from the premises.

When the plaintiffs rested, the defendant Gemmell offered evidence; but upon objection by plaintiffs his evidence was ex-eluded, and be was denied a hearing on the ground that, he had theretofore been adjudged guilty of a contempt, in that he had, after the service of the restraining order issued at the commencement of the action, gone upon the premises in violation thereof, and posted notices of a discovery of quartz lodes therein, with the intention of locating them. Thereupon the court ordered the injunction to issue, restraining the defendants from making further excavations upon the premises^ and also- from again entering thereon for any purpose until final hearing.

This action of the court was erroneous, for two reasons:

1. There is nothing in the evidence adduced by the plaintiffs to warrant the issuance of an injunction. At best, it does not disclose anything further than an unlawful entry upon plaintiffs’ premises, for which adequate redress could be had under the action for damages. It does not appear that the defendant Gemmell is insolvent, or that his operations, as conducted by him upon the premises, tend in any way to destroy or materially injure the substance of the estate. There is nothing in the facts presented to distinguish this case from that of King v. Mullins (decided at the present term), ante page 364, 71 Pac. 155, and we think that case conclusive of this.

2. -The defendant was entitled to a hearing, no matter whether he had theretofore violated the restraining order or not. Wo do not think that the mere posting of notices upon the ground was a violation of the ordei\ Until the defendant was adjudged to have no right upon the premises, his presence there was not. a contempt; nor was anything he did there a violation of the order, so long as he refrained from prosecuting his work of excavation, which was the matter with reference to which the order was made. But conceding that this act constituted a contempt, there is no authority in law for-the punishment inflicted, nor for the mode by which it was done. It was clearly pointed out in Slate ex rel. Gemmell v. Clancy, supra, in which the contempt proceeding was reviewed by this court, that our statute directs what procedure must be pursued in cases of constructive contempt, such as this was, if a contempt at all; and the conclusion was announced that this procedure must be observed, or the judgment rendered is void. So there is no authority of law for inflicting the punishment which the court inflicted in this ease. The statute (Code of Civil Procedure, Sec. 2179) provides what penalties may be inflicted, and this, we think, is exclusive. In a given case the penalty may carry with it, as an incident, the postponement of a hearing while the party is undergoing his punishment for his contumacious conduct; but a refusal to hear finally, as was the case here, even though there be no fault in the procedure up to the time of judgment, is subversive of one of our dearest and most sacred constitutional rights. “The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.” (Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.) This language was quoted with approval by this court in State ex rel. Gemtmell v. Glancy, supra, and, we think, is peculiarly applicable to the facts in the case now under consideration.

The order complained of is reversed, aiid the cause remanded.

Reversed and remanded:


text:
    BUTTE CONSOLIDATED MINING COMPANY, Respondent, v. FRANK et al., Appellants.
    (No. 1,649.)
    (Submitted January 21, 1903.
    Decided January 29, 1903.)

      Injunction Pendente Lite.

    Order granting an injunction pendente lite reversed, upon the authority oí King et al. v. Mullins et al., 27 Mont. 364, and Harley et al. v. Mantorna Ore Purchasing Go. et al., 27 Mont. 388.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    Actiow by the Bntte Consolidated Mining Company against Louis Frank and Charles B. Lowenson. From an order granting an injunction pendente lite, defendants appeal.
    Reversed.

      Mr. George M. Bourquin, and Messrs. Clayberg & Gunn, for Appellants.

      Messrs. Stapleton & Stapleton, and Messrs. McHutton e& Cotter, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This is an appeal from an order granting an injunction pen-dente lite. The complaint contains two. causes; of action; the first is in ejectment, and the plaintiff seeks thereby to recover possession of the "Bordeaux Placer” claim of which, it is alleged, it is the owner; the second cause of action is framed for equitable relief by way of injunction pending litigation. Upon a hearing under an order to. show cause, the district court was of the opinion that the facts presented showed that the property involved would be irreparably injured.if the defendants were permitted to pursue their explorations of it during the progress of the cause.

The facts appearing from the evidence present a situation essentially similar to that presented in King et al. v. Mullins et al., ante 364, 71 Pac. Rep. 155, and in Harley et al. v. Montana Ore Pur. Co. et al., ante 388, 71 Pac. Rep. 407. Upon the authority of these cases, the order granting the injunction was improvidently made; it must therefore be reversed.

Reversed and remanded.


author: MB. JUSTICE I-IOLLOWAY

text:
    STATE, Appellant, v. ROCKY MOUNTAIN BELL TELEPHONE CO., Respondent.
    (No. 1,802.)
    (Submitted January 7, 1903.
    Decided January 29, 1903.)

      Telephones — License Tax — Statutes — Validity — Interstate Commerce — Trial—Burden of Proof — Findings.
    1. In an action tried by the court, a finding of a fact stated in the pleadings of one party, and not denied by the other, is not required, since a fact admitted by the pleadings will be treated as found by the court in accordance with such admissions.
    2. Under Code of Civil Procedure, Section 3145, declaring that each party must prove his own affirmative allegations, and that evidence in support of a negative allegation need not be given except when such allegation is an essential part of the statement of the right or title on which the cause of action is founded, in an action by the state to recover the license tax imposed by Political Code, Section 4071, as amended by Act March 6, 1897, on a telephone company doing business within the state, in which it was pleaded that many of its telephones attempted to be taxed were exclusively used in interstate business and were therefore exempt irom taxation, the burden was on the defendant to establish the number of telephones so used, and that they were the same instruments attempted to be taxed.
    3. Political Code, Section 4071, as amended by Act March <3, 1897, providing that every corporation “doing business in this state” as a telephone company must pay a license, in each county where such business is transacted, of 75 cents per year on each instrument in use, is not invalid as regards a telephone company doing business within the state, also engaged in interstate traffic, the statute being intended only to apply to instruments used solely in-business within the state.

      Appeal from District Court, Leivis and Clarice County; J. M. Clements, Judge.

    Action by the state against tbe Rocky Mountain Bell Telephone Company. Erom a judgment in favor of defendant, plaintiff appeals.
    Reversed.

      Mr. James Donovan, Attorney General, for Appellant.

      Messrs. II. Q. & S. II. Mclntire, for Respondent.
    An attempt on the part of a state to regulate or interfere with interstate business by seeking to impose a license upon the business, the franchise of the company, or upon the instrumentalities by which it does its business, before allowing the transaction of sucb business within the state, is an interference with interstate commerce and is void. (Pensacola. Tel. Co. v. Western Union Tel. Co., 96 TJ. S. 1; Telegraph Co. v. Texas, 105 TJ. S. 460; Ratterman v. Tel. Co., 127 TJ. S. 411; Leloup v. Mobile, 127 TJ. S. 640; 11 Bose’s Notes to TJ. S: Beports, pp'. 598-601; Telegraph Co. v. Alabama, 132 TJ. S. 472; Lyng v. Michigan, 135 TJ. S. 161; Crutcher v. Kentucky, 141 TJ. S. 47; Express Co. v. Seibert, 142 TJ. S. 349; Harmon v. Chicago, 147 TJ. S. 396; Telegraph Co. v. Adams, 155 TJ. S. 688; Philadelphia v. Tel. Co., 40 Fed. 615 ; Webster v. Bell, 68 Fed. 183; San Francisco v, Tel. Co., 31 Pac. 10; County v. So. Pac. Co., 19 Pac. 827; Commonwealth v. Smith, 17 S. W. 187; McNaughton v. McGirl, 20 Mont. 124; Prentice & Eagan, Com. Clause Fed. Const, pp. 268 et seq.j Thompson on Electricity, Sec. 113; City of San Bernardino v. So. Pac. Go., 40 Pac. 796; State Freight Tax Cases, 15 Wall. 232; So. Ry. Co. v. City of Asheville, 69 Fed. 359; In re Lebolt, 77 Fed. 587; U. S. Express Co. v. Hemmingway, 39 Fed. 60; Telegraph Co. v. Fremont, 26 L. B. A. 698; Maine v. Railway Co*.; 142 TJ. S. 17; Southern Ex. Co. v. The Mayor, etc., 116 Fed. 756.)
   MB. JUSTICE I-IOLLOWAY

delivered the opinion of the court.

This is an action brought against the defendant company to recover a license tax for conducting the business of a telephone company in Lewis and Clarke county, Montana. The action is brought under Section 4071 of the Political Code, as amended by an Act of the Fifth legislative assembly, approved March 6, 1897 (Laws of 1897, p. 202), which provides that every person, corporation, or association doing business in this state as a telephone company must pay a license, in each county where such business is transacted, of 75 cents per year for each instru-: ment in use.

The complaint contains three causes of action: The first, for the license due on 250 instruments in use during the year commencing July 1, 1899, and ending June 30, 1900; the second, for tbe license due on 381 instruments in use during the year commencing July 1, 1900, and ending June 30, 1901; and the third, for the license due on 368 instruments in use from July 1, 1901, to the date of the commencement of this action. The allegations are alike as to every cause of action, viz.: That the defendant at the times therein, mentioned was carrying on the business of conducting a telephone exchange system, and using and leasing the instruments to its patrons and customers in Lewis and Clarke county, Montana, to the number therein stated, and that no license for conducting such business had been taken out by the defendant company. The answer admits the allegations above, and for an affirmative defense alleges; “That the defendant, Rocky Mountain Bell Telephone Company, is a corporation duly organized under the laws of the state of Utah, with its principal place of business in Salt Lake City, and has complied with the laws of Montana prescribing the conditions upon which foreign corporations are permitted to do' business in this state; that its business is that of receiving and transmitting for hire messages by telephone; that for the purpose of conducting and carrying on the said business the defendant company has erected and is maintaining poles along and across various streets-, roads and highways in the state of Montana, and in the states of Utah, Idaho and Wyoming, and has stretched across and affixed to said poles wires necessary for the transmission of electric currents, which wires connect with' and are attached to instruments used for the transmission of telephonic messages, and which instruments are placed in the offices of said defendant company and at the places of business and residence of its several patrons and customers, and communicate with similar instruments in all of the offices of said company and with instruments in the places of business and residence of its patrons and customers in said states aforesaid, and said poles, wires and instruments are indispensable to the business of said defendant company, and are the means and instru-mentalities by which its said business is carried on and conducted, and without which said business could not be carried on; that the defendant company’s lines are located in, extend through and connect the states of Montana, Utah, Idaho and Wyoming; that for the transaction of its business the defendant company has many instruments in Lewis and Clarke county, in the state of Montana, and in the other states above named, and said instruments are arranged for use and are necessarily used by patrons of defendant company in receiving and transmitting messages from and to places in Montana, and between the said county of Lewis and Clarke and all of said states above named into and through which defendant’s lines extend. Said instruments are connected hy wire with the Western Union Telegraph Company and the Postal Telegraph Company, which companies have lines in the county of Lewis and Clarke and state of Montana, and extending into and through other states and foreign countries, and are engaged in the business of receiving and transmitting for hire messages by means of the electric telegraph from and to places within the state of Montana and other states and foreign countries; that by such connection of the defendant company with the said telegraph companies’ wires, telephone messages may be and a™ transmitted to the states, countries, and places to which said telegraph companies and-their connections extend without any extra charge to patrons and customers of the defendant company; that annually thousands of messages are transmitted, sent and received over the defendant company’s lines by means of its said instruments between persons in the state of Montana and persons in other states and countries.”

The answer further alleges: That the defendant has paid its property tax in Lewis and Clarke county, Montana, which includes the general tax on such instruments and other personal property; and that compliance by the defendant with the conditions upon which foreign corporations are permitted to do business in this state creates a contract between defendant company and this state, and the imposition of the license tax sought to be collected in this action impairs the obligation of such contract, and that the law imposing such license tax further violates the constitution of the United States in that it denies to the defendant company the equal protection of the laws.

Tbe replication filed by tbe plaintiff to- tbe affirmative defense set up in tbe answer admits that tbe defendant is engaged in tbe business of receiving and transmitting messages by telephone, and that it has such wires connecting tbe different places in, Montana with points in Utab, Idaho and Wyoming, but denies that tbe telephone instruments belonging' to tbe defendant company in Lewis and Clarke county are necessarily used by tbe patrons of sucb company in receiving and transmitting messages between places in Montana and places in all or any of tbe other states above named; and denies that sucb instruments, or any of them, ever have been so used.

Upon these pleadings tbe cause came on for trial before tbe court sitting without a jury, and, after having beard tbe proofs of the respective parties, tbe court made certain findings of fact and conclusions of law. Findings 6 and 9 only are material bere. They are as follows:

“(6) That for tbe transaction of its business tbe defendant company has many instruments in Lewis and Clarke county in tbe state of Montana, and in tbe other states above named, and said instruments are arranged for use and some are necessarily used by said company and its customers in receiving and transmitting messages from and to places in Montana, and between tbe county of Lewis and Clarke and all of tbe -.tates into and through which defendant’s lines extend.”
“(9) That tbe instruments of tbe defendant company which are used exclusively in business within tbe state of Montana, if any there are, cannot be separated or discriminated from its instruments used in interstate business; nor does Political Code, Section 4011, Subdivision 2, as amended, make sucb discrimination or separation, but imposes tbe license tax upon each telephone instrument in use without limiting tbe license tax upon instruments used exclusively in local or intrastate business.”

A consideration of tbe pleadings in this case discloses tbe fact that tbe state claims, and the defendant company admits, that during tbe several years mentioned in tbe pleadings tbe defendant company bad used, operated and leased to its patrons in Lewis and Clarke county, Montana, tbe number of telephone instruments claimed by tbe plaintiff for which, it soug’ht to collect the license tax. The gist of the defendant’s affirmative answer is that it has many instruments in Lewis and Clarke county, Montana, which are connected by means of its wires with places in Utah, Idaho and Wyoming, over which many messages are transmitted annually, and that such instruments and wires, and the poles to which such wires are attached, are necessary instru-mentalities by which the defendant company conducts its business, and that such business is interstate commerce. Nowhere in the answer are the instruments, which the defendant claims it is using in transmitting messages from Lewis and Clarke county to points outside of Montana, identified as the particular instruments which the plaintiff in its complaint charges are in use in Lewis and Clarke county. For aught that can be determined from the pleadings in this case, the defendant company has the number of instruments for which the state seeks to collect license, and also the instruments designated in the defendant’s answer, which it is using in its interstate commerce business. *

If it be urged that the lower court did not find upon the question of the number of instruments in use in Lewis and Clarke county, it is sufficient to say that a court need not expressly find a fact stated in the pleadings of one party and not denied by the other. A fact admitted by the pleadings will be treated as found in accordance with these admissions. (In re Doyle’s Estate, 73 Cal. 564, 15 Pac. 125.) Presumably the lower court assumed that the instruments mentioned in plaintiff’s complaint and those mentioned in the defendant’s affirmative defense are identical, and disposed of the case by holding that under Section 4071, above, as amended, the imposition of the license tax was an interference with and regulation of interstate commerce; and it is therefore unnecessary for us to> say whether or not, upon the pleadings, the plaintiff was entitled to judgment. Assuming, as the lower court evidently did, that the instruments are identical; does Section 4071, above, as amended, seek to regulate interstate commerce, and to that extent contravene the provisions of Section 8 of Article I of the Constitution of the United States, wbicb grants to congress the exclusive power to regulate commerce with foreign nations and among the several states and with Indian tribes? Finding No. 9 declares that the instruments of the defendant company which are used exclusively for business done within the state (if any there are) cannot be separated or discriminated from those used in interstate business.

1. In view of this finding, the first question to be resolved is this: Upon whom is the burden of making such separation or discrimination imposed, under the pleadings in this case? The complaint charges that the instruments for which it is sought to collect license are used by the defendant company in conducting its business in Lewis and Clarke county, Montana, and these allegations are admitted in the answer. The answer then sets forth the defendant’s affirmative defense to the effect that such instruments (assuming that they are the identical in-' struments mentioned in the complaint), or many of them, are used in transmitting and receiving messages between points in Lewis and Clarke county and points in tire other states mentioned, — in other words, are used in interstate business, and are, for that reason, exempt from the operation of the law. Section 3145 of the Code of Civil Procedure provides: “Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to' the opposite party.” (Wilson v. California Central Railroad Co., 94 Cal. 172, 29 Pac. 861, 17 L. R. A. 685.) In Moore v. City of Eufaula, 97 Ala. 673, 11 South. 922, it is said: “To present a defense, it .(the answer) should aver facts to show that the messages transmitted were in the interest of interstate 'commerce or in obedience to governmental orders, and that the office or place of business in the city of Eufaula was kept and used for these purposes only.”

It will be observed that the license tax is imposed upon the instruments in use by the defendant company in Lewis and Clarke county, Montana, and, if the defendant desires to show that any or all of such instruments are exempt from the operation of this law by reason of the fact that they are used in interstate commerce, the burden is upon it to' make such showing, and therefore the first portion of finding No-. 9 amounts only to this: that the defendant, upon the trial, failed to furnish proof sufficient to enable the trial court to determine this fact.

2. Binding No. 9 further declares that Section 4071 above does not separate or discriminate between instruments used in interstate from those used in intrastate business, hut imposes the license tax upon each telephone instrument in use, without limiting the license tax upon instruments used exclusively in local or intrastate business. This should more properly be designated a conclusion of law; but, in any event, it calls for the decision of this court as to its correctness.

It will bo observed that the language in Section 4071 above is: “Every person, corporation or association doing business in, this state * * must pay a license * * The allegations, of the complaint fairly bring the case within the. terms of this statute. It is to be presumed that in enacting Section 4071 above, and in using therein the terms “doing business in this state,” the legislature did so in view of the constitutional provision conferring upon congress the sole power to regulate interstate commerce, and it will not be implied that it intended to go beyond its lawful powers, in the absence of express statutory terms directly contravening those provisions. In State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681, it is said: “And it may further be observed that the statute does not in terms apply to interstate business, and it will not be implied that the legislature intended to go beyond its lawful powers in enacting it. If, therefore, it be held that the legislature could not forbid one to engage in the business of a commission merchant, as to interstate shipments, without compliance with the provisions of the state statute, such statute should be construed to apply only to' local or domestic business, and such construction will be followed by tbe federal courts.” In Osborne v. State, 33 Fla. 162, 14 South. 588, 25 L. R. A. 120, 39 Am. St. Rep. 99, tbe court said: “That tbe commerce clause of tbe constitution exempts from tbe burden of state taxation those who confine themselves to interstate commerce is a truth of which, at this day, knowledge must be imputed to the lawmaking power of the states, and, in the absence of language that clearly connects such an intent with that power, it should not be held that there was a purpose to ignore such truth or violate its principles.” Sutherland on Statutory Construction (Section 333) states the rule thus: “It is presumed that the legislature is acquainted with law; that it has knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received.” In Commonwealth v. Gagne, 153 Mass. 205, 26 N. E. 449, 10 L. R. A. 443, the supreme court of Massachusetts says: “A law which is unconstitutional within certain limitations, if in terms it exceeds or fails to notice those limitations, may yet be entirely operative within its legitimate sphere, and properly held to have the application which thus confines it. Indeed, where two governments, like those of the United States and the commonwealth, exercise their authority within the same territory and over' the same citizens, the legislation of that which, as to certain subjects, is subordinate, should be construed with reference to the powers and authority of the superior government, and not be deemed as invading them, unless such construction is absolutely demanded.”

It cannot be said that the language used in Section 40T1, above, expresses any intention on the part of the legislature to transgress the provisions of the constitution above referred to, and no pi’esumption of that kind will be indulged. (Gillette v. Hibbard, Mont. 412.)

3. In Osborne v. State, above, the supreme court of Florida had under consideration the construction of a statute similar in its terms to the one now before this court. The Florida statute provided: “All express companies doing business in tMs state, shall pay * * * a license tax, * * *” (Laws 1893, c. 4115), and in an elaborate opinion it was held that the statute was intended to and did apply only to- business done witbin tbe state of Florida, and bad no application whatever to business done between tbe states, and therefore tbe statute did not seek to regulate interstate commerce. On appeal to tbe supreme court of tbe United States this decision was affirmed. (164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586.) Tbe same question came before tbe supreme court of Utah in Ogden City v. Grossman, 17 Utah, 66, 53 Pac. 985. There an ordinance of tbe city of Ogden provided, among other things, that “every person or corporation who shall operate and maintain in Ogden City any telephone instrument for which a rental charge is made; shall pay an annual license fee of five dollars for each instrument so used.” It was claimed on the part of the defendant that the ordinance was unconstitutional in that it was.an interference with the interstate commerce law. Upon that the supreme court said: “It is evident that the ordinance was not intended to and does not apply to or affect in any manner the business of the defendant corporation which is interstate in its character, and that such ordinance was intended to and does apply to and affect only the local business of said defendant company done within Ogden City, as shown from the rental of the instruments for use in Ogden City alone. By engaging in a business of operating and maintaining such telephones in Ogden City, and making and receiving a rental charge for the use of the instruments therein, and for no other place, it became amenable to the. ordinance. A business done wholly within a city is within the taxing power of the city. The defendant corporation is not exempt from the operation of the ordinance and the payment of a license upon its instruments or business which arises and is conducted wholly within Ogden City, even though at the same time the defendant corporation may do a business or use its instruments in Ogden City for business which is in part interstate in its character. We are of the opinion that the ordinance does not affect or apply to this latter class of business, which'is interstate in its character.” To the same effect are the decisions in the following cases: Moore v. City of Eufaula, 97 Ala. 673, 11 South. 921; State v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681; Railroad Co. v. Harris, 99 Tenn. 684, 43 S. W. 115, 53 L. R. A. 921; People v. Roberts (Sup.), 55 N. Y. Supp. 950.

We are not unmindful of the seeming conflict between the views here expressed and expressions found in the decisions in Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311, and Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 645, cited by respondent. But, as was said in Osborne v. State, above: “Those expressions are to be viewed with reference to the circumstances under which the supreme court of the United States was then speaking. The state courts which it was reviewing had each declared, in effect, that these statutes were binding upon and effectual as to< companies as doers of interstate business, or, in other words, were a bar to their doing interstate business without having complied with their requirements. This construction has become, in so far as the federal tribunals were concerned, binding upon the federal court as to the effect of each statute within the state enacting it, as much as if it had been expressly stated in the act.”

While there appears to be some conflict in the authorities, we are satisfied that the best-considered cases fully sustain the views herein expressed.

Our conclusion therefore is that the evident intention of the legislature in passing Section 4071, above, was to impose the license tax of 75 cents on each telephone instrument used in purely local or intrastate business, and that as to instruments used in interstate business it was intended to have no application whatever. Under the pleadings in this case, the burden of proof was clearly upon the defendant company to show how many, if any, of its instruments are used in interstate commerce, and the district court erred, first, in holding that the burden of proof of such fact was upon the state, and, second, that the statute failed to make any discrimination, but imposed the license tax indiscriminately upon the instruments used in interstate business as well as upon those used in local business.

Rehearing denied February 12, 1903.

Bor these reasons, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: MR. JUSTICE HOLLOWAY

text:
    BRIGGS, Appellant, v. COLLINS et al., Respondents.
    (No. 1,467.)
    (Submitted January 19, 1903.
    Decided January 29, 1903.)

      Nonsuit — Money Paid — Work and Labor — Promise—Failure of Proof — Pleading.
    In an action to recover for money expended at the special instance and request of defendants in doing the annual representation work on a mining claim and in securing a patent for the same, defendants denied all the allegations of the complaint, and set up new matter by way of an affirmative defense wherein they alleged that they did at certain times have some interest in the claim. On the trial there was a failure of proof that the work done or money expended was at the request of the defendants, or that any of them ever agreed to pay for it. Code of Civil Procedure, Section 720, was in force at the time, and provided that all new matter set up in an answer, not constituting a counterclaim, is deemed denied without a reply. Held, that as there was a failure to prove any promise, and defendants’ allegation that they at times owned the claim must be considered as denied, a motion for. nonsuit was properly granted.

      Appeal from District Court, Cascade County; J. B. Leslie, Judye.

    ActioN by A. J. Briggs against T. E. Collins and others. From a judgment for defendants, plaintiff appeals.
    Affirmed.

      Mr. C. Pi. Benton, for Appellant.

      Mr. A. C. Qormley, and Mr. Bam Stephenson, for Respondents.
   MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought by appellant (plaintiff below) to recover $331.32, alleged to be due bim from the respondents (defendants below) for work and labor done and for money expended by the plaintiff at the special instance and 2’equest of the defendants, in doing and having done the annual representation ■work on the Bipple lode mining claim, and in securing a patent for the same. The answer denies all the allegations of the complaint, and sets up new matter by way of an affirmative defense. Upon the trial the plaintiff offered certain proof by affidavits and oral .testimony. When plaintiff rested, the defendants interposed a motion for a nonsuit upon the following, among other, grounds: (1) “There is no evidence in this case tending to show that any moneys were advanced and paid by the plaintiff at the request of the defendants, or either of them; and (2) that there is no evidence to show that any of the work and services testified to were performed at the instance and request of the defendants, or any of them.” This motion was sustained, and a judgment for costs entered against the plaintiff, from which judgment this appeal is prosecuted.

At the time the pleadings were prepared and filed, and the issues made up, Section 720 of the Code of Civil Procedui*e was in force, and no reply was required, except, where the answer contained a counterclaim, but all new matter in the answer, not constituting a counterclaim, was deemed denied. An examination of the record fails to disclose any testimony whatever to the effect that any of the work or labor done or money expended by the plaintiff was at the instance or request of the defendants, or any of them, or that they, or any of them, ever agreed to pay for it, and in fact there is no evidence even tending to show that any of the defendants had an interest in the Nipple claim; and, as the allegations of the defendants’ answer to the effect that the defendants did at certain times have some interest in the claim are deemed denied, the plaintiff failed to make out his case, and the court properly sustained the motion for nonsuit.

The judgment is affirmed.

Affirmed.


author: MR. JUSTICE MILBURN

text:
    WALSH et al., Appellants, v. CROFT, Respondent.
    (No. 1,689.)
    (Submitted January 20, 1903.
    Decided January 31, 1903.)

      Taxation — Lien on Personalty — Statutory Construction — Innocent Purchaser.

    Political Code 1895, Section 3S27, provides tliat every tax lias tile effect of a judgment against the person, and every lien the force and effect of an execution duly levied against all personal property. Section 3828 enacts that every personal property tax is a lien upon the owner’s realty from noon of the first Monday in March, etc. Section 3829 authorizes certain real property liens for real estate taxes. Held¿ that no tax lien attached to assessed personalty, the owner of which owned no realty; and hence the sale for taxes of such personalty in the hands of an innocent purchaser should be enjoined.

      Appeal from District Court, Fergus County; F. K. Cheadle, Judge.

    Suit to enjoin a tax sale of personalty by J. A. Walsli and another, partners as Walsh & Walsh, against Janies M. Croft, as county treasurer of Fergus county. From an order dissolving an injunction pendente lite, plaintiffs appeal.
    [Reversed.

      Messrs. Blackford & Blackford, and Mr. T. J. Walsh> for Appellants.

      Mr. James Donovan, Attorney' General, for Respondent,
   MR. JUSTICE MILBURN

delivered the opinion of the court.

The defendants appeal from an order dissolving an injunction granted pendente lite. The case is presented on the complaint, with an accompanying affidavit, the order granting a'temporary injunction, the motion to dissolve the injunction, and the order granting the motion.

The facts alleged are as follows: On the 28th day of Decern-her, 1900, appellants became the owners of certain personal property by purchase from one Larssen, who, on the 4th day of November, 1899, purchased the same from one T. J. Johns.' The possession seems to have been delivered to each purchaser at the time of the purchase. In 1899 said personal property was duly assessed for taxation in Fergus county, and the taxes duly levied, said Johns being the owner of the property at the time. In 1900 such assessment was duly made1, and taxies levied, Larssen being then the owner. None of the taxes so levied were ever paid. On the 80th day of April, 1901, the county treasurer seized a certain part of the property for the delinquent taxes for the year 1899, and a certain part thereof for the delinquent taxes for the year 1900, and, being about to sell the same at public sale, was enjoined as stated.

“Neither the said T. J. Johns nor the said W. W. Larssen was assessed with any real property in the said county of Fergus at the times aforesaid,” — this being an allegation in the complaint.

The law covering the matters treated of in the brief and argument of counsel is Sections 3821, 3828, and 3829 of the Political Code of 1895, which are as follows:

“Section 3827. Every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all personal property of the delinquent. The judgment is. not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof.
“Sec. 3828. Every tax due upon personal property is a lien upon the real property of the owner thereof, from and after twelve o’clock m., of the first Monday in March in each year.
“Sec. 3829. Every tax due upon real property is a lien against the property assessed; and every tax due upon improvements upon real estate assessed to others than the owner of the real estate, is a. lien upon the land and improvements; which several liens attach as of the first Monday of March in each . year.”

The complaint obviously, but in a lame way, presented to the court the proposition that, whereas the treasurer was trying to enforce a supposed lien on personal property' owned at the time of the seizure by one not the owner at the time or times the taxes became due, there was no lien, because there was no real estate upon which a lien could attach for the taxes on the personalty. Counsel apparently submitted, and the court evidently heard and determined, the motion to dissolve the temporary injunction without giving any consideration to the point attempted to be raised in the complaint; but the court determined the submitted question of whether or not there was a lien upon the personalty in question entirely upon the abstract proposition that every tax due upon personal property is a lien upon the real property of the owner of the personal property assessed, and, there being such a lien declared in Section 382S, supra, the court concluded that the language of Section 3827 in the same title, to-wit, “Every lien created by this title has the force and effect of an execution duly levied against all the personal property of the delinquent,” imposes a lien upon such personal property whether the delinquent owns any real property or not. This is not a case of mere refusal of a. temporary injunction, in the discretion of the court, pending a hearing on the merits and the final determination of the prayer for a permanent injunction, but is one in which the whole case was disposed of on the motion to dissolve the temporary injunction; the court, in effect, holding that in all cases, whenever taxes duly levied on personal property are not paid, such property can be taken by the treasurer from the possession of an innocent purchaser who has bought the same in good faith, and the same be sold by him to recover the said taxes; and that he may do this because the people have a lien thereon for such taxes. There is no' such lien on personal property when the owner does not also own real property. (Section 3828.) Whether there can be a lien upon the personal property of the owner of real property is a question which is not before us for decision as the case is presented, or as it is likely to be presented, to the court upon a trial of the case on its merits when the pleadings are made up; and therefore the said question is reserved. If, after the issue is joined, and a trial is bad, it shall appear that the owners of the personal property were not, respectively, the owners of real property, then the respective levies of taxes, under any reasonable constructions of the sections, supra, could not constitute liens upon the personalty, for the statute only seems to declare that taxes due upon personal property, such as are in fact liens on real property, shall have the force and effect of an execution duly levied against all personal property of the delinquent. (Section 3821)

We therefore conclude that the court erred in granting the order dissolving the injunction upon the case as presented. Reversed and remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.


text:
    MONTANA ORE PURCHASING COMPANY et al., Respondents, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Appellant.
    (No. 1,720.)
    (Submitted January 20, 1903.
    Decided February 6, 1903.)

      Injunction — Trespasses on Mining Claims — Previous Injunction — Remedy.
    An owner of a mining claim secured a decree adjudging to it extralateral rights, and enjoining trespasses thereon by an adjoining owner. Afterwards, with a coplaintiff, it sued the same defendant to quiet title to, and enjoin trespasses on, lodes alleged to fall within the purview of the former decree, and on this allegation of res adjudicada plaintiffs secured a temporary injunction. Held error, plaintiffs’ remedy being to enforce the original decree by contempt proceedings.

      Appeal from District Court, Silver Bow County ; William Clancy, Judge.

      Suit by tbe Montana Ore Purchasing Company and another against the Boston & Montana Consolidated Copper & Silver Mining Company. Prom an order granting a temporary injunction, defendant appeals.
    Reversed.

      Messrs. Forbis & Evans, for Appellant.

      Messrs. McHatton & Goiter, and Mr. James M. Benny, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Appeal from an order granting a temporary injunction. The action was brought by the plaintiffs to obtain a decree quieting title to certain ore bodies beneath the surface of the Pennsylvania (patented) lode claim, situate in Silver Bow county.

The plaintiffs allege that they are the owners, in possession and entitled to the possession, of portions of the Rarus and Johnstown (patented) lode claims, immediately to the noi*th of the Pennsylvania claim'; that the end lines of these claims are parallel; that there are certain veins having their apices therein, and passing through the end lines thereof; that these veins also pass through the portions of said claims owned by the plaintiffs; that they so far depart from the perpendicular in their descent into the earth that they pass beyond the south side lines of the Rarus and Johnstown claims, and enter beneath the surface of the Pennsylvania claim; that, by virtue of their ownership of the apices of the veins -within their boundaries, the plaintiffs are entitled to extralateral lights upon the vein between planes passing through the end lines of the portions owned hy them; and that the defendants in January, 1900, wrongfully and without the consent of the plaintiffs entered upon certain portions of said vein beneath the Pennsylvania claim, and extracted and removed therefrom large quantities of valuable ore. The complaint then proceeds: “Plaintiffs further allege that heretofore the above-named plaintiff, Montana Ore Purchasing Company, brought an action in the district court of the Second judicial district of the state of Montana, wbicli action is numbered 7,337 of tlie files of said court, against the above-named defendant, for the purpose of establishing its right to the premises herein-before described and owned by it, and to all of the before-mentioned veins, leads, lodes, ledges, and mineral deposits throughout their entire depth within the planes hereinbefore described; that said defendant appeared and answered therein, and that thereafter said cause was duly and regularly tried by said court; and that said court on or about the 28th day of December, 1899, made and entered its findings of fact and conclusions of law therein in favor of said plaintiff, and thereafter, and on or about the 14th day of February, 1900, duly made and entered its judgment and decree therein adjudging said plaintiff to be the owner, in possession and entitled to the possession, of all of the same, and decreeing that the defendant had no right thereto, and that its claim was without any foundation, and entering a permanent injunction against said defendant, forever enjoining it from asserting any claim thereto, or interfering with the right or possession of the said plaintiff therein. -And plaintiffs allege that the portion of said vein or veins, lead, lode, or mineral deposit, upon which the defendant has entered as aforesaid, are a. part of and belong to the vein or veins, leads, lodes, ledges, and mineral deposits which in the action aforesaid were adjudged to belong to the plaintiff therein.” It is further alleged that notwithstanding their ownership' of said veins and ore bodies, and notwithstanding said decree, the defendant has continued and still continues to claim some title or interest in the said veins, and that such claim is without right; that the plaintiffs cannot have their title determined by one or more actions at law, but that, as development of the mine progresses, it will be necessary to bring many actioiis, owing to claims, which defendant will set up, that the successive ore bodies discovered are not portions of the veins and ledges adjudged to belong to1 plaintiffs. The complaint concludes with a prayer that the plaintiffs’ title to said ore bodies be quieted, and that the defendant,' and all persons claiming or to claim through or under it, be forever enjoined from asserting any right or title thereto.

In a second cause of action the foregoing allegations are repeated, with an additional averment that the defendant is continuing its trespasses upon the property, thus destroying the estate; the purpose of this cause of action being to obtain an injunction to preserve the property pending litigation.

Upon the filing of the complaint, supported by the affidavit of one of the engineers of the plaintiffs, an order was issued requiring defendant to show cause why an injunction should not issue. The defendant having filed its answer, a hearing was had upon affidavits and oral evidence. On the part of plaintiffs the effort was made to show that the ores in controversy were within the terms of the decree referred to in the complaint. The defendant endeavored to show that they were not within the issues in that case, and therefore the ownership of them was not adjudicated in the decree. The decree referred to was rendered in Montana, Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 27 Mont. 288, 70 Pac. 1114. The hearing was had upon this issue, and the order was made upon the theory that the evidence sustained the contention of the plaintiffs. It is upon- this theory, also, that the plaintiffs maintain in this court that the order was properly made, and should be affirmed.

It is urged by the defendant .(and properly, we think) that the complaint does not state a case warranting the issuance of an injunction. If, it argues, it be a fact that the ore bodies in controversy were decreed in that action to belong to the plaintiffs, then there is no reason why the district court should, immediately or soon after entering its decree, entertain another suit to quiet the title to the same property against claims made by the same defendant, instead of enforcing the decree already rendered with respect thereto. The decree upon which the plaintiffs predicate their claims was entered on February 14, 1900. The complaint in this case was filed on April 13, 1901. The order was made on June 22, 1901. If the facts be as they are alleged by plaintiffs, then the defendant lias no title to or interest in the matter involved; and this action amounts to nothing more than an attempt to obtain an injunction to restrain the defendant from violating an injunction already obtained, perpetually enjoining it from asserting any adverse claim tO' the subject of the litigation. The way is open to the plaintiffs to enforce summarily the decree by contempt proceedings, and to-enforce it effectually; otherwise another suit will be necessary to enforce the decree obtained at the end of the present controversy, and so on indefinitely. There must be an end of litigation over the same subject-matter between the same parties somewhere and at some time, whereupon the parties must be left to the summary enforcement of their rights as declared by the courts under proper process. It is true, the decree in question was obtained in favor of the Montana Ore Purchasing Company, •only one of the plaintiffs in this case. The other plaintiff was not a party to it, it seems, and it does not appear what its interest in the property is; but whether it be an interest in the property which existed at the time the judgment was rendered, or one that has arisen since the date of it, the result is the same. Both plaintiffs claim the benefit of the decree, and base their claim to the injunction upon an alleged violation of it. Their rights on this appeal must stand or fall by the decree. If the ownership of the ore bodies in controversy was not adjudicated in the decree of February, 1900, then the decree, and the terms of it, are matters entirely immaterial to this controversy. If they were so included, then the plaintiffs have a speedy, complete and adequate remedy to enforce their rights by contempt proceedings, but no right to an injunction. ■

The order is reversed.

Reversed.