author: MR. CHIEF. JUSTICE BRANTLY

text:
    STATE, Respondent, v. SHAFER, Appellant.
    (No. 1,552.)
    (Submitted October 1, 1901.
    Decided October 28, 1901.)

      Criminal Law — Homicide—Information—Motion for Leave to File — Verification—Warrant—Evidence—Res Gestae — Evi- . dence Tending, to Establish Another and Distinct Offense — . Motive — Instructions—Degrees of Murder.

    1. Under Constitution, Art. Ill, Sec. 7, and the provisions of tbe Penal Code • of 1895, a warrant may issue on an information filed by tbe county attorney by leave of court on a motion in writing not verified, and tbe information verified only on information and belief.
    2. In a trial for homicide occurring in a saloon a few hours after a conflict between defendant and deceased at another place, evidence of such conflict was admissible to show motive, though not part of the res gestae and incidentally tending directly to establish against the defendant another and distinct offense, — where the cause and details are excluded, and the court expressly confines the jury in their consideration of such evidence to the question whether it showed malice in the defendant at the time of the homicide.
    3. where the evidence would warrant a verdict of guilty of any grade of unlawful homicide or of acquittal, it is error for the court to give to the jury simply the statutory definitions of murder, murder of the first and second degrees, of manslaughter-, and of justifiable homieede, without any further declaration of the distinction between murder of the first and second degrees than is contained in the statute.

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

    Joseph Shaeee was convicted of murder in the first degree, and from the judgment and from an order denying a new trial he appeals.
    Reversed.

      Mr. B. S. Booth, for Appellant.

      Mr. James Donovan, Attorney General, for the State:
    The court instructed the jury, defining murder in the first and second degree, in the language of the statute. Is such definition of murder in second degree in language of statute sufficient? Appellant maintains this is insufficient, citing State v. Baker, 13 Mont. 161, and cases cited therein. That it is sufficient, see People v. Chaves, 122 Cal. 141. The Baker Case, supra, rests upon the case of State v. Meyer, 58 Yt. 457, and and an examination of that case and of the laws of Vermont will disclose the fact that in Vermont there was no statute defining murder. An examination will show further that the trial judge in the case of State y. Meyer, on page 464, in explaining to the jury what constituted murder, said: “We have to resort to the common law to ascertain the definition of murder, and that defines it to be the unlawful killing, with malice aforethought, of any human being. * * * The act .-of killing must be intentional; * * * there must be premeditation; * * * there must be evidence that he meditated the act before the act was done; that is what is required to constitute the crime of murder, in my judgment.” On page 467 of the same opinion the court says: “As an abstract proposition, the charge of the presiding judge, explaining simply what constituted murder at common law, is unexceptionable; but as applicable to this case, under our statute, creating two degrees of murder, it was erroneous.” It was erroneous because it made premeditation an element of murder in the second as well as in the first degree, when as the court said in the same opinion (p. 466), “the distinguishing feature of the two degrees rests in the absence of deliberation, premeditation and preconcerted design from the second degree.” Hence, when the court, in State v. Meyer, supra, gave the statutory definition of murder in the first degree, and then followed with the statutory language that “all other kinds of murder shall be murder of the second degree,” no distinction was marked, because the distinction made by the statute itself was destroyed by the other instruction of the court which made premeditation an element of both degrees of murder. Such conditions do not exist in the present case, and it is clearly distinguished from the case of State' v. Meyer, supra. I am not unmindful of the language of the Meyer Case quoted in the Baker Case, supra, but I do say that the language quoted is entirely due to the original mistake of the trial judge in defining murder. There is not a case cited in the Meyer Case, supra, to support it. It rests upon the self-evident contradictions of the trial court.
    The other cases cited in. the Baker Case, supra, do> not support it, simply holding that the instructions should cover such questions as are made applicable by the evidence'. The court instructed the jury as to murder, malice, murder in the first and second degrees, and the punishment for each; manslaughter and its punishment; justifiable and excusable homicide in the language of the Code, and that “whenever a crime is divided into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.” The court.also instructed the jury with care as to what elements must accom- • pany the murder to mahe it murder in the first degree.
    In the Balcer Gase, supra, the court says: “The question for this court to determine is, whether this was a sufficient definition of murder in the second degree (being in language of statute), to enable the jury to determine the essential characteristic of the degree of homicide.” Testing this question by the instructions given in this case, we are firmly convinced that the requirements have been complied with. [First, the court instructed that “murder is the unlawful hilling of a human being with malice aforethought. Second, that to constitute murder in thefirst degree, it must be deliberate and premeditated. Third, “All other hinds of murder are of the second degree,’’ meaning, of course; all kinds of murder except that accompanied by deliberation and premeditation. Construing the instructions together, it is impossible to draw any conclusion from them other ■ than that the words “All other hinds of murder are of the second degree,” means the unlawful killing of a human being with malice. The definition of murder in the second degree in this state is simply the Code definition of murder. (State v. 0alder, 23 Mont. 504, 521; State v. Fisher, 23 Mont. 540, 546.) From the fact that the crime is presumed to be murder in the second degree “when the state has proved the killing by the defendant . without ev-idenee tending to show that the act amounts to man- ■ slaughter, or that the defendant is jusifiable or excusable” (State v. Fisher, supra), it must follow that murder in the second degree is simply the unlawful hilling with malice, otherwise there could be no such presumption, and if that presump- ■ tion is correct, then the court did fully instruct as to murder in the second degree when it instructed as to murder.
   MR. CHIEF. JUSTICE BRANTLY

delivered the opinion of the court.

Upon a second trial, granted to the defendant by the district ' court in obedience to the mandate of this court (State v. Shafer, 22 Mont. 17, 55 Pac. 526), be was again convicted of murder of the first degree and condemned to death. This appeal is from the judgment and an order denying a new trial.

1. The charge against the defendant was by information filed by the county attorney by leave of court upon a motion in writing not verified. The information was verified by the county attorney upon his information and belief. Prior to the filing of the formal charge there had been- no preliminary examination by a justice of the peace founded upon a complaint or affidavit reduced to writing and showing probable cause, supported by oath or affirmation of any person. The motion for leave in, the district court was accompanied by a statement in writing, but this was not supported by oath or affirmation. The defendant was arrested and brought into court under a bench warrant issued after the information was filed. He thereupon moved the court to set aside the information on the ground that he had been arrested and held to answer the charge preferred against him in violation of Section 1 of Article III of the- Constitution of the state, which prohibits the issuance of any warrant to seize any person without probable cause, reduced to writing, -.and supported by oath or affirmation. The motion was overruled, and, upon arraignment the defendant standing mute, a plea of not guilty was ordered entered by the court. Thereafter the cause was tried, resulting in a judgment of conviction.

The contention of the defendant now made for the first time in this case is that, under the constitutional provision referred to, the written charge by the county attorney, verified upon his information and belief only, and not supported by an affidavit by himself or some other person setting forth facts sufficient to show probable cause, did not authorize the issuance of the warrant, his arrest, and subsequent trial.

The sections of the statute regulating the filing of informa-tions upon leave granted by court (Penal Code, Secs. 1383-1387, 1810, et seq.), and prescribing the necessary steps to be taken, require a written motion for such leave, but nowhere provide that it must be supported by oath or affirmation. Under the statute of 1891 (Session Laws of 1891, p. 249, Sec. 3), the county attorney was required to verify the information, but Mr. Justice Hunt, in commenting upon this requirement in State v. McCaffery, 16 Mont. 33, 40 Pac. 63, points out that the words “probable cause,” as used in the constitution, are properly construed to embrace facts embodied in a complaint or information charging an offense upon information and belief. We believe this to be the true construction,' both upon principle and for sound reasons of public policy. Where a charge is preferred by indictment in this state, it is usually based upon the information and belief of a grand jury of seven men. If the grand jury were required to act upon personal knowledge of the crimes for which they present indictments, it would ráraly be the case that a charge could be preferred, no matter how much information they might obtain from witnesses, nor how thoroughly well founded their belief in the truth of it and the guilt of the person accused. So it is with the county attorney or other public officer in- endeavoring to bring wrongdoers to punishment. In the nature of things, these officers can rarely have personal knowledge of the facts and circumstances of a crime; and, in case of their inability to secure thel affidavit of some one possessed of such knowledge upon which to prefer a charge, the lawbreaker would goi unpunished. The provisions of the Code touching in-formations merely require that they shall be subscribed by the county attorney. ' It is nowhere made his duty to attach his verification, or to support the formal charge by an affidavit either by himself or any other person. It was held by this court in State v. Clancy, 20 Mont. 498, 52 Pac. 267, that the provision of the constitution here invoked is not violated by an omission on the part of the legislature to require an information to be verified, but that it is satisfied when an information, properly subscribed, is filed by the county attorney, because in thus presenting a formal charge this officer acts under his official oath. After a careful re-examination of the authorities cited and the provisions of the statute pertinent to the subject, we are satisfied with the conclusions reached in State v. Clancy, supra; and it necessarily follows that the written motion mads by the county attorney for leave to file the information need not be supported by oath or affirmation, nor is it required that it should set forth with technical accuracy the facts constituting a formal charge.

2. The facts leading up to and attending the homicide are, briefly stated, the following: On the evening of August 11, 1897, the deceased, Hawkins, and the defendant, with some of their friends, had attended a dance at the Columbia Gardens, a resort near Butte, in Silver Bow county, remaining there until the following morning. About 2 o’clock in the morning Hawkins and the defendant had a personal encounter, during which Hawkins struck the defendant. The latter thereupon drew his pistol and fired twice at Hawkins, but without effect Mutual friends interfered and stopped the conflict, and shortly thereafter Hawkins and the defendant, with their friends, returned to Butte. The defendant, with some of his party, went to the Swim Saloon, arriving there between 5 and 6 o’clock. The bar in the saloon forms a right angle with the line of the street., extending back from the front. Upon entering the place the rest of the party began to drink, and were standing about the room in front of the bar. The defendant apparently did not join in the drinking, but stood near and beyond the end of the bar towards the back of the room, some 18 feet from the entrance, leaning against a refrigerator. He was facing the street entrance. In a few minutes Hawkins entered alona From this, point there is a conflict in the evidence as to what took placa Some of the witnesses stated that Hawkins advanced towards the bar as if to order a drink, and stopped near the front of the room, with his right arm resting on the bar and his left hangings at his side; that thereupon the defendant, having advanced within a foot or two of Hawkins, thrust the muzzle of his pistol against Hawkins and fired; that Hawkins caught the pistol and tided to wrest it from the defendant; and that there then followed a general fight between Hawkins on one side and the defendant and two or three of his friends on the other, which continued -until Hawkins, having secured the pistol, broke away and ran into the street, where he was arrested by a policeman. Other witnesses stated that Hawkins upon entering the place held his right hand concealed in the pocket of his coat-; that he proceeded to within a few feet of the defendant, who advanced to meet him; that thereupon Hawkins and the defendant clinched and began to fight; and that in a moment the shot was fired by the defendant, inflicting a wound in Hawkins’ abdomen, from which, other evidence shows, he died on the following day. All the witnesses agree that in the general fight Hawkins was badly beaten and cut about the back of his head and neck, and that this was done by the friends of the defendant. No' words were spoken by either Hawkins or defendant, except that, just as the encounter began, one or the other (it is not certain which) said, “What is- the matter with you ?” There is in the record evidence that some one told the defendant after he- entered the saloon that Hawkins, since his return from the Columbia Gardens, had been trying to borrow a pistol, and had stated that he was “going to kill a nigger before morning.” The defendant- is a negro, as was also Hawkins. As a matter of fact, it subsequently appeared that Hawkins had no weapon when he entered the saloon. He was, however, a large, powerful man, and in this respect considerably superior to the defendant. What was the cause of the trouble at Columbia Gardens, the evidence does not disclose.

The defendant objected to all of the evidence tending to show the previous difficulty between himself and the deceased,, on the ground that this occurrence was no part of the res gestae, and any inquiry concerning it- was therefore immaterial. It- is also argued by counsel that its admission by the court was prejudicial to the defendant, in that it tended to establish another and distinct offense. This evidence was offered by counsel for the state, and admitted by the court, as tending to; show malice. What occurred there was certainly no part of the- res gestae of the homicida While it preceded the homicide, and may be said to have been, in’ a sense, one of the series of circumstances out of which, it may have grown, nevertheless each occurrence was complete in itself; and in the eye» of the law the responsibility of the respective participants in each was to be judged by the positions they occupied at the different times, and the motives which prompted them. Who was in the wrong in the encounter at the Columbia Gardens was therefore not a proper inquiry for the jury in their endeaver to fix the responsibility for what occurred in the Swim Saloon. It was propea’, however, for them to inquire what the motive or impulse was which prompted the defendant to fire the shot at the Swim Saloon; and, to enlighten and aid them in this inquiry, the condition of feeling theretofore existing between the defendant and the deceased was pertinent and material. In mating this condition appear to the jury, the evidence admitted might incidentally bring to their knowledge facts tending directly to establish against the defendant another and distinct offense yet the' possible effect of such evidence did not render it open to legal objection on the ground that if was incompetent or immaterial, and tended directly to prejudice the defendant in the eyes of the jury. (State v. Geddes, 22 Mont 68, 55 Pac. 919.) A trial court should carefully guard against the admission of evidence tending to showing collateral matters, to the end that the real issue may not be obscured, and the defendant be thus prejudiced; at the same time the defendant may not bet allowed to exclude from the consideration of the jury facts which are pertinent to the real issue on the ground that upon a previous occasion he had been guilty of another and distinct wrong. (State v. Geddes, supra.) The witnesses were not permitted to. go into the details of the previous difficulty so as to make it appear who was. in the wi’ong; and the court, as was proper, expressly confined the jury in their consideration of the evidence in this connection to the question whether it showed malice in the defendant at the time of the homicide: The ruling of the court was correct. (People v. Kern, 61 Cal. 244; People v. Brown, 76 Cal. 573, 18 Pac. 678; People v. Thomson, 92 Cal. 512, 28 Pac. 589; People v. Colvin, 118 Cal. 351, 50 Pac. 539.)

3. The court instructed the jury, in substance, that they were at liberty, according to their view of the evidence, giving to the defendant the benefit of every reasonable doubt, to find him guilty of either degree of murder or of manslaughter, or to acquit him entirely if upon the whole case they entertained a reasonable doubt whether he killed the deceased in necessary self-defense. Murder was properly defined in the words of the statute. Then followed the statutory definitions of murder of the first and second degrees, of manslaughter, and of justifiable homicide; no attempt being made, however, to draw a distinction between murder of the first and second degrees. The jury were left to draw this distinction for themselves from the general definitions given, and the words, “all other kinds of murder are of the second degree,” following the definition of murder, of the first degree. Counsel contend that this was prejudicial error. The identical question here presented was discussed by this court in State v. Baker, 13 Mont. 160, 32 Pac. 647, and decided in favor of the contention now made. The court in the present case correctly told the jury that the facts presented in evidence would warrant a verdict of guilty of any grade of unlawful homicide or of acquittal. If the statements of some of the witnesses were to be taken as true, the shooting of the deceased was without any palliating circumstances whatever, and the result of a deliberate design on the part of the defendant to gratify his feelings of malice and revenge. On the other hand, there was evidence from which the inference was permissible that it was the result of passion rekindled by the sudden and unexpected appearance of the deceased while the defendant was still smarting from the recollection of the recent encounter at Columbia Gardens. Under this view the jury might have concluded that the defendant was prompted by preconceived malice and ill will, but that there was wanting the deliberate purpose to take life necessary to constitute murder of the first degree. Again, the view might have been taken that the killing was the result of a sudden heat of passion brought about by a renewal of the trouble by the deceased himself; some of the witnesses having testified that upon entering the saloon the deceased advanced towards the defendant and renewed the fight. A finding of these facts would have justified a verdict of manslaughter. Again, there was evidence tending to show that the deceased had made a threat against defendant’s life, that he had endeavored to procure a pistol, that these facts had been communicated to the defendant, and that the deceased, upon entering the saloon in sight of defendant, had his right hand concealed in his pocket, and in this attitude had advanced upon the defendant with the apparent purpose of carrying his threat into execution. These facts, if found by the jury, would have justified an acquittal. It is the duty of the trial court to so declare the law applicable to every phase of the case that the jury may consider the evidence with the full knowledge of every essential element of each grade of crime of which the defendant may be-convicted. (State v. Baker, supra.) Jurors are not learned in the law. Ordinarily they have not experience and knowledge sufficient to enable them to draw nice distinctions necessary in the application- of legal principles, and, unless the court comes to their assistance and declares these distinctions so that they may understand and apply them, they are left to grope in confusion and uncertainty. Under such conditions a verdict is ignorant guesswork, and not the result of intelligent deliberation. The court nowhere told the jury that murder of the second degree is the unlawful killing of a human being with malice aforethought, but without deliberation. Thus the jurors were left to find out for themselves, from a reading of the statute, and by a process of exclusion, that deliberation is the distinguishing characteristic of murder of the first degree, and that all other kinds of murder are of the second degree, because this element is wanting. Upon further consideration of the subject, we are satisfied that the rule laid down in State v. Baker, supra, is correct.

Let the judgment and order be reversed, and ihe cause be remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: ME. JUSTICE PIGOTT,

license: Public Domain

text:
    STATE ex rel. ROBERT MITCHELL FURNITURE CO., Plaintiff, v. TOOLE, Governor, et al., Defendants.
    (No. 1,715.)
    (Submitted October 19, 1901.
    Decided October 28, 1901.)

      Mandamus — Suit Against State — Mandamus to Officer — State Furnishing Board — Rescinding Oontracts — Advertisement for Bids — Union Labor — Constitution.
    1. where the state furnishing board regularly accepts a bid for the furnish- • ing of supplies to the state, and subsequently refuses to sign the formal contract, a writ of mandate to compel such action is not obnoxious to the objection that it is, in effect, a suit against the state.
    2. under 1’olitical Code, Sec. 707, providing that the state furnishing board must award the contract for supplies for the state to che lowest responsible bidder, where the board regularly accepts a bid for supplies its action in subsequently attempting to qssoind the contract because the bidder is shown to be a corporation employing non-union workmen, and hostile to labor organizations, is void.
    3. That the refusal of the state furnishing board to award a contract to the lowest responsible bidder is merely erroneous, is not sufficient to justify the issuance of the writ of mandate.
    4. A contract entered into by the acceptance of a bid for public work, tendered pursuant to an advertisement limiting the right to bid to persons employing, or who will in the future employ, union labor only, is void.
    5. An absolutely void contract cannot be made valid by the failure of public officers to object to it upon the proper ground.
    6. where advertising for bids is a statutory requirement, neither the municipality nor its agents can make a contract binding upon it without "compliance with the formalities so prescribed.
    7. Advertisements for proposals to furnish supplies are not public printing within the language or spirit of Section 30, Art. V, of the Constitution.
    8. Political Code, Sec. 706, declares that, before any contract for the furnishing of supplies to the state is let, the state furnishing board must advertise for proposals for 20 days in two daily newspapers printed in the state. Constitution, Art. V, Sec. 30, ordains that all printing for the state snail be performed under contract to be given to the lowest responsible bidder. Held, that where an advertisement for proposals for the furnishing of supplies was not made in compliance with section 706, but was made' only in a newspaper which had the contract for the public printing, and a contention that the publication was lawful because the advertisement was public printing was without merit.

      Mandamus by the state, on tbe relation of the Eobert Mitchell Furniture Company, to Joseph K. Toole, governor, and others, constituting the state furnishing board, to compel respondents to sign a formal contract for the furnishing of supplies to the state by relator. There was a demurrer to the petition and a motion to quash the writ, which were overruled, and answers and a reply were then filed.
    Alternative writ quashed, and proceedings dismissed.
    STATEMENT OE THE CASE BY MR. JuSTICE PlGOTT.
    This is an application by the plaintiff, the Eobert Mitchell Furniture Company, for a writ of mandate commanding the defendants to sign a certain alleged contract An alternative writ was issued. A demurrer to the petition and a motion to quash the writ were overruled and denied pro forma. Answers and a reply were then filed. Upon the issues thus framed evidence was taken. So far as need be stated the facts are these: The defendants Toole, Donovan, and Hays are and since January 7,1901, have been, respectively, governor, attorney general, and secretary of state of the state of Montana,, and as such have constituted, and do now constitute, the state board of examinea’s and ex officio furnishing board. . One of the duties of the furnishing board is to provide furniture and supplies for the state capital/ and to that end to contract with the lowest responsible bidder therefor. On the 20th day of May, 1901, the board directed that an advertisement be inserted in the Helena Independent, á daily newspaper painted at the seat of government of the state, and in two newspapers printed and published without the state, for sealed proposals to' furnish certain supplies and furniture for the state capitel. The advertisement ran for twenty days in the. Helena Independent and in the other newspapers designated by the board, but it was not inserted in any newspaper printed in the state of Montana except the Independent. Before the publication of the advertisement the board had awarded to the owner of the Helena Independent a contract to do the printing for the state, which contract was in existence while the advertisement appeared in that newspaper. On the 1st day of August, 1901, the board opened and compared the proposals received, there being six bidders. Among the proposals was one from the plaintiff offering to furnish the' supplies called for in the advertisement at a stated price. On August 2d, 3d, and 5th the board further discussed and considered the several proposals,- and on the 6th day of August, by unanimous vote, awarded the contract to the plaintiff for the sum of $35,/781 upon the amended proposal, schedule and specifications submitted by the plaintiff and notified the company of the acceptance of its offer. .The attorney general was directed by the board to prepare a formal contract conformable to the agreement resulting from the acceptance of the bid. -This he did, and it was signed by the plaintiff but not by the board or its member's. The bid of the- plaintiff was not accompanied by any bond. At some time between the 10th and 23d of August the plaintiff delivered to the attorney general its bond bearing date August 10th, in the penal sum of $18,000, payable to the state furnishing board of the state of Montana. This bond was never presented to the board. A few days prior to the 23d of August the members of the board received from .certain organizations, commonly called “labor unions,” protests against the signing of the contract theretofore made with the plaintiff, the protests asserting hostility^ on the part of the plaintiff toward labor organizations and that it employed persons who were not members of unions. A meeting was called for August 23d for the sole purpose of investigating and taking action upon these protests. At the meeting one McDonald, president of the union1 known as the “Western Labor Union,’’ presented the protests and evidence in support of the so-called “charges,’’ and a representative of the plaintiff appeared in its behalf. Upon consideration of the “charges” and the purported evidence in support of them, the board formally reconsidered its action in awarding the contract to the plaintiff, the governor voting in- the negative. It was then moved that the contract be canceled, which motion was carried against the negative vote of the governor. The following is a copy of the minutes of that meeting:
    “HeleNa, Moira., Aug. 23, 1901.
    “The following protests to the signing of the contract with tbe Robert Mi.tch.ell Furniture Company having been received: Silver Bow Trades & Labor Assembly, No. 61, Bntte, Mont.; Missoula Federal Labor Union No. 43, Missoula Mont, f West-urn Labor Union, Butte, Mont.; Western Montana Trades & Labor Council, Missoula, Mont.; Barbers’ Union, Butte, Mont; Mountan View Lodge, No. 29, International Association of Machinists, Anaconda, Mont.; United Brotherhood of Carpenters & Joiners of America, Missoula, Mont.; Big Blackfoot Lumbermen’s Union, No. 47, Bonner, Mont.; Montana State Trades & Labor Council, Butte, Mont.; Carpenters’ Union No. 88, Anaconda, Mont.; Red Lodge Labor Union No. 70, Red Lodge, Mont., — the board met to hear the matter of such protests, which were presented by Mr. Daniel McDonald, president of the Western Labor Union, oh behalf of the several labor ■organizations, and by Mr. Lou Hartson, on behalf of the Robert Mitchell Furniture Company. The minutes of the previous meetings were approved. In the matter of the protest against awarding the contract to the Robert Mitchell Furniture Company for the furnishing of the state capitel; whereas, evidence was submitted to the board that the said Robert Mitchell Furniture company was denominated by the labor unions of the United States as hostile to labor organizations, and was classed .as a scab company; and, whereas, said facts were presented to the state furnishing board. Now, therefore, after considering the charges and evidence in support thereof, it is hereby resolved : that the action of the board in awarding the contract to the Robert Mitchell Furniture Company be reconsidered: And that motion carried, Messrs. Donovan and Hays voting aye» A motion being made by a member of the board to cancel said contract, and the same being submitted to the bear’d, was carried, Messrs. Donovan and Hays voting aye, and the contract was declared to be canceled. On both the above motions Gov. J. K. Toole voted in the negativa Mr. Lou Hartson, the representative of the Robert Mitchell Furniture Company, was notified in person by the secretary of the board of the decision of the board, rescinding the former order to award the contract to his firm. Board adjourned.”

      At tbis meeting tbe governor inquired where tbe bond was and tbe attorney general answered that be bad it in bis office,, whereupon tbe governor inquired whether there was any objection on account of tbe bond, and whether there were any objections other than the one presented to the board by the labor unions, and was informed that there were none. As to which member of the board informed the governor that there was no objection to the contract save the one in respect of union labor is not clear, for the governor, after testifying that he made inquiries at that meeting of the board whether there was any other reason and was told that there was not, testified“I will not say positively that you (the attorney general) said that there were no other reasons or objections to that bid; but you made no- objection on account of the bond; * * * there was no other reason assigned, or suggested, passed upon, or determined by the board.” The secretary of state testified that the only reason why he voted to rescind the contract was because of the matter set out in the resolution. No reason was-assigned, suggested, discussed, passed upon or considered by the board other than the one set forth in the resolution. At the-time of the rescission or cancellation of the contract the attorney general knew that the advertisement had not been printed in any newspaper in Montana except the Helena Independent, and had actual knowledge of the provision of Section 105 of the Political Code which makes it the duty of the board to advertise for twenty days in two daily newspapers printed in the state. On the 28th day of August, 1901, this proceeding-was instituted, the plaintiff asking that the defendants be required to sign and deliver the formal contract prepared by the attorney general or one in substance similar thereto-. Thereafter and on the 18th day of October, a bond in the penal sum of $15,000, duly executed by the plaintiff and a surety company, conditioned for the faithful performance of the contract, was delivered to the secretary of state, but no action thereon was taken by the board.

      Messrs. Toole & Bach, for Relator.

      Mr. James Donovan, Attorney General, for Defendants.
   ME. JUSTICE PIGOTT,

after stating the case, delivered the opinion of the court.

Many questions have been argued which we need not decide, —for instance, we find it unnecessary to determine whether the furnishing of a bond in conformity with the’ provisions of Section 708 of the Political Code is always a prerequisite to a valid contract with the board, or to determine the kindred question whether the board might waive or excuse the failure of the plaintiff to present a bond with its bid, and, if it could, whether it did so; and also the question whether the plaintiff followed the requirement of the latter sentence of Section 706 of the Political Code providing that “a sample and minute description of every article must accompany and be deposited with each proposal.” Por the purposes of the proceeding we assume, but do not decide, that these questions and all others not specially discussed should be solved in plaintiff’s favor. So viewing the case, we deem it necessary or advisable to consider but four questions:

1. The defendants Donovan and Hays attack the petition and alternative writ of mandate upon the ground that the proceeding is in effect an action against the state and say that a state of the Union is not without its express consent subject Í» suit in its own courts or in those of another state. They say that the doctrine is absolute 'and cannot be overthrown indirectly by the institution of actions against state officers when in effect they are actions against the state. With this we agree. (Langford v. King, 1 Mont. 33; Fisk v. Cuthbert, 2 Mont. 593; State ex rel. Journal Pub Co. v. Kenney, 9 Mont. 389, 24 Pac. 96; 23 Am. & Eng. Enc. Law (1st Ed.), 83.) But the present proceeding is not in effect an action or proceeding against the state. If the allegations of the petition are true the proposal of the plaintiff was regularly accepted and the contract let to it as the lowest responsible bidder after a compliance with all the statutory requirements. The state by its authorized agent .awarded a contract, and tbe object of tbe present proceeding is to compel tba defendants as public officers of tbe state to sign tbe formal contract, and thereby perform wbat is alleged to be •their ministerial duty. If tbe duty to be performed by a public officer of tba state is purely ministerial, tbe writ of mandate may be issued, tbe case being otherwise a proper one for tbe ■employment of such writ. (State ex rel. State Pub. Co. v. Smith, 23 Mont. 44, 57 Pac. 449, and cases there cited; Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60; In re Ayers, 123 U. S. 506, 8 Sup. Ct. 183, 31 L. Ed. 230.) In tbe case last cited tbe court approved tbe following extract from tbe opinion in Board of Liquidation et al. v. McComb, 92 United States, 541 (23 L. Ed. 628) : “A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own ■discretion for that of executive officers in matters belonging to tbe proper jurisdiction of tbe latter. But it has been well settled. that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and, when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be bad at law, may have an injunction to prevent it;” and upon that principle this court has often entertained proceedings against state officers, tbe latest being State ex rel. State Savings Bank v. Barret, State Treasurer, 25 Montana, 112, 63 Pacific Reporter, 1031. If tbe defendants owé to tbe plaintiff tbe performance of an act which tbe law specially enjoins as a duty resulting from an office,— in other words, if tbe defendants as member’s of tbe board owe to tbe plaintiff a duty, and tbe performance of that duty is a ministerial act not involving tbe exercise of discretion or judgment, — tbe writ of mandate will lie to compel such performance, and tbe state is not thereby subjected to an action or proceeding. Tbe petition is not obnoxious to tbe objection urged.

2. Section 707 of tbe Political Code provides with reference to the state furnishing board: “The proposals received must be directed to- the board, opened and compared by it at its office at twelve o’clock noon, of the day specified in the advertisement, and the board must award the contract for furnishing such supplies, or any of them, to the lowest responsible bidder at such time.’’ Section 709 provides, among other things, that any and all bids may be rejected and the board may advertise again. The board is a governmental agency possessing such powers and jurisdiction, and such only, as the law confers upon it. In the examination, comparison, and consideration of the proposals and in awarding the contract the board exercises its discretion. The duty imposed is to- award the contract to the lowest responsible bidder, unless the bids be rejected. This the statute commands it to do ; and whenever, after a compliance with the statutory prerequisites essential to the valid acceptance of a bid, it has regularly awarded the contract, there spring into- existence vested rights which the board cannot destroy or impair. It cannot insert into the formal written contract any condition not consonant with the contract already made by virtue of the acceptance of the bid. (American Lighting Co. v. McCuen, 92 Md. 703, 48 Atl. 352.) In the absence of fraud, accident, and mistake, or other legal reason sufficient to render the acceptance-void or voidable, the contract resulting therefrom cannot (unless by mutual consent) be changed or annulled, nor may its. obligation be impaired, by any act of the board. True, such a contract is subject to the approval of the governor and state treasurer (Constitution, Art. V, See. 30; Section 710, Political Code; State ex rel. State Pub. Co. v. Hogan, 22 Mont. 384, 56 Pac. 818; State ex rel. State Pub. Co. v. Smith, 23 Mont. 44, 57 Pac. 449), but this is a matter which does not concern the members of the board non give it the right to recall the acceptance and award. When it has thus regularly discharged' the duly imposed upon it by the law, its jurisdiction in respect of awarding the contract is exhausted; its discretion was exercised and the power further to exercise it is gone. We are-aware that there is some conflict of opinion upon this subject, but we think that such must in the nature of things be the rule applicable to boards and officers clothed with specially delegated authority and intrusted with limited jurisdiction. Support for these general observations may be found in People ex rel. Holler v. Board of Contract and Apportionment of City of Albany, 2 Howard’s Practice Reports (N. S.) 423; People ex rel. Lunney, v. Campbell, 72 New York Reports 496; State ex rel. Whedon v. York County, 13 Nebraska 57 (12 N. W. 817) ; Wren v. Fargo, 2 Oregon 20; People ex rel. Coughlin v. Gleason, 121 New York, 631 (25 N. E. 4) ; Boren v. Commissioners, 21 Ohio State Reports, 311; State ex rel. Coogan v. Barbour, 53 Connecticut, 76 (22 Atl. 686, 55 Am. Rep. 65.)

The action of the board in attempting to cancel the contract was void unless a cause existed which the law recognizes as sufficient to invalidate the contract. We proceed to ascertain whether such cause appears.

3. In behalf of the attorney general and the secretary, of state the argument is advanced that the reason stated in the resolution was sufficient to justify the board in reconsidering the motion by which the bid of the plaintiff was adopted and in canceling the contract thereby created. It is asserted and seriously argued that, conceding the regularity of all the proceedings precedent to the letting of the contract and the validity of the letting, the board possessed the right to cancel the contract upon the ground that the plaintiff “Was denominated by the labor unions of the United States as hostile to labor organizations and was classed as a scab company.” The advertisement'was silent upon the subject of union labor and non-union companies or persons; it did not pretend to limit the bidding to those who were friendly or indifferent to labor organizations, —if it had done so it would, as we shall see, have been invalid; on the contrary the notice was addressed to' all persons — the-invitation to present proposals was general. The proposal of the plaintiff was filed; the board declared it to be the lowest responsible bidder and awarded the contract to it. The plaintiff was not guilty of fraud or deceit; the board was not misled; it was not induced to let the contract by any misrepresentation whatever; the bid of the plaintiff was not accepted through any accident or mistake. By what sort of logic do thei attorney general and secretary of state attempt to defend their position ? Let their answer speak upon this point. After reciting that the plaintiff was hostile to labor organizations and was classed as a non-union company, it avers that this “fact, in the judgment of defendants as said state furnishing boax*d, rendered said company liable to be enjoined from carrying out said contract, and on the further grounds that said company was more liable to be unavoidably delayed by strikes and labor troubles- than if said contract were let and awarded to a company or person not hostile to labor organizations; that, knowing the attitude of labor organizations towards the relator herein, it was. probable and likely that the furnishing and delivery of the furniture and supplies under said contract by said relator would result in great damage and injury to the state, which could not be adequately provided against under the contract. The fact that said company was hostile to labor organizations, and having been so classed by them as a non-union company, was a reason, in the judgment of the defendants as such state furnishing board, which would affect their responsibility as bidders and render them less responsible and trustworthy than if they were not hostile to labor organizations or classed as a nonunion company. That said fact that said relator was hostile to labor organizations and classed as a nonunion company was not known to the defendants' at the time they let and awarded said contract to the relator herein.” Is it not wasting words to declare the evident and palpable-fact that this is not a reason Avhich the law recognizes as a sufficient cause for avoiding the contract? We are not to be understood as denying the legal right of the board in good faith but erroneously to award a contract to- one who- is not in fact the lowest responsible bidder, for we apprehend the rule in this state to be that the action of the board will be controlled or interfered with only where it clearly appears that the refusal to' award the contract to the lowest responsible bidder was fraudulent or in bad faith, or was the result of an abuse of discretion (which is equivalent to a failure to exercise discretion) ; that the refusal was merely erroneous is not sufficient to justify the issuance of the writ of mandate. Such seems to be the principle underlying the decision in State ex rel. Eaves et al. v. Richards, 16 Montana, 145 (40 Pac. 210, 28 L. R. A. 298, 50 Am. St. Rep. 416). It may be that the refusal to award a contract to> the lowest bidder who is in all respect * responsible, for the sole reason that he is inimical to organized labor and is classed as a nonunion employer, would be arbitrary, oppressive and unjust conduct, indicating that the board failed to exercise discretion. But however this may he, the rule stated is inapplicable to the case at bar. The action of the defendants must be tested by a more rigid rule; for the board did not refuse to let the contract; it awarded the contract to the plaintiff, and seventeen days thereafter ordered its cancellation for the alleged reason, stated in the resolution of August 23. If a contract was made by the acceptance of the bid, the board was powerless to rescind its action and thereby cancel the contract, except for a cause which in the eye of the law, rendered it void or voidable. In this respect it was like a contract between individual persons in which each enters into' covenants with the other, — it could not be annulled at the pleasure or caprice of one party alone. Can it be sanely suggested by even 'the most prejudiced man that a private person possesses the legal right to hold for naught a contract to which he is a party because the other party is a person who* is inimical to organized labor and is classed as a nonunion employer, the contract being-silent on that subject? Of course the law would not recognize •such reason as cause for the annulment of the contract; and equally as a matter of course is the rule the same in the case-of contracts between boards and the individual person or corporation. In so far as its legal value and force is concerned the reason assigned might as well have been that the plaintiff employed members of labor unions, was therefore inimical'to nonunion workingmen, and was classed as a union company; or that the directors of the plaintiff believed in the dogma of the infallibility of the Pope and were therefore unfriendly to Protestants, or in. the doctrine of transubstantiation and in auricular confession, or were high churchmen and therefore classed as ritualists; or that they were in sympathy with England’s policy towards Ireland and therefore distasteful to the Eenians; or were members of a law and order league and hence inimical to anarchists and their sympathizers. In passing we observe by way of illustration that a contract between private persons may provide that it shall cease to be obligatory or be void if either party to it shall employ nonunion men, and the law will permit the provision to have its full force; and so with an inhibition against the hiring of union men and with all other stipulations which are not impossible of performance; not immoral, nor contrary to public policy. A private person seeking-proposals may give notice that the bidders must be members of labor organizations or employers of none but union workmen ; the acceptance of a hid made in accordance with the terms of the notice would constitute a contract the conditions whereof will be binding. But the advertisement for proposals an,d the contract created by tile acceptance of a proposal made pursuant thereto to- do work or furnish supplies for the state stand upon a different footing. The object of advertising for proposals is to invite and secure the benefit of competitive bidding. Section 705 of the Political Code prescribes that before any contract is let the board must advertise in two1 daily newspapers printed in the state, one of which must he printed at the capital, for sealed proposals to furnish the supplies desired. This court, in State ex rel. Lambert v. Coad, 23 Montana, 131 (57 Pac. 1092), quoted with approval the following language from the opinion of Dement v. Rokker, 126 Illinois, 174 (19 N. E. 33) : “Letting by contract to the lowest responsible bidder’ necessarily implies equal opportunity to and freedom in all whose interests or inclinations might thus impel than to compete ac the bidding. No one may be compelled to bid at such a letting, but there must be entire fairness and freedom in competition. * * * Tbe manifest purpose in requiring tbe contract to be let to Tbe lowest responsible bidder’ is to protect tbe state against imposition and extortion.” A contract entered into by tbe acceptance of a bid for public work tendered pursuant to an advertisement limiting tbe right to bid to persons employing or who will in. tbe future employ union labor only, is- necessarily void • tbe advertisement is illegal, for it tends to- defeat tbe very purpose it was intended by tbe legislature to subserve. In Adams v. Brenan, 177 Illinois, 194 (52 N. E. 314, 42 L. R. A. 718, 69 Am. St. Rep. 222), tbe board of education advertised for bids for t-be construction of a roof for an addition to one of tbe free school buildings, tbe advertisement containing tbe following notice: “None but union labor shall be employed on any part of tbe work where such work is classified under any existing union.” Tbe bid of one Knisely was accepted, and a contract made containing a provision that none but union labor should be employed by him. A taxpayer filed a bill asking that tbe contract be declared void and» that the board be enjoined from carrying it out or expending money under it. One of tbe reasons given in tbe application to tbe board for tbe adoption of tbe clause respecting tbe employment of union labor was that it would do away with strikes upon school buildings and thereby save tbe board much annoyance and delay. The syllabi accurately state tbe conclusions of the court as follows: “(3) Board of education cannot bind itself to give only union men employment. A board of education has no- power to agree with the representatives of labor organizations to- insert in all its contracts for work upon school buildings a provision that none but union men should be employed in such work, or placed upon its pay rolls. (4) A board of education has no discretion to make contracts restricting competition. That a board of education might- have been of the opinion its action-was for tbe public benefit affords no justification for limiting competition among bidders upon school building contracts, by requiring'them to employ only union men in tbe work. (5) Stipulation in public contract for employment of union men only is illegal. A provision in a contract for a public school building, which requires the employment of union men only, creates a monopoly in their favor, and restricts competition by preventing contractors from employing any but union men, excluding all others engaged in the same kind of work.” The like principle is the basis of the decision in State ex rel. Snyder v. Portland Natural Gas & Oil Co., 153 Indiana, 483 (53 N. E. 1089, 14 Am. St. Rep. 314).

Although the reason given, at the time of the attempted cancellation is not recognized by the law as valid, yet if there is cause sufficient to render the contract void it may be shown. The defendants are not estopped to urge other defenses. An absolutely void contract cannot be made valid by the failure of public officers to object tot it upon the proper ground. There is no need of precedents to sustain this statement. State ex rel. Leech v. Board of Canvassers of Choteau Co., 13 Montana, 23, (31 Pac. 879), is not exactly in point. The case of Newell v. Meyendorff, 9 Montana, 254 (23 Pac. 333, 8 L. R. A. 440, 18 Am. St. Rep. 738), is not pertinent.

4. Was the advertisement inviting proposals published according to law ? It was inserted in the Helena Independent, a daily newspaper published at the seat of government, where it ran for twenty days prior to the time^when the bids were opened and compared; but it was not printed in any other newspaper within the state. Section 705 of the Political Code reads as follows: “Before any contract is let, the board must advertise for twenty days in two daily newspapers printed in the state, one of which mu'st be published at the seat of government, for sealed proposalsjto furnish any and all the supplies mentioned in the next preceding section.” The advertisement appeared in but one paper printed in the state, and hence the section was not complied with. Where advertising for bids is a statutory, requirement, the law is that neither the municipality nor its agents can make a contract binding upon it without compliance with the formalities so prescribed. “Bids need not be called for unless the statute requires it; but if notice, advertising and similar preliminaries are required, a contract entered into without attention to these preliminaries will be held invalid. * * * The same rule applies to the letting of contracts on behalf of the state and, before a contract can become valid and binding upon the state, the statutory formalities must be complied with.’’ (State ex rel. Lambert v. Coad, 23 Montana, 131, 57 Pac. 1092, and cases there cited.) The only argument advanced by the plaintiff against this objection to the contract is that Section 705 conflicts with Section 30 of Article V of the state Constitution, which ordains that “all stationery, printing, paper, fuel and lights used in the legislative and other departments of government, shall be furnished, and the printing, and binding and distribution of the laws, journals and department reports and other printing and binding, and the repairing and furnishing the halls and rooms used for the' meeting of the legislative assembly and its committees shall be performed under contract, to be given to the lowest responsible bidder below such maximum price and under such regulations as may be prescribed, by law.” Counsel for the plaintiff argue that the legislative assembly had no power to require the publication of the advertisement to' be made in any newspaper other than the Helena Independent, the proprietor of which had the contract for the public printing, and that the publication of the advertisement in that newspaper constituted a compliance with the law. The position of counsel is untenable. It is apparent to us that advertisements for proposals are not public printing, within the language or spirit of Section 30, — a contract for advertising for proposals to furnish supplies' is not required to be let as a printing contract to the lowest responsible bidder; in other words, within the purview and intent of .Section 30, an advertisement inviting bids is not printing, the contract for which must be let to the lowest responsible bidder; a contract for doing the printing mentioned in Section 30 does not include advertisements for bids. In the absence of a constitutional inhibition the legislative assembly has the right to prescribe tlia manner of giving notice for proposals to furnish supplies. It has clone so by Section 705, which requires that the state furnishing board must advertise for such proposals in two daily newspapers printed in the state, one of which must be printed at the capital. This section.is in no wise repugnant to the constitution.

For the reason that the advertisement for proposals was not published in accordance with the requirements of Section 705 of the Political Code, the alternative writ is quashed and the proceeding is dismissed, at the costs of the plaintiff. Let judgment be entered accordingly.

Writ quashed and proceeding dismissed.


author: MR. JUSTICE MILBURN

text:
    JORDAN et al., Appellants, v. ANDRUS et al., Respondents.
    (No. 1,705.)
    On MotioN to Dismiss Appeal.
    (Submitted October 28, 1901.
    Decided October 28, 1901.)

      Appeal and Error — Transcript—Printing—Pules of Court— Constitutional Law — Judicial Department — Legislative Regulation.

    Under Constitution, Art. VIII, Secs. 2, 3, lo, giving the supreme court appellate jurisdiction of all cases in law and equity, subject to such limitations and regulations as may be prescribed by law, and giving the legislature power to prescribe regulations and limitations, and declaring that writs of error and appeals shall be allowed ‘from the-decisions of the district court to the supreme court, under such regulations as- may be prescribed by law, the, legislature had no power to regulate the physical form of the pleadings and instruments to- be filed with the supreme court; and the act of “March 9, 1901, known as “Senate Bill 101,” providing that transcripts on appeal may be printed or typewritten, at the election of the appellant, is invalid.

      Appeal from District Court, Custer County; C. H. Loud, Judge.

      Proceedings by W. A. Jordan and others against W. W. Andrus and others. Prom a judgment in defendants’ favor, plaintiffs appeal.
    Dismissed.

      Messrs. Strevell & Porter and Mr. Geo. W. Farr, for Appellants.

      Mr. G. W. Myers and Mr. Sidney Sanner, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This cause is before the court upon the motion of the respondents to dismiss the appeal upon the grounds: “(1) That the transcript on appeal herein by the said appellants is not printed, nor made upon paper ten inches long by seven inches wide, nor are the typewritten pages thereof seven and one-half inches long by three and one-half inches wide, nor is said transcript otherwise or at all made in conformity with Subdivision 1 of Rule VI of this court. (2) That said transcript on appeal is not in conformity with Subdivision 1 of Rula VII of this court in this: that the cover thereof does not state the title of this court or of said cause, or otherwise or at all conform to said rule in relation to covers in transcripts on appeal. (3) That said transcript is made out in a slovenly manner. * * * (4) That the order of the district court from which this appeal is taken or sought to' be taken, to-wit, the order made and entered July 16, 1901, dissolving and vacating the temporary restraining order theretofore made in this action, is not an ap-pealable order, within the meaning of Sections 1122 and 1723 of the Code of Civil Procedure, as amended February 28, 1899, and an appeal does not lie from said order1 to' this court.”

The transcipt is typewritten. Subdivision 1 of Rule VI requires transcripts to be printed. Is the rule abrogated and annulled by the Act of the legislature approved March 9, 1901, known as “Senate Bill 101” (Laws of 1901, page 161), and providing that all transcripts, documents and papers filed in the supreme court in conneotion with, any appeal taken and mentioned in the chapter in the Code of Civil Procedure upon appeals in civil actions may be printed or typewritten, at the election of the appellant ? If the Act is within the powers of the legislature, then the rule of this court opposed to it is null, and the motion to dismiss the appeal must be denied, so far as the first ground is concerned.

This particular question is not treated of in any opinion ox any court to which we have been referred, or by any of the learned writers, many of whose works we have examined.

The constitution of this state vests the powers of government in three different and distinct departments, — the legislative, the exeeutivei, and the judicial. It is not necessary to quote from the multitudinous authorities supporting the proposition that it is not lawful for any department, or officer thereof, to interfere with the power of any other department. It is sufficient to refer to the constitution (Article IV, Sec. 1) and to State ex rel. State Pub. Co. v. Smith, 23 Mont. 44, 57 Pac. 449.

Section 3 of Article VIII of the Constitution of this state declares that “the appellate jurisdiction of the supreme court shall extend h> all eases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law.” Section 2 of the same article also gives the legislature power to subject the appellate jurisdiction to “regulations” and “limitations;” and Section 15 of the article is as follows: “Writs of error and appeals shall be allowed from the decisions of the said district courts to the supreme court under such regulations as may be prescribed by law.”

What is meant by “limitations” and “regulations?” The words in their ordinary sense are easily understood to mean what they in legal parlance, respectively, imply, to-wit, restrictions of power and rules of conduct or proceeding. The matter of this rule need not be treated as in any wise affected by the power of the legislature to establish limitations to jurisdiction. Its power to make rules of conduct or proceeding (that is, rules of procedure and practice) is all that can be considered on this motion. Tbe question, is, lias the legislature the authority under the constitution, after having enacted a Code of Civil Procedure, including a chapter establishing the procedure and practice in the matter of appeals to the supreme court, to' dictate to the supreme court as to the very physical substance of the pleadings and other instruments which it may be necessary for'the justices to handle, read and study in their deliberations after the cause is submitted ?

What style of typewriter would the legislature permit the appellant to use ? What size of type ? How close shall the lines be ? How thick is to be the paper ? How small or large shall the pages be? What sort of ink shall the operator use in preparing the papers, — record or copying? How skillful in the use of the machine shall the typewriting operator be? If the legislature has the power to dictate as to carbon copies of transcripts to be used on appeal, why has not the legislature the power, under the constitution, to force the justices to read, study and handle, during its deliberations, sometimes extending through a long period of time, papers prepared upon tissue paper, with machines making faint impressions from small type, and with such ink or carbon that they will be annoying, inconvenient, untidy and soon indecipherable? Could a regulation such as that last above suggested be within the powers of the legislature to regulate the procedure and practice on appeal to the supreme court? If not, then we cannot see how any regulation of any character dictating to our department of the state government what kind of ink or other material substance shall be used, or how the ink shall be put on, in the manufacturing of the pleadings and papers to be handled and perused by the justices, can be valid. Might not the legislature go farther, and permit the appellant to use a pen instead of a typewriter? Power to dictate to this department of government as to the use of typewritten transcripts includes the right to order us to struggle through a mass of penwritten transcripts and all other records and papers, including briefs.

Wherein would such acts be within the power of the legislature, as a “regulation” of tlio appellate jurisdiction of tbis court? Would it not be simply and only an obstruction put in tlie way of the court, and interfering with, its deliberations upon a cause or matter after its submission, and of which it has acquired jurisdiction under the constitution and the laws defining, limiting and establishing its powers, and under the lawful procedure and practice through and by means of which the litigants had presented their several contentions to the court? Wo think it would- be an illegal attempt to interfere with the operations of the judiciary in the performance of its duties after it had acquired jurisdiction.

It is doubtless true that the legislature lias power by “regulations” to establish the procedure in civil and criminal cases (that is, the steps to be taken by the parties in an action or other legal proceeding before this court), so far as such procedure does not amount to a denial of justice, and has power to declare by law what shall be the practice on appeal (that is to say, to fix the form, manner and order of conducting and carrying on causes through their various stages according to the principles of law) ; but we cannot see how the power to make regulations (that is, to establish procedure and practice) includes the power to interfere with the discretion of this court in saying that the instruments filed for the reading of the justices of the court shall be printed and upon certain sized paper, to the end that causes may be conveniently heard and disposed of, and not delayed by the necessity of handling and reading papers which are inconvenient in shape and condition.

To admit power in the legislature to annul the rule referred to, and to permit the appellant, at his option,* to compel the justices, desirous to learn the facts and to consider the points of counsel, to labor through a mass of carbon copies of typewritten matter, is as unwarranted as to' admit that the legislature has power to authorize counsel, without the consent of court, to submit their causes without argument, oral or printed.

To- require transcripts to be printed is to regulate the manner of hearing and considering, and does not interfere with any right of tbe appellant to take and perfect bis appeal, or to take or to omit any step in procedure, or to alter tbe practice; that is, tbe form, manner or order of conducting bis appeal. Tbe rule is only a declaration on tbe part of tbe court that, in doing its share of tbe labor in connection with tbe appeal, it must have tbe papers of such material substance, style and size that tbe justices may not bave their labors increased beyond wbat they should be.

Under the federal constitution the Supreme Court of tbe United States has appellate jurisdiction “under such regulations as tbe congress shall make.” Is there a single lawyer in tbe world who believes that tbe latter-named court would recognize as valid an Act of congress such as our Senate Bill No. 101 ? If tbe answer to this question is “No,” as it must be, then by wbat process of reasoning can we bold this Act of our legislature as binding upon this court ?

Mr. Justice Field, of tbe Supreme Court of tbe United States, in 1859, when a justice of the Supreme Court of California, in Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565, speaking of an Act amending the Practice Act, and requiring tbe opinion of tbe court to be given in writing, said: “If tbe power of tbe legislature to prescribe the mode and manner in which tbe judiciary shall discharge their official duties be once recognized, there will be no limit to tbe dependence of tbe latter. If .the legislature can require tbe reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written, and tbe ink which shall be used. And yet no sane man will justify any such absurd pretension. But where is tbe limit to this power if its exercise in any particular be admitted ? Tbe truth is, no such power can exist in tbe legislative department, or be sanctioned by any court which has tbe least respect for its own dignity and independence. In its own sphere of duties, this court cannot be trammeled by any legislative restrictions.” This opinion of tbe learned justice has never been adversely criticised by any court or by any law-book writer, so far as we bave been advised.

It is true that the California constitution did not.in 1859 give the legislature power to make such regulations as are provided for in our constitution, but, in view of the inherent powers of our court, which we do not believe the constitution takes away and reposes in the legislature, we think the language of Justice Field appropriate to the matter before ns; and we can reasonably believe that the Supreme Court of the United States would adopt the words and thoughts of Mr. .Justice Field if congress should assume to act under the powers conferred by the constitution, and should enact a statute similar to our Senate -Bill No. 101.

Although the cases were not upon facts identical with those in the case at bar, yet the views expressed by the court of Indiana in In re Petition of Leach, 134 Ind. 665, 34 N. E. 641, 21 L. R. A. 701, and by the Supreme Court of Illinois in In re Application of Day, 181 Ill. 73, 54 N. E. 646, 50 L. R. A. 519, go far to support what we have said above as to the inherent powers of this court, which are beyond the power of the legislature to- control. In the latter case it was held that a statute overriding the rules of the court respecting the admission of attorneys, by requiring the admission of any person who began to study law before a specified time, provided he has obtained a diploma from a law school in the state after a specified period of attendance, or has passed a satisfactory examination before an examining board after a prescribed course of study, is an unconstitutional assumption of power properly belonging to the courts.

Senate Bill No. 101 is unconstitutional and of no binding force upon this court.

Examination of the transcript shows that there is nothing in the second ground of the motion.

As to the third point, it is sufficient to say that the inter-lineations and general appearance complained of are very apparent, and are such as will not appear in a printed transcript; but, on account of the fact that the appeal is to be dismissed upon the first ground of the motion, it is not necessary to say more as to this, the third ground.

Tbe fourtli ground is not tenable. Tbe order appealed from is not one dissolving a-mere restraining order, bat one refusing an injunction pendente lite, and is ajopealable. Tbe ease of Wetzstein v. Boston & Montana C. C. & S. Mining Co. 25 Mont. 135, 63 Pac. 1043, does not apply, except so far as it shows tbe difference between a restraining order and an injunction pendente lite.

As appellants in good faitb complied with tbe Act wbicb attempts to grant tbe privilege of filing typewritten transcrip*s with carbon copies, they should not be called upon to suffer tbe loss of all opportunity to appeal.

Therefore this appeal is dismissed without prejudice to a motion to reinstate if a transcript be prepared, served and filed in accordance with Pules VI and IX of this court within sixty days from this date.

Dismissed.


author: MB. JUSTICE MILBURN

text:
    MICHENER, Respondent, v. FRANSHAM, Appellant.
    (No. 1,703.)
    ON MOTION TO DISMISS ApPExYL.
    (Submitted October 28, 1901.
    Decided October 28, 1901.)
    For syllabus, see Jordan et al. v. Andrus et al., antep. 37.

      Appéal from District Court, Gallatin County; Henry C. Smith, Judge.

    AotioN by Thomas Michener against W. J. Eransham, sheriff of Gallatin county. From a judgment in favor cf plaintiff and from an order denying a new trial, defendant appealed. Motion to dismiss appeal.
    Granted.

      Messrs. Luce & Luce, for Appellant.

      Mr. JEugene B. Hoffman for Respondent.
   MB. JUSTICE MILBURN

delivered tbe opinion of the court.

Bor tlie reason set out in the opinion this day filed in the case of W. A. Jordan et al. v. W. W. Andrus et al. (ante page 37, 66 Pac. 502), tlm motion to dismiss this appeal, upon the ground that the transcript is not printed as it should have bee.n in Accordance with Rule YI, is granted and the appeal is dismissed, without prejudice to a motion to reinstate if appellant shall prepare, file and serve a printed transcript in accordance with the requirements of Rules YI and IX of this court, within sixty days from this date.

Appeal dismissed.


author: MB. CHIEE JUSTICE BRANTLY MR, CHIEF JUSTICE BRANTIY delivered

text:
    SHADVILLE, Appellant, v. BARKER et al., Respondents.
    (No. 1,727.)
    ON Motion to Dismiss Appeals.
    (Submitted October 28, 1901.
    Decided October 29, 1901.)

      Appeal — Time of Filing Transcript — Laches—Defective Authentication of Transcript — Dismissal.
    under Supreme Court Rule IV, Subdivision 2, an appeal will be dismissed where appellant is guilty of laches in not filing the transcript with the clerk of the supreme court within 60 days after the appeal was perfected.
    On Reheaking.
    1. Where on appeal the transcript prepared and certified by the clerk is defective for failure- to comply with the rules, and appellant’s counsel prepares a corrected transcript, and, instead of having the clerk certify thereto as required by Code of Civil Procedure, Sec. 1739, detaches the certificate from the defective transcript and attaches it to the corrected one, without the knowledge or authority of the clerk, such transcript cannot be considered.
    2. under Code of Civil Procedure, Sec. 1905, and Political Code, Sec. 4636, providing that transcripts on appeal must be certified by the clerk, under seal, after comparison with the original files, no other method of authentication is lawful.

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

    ActioN by Ida May Shadville against Marcella S. Barker and another, hair's of Edwin J. Barker, deceased. Erom a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.
    Appeals dismissed on motion.

      Mr. Robert B. Smith, Mr. F. II. Could, and Mr. W. H. Alford, for Appellant.

      Mr. William G. Downing and Mr. Thomas C. Brady, for Respondents.
   MB. CHIEE JUSTICE BRANTLY

delivered the opinion of the court.

Motion to dismiss the appeals herein from the judgment and an order denying a new trial on the ground that the transcript was not filed with the clerk of this court within sixty days after the appeals were perfected, as required by Subdivision 2 of Rule IV of the rules of this court.

Erom the papers filed in support of the motion it appears that the appeals were perfected on August 3,1901. The motion to dismiss was filed on October 8. The typewritten transcript was lodged with the clerk on October 22. This was furnished to counsel for the appellant, upon demand, not later than September 11, or twenty-seven days prior to the filing of the motion. Counsel for appellant attempt to excuse their neglect to lodge the same with the clerk of this court within the prescribed time, on the ground that the original copy furnished by the clerk of the district court was not prepared in conformity with. the rules of this court as to form and contents, and that the fault lies with that officer, and not with them. It appears, however, that though, at the time they received the transcript from the clerk, on September 11, they still had eighteen days within which to have the transcript corrected, and to comply with the rule, they failed and neglected to do so; for it appears that at no time thereafter did they demand of the clerk that he correct the copy furnished, or prepare and furnish one meeting the requirements of the rule of this court as to form and contents. Nor have they yet done so, as they admit that the transcript now in the hands of the clerk of this court is the defective copy originally furnished them by the clerk of the district court. While the rule invoked by respondents provides that, if the delay in filing the transcript has been without laches on the part of the appellant, his appeal will not be dismissed for such delay until a reasonable time has been allowed for filing it, no such sufficient excuse has been rendered in this case why the penalty should not be inflicted.

(Decided December 2, 1901.)

It is therefore ordered that the appeals be dismissed.

Dismissed.

ON Rehearing.

MR, CHIEF JUSTICE BRANTIY delivered

the opinion of the court.

On October 29 of this year the appeals herein were dismissed, on motion of respondents, on the ground that the transcript had not been filed in this court within the sixty days prescribed by Subdivision 2 of Rule IV of the rules of this court. Subsequently appellant was granted a rehearing upon the suggestion of her counsel that the court had been mistaken in concluding that the transcript filed pending the motion is imperfect. It was further urged in support of thq application for a rehearing that it appeared from the affidavit of Bobert B. Smith, Esq., one of appellant’s counsel, that tlie appellant is a poor person, and for this reason bad not been able to procure funds sufficient to pay for a corrected transcript in time to enable her to comply with the rule, and that the motion should have been denied on this ground. TJpon a further examination of the transcript in the light of the brief of appellant’s counsel, and an affidavit of the clerk of the district court filed in opposition to the rehearing, we find that we were in error in concluding that the copy on file in this court is the same “defective copy originally furnished” counsel by the clerk of the district court. In this particular we were misled by the fact that the certificate of the clerk attached bears the same date as that attached to the original copy.

After the adoption of the present rule, requiring transcripts in civil cases to be printed (Brrle YI, Subdivision 1, 22 Mont, xxvii, 57 Pac. vi), and until the passage of the Act of the legislature known as “Senate Bill No. 101” (Session Laws of 1901, p. 161), by which it was soirght to abrogate the rule, appellants had often, and perhaps usually, employed the clerk of this court to have printed and to serve copies of transcripts, under the provisions of Buie IX. In such cases the typewritten copy had been prepared in conformity with Subdivision 2 of Bula YI, applicable to criminal cases. Upon the passage of that Act, and until it was declared of no binding force upon this court (Jordan et al. v. Andrus et al., 26 Mont. 37, 66 Pac. 502)., appellants ceased to observe the rule as to printing, and, there being no other rule to guide them in civil cases, have followed the rule applicable to criminal cases. In the preparation of the transcript in the present case the clerk of the district court failed to observe this rule, as well as the provisions of Bule YII, touching the title page, arrangement, etc.; and counsel insist that the delay in filing it was caused by the necessity thus cast upon appellant of having the transcript réwritten, and her difficulty in obtaining funds to pay for the necessary work. Were these the only matters to be considered on'this motion, we might( perhaps (though we do not wish to be understood as so deciding at this time), sustain the contention 'of counsel, and retain the appeals, upon condition that the transcript be printed, in compliance with the rule on that subject, within a reasonable time. It appears, however, that when counsel had caused the transcript to be rewritten they neglected to have it certified as correct by the clerk of the district court, or by attorneys in the cause, as is required by Section 1739 of the Code of Civil Procedure. Instead of doing this, some one of counsel, or the stenographer employed by them, detached the certificate of the clerk from the copy furnished by him in the first instance, and attached it to the rewritten copy. This was done without the knowledge of the1 clerk, and without his authority, as is made manifest by the affidavit of the clerk, the date of the certificate, and the admission of counsel in their brief. The appeals must therefore be dismissed on the ground that no sufficient excuse has been made to appear why the transcript has not been filed under the rule. The paper lodged with the clerk cannot be considered as a proper transcript, for the reason that it is not authenticated. The use by counsel or their- stenographer of the certificate made by the clerk to the original copy is wholly unwarranted, and has no more force as an evidence of authentication by the clerk than if it were the certificate of a stranger. It was an authentication of the original copy, but cannot be regarded as of any force when attached to a copy not made by the clerk, and never seen nor compared by him with the record in hib office. Counsel have filed as a part of their showing in opposition to the motion a carbon copy of the original transcript made out by the clerk, and ask this court to determine by comparison whether the copy prepared by themselves is correct. This we may not do, because this would be an. unwarranted assumption on our part of the duties which have been, assigned by law to the clerk, and which can lawfully be done by him only. Under the provisions of Section 1739 of the Code of Civil Procedure, supra, and Section 4636 of the Political Code, transcripts may be prepared by the parties or their counsel, but the authentication must be made by the clerk, after a comparison of tbem with the original files, by-his certificate under the seal of the district court. He, and he only, in the absence of the stipulation of counsel authorized by Section 1739 of the Code of Civil Procedure, supra,, can furnish to this court the lawful evidence of their correctness, and it is only to his certificate made and attached to the particular copy that we may look.

Nothing said by us herein is intended to reflect in any manner upon the moral integrity of counsel for appellant, or of any ■one of them, on account of their unauthorized use of the certificate and seal of the clerk. It is apparent from the statements of counsel that they were of the opinion that their use of the old certificate was legitimate. With this, however, we cannot agree. While, therefore, we do not, upon the record before us, impute to them any intention to deceive this court or to perpetrate a fraud upon it, we must characterize the practice indulged in this case, to whomsoever it may be chargeable, as reprehensible At the same time, we must visit upon them and their client the penalty of dismissing the appeals’ herein for failure to comply with the rule.

Dismissed.


author: MR. JUSTICE PIGOTT

text:
    HAHN, Respondent, v. JAMES et al., Appellants.
    (No. 1,537.)
    (Submitted October 28, 1901.
    Decided October 29, 1901.)

      Appeal — TJndertaleing on Appeal — Failure to File — Subsequent Filing in Supreme Court — Sufficiency.
    Code of Civil Procedure, Sec. 1740, providing tilat no appeal shall be dismissed for insufficiency of the undertaking, if a good undertaking approved by a justice of the supreme court be filed before the hearing on motion to dismiss the appeal, refers only to a case where an insufficient undertaking has been filed in trial court, and does not embrace a case where no undertaking whatever has been filed within the time limited by law. • .

      Appeal from District Court, Deer Lodge County; Welling Napton, Judge.

    AotioN by Frank Habn against Jobn W. James and Leon Beaudry. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Motion to dismiss the appeal from the order denying a new trial.
    Motion granted.

      Messrs. Walsh & James, for Appellants.

      Mr. N. P. Napton, for [Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The respondent moves the dismissal of the purported appeal from the order denying the motion for a new trial for the reason that an undertaking to effectuate the appeal was not filed with the clerk of the district court wherein the action was tried.

From the record it appears that on February 21,1900, the appellants filed and served their notice of appeal from a judgment entered September 30, 1899, and from an order denying their motion for a new trial, entered February 7, 1900, and that they filed an undertaking to perfect the appeal from the j'udgment. The undertaking made no reference whatever to the order refusing a new trial, nor has there been filed with the clerk of the court below any undertaking on appeal from such order. It does not appear that a deposit was made in lieu of the undertaking required, nor is it shown that the respondent waived the giving of such an undertaking.

In the absence of a waiver or of a deposit of money, to1 perfect an appeal the undertaking must be filed within the time limited by the statute; an omission in this regard renders the attempted appeal wholly ineffectual. (Hines v. Carl, 22 Mont. 501, 57 Pac. 88.) Upon the authority of Hurley v. O’Neill, 24 Montana, 293, 61 Pacific Reporter, 658, the motion must be granted.

On October 18, 1901, and before the hearing upon this motion, the appellants filed with the clerk of this court an undertaking .on appeal from tbe order denying a new tria}, approved by tbe chief justice; and tbe appellants suggest that tbe motion should therefore be denied. Section 1740 of tbe Code of Civil Procedure provides that “no appeal can be dismissed for insufficiency of tbe undertaking thereon, if a good and sufficient undertaking approved by a justice of tbe supreme court, be filed in tbe supreme court before tbe bearing upon motion to dismiss tbe appeal.” This section permits a new undertaking to be approved and filed when one was filed in tbe court below which is, or is deemed to be, insufficient, and has m> reference to cases where there was no undertaking filed or where tbe undertaking was for any reason void. To allow tbe undertaking which was filed on October 18 to perform tbe function of an undertaking which should have been, but was not, filed in tbe court below, would be to permit an appeal to be effectuated after tbe time prescribed by statute. In respect of this matter tbe case is governed by Creek v. Bozeman Waterworks Co., 22 Montana, 327, 330, 56 Pacific Reporter, 362.

Tbe appeal from tbe order denying the motion for a new trial is dismissed for want of jurisdiction.

Dismissed.