text:
    STATE, Respondent, v. SHADWELL, Appellant.
    (No. 1,635.)
    (Submitted October 3, 1901.
    Decided November 4, 1901.)

      Criminal Law — Homicide—Self-Defense—Evidence—Previous Threats — Instructions — Presumption — Appeal — Preservation of Error.

    1. Where, oa a trial for murder, in which the accused pleaded self-defense, it was shown that the deceased had previously threatened the accused, an instruction directing the Jury to disregard such prior threats unless the accused at the time of the killing was actually assailed, or believed he was in great bodily danger, was erroneous.

      2. On a prosecution for murder, where the defendant pleaded self-defense, the court instructed that threats by the deceased against the defendant should not be considered unless the defendant was actually assailed, or believed, ■he was In great bodily danger. This instruction was followed by another, authorizing me consideration of any threats the deceased may have made against the defendant, to enable the jury to determine defendant’s acts or the deceased s motives. Helé, that the instructions were conflicting, and constituted reversible error.
    3. An error is presumptively prejudicial to the defeated party, and the presumption is rebutted only when it appears that it either was not or could nor have been injurious
    4. where there was evidence tending to show defendant guilty of murder in the first degree, of murder in the second degree, and of manslaughter, it is the duty of the court to instruct explicitly that a verdict for manslaughter may be returned, manslaughter not being a degree of murder.
    5. The' fact that the accused endeavored to show that the killing was done in self-defense does not render an instruction authorizing a conviction of manslaughter unnecessary.
    6. On a second trial for murder it was not error to read the testimony of a deceased witness, including an erroneous ruling of the court on the evidence, where no objection to the reading of the ruling was raised at the time.
    7. Errors not excepted to in the court, below cannot be reviewed on appeal.

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

    Gr. R. Shadwell was convicted of murder of the second degree, and he appeals.
    Reversed.

      Mr. B. S. Thresher, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

This case is now before the court for the second time. Upon the first appeal the defendant, who had been convicted of murder of the first degree, was granted a new trial. The opinion is reported in State v. Shadwell, 22 Montana 559, 57 Pacific Reporter 281. The result of the second trial was a verdict of guilty of murder of the second degree, followed by a judgment sentencing the defendant to life imprisonment. Erom the judgment and from an order refusing a new trial, the defendant appeals. The evidence adduced upon the second trial was much the same as that received upon the first trial, the statement of which is made in the former opinion.

■ 1. There was evidence tending to prove that two or three days before the fatal encounter O’Connor, the decedent, had applied vile epithets to the defendant, at the same time telling him that if he did not cut the cards right he would kill him, the manner, tone of voice and conduct of the decedent being threatening; that a few minutes before the fatal shot was fired the decedent threatened to put the defendant “where they don’t play cards, and break a chair over your (the defendant’s) headthat either on the night of the homicide or on the day before, the decedent told one Hammer that he would take a chair and beat the defendant to death, which threat was not communicated by Hammer to the defendant. There was evidence tending to prove.also that the defendant, at the time he killed the decedent was acting in self-defense, as well as evidence the tendency of which was to the contrary.

The court gave the following instruction: “(26) The court instructs the jury that no threats or menaces made by the deceased, O’Connor, against the defendant, Shadwell, can avail the defendant unless he, at the time of the killing, was actually assailed, or had sufficient evidence to convince any reasonable person that he was in danger of incurring great bodily injury or of losing his life at the hands of the deceased. Whatever threats may have been made by the deceased, they cannot be of avail to the defendant, unless at the time of the killing something was done that would induce a reasonable man to suppose he was in danger of great bodily harm or of losing his life. All antecedent threats are dependent upon the facts at the time of the killing, and, in order to justify the homicide, it must appear that at the time of the killing there was some action which would induce a reasonable man to believe that he was in danger o^.great bodily harm or of losing his life.”

This instruction, the defendant insists, is an erroneous statement of the law as applicable to the evidence, and.that it is in conflict with instruction No. 27. We must sustain.the contention. The instruction quoted virtually directed the jury to disregard all prior threats of the decedent against the defendant unless something was done, or some action taken, by the decedent which would induce a reasonable man to believe himself in danger of great bodily harm or of losing his life; that the conduct of the decedent at the time of the killing must, of itself and independently of the antecedent threats, have been sufficient to convince a reasonable person that he was in danger of great bodily harm or of losing his life at the hands of the decedent. It told the jury, in effect, that the threats were not pertinent to the consideration of the question whether or not the defendant was actually assailed or as a reasonable man believed himself in danger of great bodily injury or in peril of life at the hands of the decedent; — in other words, that the prior threats of the decedent were not to be considered unless and until the evidence disclosed that the homicide was committed in, necessary self-defense, for, if at the time of the killing the defendant “had sufficient evidence to convince any reasonable person that he was in danger of incurring great hodily injury or of losing his life at the .hands of the deceased,” and acted upon such conviction, the homicide was justifiable under Sections 361 and 362 of the Penal Code. It seems clear that the instruction attempted to withdraw from the jury the right to consider antecedent threats until their duty required a verdict of acquittal, in which case evidence of threats could perform m> function whatever. Such is not the law. Evidence of threats made by the decedent against the defendant, and communicated to him, Avas admissible in the latter’s favor as tending to characterize the acts and conduct of the decedent and of the defendant at the time of the killing, and such threats (if made) should have been taken into consideration by the jury in order that they might correctly decide whether the defendant had reason to believe himself in imminent danger of great personal harm or of losing his life; in other words, evidence of the prior threats should be considered with, not apart from, the conduct and acts of the decedent (as well as of the defendant) at the time of the homicide. Evidence of communicated threats of the decedent was admissible in favor of the defendant because of its tendency to show the state of mind of the defendant and of the decedent, and as illustrating the motives, intention and conduct of éach at’ the time of the homicide. With reference to evidence tending to prove prior communicated threats of the decedent, the former opinion in this cáse contains the following language-: “Now, in probing that motive, to ascertain whether he was prompted by malice, and acted maliciously, or whether he be: lieved he was in danger of great bodily harm at the hands of the deceased during the' movements of the two at the card table, just before and at the time of the killing, it was competent to prove previous threats of violence made towards defendant by O’Connor, as tending to show a cause for the belief Shadwell says he entertained that he was in great danger of receiving harm from O’Connor at the time that he fired at him and killéd him.” Threats of the decedent against the defendant which had not been communicated to the latter, were admissible for the purpose of indicating or tending to show that the decedent brought on the conflict or was the aggressor or assailant, and that the defendant acted in necessary self-defense, — evidence of such uncommunicated threats was relevant as tending to shed light upon or show the intention and animus of the decedent and to characterize his conduct. While prior threats of the decedent against the defendant, whether communicated or nor, are inadmissible in justification unless at the time of ,the killing the decedent indicated by his conduct an intention to carry them into execution (Territory v. Campbell, 9 Montana 16, 22 Pacific Reporter 121; State v. Hall, 9 Nev. 58), evidence that they wTere made is relevant and material wherever there is any evidence tending to show such conduct or to prove that the decedent was the assailant at the time of the homicide; — to express it in another form: To justify the homicide in a case 1-ike the one at bar, there must be such overt act or such manifestation of present purpose on the part of the decedent to execute the threat as to induce a reasonable belief in the defendant that he will suffer great'personal injury or lose his life unless he a.t once' defend himself, and in the effort to determine whether, under all tbe circumstances taken together, there was an overt act or manifestation, sufficient to induce such belief in the defendant, evidence of previous communicated threats of the decedent must be considered by the jury; and previous un-communicated threats of the decedent against the defendant are admissible as evidence of the decedent’s animus, where a controversy exists as to who was the assailant, or as to whether overt acts were then committed by the decedent which were sufficient to create in the mind of the defendant a reasonable fear that he was in imminent’ danger of suffering great bodily harm or of losing his life at the hands of the decedent, — as we have already said, in effect, evidence of such uncommunicated threats should be considered as tending to show the state of mind and intent of the decedent, and whether he was the aggressor at the time of the homicide, and, if he was the aggressor, as tending to characterize his overt acts and throw light upon the question whether they were sufficient to justify the killing.

Instruction No. 26 conflicts with instruction No. 21. The latter instruction reads thus: “The jury are instructed that they may take into consideration, in arriving at their verdict, any threats that the deceased may have made against the defendant if they believe such threats were made, for the purpose of enabling them to arrive at the state of mind of the defendant, and for the purpose of illustrating his conduct and motives in connection with the other evidence in the case, and for the purpose, likewise, of showing the animus of the deceased and his motives.” To this instruction the defendant urges no objection. By it the jury were in effect told that any threats which had been made by the decedent against the defendant might be taken into consideration with the other evidence in the case for the purpose of illustrating his motives, conduct and state of mind at the time of the killing, and for the purpose also of showing the animus and motives of the decedent, thus charging the jury that evidence of antecedent threats were to be considered, not independently of but in connection with, all the other evidence in the ease, including that touching the conduct and acts of tbe decedent at the time of the killing. In, our opinion the two instructions are irreconcilably in conflict, and it is impossible to determine which the jury followed. It is not unlikely that the jury understood .the latter instruction as modifying the former, nor is it improbable that the jury interpreted the former as meaning what it should have expressed; but we cannot declare that they did either. An error is presumptively prejudicial to the defeated party, and the presumption is rebutted only when it appears that it either was not or could not have been injurious. The jury may have been, and the presumption is that they were, misled by the instruction of which complaint is made. This is the rule in civil cases (Parrin v. Montana, Central Railway Co., 22 Mont. 290, 56 Pac. 315), and for the like or a stronger reason is it the rule in criminal cases.

• Por the error adverted to there must be a reversal. As the cause will be "remanded, we shall call attention to such other questions as require notice and are likely to arise on a new trial.

2. “The case was a proper one to submit to the jury with instructions upon murder and manslaughter.” (State v. Shadwell, supra.) There was evidence tending to prove the defendant guilty of murder of the first degree; there was evidence tending to prove his guilt of murder"of the second degree; and there was evidence the tendency of which was to prove him guilty of manslaughter. 'Whenever the evidence warrants it-the duty of the court is to instruct the jury upon every offense included in the crime charged. (State v. Calder, 23 Mont. 504, 59 Pac. 903 ; State v. Fisher, 23 Mont. 540, 59 Pac. 919; State v. Howell, 26 Mont. 8, 66 Pac. 291.) The opinion in State v. Brooks, 23 Montana, 146-159, 57 Pacific Reporter, 1038, may, if not read as a whole, convey .the impression that the omission, of a charge upon manslaughter is error without prejudice when the jury upon sufficient evidence find the defendant guilty of murder, there being also evidence tending to' prove manslaughter; but the opinion is not so to be understood, for in that case-there was no room for a verdict of manslaughter, the killing having been done, in malice aforethought or by an insane.mam Nor do we agree with the contention of the attorney general that because in the case at bar the defendant endeavored to show that the killing was done in necessary self-defense, an instruction that he might be convicted of manslaughter was unnecessary. That the defendant contended that he acted in self-defense and, therefore, that the homicide was justifiable, did not make it the duty of the jury to convict of murder or acquit altogether. If from the evidence they believed him guilty of manslaughter, they should have so found notwithstanding his plea of self-defense. The mere fact that the defendant insisted, by evidence or otherwise, that he was justified in the killing, could not relieve the court and jury of considering the crime of manslaughter when there was evidence tending to prove its commission. (See State v. Calder, 23 Mont. 520, 59 Pac. 903.) It might as well be said that on a charge of grand larceny the defendant, because he denies any theft whatever, must, as matter of law either be acquitted or be found guilty of that grade of offense only, though there is evidence tending to prove petit larceny; and that if such lower grade only be proved, the jury must nevertheless' convict of grand larceny for the reason that the defendant admitted the taMngi but asserted title to the property.

Murder in each of its degrees and manslaughter were defined in-the charge, and the punishment for each was stated; but nowhere did the court expressly advise the jury that they might find the defendant guilty of manslaughter. The jury were instructed, in the language of Section '2145 of the Penal Code, that whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty. Manslaughter is not distinguished into degrees. The only crime that the charge mentioned which is divided into degrees, is murder.. Manslaughter is not a degree of murder, although it is a grade of criminal homicide. The elements necessary to constitute the crime of manslaughter are included in.the crime of murder, but, as we have said, manslaughter is not a degree of murder. It is possible, though not probable, tliat' tbe jury may not have understood that the- defendant ’might be convicted-of manslaughter. Without deciding whether or not the omission, to instruct the jury that they might find a verdict of manslaughter was erroneous, we suggest that upon a nerw trial the omission be supplied. It is always the safer’ practice to. direct the jury explicitly with reference to the verdicts which it is within their province to return.

3. One Anderson, a witness for the state, on cross-examination testified that he was present when O’Connor was killed and had been in the room with the defendant and O’Connor during the night on which the homicide occurred; that he had observed the manner of O’Connor, and that he was abusive toward different persons during the night. He was then asked the • question: “Of what .did that abusive, conduct consist ?” The witness answered: “I seen him wring a fellow’s nose there; he was abusive — ”, ’ whereupon he was interrupted by the judge of the court, who remarked: “This is not proper evidence,’’ to which the defendant excepted. Immediately thereafter the witness was permitted to answer the question fully. When this case was here on the first appeal we said: “Now, suppose his conduct was boisterous; that his rage towards others was deseprate, or his temper was ferocious, and vented itself in fighting, abusing and terrifying others who came into the saloon just before the homicide; and that the defendant-observed this manner towards others. Would it not be relevant to the question of the reason of defendant’s belief, if he had one, that the attack he says O’Connor made upon him when he killed him was to do him great bodily harm? We think it would, and that, therefore, whiat transpired in defendant’s presence on the night of the killing was proper, even though it involved the conduct of the deceased towards others.” (State v. Shadwell, 22 Mont. 573, 57 Pac. 286.) We deem it unnecessary to decide whether there was error-in the remark of the judge if heard by the jury, and if so whether it was subsequently cured. Having called attention to the matter we assume that any question concerning it will, if possible, be avoided on a new trial.

4. Between the first and second trials, one Barrett, who had been examined as a witness for the defendant, died. On the second trial the defendant asked to* read-to the jury the testimony of the witness. The request was granted and the official stenographer read the testimony. At the first trial the court, on motion of counsel for the state, struck out the testimony of Barrett with respect to the conduct of O’Connor towards any one but the defendant, and this ruling of the court appeared in the report of Barrett’s testimony as read by the stenographer on the second trial. But at the second trial no objection was made or exception reserved with respect to the matter stricken out upon the first trial; nor was the attention of the court directed thereto by counsel for either party. The ruling made upon the first trial and the defendant’s exception thereto are not equivalent to a ruling and exception at the second trial. If the defendant desired to have the action of the court upon- the first trial excluded from the jury he should have asked that the stenographer be directed to omit it when reading the testimony, or failing that, he should have prayed the court for an, instruction in that respect. If there was error, the defendant waived it by failing to assert his rights. Errors not excepted to in the court below cannot be reviewed on appeal.

The foregoing are all the matters of sufficient importance to require comment. Because of the error in instruction No. 26, the judgment and order appealed from are reversed and the cause is remanded for a new trial. Let the remittitur issue forthwith.

Reversed and remanded.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    STATE ex rel. KOCH, Relator, v. BARRET, State Treasurer, Respondent.
    (No. 1,704.)
    (Submitted July 29, 1901. Decided August 1, 1901.)
    (Opinion Filed November 4, 1901.)

      Grant of Lands by United States for the Use and Benefit of State Agricultural Colleges — Appropriation by State — Income as Trust Funds — Income from Leases.

    1. Act of Congress February 22, 1889, granted to tbe state, subject to Act of Congress July 2, 1862, certain lands for tbe use of agricultural colleges. Act. of Congress July 2, 1862, provided that lands so granted should be sold, and the proceeds invested as a perpetual fund, tbe interest to be appropriated to tbe support of at least one college in sucb manner as tbe legislature might prescribe. Constitution, Art. XYII, Sec. 2, provided for tbe temporary leasing of such lands until they should be sold, and Article XI, Sec. 4, authorized sucb sale. Article XI, Sec. 12, devoted tbe interest on invested funds from sales and' rents from leased lands to tbe maintenance of the institutions to which tbe grants belonged. Political Code, Secs. 3470-3519, 3590-3595, authorizes the leasing of unsold lands by the land commissioner, and' the payment of revenues derived therefrom into the state treasury. Id. Sec. 1516, declares that the board of education shall receive all funds and incomes, to which any of the state educational institutions may be entitled to be used for the specific purpose of the grant. Section 1513 provides • that the state treasurer shall be the treasurer of this board. Section 1625 gives the immediate control of the State Agricultural College to an executive board, the treasurer of which should give bond to the state board of education. Held, that the legislature. had not failed to prescribe how 'the income from the grant should be' appropriated to the support of-tlie agricultural college, • and' it was the duty of the state treasurer to pay the warrants drawn by the executive board on the income in his possession.
    2. , The funds and income deriv.ed from the grant were trust funds, to be disbursed through the agency' of the state, and were not subject to Constitution Art. VII, Sec. 20, providing that claims against the state other than for the salary or compensation of a public officer should be audited and allowed by tne state board of examiners, and paid only on the warrant of the staté auditor.
    3. The income from the lease of the lands granted was available for the use and support of the agricultural college, it not being a condition precedent to its right tnereto that the lands should be sold, and the proceeds invested so as to provide an income from interest thereon.
    Application for writ of mandamus by tbe state, on tbe relation of Peter Koch, as treasurer of tbe executive board of the State Agricultural College, against A. H. Barret, state treasurer. An alternative wait was issued, and defendant moved to quash the writ and to dismiss the petition.
    Writ granted.

      Messrs. Hartman* & Hartman, for Relator.'

      Mr. James Donovan, Attorney General, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

The relator herein applied to-this court on July 24, 1901, for a writ of mandamus to. compel the defendant, as the state treasuréa', to pay a certain warrant drawn upon him by the vice president and secretary of the executive board of the State Agricultural College, and in favor of the relator* as the treasurer of said board, for funds with which to pay a balance of $1,500 of the current expenses of the institution for the scholastic year ending June 30, 1901.

The relator alleged in his application that the funds in the hands of the defendant had been derived from rents of lands leased by the state land commission belonging to the grant of lands made by the United States government in aid of the agricultui’al college; that they were, therefore, properly applicable to the payment of the warrant in question; that the account for which the warrant had been drawn had been approved and ordered paid by the state boai*d of education, but. that the defendant wi*ongfully refused to pay the same, in violation of his legal duty in the premises. An alternative writ was. issued, requiring the defendant to pay the warrant, or to show cause on July 29, 1901, why he had' not done so. The attorney general appeared in his behalf, and interposed a motion to- quash the writ, and dismiss the proceeding, on several grounds, two of which he urged as conclusive against the issuance of the writ, namely: “That the legislature of the state-' of Montana has not appropriated the sum demanded, or any part thereof, to the maintenance of said agricultural college of the state of Montana;” and “that there is no law authorizing the payment; to .the relator of moneys derived from the leasing of lands do^ nated to the state of Montana for the use and support of said agricultural college.” The questions thus raised were then submitted for final decision, the attorney general conceding that, if they should be decided adversely to his contention, the writ should issue as prayed. After consideration, the court concluded that the contention made by the attorney general could not be sustained, and on August 1 ordered the writ to issue. No written opinion was then handed down, because the court was about to adjourn for the summer vacation. Owing to the importance of the interests involved, however, we deem it proper to state our reasons now for the action then taken.

TJnder the Act of congress approved February 22, 1889, commonly known as the “Enabling Act,” providing for the admission of Montana into the Union as a state upon equal footr ing with the original states, there were granted to the state, subject to the provisions of the Act of congress approved July 2, 1862, certain lands for the use and benefit of state agricultural colleges. The lands so granted were accepted on behalf of the state, subject to the prescribed conditions, both by the constitutional convention (Ordinance No. 1, Subdivision 7) and by the state legislature (Session Laws of 1893, pp. 171-173; Political Code, Sec. 1628). By reference to the Act of congress of July 2, 1862, and particularly section 4 thereof, it will be seen that it was contemplated by congress that the lands granted by the Enabling Act should be sold; that the proceeds should be profitably invested, so that the principal should be forever preserved as a permanent endowment fund; and that the interest thereof should be devoted to the support of the college or colleges established pursuant to' the declared purpose of the grant. Neither of the Acts of congress referred to specifically provides that the land granted may be leased by the state authorities pending a sale; but the state constitutional convention, anticipating possible difficulty and delay in converting the lands into money, and with a purpose of making the grant profitable in tbe meantime,-authorized the -legislature to: provide by laiv for the leasing of all the agricultural and grazing lands included in the grant until they should be- sold.. (Constitution; Art. XVII, Sec. 2.') ■ The' constitution also created a state land commission, consisting óf the governor,, secretary of state, superintendent of public instruction and attorney general, to have the “direction, control; leasing and sale” of all lands granted to the state for educational purposes (Constitution, Art. XT, Sec. 4), subject to the regulations to be prescribed by law. Another provision was made (Constitution, Aid.- XI, Sec, 12), requiring the funds derived from the sale of lands embraced-in the several grants to the state for the use and support-of state -institutions- of learning, as well as funds derived, from ..other sources for that purpose, to be preserved inviolate and- sacred for the purposes for'which they were dedicated,- but directing that- the interest upon the invested funds, together with the rents from the leased lands, be devoted to the-“maintenance and- perpetuation” of the various institutions to which they, the respective grants, belonged. Pursuant to these several provisions of the constitution, the legislature has enacted regulations under which, in default of sale, all agricultural and grazing lands may be leased under the direction of the state land commission for terms not exceeding five years,, and requiring the revenues derived therefrom to be paid into' the hands of the state treasurer. (Political Code, Secs. 3470-3519, 3590-3595; Session Laws of 1897, pp. 178, 179; Session Laws of 1899, pp. 86-93.) Under these provisions of law considerable quantities of agricultural and grazing lands selected for the use and benefit of the State Agricultural College at Bozeman, have been leased, and the income derived therefrom has been paid into the hands of the defendant, as state treasurer, to the amount of $16,000.

The first contention made by the attorney general was based upon this language contained in Section, 4 of the Act of Congress of July 2, 1862: “* * * That the moneys so invested shall constitute a perpetual fund, the capital of which shall ¡remain forever undiminished, * * * and the interest of which shall be inviolably appropriated by each state which may take and claim the benefit of this act to the endowment, support and maintenance of at least one college, * * * in such manner.as the legislatures of the states may pi’e-scribe * * He argued that the legislature of this state has enacted no provision of law under the authority of which any interest or income derived from the grant may be applied to the support of the college.

The state board of education was created by the legislature under authority of the constitution (Constitution, Art. XI, Sec. 11). This board consists of the governor, state superintendent of public instruction and attorney general, ex officio members, with eight other citizens, appointed by the governor, by and with the consent of the senate. Its powers and duties are enumerated in Chapter I, Title III, Part III of the Political Code, and are veiy extensive. Section 1516 declares: “The powers and duties of said board shall be as follows:

“(1) They shall-have the general control and supervision of the state university and the various state educational institutions.
“(2) To adopt rules and regulations, not inconsistent with the constitution and laws of this state, for its own government, and proper and necessary for the execution of the powers and duties conferred upon them by law.
“(3) To prescribe rules and regulations for the government of the various state educational institutions. * * *
“(10) To receive from the state board of land commissioners or other boards or persons, or from the government of: the United States, any and all'funds, incomes and other property to which any of the said institutions may be entitled, and to use and appropriate the same for the specific purpose of the grant or donation, and none other, and to have general control of all receipts and disbui*sements of any of said institutions.”

It is further provided (Section 1513) that the state treasurer shall be the treasurer of this board. Turning to Chapter IV, Title III, Part III of the same Code, tinder the provisions of which the institution was established, and special regulations provided for its government and control, we find (Section 1625) that the immediate direction and control of it is vested in an executive board, consisting of five members, appointed by the governor, by and with the consent of the board of education. This latter board is required to have a secretary and treasurer, selected from its own members, or not, at the pleasure of the board, who shall give bond in, such sum as may be prescribed by the state board of education for the faithful performance of his duties, and to account for all moneys coming into his hands by virtue of his office. Prom the various provisions of the constitution cited and the statutes enacted to carry out their evident intention, it is- apparent that the state board of education is vested with the exclusive power to receive, invest, manage and control the funds derived from the sale of the lands granted to the state for the use and support of the agricultural college, and that the income therefrom is subject to the orders of the board to meet the current expenses of the institution. The defendant is the proper depositary of these funds, and is therefore liable, upon the order of the board, to pay out the income derived therefrom as current necessities demand; for under Section 1516, cited, the-board is empowered “to receive from the state board of land commissioners or other boards or persons, any and all funds, incomes and other property to which any of the said institutions may be entitled, and to use and appropriate the same to the purpose of the grant or donation, and to have general control of the receipts and disbursements.” It is also clear that the executive board, of which the relator is treasurer, has direct management- and control of the affairs of the institution, and that it is the duty of the defendant to pay the warrants drawn by it, when ordered to do so by the state board in the exercise of its general powers. The legislature has therefore not failed to “prescribe” how the income derived from the grant shall be appropriated to the “endowment, support and maintenance” of the institution, as was -contemplated by- the Act of congress making' the grant

The attorney general contended further, in this connection, that the claim for-which the warrant was drawn is a claim against the state- other than for a salary or compensation of a public officer,- and should be audited and' allowed by the state board of examiners and paid upon the warrant of the state auditor. • To. support this contention he cites Section 20- of Article VII of the- Constitution, as follows: “The governor,secretary of state and attorney general shall constitute ¡a board of state prison commissioners, which board shall have such supervision of -all matters connected with the state prisons as may be prescribed by law. - They shall constitute a board of examiners, with power to examine all claims against the .state, except salaries or compensation of officers fixed by law, and perform.- such other duties as may be prescribed by law. And no claims against the state except for salaries and compensation of officers fixed by. law, shall be passed upon by the legislative assembly' without first having been considered and acted upon by said -board. The. legislative assembly may provide for the temporary suspension of ■ the state treasurer by the governor; when the -board of’ examiners deem such action necessary for the protection of the moneys of the state.”

The relation of the* state government t’o the trusts created by the provisions of the Enabling Act was considered in State ex rel. Bickford v. Cook, 17 Mont. 529, 43 Pac. 928, wherein there was a controversy over the payment of the compensation due to members of the capitel commission. It was said in that case, in substance, that lands granted by congress to provide for the erection of the state capitel, and accepted by the state, became a trust; that funds derived therefrom were trust funds, to be devoted exclusively to the purpose of the trust, through the agency of the state; that the disbursement of them was not ■ an expenditure of the state “within the meaning of expenditures generally referred to in the constitutionthat the state officers could not use the. fund-- for any other purpose than that designated in the Act of Congress; and that, in so far as they dealt witb tbat fund, they created no obligation which the state- was bound to pay out of the ordinary revenues derived from taxation. Again, in State ex rel. Dildine v. Collins, 21 Mont. 448, 53 Pac. 1114, the section of the constitution- cited by the attorney general was considered, and’ it was held that the state university bond fund was a trust fund; that the stats acted in connection with it as a mere agent to execute the trust; and that, ás in the administration of it no debt was or could be created against the state, the constitutional restriction as to the expenditure of the funds arising therefrom did not apply. “It is evident furthermore,” this court said, “that the Act of the legislature providing for the erection of the university building did not contemplate that claims arising under the terms of the contracts for the buildings should be subject to approval by the state board of examiners.” This statement was based upon a provision of the statute creating the' university commission, Which authorized it to draw warrants upon the state treasurer payable out of the trust funds in his hands. We think the principle of these cases applicable to the present case, and that the legislature, in defining the powers and duties of the board of education, with a view of following the spirit and intention of the Act of congress creating the trust, intended that this board should be clothed with the special and exclusive power of executing it free from the limitations and restrictions of the constitution as to the expenditure of the ordinary revenues of the state. It may be that a different mle would apply to expenditure of any moneys appropriated by the legislature out of the revenues of the state to supplement the revenues derived from the trust fund thus left to the control of the board. Upon this question; however,- we express no opinion, as it was not properly before us.

Under the second ground of the motion the attorney general argued that congress, -in making the grant, intended that it-should become available only after a' sale óf the lands granted, and- an investment of the moneys thus obtained, so as to provide an income from interest; that this intention is manifested by the fact that there is nothing either in the Enabling Act or in the Act of July 2, 1862, authorizing the state to adopt a system of leasing for the purpose of creating a revenue for current necessities, and hence such revenues as have been or are derived from this source cannot lawfully be used by the board of education to pay the bill in question, notwithstanding the provisions of the constitution and statutes cited. The result of this contention is that all of these provisions are in violation of the acts creating the trust, and that to subject the fund in the hands of the defendant to the payment of the demands created1 by the board would be only another step in the course of mismanagement of which the state government has been guilty. We do not think this position maintainable. We think the manifest intention of congress was to create a permanent endowment, which was to be preserved inviolate; and to' require that the revenues derived therefrom should be faithfully applied to the support of the institutions created,, and not be diverted to other purposes. So long as this intention is earned out, we think it makes no difference what mode is adopted. The grant was made in view of conditions existing at the time, and others which might arise. It certainly could not have been intended that lands which could not be readily and speedily gold, but which, from their character and situation, could be made to yield a revenue by a system of leasing, should be allowed to lie idle and unprofitable until such time as the state could sell them, and thus comply with the strict letter of the grant. The grant was made and accepted .with the existent conditions in mind, and, in our opinion, the constitutional convention, in making the provisions it did, and the legislature in providing the mode by which they are made effectual, both exhibited a wise foresight, and have thus made it possible for the people to have the present benefit of the gift of the federal government without in any way impairing its value or diverting it to improper uses.

Writ granted.


author: ME. CHIEF JUSTICE BEANTLY

text:
    STATE, Appellant, v. FOSTER, Respondent.
    (No. 1,692.)
    (Submitted October 7, 1901.
    Decided November 11, 1901. )

      Larceny — Evidence—Sufficiency—Appeal—New Trial.

    1. where an order granting a new trial is silent as to the grounds on which it is based, it will be affirmed, if it can be justified on any ground on which the motion was predicated.
    2. Where there is a substantial conflict in the evidence the action of the trial court in granting or denying an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, will not be disturbed on appeal.
    3. Where there is no substantial evidence to support the verdict it is the duty of the trial court, as a matter of law, to vacate and set aside the verdict, and if it refuse to do so its action will be held erroneous.
    4. On a prosecution for grand larceny, that accused and others were following the itineraries of political speakers under a conspiracy to commit larceny, and that' at a political gathering the prosecuting witness carried his purse in his left hand in his pocket, and, while in a crowd, feeling a tuggmg at his left arm, recognized accused and an associate standing at his left, and after going a distance of three blocks he discovered his purse was missing, is insufficient to justify a conviction of accused for the particular larceny.

      Appeal from- DisLict Court, Lewis and Clarice County; Henry C. Smith, Judge.

    W. M. FosteR was convicted of grand larceny, and from an order granting a new trial the state appeals.
    Affirmed.

      Mr. James Donovan, Attorney General, and Mr. 0. W. McConnell, for the State.

      Mr. B. B. Purcell and Messrs. Nolan & Loeb, for Eespond-ent
   ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

' The defendant was convicted of the crime of grand larceny, -and sentenced to a term of two years at hard labor in the state prison. He thereupon moved for a new trial, alleging as grounds therefor that the court had misdirected the jury in matters of' law, ¿that it had erred in the decision of questions of law arising during the trial, and that the verdict was contrary to the law and the evidence. From an order granting the motion the state has appealed.

The order is "silent as to the grounds upon which the district court based its action. It is therefore incumbent upon this court to affirm it if it can be justified upon any onei of the grounds upon which the motion was predicated. (State v. Schnepel, 23 Mont. 523, 59 Pac. 927; Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592.) Counsel for the state have given attention in their brief to two questions only, namely, whether the district court erred in admitting certain evidence, and whether the verdict was contrary to- the evidence. • We shall notice the latter question only, as we think that a correct answer to it is conclusive of this appeal. The rule has frequently been declared by this court that an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, and that where there is a substantial conflict in the evidence the action of that court in granting or denying the application will not be disturbed on appeal. (Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407.) If, however, there is no- substantial evidence to support the verdict, a different rule applies. In the latter case it becomes the duty of the trial court, as a matter of law, to vacate and set aside the verdict and if it refuses to do so its action will be held erroneous. (State v. Welch, 22 Mont. 92, 55 Pac. 927.) The evidence contained in the record presents a case to which the second rule is applicable. Indeed,. the request made by the defendant at the close of the state’s case that the court direct a verdict of acquittal should have been granted; because there was then no evidence before the jury- to warrant' a. verdict of .guilty, ■ Nor did-the-defendant thereafter- by his -evidence aid tbe state’s ease in tbe slightest degree,, for bis .effort was directed entirely towards tbe impeachment .of one •of tbe state’s witnesses. '

•■.The facts shown by tbe evidence are as follows: .On the ■evening of September 17, 1900, Mr. Roosevelt, candidate: for the vice presidency of tbe United States, addressed tbe citizens of Lewis and Clarke county at tbe city of Helena. A procession, it seems, was formed to conduct tbe speaker to tbe Auditorium, tbe place of the meeting. Crowds of people were collected upon the streets along tbe line of march. One South-mayd was standing with bis daughter among a crowd at tbe ■corner of.Main street and Sixth avenue, and, as tbe carriage in which Mr. Noosevelt was riding passed this point, South-mayd stepped into tbe street near the line of march, in order to obtain a better view. He then held bis purse clasped in bis left band in bis trousers pocket. Tbe purse contained, among ■other things, two United States silver certificates of tbe denomination of $10, tbe subject of tbe larceny charged in the information. While Southmayd was standing among tbe crowd, looking on, some man jostled him severely, passing on bis right towards tbe front, and then pressing backward towards bis left. At tbe same time be felt a tugging at bis left arm, as if some one were trying to lift bis band from bis pocket. Turning in that direction, be saw the defendant standing at his left, and by him another person by tbe name of Hall. He did not discover who was tugging at bis arm. His band was not removed from bis pocket by tbe tugging, and after it was over be stili held bis purse in bis pocket as before. When tbe carriage bearing Mr. Roosevelt bad passed, Southmayd returned to tbe sidewalk where be bad left bis daughter, and walked with her immediately to tbe Auditorium, about three blocks distant. Tbe doors of tbe building bad not been opened when they arrived, and they stood a few minutes with others waiting for admittance. At this time. Southmayd missed his .purse. Looking ■about .him, be saw; none but familiar-faces. Other persons during, the same evening, while, on-the streets or in attendance at the speaking, lost their purses or other valuables at the hands of pickpockets. The next day the defendant and six others were arrested on a railroad train on their way to Butte, where Mr. Roosevelt was to speak again. All these persons were strangers in Montana, and appeared to be traveling together. They were searched as soon as arrested. Upon the defendant were found memoranda and clippings from newspapers showing the itineraries of Mr. Roosevelt and Mr. Bryan, candidate for the presidency of the United States; notices of dates and jfiaces of reunions of the Grand Army of the Republic, and other assemblages of people throughout the country; a mileage book for 1,000 miles, sold to him by the Northern Pacific Railway Company a.t St. Paul, Minn., on September 15, 1900, with 167 miles unused; a bunch of railroad conductors’ checks of different colors; and $100.65 in cash. Upon the other persons arrested were found similar articles, including partially used mileage books, conductors’ checks, itineraries of prominent political speakers, etc. Upon one of them named Wilson was found a $5 Canadian bill, which was identified by one Collins,, a witness for the state, as his; he having had a purse containing it, with other money, abstracted from his pocket while in the crowd gathered about the Auditorium before the doors were opened. When searched the prisoners all made false statements as to the amounts of money in their possession. Each was found to have more than he stated. A few days after the arrest the prisoners were again searched, and upon three of them, concealed in various places in their clothing, were found sums of money to the amount of $470. One of them had tried to conceal a $50 bill by putting it in, his mouth. There was no evidence tending to show that any of the money found upon any one of the prisoners belonged to Southmayd.

The theory of counsel for the state at the trial was that the defendant and the persons arrested with him were professional pickpockets following the itinerary of Mr. Roosevelt for the purpose of plying their trade in the Crowds which gathered to hear him; that they were engaged in the common purpose for their mutual benefit; that either the defendant or Hall abstracted Southmayd’s purse at the time he was jostled in the crowd; and that, whether the defendant or Hall actually took the purse, the defendant was guilty, by reason of the fact that he was engaged with Hall and the other prisoners in a conspiracy to pick pockets. It was upon this theory that counsel offered and the court admitted the evidence touching the articles found upon the defendant and his fellow prisoners* the attempts to secrete the money by some of them, and the larceny of the Canadian bill from the witness Collins. . Conceding, for the sake of argument* that all of this character of evidence was competent and material to show a conspiracy to commit larceny by the defendant and his associates, and that it is sufficient to establish such a conspiracy, there is no evidence in the record to justify the conclusion that any of them committed the particular larceny in question. In that connection it appears only that Southmayd was jostled by some one, that he felt the tugging at his arm, that he recognized the defendant and Hall standing at his left, that after this demonstration was over he still retained his purse in his hand, and that several minutes afterwards, at a distance of three blocks away, he discovered that it was missing. While these facts may justify a suspicion that the defendant committed the larceny, or that Hall did it with his assistance, they are wholly insufficient to warrant a verdict of guilty, and should not have been submitted to the jury. The district court was therefore not only justified in making the order granting a new trial, but it was clearly its duty to do so.

The order complained of is therefore affirmed.

Affirmed.


author: MR. ;TLTSLICE PIGOTT

text:
    SPELMAN, Appellant, v. GOLD COIN MINING & MILLING COMPANY, Respondent.
    (No. 1,347.)
    (Submitted October 10, 1901.
    Decided November 11, 1901.)

      Corporations — Officers—Principal and Agent — General Manager of a Mining Corporation — Authority—Contracts for Medical Attendance on Employes — Ratification.
    1. A principal is bound only by the authorized acts oí his agent, and prior authority or subsequent ratification must be shown in order to render the principal answerable ex contractu for the conduct of his agent.

      2. . The fact that a certain person is general manager of a mining company does not, in and of itself, imply authority in him ,to bind the company in matters other than those of its ordinary business affairs.
    ■8. where employes of a mining company, while working in its mines, suffer bodily injury by the explosion of a blast, and it does not appear that the company was in anywise at fault, the secretary and general manager of the company has no implied power, by virtue of his office, to bind the company by a contract for medical attendance on such injured employes.

      Quaere: whether, in a case where an employe is injured through the actionable negligence of the company, the general manager of a mining company can bind his principal by such a contract?
    4. where plaintiff sought to recover for medical services rendered to employes of a mining corporation by virtue of a contract with the manager and secretary, testimony by a physician, whom plaintiff had called to his assistance, chat he was paid by a check on some part of which appeared the name of the corporation, and that it was his impression that it was signed by the corporation, “per some one else’s order,” was not sufficient evidence of a ratification by the corporation of the secretary’s contract.

      Appeal from District Court, Deer Lodge County, Theodore Brcmtly, Judge. ■ ■ -

    Action by J. E. Spelman against the Gold Coin Mining and Milling Company. Erom a judgment for defendant, plaintiff appeals.
    Affirmed.

      Messrs. O'Leary & Manden, for Appellant.

      Mr. J. R. Boarman, for Respondent.
   MR. ;TLTSLICE PIGOTT

delivered the opinion, of the court!

• This was an action, to .recover judgment for the reasonable-value of services alleged to have been rendered by the plaintiff and.one McKenzie, as physicians and surgeons, at-the special instance and- request of the- defendant, a corporation organized for the purpose of mining and engaged in that business in the county of Deer Lodge, Montana. The defendant denied that it ever employed the plaintiff or McKenzie and traversed the-allegation of the complaint touching the reasonable value of the-services. The evidence disclosed or tended to show the exists ence of the following facts: One Shafner was the president of' the- defendant, one Loomis its secretary and general manager, and one Keaton its assistant manager and foreman. On January 13, 1898, Beaton and two other employes of the defendant were injured by the explosion of a blast in the Gold Coin, mine-owned by the defendant and in which they were then working.' On the same day the men were taken to- a hospital in Anaconda where they received at the hands of the plaintiff and McKenzie medical and surgical attendance and treatment for several months. The hospital had no contract with the defendant, nor-were there any relations between it and the defendant. The-plaintiff was surgeon to- the hospital. After the first examination of the men the plaintiff suggested to- Beaton the employment of a- specialist in diseases of the eye and that it would be well to call in one Grigg. To this Beaton assented, saying that the defendant would pay all the expenses incident to the treatment of himself and of the other men. Thereupon the plaintiff" called in Grigg, who gave to- the eyes of the men such attention as was necessary. On the 14th, which was the day after the-accident, Loomis telegraphed to the plaintiff to spare no expense'in giving Beaton the best possible nursing and attention,, and if the other men who had been injured needed surgical and hospital treatment, to provide it, and he would pay all the expenses. Thereafter, and while the plaintiff was professionally attending Beaton and his companions, Loomis- orally assured. the plaintiff and McKenzie that the defendant would pay them. McKenzie assigned his account to the plaintiff. Grigg’s bill for the services rendered by him was paid in part by Beaton, and? in part by a cheek on some part of which appeared the name of the defendant, Grigg testifying' that he did not know where the name of the defendant appeared thereon, but it was. his “impression that it was signed by the Gold Coin Mining Company per some one else’s order.” On motion of the defendant the court granted a nonsuit for the reason that no authority had been shown in either Loomis or Beaton to employ the plaintiff or McKenzie on behalf . of the defendant, to attend the men injured, that the evidence did not show that the employment of the plaintiff or his assignor came within the scope of the authority of either Loomis or Beaton, and that therefore the plaintiff failed to show the liability of the defendant. The order granting the motion was followed by a judgment in favor of the defendant, from which and from an order refusing, a new trial, the plaintiff appeals.

Several errors are specified, but the question presented by the order granting the nonsuit is the only one that requires consideration. The plaintiff contends that Loomis, the general manager of the defendant, was, by virtue of his office, empowered to employ the plaintiff and McKenzie in the name of his principal and to bind it by his promise to pay them. He insists that authority to employ physicians and surgeons to attend upon miners injured while engaged in working for the defendant was impliedly delegated to Loomis by his appointment to the office of general manager, and that neither express authority nor subsequent ratification by the company need be shown; and that the defendant paid a part of Grigg’s bill, thereby ratifying the employment of the plaintiff. It is argued that Loomis in his capacity of secretary and general manager of the defendant was its representative and in the transaction of its ordinary affairs might do whatever the corporation could do within the scope of its powers, and that the general manager of a mining company must necessarily receive full power to act for the company in all emergencies. In short, the contention is that the law presumes the general manager of a mining corporation to be clothed with the power which Loomis attempted to exercise, and that courts must take judicial notice of such power.

A principal is bound only by the authorized acts of his agent, and prior authority or subsequent ratification must be shown in order to render the principal answerable ex contractu for the conduct of his agent. The agent’s authority may be either express or implied; but the act done or the promise made by the agent must be within the powers expressly or impliedly delegated to him; though the act was not authorized at the time it was done, it may be ratified subsequently by a competent principal. Powers of the agent cannot be enlarged by his unauthorized representations or promises. The principal is bound, however, by the acts of the agent who is held out by him as possessing authority to do the act which he does; in such case his acts are the principal’s when done under such apparent authority, and the principal is estopped to deny the agent’s authority when the person dealing with the agent relied upon the holding out. The implication of a promise on the part of one who requests the performance of medical or surgical services for another, to pay for them, does not arise “unless the relation of the person making the request to the patient is such as raises a. legal obligation on his part to call in a physician and pay for the services” (Meisenbach v. Southern Cooperage Co., 45 Mo. App. 232; Boyd v. Sappington, 4 Watts, 247; Crane v. Baudonine, 55 N. Y. 256) ; to make him liable there must be an express promise or engagement to pay by the one who called in the surgeon or by his authorized agent. These general rules are applicable to corporations as well at to natural persons. (Butte & Boston Consol. Min. Co. v. Montana Ore Purchasing Co., 21 Mont. 539, 52 Pac. 375; Trent v. Sherlock, 24 Mont. 255, 61 Pac. 650.) Both alike are bound by the acts of their agents done within the scope of the authority ostensibly delegated.

In the case at bar certain employes of the defendant while working-in its-mine, were injured by tbe explosion.'of á blast; It does not appear that tbe company wás iii any wise at fault, — - tbe employment of tbe plaintiff by Beaton and Loomis, wbo ás-sunied to act'in tbe name of tbe company, being (of itself) no evidence tbat tbe defendant was negligent or tbat in their opinion it was responsible for tbe accident. Tbe men were removed to a hospital witli which the defendant bad no connection or contract whatever, and were there treated by physicians and surgeons to whom tbe general manager of tbe defendant made promises to tbe effect tbat tbe defendant would pay them. There was nothing tending to show tbat tbe general manager bad theretofore assumed so to bind tbe defendant, there was nothing to show tbat tbe corporation bad in, any manner whatever expressly delegated to tbe general manager authority to exercise such power, nor was there any evidence tbat general managers of mining corporations habitually exercised tbat power. Can tbe court declare; upon this state of facts, tbat tbe general manager of tbe defendant jiossessed authority to bind tbe defendant by employing physicians and surgeons ? We think not. While there can be no doubt of tbe implied power of a corporation of tbe class to which tbe defendant belongs “to incur expense on account of injuries received by its employes in the line of their employment, in tbe absence of any express statutory grant of such power” (5 Thompson on Corporations, Sec. 5840), tbe laW unquestionably is tbat such a corporation does not owe to its employes any implied legal duty to do so. Without attempting to enumerate every duty of tbe master, we may say, in general terms, that a corporation, like any'other master, discharges its primary duties as master to tbe servant when it furnishes him with a reasonably safe place in which to- work, reasonably safe tools with which to work, and uses reasonable care in. selecting fellow servants, or, rather, is free from negligence in these three respects. It would not seriously be asserted that a. natural person owes to his servant or employe the legal duty to furnish medical or surgical aid to him or to nurse him when sick or disabled, or when injured while working for the master- or employer, — indeed, we apprehend the law does not impose such obligation upon him in any event without an agreement by which he assumes such burden; for instance, a servant suffers a bodily injury through the actionable negligence of the master; although the master must answer to the servant in damages for all loss proximately resulting, including physicians’ and surgeons’ charges, yet the law does not require him to engage their services or to pay them for performing the services, —he may, if he chooses, employ physicians, surgeons and nurses and promise to pay them, and of course he would then be liable directly to those employed. Whether or not in such a -case as the one last suggested the general manager of a mining company can bind his principal is not necessary to be decided upon this appeal. If he can, the power must rest upon the assumption or theory that in appointing a general manager the company impliedly delegates to him authority to lessen the extent of the injuries inflicted by the principal’s -wrong and thereby diminish the amount of damages for which the latter would otherwise be liable. As has been said, there is nothing in the case at bar to indicate that the defendant was at fault, or that it had agreed with the wounded men to provide surgeons or physicians for them in case of accident. If the defendant’s directors had met and employed the plaintiff and McKenzie to attend the wounded men, they would have bound the defendant; but the directors would not thereby have performed a duty imposed by law upon them or upon the defendant Beyond doubt the corporation through its board of directors — its governing body — possessed the right at any time to delegate the exercise of this power to any officer or person. Now, the general manager represents .the corporation in all matters falling within the scope of the powers actually conferred or which he is held out by the company to possess; “whenever a corporation appoints a general manager or superintendent, by whatever name called, it, by that very fact, impliedly holds him out to the public as possessed of the authority to bind it by contracts which are necessary, proper, or usual to be made in the ordinary prosecution of its business.” (4 Thompson on Corporations, Sec. 4850; Georgia Military Academy v. Estilla 77 Ga. 409.) In Trent v. Sherlock, supra, we said: “No principle of law is more clearly settled than that an agent to whom is intrusted by a corporation the management of its local affairs, whether such agent be designated as president, general manager, or superintendent, may bind his principal by contracts which are necessary, proper, or usual to be made in the ordinary prosecution of its business. " * * The fact that he occupies by the consent of the board of directors, the position of such an agent, implies, without further proof, the authority to do any thing which the corporation itself may do, SO' long as the act done pertains to the ordinary business of the company. * * * Even where the contract in question pertains to matters without the ordinary course' of business, but within the power of the corporation, — that is, such as is not prohibited by its charter or by express provision of law, — the authority of the agent may be established by proof of the ‘course of business between the parties themselves ; by the usages and practice which the company may have permitted to grow 'up in its business; and by the knowledge which the board, charged with, the duty of controlling and conducting the transactions and property of the corporation, had, or must be presumed to have had, of the aeis and doings of its subordinates in and abo-ut the affairs of the corporation.’ * * " ‘There is no reason, and can be no legal principle, which will' put the agent of a corporation on any different footing than the agent of an individual, in regard to the same business.’ ” He cannot, however, bind his principal by a contract to confer a gratuity or bestow a charity, however strong the promptings of humanity may be. He acts for and is virtually the company itself in those matters only which have to do with its ordinary business and are within the scope of the duties delegated to him for performance. Unless the limits of his authority are shown to have been enlarged, the duties of the general manager are confined to the transaction of the business of the corporation as distinguished from its mere ethical duties and consequent imperfect obligations, or supposed charities. The fact that a certain person is general manager of a mining company does not in and of itself imply authority in him to bind the company in matters other than those, of business affairs. It may not be said, as matter of law, or declared as a fact judicially known, that general managers of mining corporations are usually clothed with such authority as that assumed by Loomis. So to hold would be to affirm that every general manager may contract with physicians and surgeons in behalf of the mining company for which he is agent, irrespective of the rights of the company and without regard to whether it was at fault. If he has such authority by virtue of his office, then he may bind the company to pay for the services and expenses of surgeons, physicians, nurses and others rendered to. and paid out for men who through their own gross negligence have suffered injuries in his company’s mines, and and his promise in the name of the company to pay any price that might be agreed upon by him and those employed would (in the. absence of fraud) bind the corporation. If such authority inheres in the office of general manager1, then, as was remarked by Mr. Justice Graves in Marquette & Ontonagon Railroad Co. v. Taft, 28 Michigan, 289, Loomis “must be taken to have had not merely the ordinary powers of control and management pertaining to superintendency, but the larger and more imperial power to bind the treasury of the company to bestow what in law would have to be considered as something originally resting on imperfect obligation.’’ If such authority is conferred on a general manager, the court does not take judicial notice of it. Evidence tending to prove it must be adduced.

We are aware of the many cases holding that the general agent, managing agent, general manager of superintendent of a railway company has, by virtue of his office, implied authority to employ, on behalf of the company, physicians and surgeons to attend persons injured by the company, including those injured in the line of their duties while working for it, of which the following are typical: Walker v. The Great Western Railway Company, L. R. 2 Exchequer, 228; Atlantic & Pacific Railroad Co. v. Reisner, 18 Kansas, 458; Pacific Railroad Co. v. Thomas, 19 Kansas, 256; Atchison & Nebraska Railroad Co. v. Reecher, 24 Kansas, 228; Toledo, Wabash & Western Railway Co. v. Rodrigues, 47 Illinois, 188, 95 American Decisions, 484; Toledo, Wabash & Western Railway Co. v. Prince, 50 Illinois, 26; The Indianapolis & St. Louis Railroad Co. v. Morris, 67 Illinois, 295; The Cairo & St. Louis Railroad Co. v. Mahoney, 82 Illinois, 73, 25 American Reports, 299; The Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Davis, 126 Indiana, 99, 25 Northeastern Reporter, 878, and cases there cited; and of some cases in which the contrary doctrine is announced: Brown v. Missouri, Kansas & Texas Railway Co., 67 Missouri, 122; Stephenson v. New York & Harlem Railroad Co., 9 Duer (N. Y.) 341. Whether the doctrines announced in the class of cases first mentioned would have been applied to mining corporations under the facts here disclosed, we need not inquire. Whatever may be the rule touching the presumptions with respect to the poweis of railway officials, in our opinion a presumption that the general manager of a mining. corporation has been clothed with the delegated power' to exercise the authority .which Loomis assumed to exercise, cannot be indulged. In some of the cases cited the judges seem to have been unconsciously influenced more by considerations of humanity, or moral obligations, and of hardship, than by the law of agency. Legal principles müst govern all cases falling within them, without regard to the views entertained by' the judges touching the supposed hardship occasioned in a particular instance. (Sanford v. Gates, Townsend & Co., 21 Mont, page 290, 53 Pac. 749.)

' As to the contention that th,e company ratified the employment of the plaintiff, suffice it to say that the testimony of Grrigg did not constitute sufficient evidence to prove a ratification, and that there was no other evidence tending to show it.'

■Finding no error in the record:, the judgment and order refusing a new trial are affirmed.

Affirmed.

The Chibe Justice, having tried the cause in, the court below, takes no part in this decision.


author: MR. CHIEF JUSTICE RRANTLY

text:
    TRENT et al., Respondents, v. SHERLOCK, Appellant.
    (No. 1,231.)
    (Submitted October 8, 1901.
    Decided November 18, 1901.)

      Foreign Corporations — Principal and Agent — Mining Companies — President — Powers — Delegation of Powers — Supeñntendent — Unauthorized Acts — Ratification ■ — • Evidence — Instructions.
    1. A creditor of a mining' company sought to have its president execute a bill of sale for certain machinery purchased from defendants. The president refused, but referred the creditor to the company’s superintendent, who executed such bill, signing it as manager of the company. The directors of the company, with the exception of the president, resided in another state, and the president had the general management of Its affairs within the state. The creditor testified that he informed the president that the bill had been executed, and that the president knew the character of the transaction, but did not want it known that he was cognizant of the transaction, and that he was in the immediate vicinity when the creditor took possession of the property. Defendants sued, and attached the machinery' as the property of the company. Held, that the evidence of the ratification of the bill of sale by the corporation was sufficient to justify the court in submitting that question to the jury, together with the bill of sale.
    2. Independent of any ratification, the bill of sale was void, and not voidable, and the defendant was entitled to raise the question of its validity.
    3. On the admission of the bill of sale, together with the evidence of ratification, defendant was entitled to have the jury instructed that they should not consider the contract as prima faeie the act of the corporation; though it purported on its face to be executed by the manager on behalf of the corporation.

      4. A contract made ior his principal by an agent,' but, entirely without the scope of his authority, is no more binding, until ratification, than if made by a stranger.
    (For former opinion, see 24 Montana Reports, 255.)
   ON Rehbabing.

MR. CHIEF JUSTICE RRANTLY

delivered tbe opinion of tbe court.

Tbis cause is before tbe cp-urt on a rebearing granted upon application of respondents on November 13, 1900. Tbe argument and decision bave been delayed on account of tbe illnéss of counsel for appellant. For a brief statement of tbe facts, reference is made to tbe former opinion in 24 Montana 255, 61 Pac. 650. These additional facts may be noted, as they do not appear in that statement: Tbe Hope Mining Company was organized under tbe laws of tbe state of Washington. Its trustees, except the president, Pitner, reside in Seattle, in that state, and its general office is there. On tbe day following tbe execution, of tbe contract by Franklin, tbe mine superintendent, Pitner, Franklin and Trent returned from Butte to Basin. Trent states that be took possession of tbe property after, some conversation with Field, tbe manager; Pitner then being at bis residence, near by. He further states that, after tbe contract bad been entered into by himself and Franklin at Butte, be told Pitner that Franklin bad given him a bill of sale, but that Pitner said that be did not care to know anything of it, and it must be understood that be did not.

Tbe conclusion stated in tbe former opinion was that tbe defendant should be granted a new trial, on two, grounds: First, that tbe trial court erred in admitting in evidence tbe contract upon which tbe plaintiffs found their claim to tbe property involved; and, second, in refusing to submit to tbe jury a certain instruction requested by tbe defendant. . Upon consideration of the argument and tbe authorities presented by counsel in support of the motion for a rehearing, we still thought that the trial court had erred in, refusing to submit the requested instruction, but were inclined to the opinion that in holding that there was not sufficient evidence to go to the jury upon the question whether the written contract had been ratified by the Hope Mining Company, and that it should have been entirely excluded, we were in error. Further consideration of the subject has confirmed this impression, and we now think it the better view that the contract was properly admitted with the evidence tending to show that it was ratified by the corporation through its president, Pitner. Prom the fact that the corporation was organized under the laws of another state, and had intrusted to Pitner the general — practically the exclusive— management and control of its affairs in Montana, he was impliedly authorized to do any act necessary and proper, or usually done in the conduct of the ordinary business of the corporation. Under this condition of affairs, persons dealing with him could not be required to look further, and inquire what express authority his principal had intrusted to him. He therefore had implied authority to make purchases of property for the corporation either for cash or on credit, and to secure the payment of debts thus incurred for the purpose of keeping the mill in running order. Had the contract in question been executed on behalf of the company by him, it would, under the circumstances, have been prima facie the contract of the corporation, and binding upon it No such implied authority belongs to an agent whose powers are apparently, as well as in fact, limited to the scope of the particular employment. A superintendent of a mine is not, as such, authorized to make contracts for machinery and other supplies necessary for the milling or smelting operations of his principal. If, however, the principal permits such an agent to act generally for him, or in other capacities than those for which he was employed, and thus holds him out as having the authority to do so, the principal cannot escape liability upon contracts made on hist behalf by his agent acting in such other capacities. Franklin’s authority being limited to a particular employment, the contract in question was not prim® faciei the contract of the corporation. Nor was the usage and custom of business shown to be such in this particular instance as to justify tbe inference that be bad authority, either as superintendent or manager, to pledge the property of the company. As was said in the former opinion: “Buying and selling or pledging are acts of a different nature, an authority to do the one by no means implies the authority to ' do the other; and, when it is sought to show an, implied axrthority in the agent to do the act in question by proof of consent or acquiescence of the principal, this- can be done only by proof of consent to or acquiescence in acts of a similar nature, or by proof of such acts as tend to show a general power.” Therefore, though it appeared that Franklin had assumed on one other occasion to buy machinery for the company, and had for a short time, against the wishes of Pitner, the president, made deposits of its funds in his own name, and drawn checks thereon as manager, this was not sufficient proof of such a usage or practice to warrant the conclusion that he was impliedly empowered to act generally for the corporation in Montana. Nor do the facts presented tend to show that Pitner, the president, had either an express or an implied authority to delegate to- any one else the general power intrusted to him, or that he could appoint. a subagent to act in Iris place in the exercise of these powers. . In the absence of such authority from his principal, he was powerless to make such .a substitution. The evidence does not tend to show that he made any attempt to do so. While all this is true, however, a principal may, either expressly or impliedly, by acquiescence and consent, and by accepting and retaining the benefits with knowledge, ratify and adopt as his own a contract made in his behalf by a person who had no authority to act for him in the first instance, and thus become bound to perform all the duties and obligations which arise out of the transaction. A corporation is governed by the same principles. It may formally ratify through its board of directors an unauthorized act of this nature done in its behalf, provided the act is not beyond its poAvers conferred by charter, or prohibited by law. It may also, by an acceptance or retention of the benefits derived from the transaction, after notice, become bound to perform all the obligations arising therefrom. So, by acquiescence with full knowledge through its authorized agents of the character of the act in question, it will be held to have accepted and ratified it. It can act only through agents, and notice to the agent of matters falling within the scope of his authorized duties is notice to the corporation.

The evidence in the case at bar tending to shoAV that the president, Pitner, had or should have had knowledge of the character of the contract entered into by Fi’anklin, was sufficient to go to the jury. He refused to enter into the contract himself; but the evidence has a tendency to show that he ret-ferred Trent to Franklin, Avith the statement that the latter had authority to make it. It also appears from the testimony of Trent that he told Pitner that he had obtained a bill of sale of the Bryan Mills that Pitner knew of the character of the transaction, but refused to be informed of the particulars, and did not Avant it knoAvn that he knew anything, of the matter. Besides, on the next day he Avent with Franklin and Trent to Basin, and was there at the time Trent says he took possession of the mills. True, Pitner Avas called by plaintiff to testify, and denied all knowledge of the transaction until long after the defendant had made the levy. Still, it was for the jury to determine whether Trent or Pitner told the truth. If Trent’s .statements Avere to be taken as true, then Pitner kneiv or should-have known that Franklin had undertaken to bind the corporation ; and it ivas his duty, under the circumstances, to repudiate the transaction, and thus prevent his principal from being bound. He may not be permitted to say that he or the principal had no knowledge of the character of the contract and its purpose, while all the circumstances tend to show that he was put upon inquiry, and that it Avas his duty to inform himself.

' In what we have just said touching the authority of Pitner to act generally for the corporation in Montana, we have proceeded npon the assumption that the nature of his duties implied plenary power to- do all the corporation could do in the conduct of its business. From the by-laws of the corporation, which were introduced in evidence by the defendant, it appears that he had express authority to sell and mortgage the property of the corporation, as well as to mate all contracts for the sale or purchase of real estate, mining property, machinery, supplies, etc., but no power of substitution was given him. Therefore, even had1 it been error to admit the contract in the first instance, on the ground that Pitner had no authority to enter into it, and therefore had no power to ratify it, this evidence would have cured such error, and the defendant would have had no ground to complain of the ruling.

Counsel for respondents contend that the defendant in this, case should not be heard to question the validity of the contract, for the reason that it was, at most, only voidable, and, being-voidable only, no person other than the corporation itself could question its validity. In support of this view they cite the following authorities: Eureka Iron and Steel Works v. Bresnahan, 60 Mich. 332, 27 N. W. 524; Gordon v. Preston, 1 Watts, 385, 26 Am. Dec. 75; Manhattan Hardware Co. v. Phalen, 128 Pa. St. 110, 18 Atl. 428. With this view, however, we do not agree. From an examination of these cases, it appears that in each instance the contract involved was upon its face executed on behalf of the corporation by the proper officer, and that it had been ratified by the corporation by acquiescence and retention of the benefits derived from it. We are unable to distinguish between the act of a. stranger and the act of a person who is an agunt for another, but unauthorized to do the act in question on behalf of the latter. So far as it would affect the rights of the principal, or those of any other person than the agent himself, the attempt to- bind the principal would be nugatory in each instance. If, for instance, A., a stranger, attempts to sell and deliver to C. the personal property of B., assuming to act as the agent of B., and, before B. has any knowledge of tbe transaction, D., a creditor of B., levies upon such, personal property in tbe hands of C.; could it, on principle, be said that C., the purchaser, had acquired such rights in the property as to enable him to defeat the lawful claims of D. ? In our opinion the contract, as a contract entered into on behalf of the putative’principal, has no binding force upon any person, except, by way of estoppel upon the would-be agent, until such putative principal has been informed of it and has either expressly or impliedly ratified it; and all persons dealing with the property prior to such ratification acquire the same rights therein, as if the agent had not attempted to act. A contract made for his principal by an agent, but entirely without the scope of his authority, is no more binding, until ratification, than if made by a stranger.

' For the reasons stated, the conclusion reached in the former opinion upon, the first point decided must therefore be modified in accordance with the views now expressed; but we still think that the court committed prejudicial error in refusing the requested instruction. The defendant was entitled to have the jury cautioned that .they should not consider the contract as prima facie the act of the corporation, — in other words, that there was no presumption in favor of it because it purported on its face to be executed by Franklin on behalf of the corporation.

The judgment and order are" reversed, and the cause is remanded for a new trial.

Reversed and remanded.


author: MR. JUSTICE PIGOTT

text:
    BEER, Respondent, v. LIENEMAN et al., Appellants.
    (No. 1,375.)
    (Submitted November 18, 1901.
    Decided November 18, 1901.)

      Appeal — Buies of the Supreme Gourt — Briefs—Affirmance of Judgment.

    "Where appellant’s brief fails to comply with the requirements of Subdivision 3 of Rule S of the Supreme Court, the judgment appealed from will be affirmed.

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

    Action by Samson Beer against Lonis Lieneman and Charles Scbmidt. Erom a judgment in favor of the plaintiff and an order denying a new trial, the defendants appeal.
    Affirmed.

      Mr. James W. Forbis, for Appellants.

      Messrs. McBride & McBride, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

These are appeals from a final judgment and ani order denying a new trial entered in the district court of Silver Bow ■county. The cause was submitted by the appellants on brief, examination of which discloses that it fails to comply with Subdivision 3 of Rule X of this court (22 Mont, xxxiv, 57 Pac. vii). It does not refer to the page numbers in the transcript; it does not contain any specification of error; nor does it even attempt to state from what either appeal was taken. Such being the condition of the brief, the judgment and order appealed from must be affirmed upon the authority of Harrington v. Smith, 25 Montana, 111, 63 Pacific Reporter, 1036.

The judgment and order appealed from are therefore affirmed.

Affirmed.