author: ME. JUSTICE' MILBUEN

text:
    STATE ex rel. DONOVAN, Relator, v. DISTRICT COURT, Respondent.
    (No. 1,891.)
    (Submitted January 22, 1903.
    Decided February 6, 1903.)

      District Courts — Power in Probate Proceedings — Guardians Sale — Setting Aside.

    1. The district court in probate proceedings has only the powers formerly held by the probate court as such prior to the adoption of the constitution.
    2. Code of Civil Procedure, Section 2687, provides that if, after confirmation of a sale of real estate by an executor or administrator, “the purchaser neglects or refuses to comply with the terms of the sale, the court or judge may, on motion of the executor or administrator, order a resale,” the purchaser at the first sale to be liable for any deficiency. There is no other provision in the Code respecting the duties of a district court sitting in probate on default of a purchaser to comply with the terms of sale. Held, that such coiirt had no power to set aside a guardian’s sale of the property of the ward, and to authorize the guardian to retake possession thereof, on the failure of the purchaser to comply with the terms of purchase.
    ApplicatioN by the state, on tbe relation of James Donovan, for a writ of review directed to tbe district court of the First judicial district, department No. 2, in and for the county of lewis and Clarke. Heard on return of tbe district court.
    Order below annulled.

      Mr. F. W. Mettler, for Eelator.

      Mr. Albert J. Galen, for Eespondent.
   ME. JUSTICE' MILBUEN

delivered the opinion of tbe court.

This cause is before us on tbe return of tbe district court to a writ of review. From tbe record it appears that one Sarah E. Eumney was and is tbe duly appointed and acting guardian of tbe estates of two minors, to-wit, John Jackson and Nettie Pauline Jackson, who' were tbe owners of a four-ninths interest in a certain band of cattle numbering about 100, and of a two-thirds interest in a certain tract of real estate known as the “Jackson Banch,” situate in Lewis and Clarke county, the cattle being located on the said ranch.; that said Sarah F. Bumney was at the time of the sales herein referred to a co-owner in her own right with the said minor heirs in the said real estate, and that she and one Beatrice Jackson Kranich were at said times co-owners in their own several rights with the minor heirs in the said band of cattle; that on the 21st day of January, 1901, the district court duly made its order for the sale of the interests of the minor heirs in the said personal property, and that no return has ever been made to the court of any acts of the guardian in pursuance of the said order of sale. On the 7th day of August, 1902, the court duly ordered said guardian to sell the interest of the said minor heirs in and to the said real estate either at public or private sale, and to the highest and best cash bidder. The guardian reported to the court that she had, pursuant to the order of sale, duly sold at private sale, in accordance with notice duly published, all the real estate belonging to said minors to said James Donovan, he being the highest and best cash bidder therefor, and that the purchase price paid therefor was the sum of $3,333.25 ; $500 of said amount being paid down, and the balance to be paid after approval and confirmation of the sale. The court, on October 11, 1902, ordered that the said sale be approved, and that proper and legal conveyance of the real estate be executed by the guardian to the purchaser. On thé 27th day of October, 1902, the said guardian, by a petition duly filed in the district court, represented that in pursuance of the said order of sale of the personal property she had sold unto said James Donovan 840 head of cows and the calves of the year 1902 for the sum of $35 per head, and 29 head of two-year-old and yearling steers and heifers for the sum of $20 per head, — making a total of $1,920 agreed to be paid for said cattle; and that in pusuance of the order of sale of the real estate she had sold the interests of the minor heirs therein to said James Donovan in manner and form as heretofore stated; and that at the time of the sale of the said realty and of said live stock, “in pursuance of authority vested in your petitioner by law and authority of this court, said purchaser, James Donovan, paid unto your petitioner the full sum of $2,500, it being then and there understood and agreed by and between the said parties that said payment should apply upon the entire property,- — that is, upon both the ranch and the cattle.” It appeared in the petition that James Donovan refused, and continued to refuse, “to carry out his part of the contract of purchase, and -x- -x- †0 accept said I'ealiy and cattle, unless the sum of $1,000 be deducted from the price which he undertook, assumed, and agreed to pay for said real estate;” and that said purchaser was then and there in possession of the ranch and cattle, and refused to give up such possession and redeliver the property to the petitioner. She prayed that the court make an order setting aside the sale of the realty and the personal property, and authorizing her to take immediate possession of nil of the property in the interests of her wards, and ordering said Donovan to give up possession thereof. After a hearing the court made the order prayed for. The guardian did not appear and testify upon the hearing. Iler husband, Benjamin Rumney, testified that he ivas the agent and manager of all of the property, and that on or about the 5th day of July, 1902, he contracted to> sell the whole ranch, including the interests of the co-tenant of the minors, and the cattle, to said Donovan; and it appears from the record that such sale was made, and that Donovan, instead of paying $500 down at the time of any supposed sale, under any order of the court, of said real estate, paid $2,500 down in one sum, in accordance with the contract evidenced in writing, signed by Sarah R. Rumney “individually and cs trustee for the estate of John Jackson, deceased, and Benjamin Rumney, her husband, and James Donovan,” which contract was supplemented by an instrument in writing, dated July 12, 1902, “b& tween Benjamin Rumney and wife, Sarah B. Rumney, individually and as trustee for minor heirs of John Jackson, deceased, and James Donovan,”- setting out definitely the number of head of cattle, and providing that said cattle should be and remain on the said ranch until September 1, 1902, until the second payment was made on the said contract, — that is, $1,-500, — which seems to have been considered as a deferred payment on the ranch, said cattle to remain as security therefor. The contract of July 5th provided that said Donovan should take possession of the real estate upon execution of the agreement, and keep and retain possession and have the full use and benefit thereof until delivery of the deed for said real estate, which deed was to be held by the First National Bank of Great Falls until the completion of the deferred payments on said real estate. As appears by the record, and as stated by counsel of the guardian in his brief, “the entire property has been held and handled in common.” As we have stated above, the petition to sell the real estate was dated July 11, 1902; and long before the date of the hearing thereon (August 7, 1902) said Donovan was, in accordance with the terms of said written agreement, put in possession of all of the property, and the $2,500 was paid at some time between the 7th and 15th days of July, 1901,— that is to say, Mr. Donovan was put in possession of all of the property by Benjamin Bumney, the agent of the s_o-tenants, and not by virtue of any sale confirmed by the district court, or of any sale of any real estate made by order of the court.

The order of the district court canceling the sale of the real estate and of the personal property in this case, and directing the guardian to take possession of all of the real estate and all of the personal property, was without jurisdiction. Section 2687 of the Code of Civil Procedure, referring to real estate, provides that if, after the confirmation, the purchaser neglects or refuses to comply with the terms of sale, the ccurt or judge may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property, the purchaser to be liable for any deficiency in case the amount realized on such resale does not cover* his bid and the expenses of the previous sale. There is no other provision in the Code respecting the duties of a district court in probate upon default of the purchaser to comply with the terms of sale made by order of the court. As has been frequently said by this court, the district court in probate proceedings bas only statutory powers, and when tbe district court succeeded to all of the duties of the probate court upon the abolishment of the latter it acquired only the powers formerly held by the probate court as such prior to the adoption of the constitution. The fact that the judge of the district court sits in probate does not give him any powers not had by the judge of the probate court prior to its abolishment. The power to order a resale under certain conditions is not authority to foreclose a mortgage on cattle to secure the price of land, or to give judgment in ejectment, or to issue a writ in claim and delivery for the recovery of personal property; all of which is attempted to be done in the present case under the order of the district court. The order made and complained of is not an appealable order mentioned in Section 1722, Subsection 3, of the Code of Civil Procedure. • The order made is not an order to sell, or to again expose for sale. It is not an order to carry out either or both of the orders of sale made by the court. What remedy either the guardian or Mr. Donovan may have under the circumstances is not proper or necessary for us to indicate. As to the relations of Mr. Donovan with his co-tenant, and his rights in the premises under such relations, we make no remark.

The order is annulled.

Annulled.


source: Caselaw Access Project

author: ME.. JUSTICE! HOLLOWAY

license: Public Domain

text:
    STATE, Appellant, v. NORTHERN PACIFIC EXPRESS COMPANY, Respondent.
    (No. 1,807.)
    (Submitted January 7, 1903.
    Decided February 6, 1903.)

      Interstate Commerce — Regulation—Occupation Tax — Validity.
    An express company transacting interstate and intrastate business is not liable for an occupation tax, under Political Code, Section 4074, imposing such a tax on “any carrier” transmitting goods “from one place to another,” since the statute, not making any discrimination between local and interstate business, contravenes the federal constitution, giving congress sole power to regulate interstate commerce.
    Me. Justice Milbukn., dissenting.

      Appeal from. Distmct Court, Lewis and Clarice County; E. C. Smith, Judge.

    ActioN by the state of Montana against the Northern Pacific Express Company. Erom a. judgment for defendant, plaintiff appeals.
    Affirmed.

      Mr. James Donovan, Attorney General, for the State.

      Mr. William Wallace, Jr., for Despondent.
   ME.. JUSTICE! HOLLOWAY

delivered the opinion of the court.

The parties to this action, proceeding under the provisions of Section 2050 of the Code of Civil Procedure, agreed upon a case containing the facts upon which the controversy depends, and submitted the same to the district court for determination.

The county treasurer of Lewis and Clarke county, in^ the name of the state, sought to collect a license or occupation tax from the defendant, Northern Pacific Express Company. The facts agreed upon, so far as they are material to a determination of the question in dispute, are that the defendant, Northern Pacific Express Company, is a foreign corporation engaged in carrying express matter for hire from points in this state to other points in this state, and also from points in this state to points without this state; that it maintains an office in Helena, and has paid its taxes upon all its property in the state; and that neither the defendant company, nor its agent, has ever applied for or obtained a license to conduct such business.

The question submitted to the district court for decision was: “Is the defendant company liable for a license fee or an occupation tax under the laws, of the state of Montana ?” This question tlie district co-nrt answered in tbe negative and entered a judgment for tbe defendant for costs, from wbicb judgment tbe state prosecuted tbis appeal.

Section 4014 of tbe Political Code, wbicb provides for licenses for express companies, is as follows: “Every person, association or corporation wbo engages as a common carrier in transmitting or conveying gold dust, gold and silver coin or bullion, money or bank notes, packages or express matter, or passengers from one place to another for bire or profit must procure a license and pay therefor in eacli county where tbe business is transacted as follows: Those doing business to tbe amount of fifty thousand dollars or over per quarter, must pay one hundred and eighty-seven dollars and fifty cents per quarter. Tbis section shall not apply to street railway companies. Those doing business in any county to tbe amount of thirty, thousand dollars and under forty thousand dollars per quarter, must pay ninety-three dollars and seventy-five cents’per quarter. .Those doing business in any county to tbe amount of twenty thousand dollars, and under thirty thousand dollars per quarter, must pay sixty-two dollars and fifty cents per quarter. Those doing business in any county to the amount of ten thousand dollars, and under twenty thousand dollars per quarter, must pay thirty-seven dollars and fifty cents per quarter, and in any amount under ten thousand dollars and over five thousand dollars per quarter, must pay twenty-five dollars and twenty-five cents per quarter, and in any amount under five thousand dollars per quarter, must pay twelve dollars and fifty cents per quarter.” It will be noted that the language of Section 4014, above, is: “Every * * * corporation who engages as a common carrier in * * * conveying * * * express matter * * * from one place to another for hire * * * must procure a license * * *and Section 4043 of the Political Code requires that the license shall be obtained as a condition precedent to the carrier’s doing any business. Our inquiry, then, is, is this an attempt on the part of the state to interfere with or regulate interstate commerce, or, in other words, does tbe license or occupation tax provided for above affect tbe business of tbe defendant company which is interstate in its character, or only that business which is purely local or mimstate ?

While there are some exceptions to be found in the decided cases, we believe the very great weight of authority fairly establishes this as a general rule for the interpretation of license statutes, as applicable to cases of the character of this one now under consideration, viz.: “Where a carrier is engaged in both interstate and intrastate business, in the imposition of a tax upon such carrier the interstate business must be discriminated from the intrastate business, or it must be made capable of such discrimination, so that it may clearly appear that the intrastate business alone is taxed. Whenever the subjects of taxation can be separated so that that which arises from interstate commerce can be distinguished from that which arises from commerce wholly within the state, the distinction will be acted upon by the courts, and the state permitted to collect the tax arising upon commerce solely within its own territory.” If, however, the terms of the statute are general, and the license fee a unit charged against the business of the carrier as such,- — as strictly an occupation tax, — and no attempt is made by the language of the statute to discriminate between the local and interstate business, but the license is required as a condition precedent to the carrier’s commencing or conducting business, then the imposition of the tax will be deemed an interference with and an attempt to regulate interstate commerce, and for that reason void. (17 Am. & Eng. Enc. Law (2d Ed.), 110.)

This distinction has been noted frequently, and, with few exceptions, has been recognized and followed by tire courts. In each of the following cases the party upon whom the license was imposed was engaged in both local and interstate commerce.

In Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 250, 35 L. Ed. 1035, the court had under consideration a statute of Missouri which provides that express companies should make report of business done "within this state” and requiring an animal license fee or occupation tax based thereon; and, in disposing of the question whether the statute was intended to or did apply .to or affect interstate commerce, the court says: “Was the business of this express company in the state of Missouri, on the receipts from which the tax in question was assessed under this act, interstate commerce ? The allegation of the bill is very positive that in the prosecution of its business as an express company the complainant is engaged in part in the transportation of goods and other property between the states of Nebraska, Kansas, Texas, and other states of the Union, and the state of Missouri; and also in the business of carrying goods between different points within the limits of the state of Missouri. The question on this point, therefore, is narrowed down to the single inquiry whether the tax complained of in any way bears upon or touches the interstate traffic of the company, or whether, on the other hand, it is confined to its intrastate business. We think a proper construction of the statute confines the tax which it creates to the intrastate business, and in no way relates to the interstate business of the company. The act in question, after defining in its first section what shall constitute an express company, or what shall be deemed to be such in the sense of the act, requires such express company to file with the state auditor an annual report 'showing the entire receipts for business done. -within tilt's state of each agent of such company doing business in this state,’ etc., and further provides that the amount which an express company pays 'to the railroads or steamboats within this state for the transportation of their freight within this state’ may be deducted from the gross receipts of tho company on such business; and the act also requires the company making a statement of its receipts to include, as such, all sums earned or charged 'for the business done within this state ’ etc. It is manifest that these provisions of the statute, so far from imposing a tax upon the receipts derived from the transportation of goods between other states and the state of Missouri, expressly limit the tax to l’eceipts for the sums earned and charged for the business done within tJie state. This positive ánd oft-repeated limitation -to business done within the state (that is, business beg'un and ended within the state) evidently intended to exclude, and the language employed certainly does exclude, the idea that the tax is to be imposed upon the interstate business of the company. ‘Business done within this state’ cannot be made to mean business done between that state and other states. We therefore concur in the view of the court below that it was not the legislative intention, in the enactment of this statute, to impinge upon interstate commerce, or to interfere with it in any way whatever; and that the statute, when fairly construed, does not in any manner interfere with interstate commerce.”

To the same effect is the decision in Pullman Co. v. Adams, 78 Miss. 814, 30 South. 757, 84 Am. St. Rep. 647, construing a statute of Mississippi containing this provision with reference to the imposition of a license tax, viz.: “Oil each sleeping and palace car company carrying passengers from one point to another in this state, $100,” etc.

So, in Osborne v. Florida, 33 Fla. 162, 14 South. 588, 25 L. R. A. 120, 39 Am. St. Rep. 99, a. statute which imposed a license tax on “all express companies doing business in this state ," etc., was held by the supreme court of Florida to affect only local, as distinguished from interstate, commerce; and on appeal to the supreme court of the United States this con-st-ructioñ of the statute was approved, and the judgment affirmed. (164 U. S. 650, 17 Sup. Ct. 214, 41 L. Ed. 586.)

So, in Railroad Co. v. Harris, 99 Tenn. 684, 43 S. W. 115, 53 L. R. A. 921, an act of the Tennessee legislature imposing a license upon carriers- for transporting freight or passengers “from one point in this state to another point in this state" was held to' have no application to interstate, commerce; and valid. To the same effect is the decision in W. U. Tel. Co. v. City of Fremont, 39 Neb. 692, 58 N. W. 415, 26 L. R. A. 698.

In Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692, 14 Sup. Ct. 1094, 38 L. Ed. 871, an ordinance of the city of Charleston which imposed a license tax upon “business done1 exclusively within the city of Charleston and not including any business done to or from points without the state,” etc., was held valid, and no encroachment upon the exclusive power of congress to regulate interstate commerce.

To the same effect are the decisions in Ogden City v. Crossman., 17 Utah, 66, 53 Pac. 985; State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681; Moore v. City of Eufaula, 97 Ala. 673, 11 South. 921; Railroad Co. v. Harris, 99 Tenn. 684, 43 S. W. 115, 53 L. R. A. 921.

In State v. Rocky Mt. Bell Telephone Co., 27 Mont. 394, 71 Pac. 311, this court, in construing Section 4071 of the Political Code, Avliich imposes a license tax upon every telephone company doing business in this state, held that by express terms the statute discriminated between local and interstate commerce, and 'that the manifest intention of the legislature that only local business should be subject to such license was clearly expressed.

It will be observed that, in the several statutes under consideration in the above cases, apt words are used, expressing the legislative intention to impose the license upon the local business only.

On the other hand, an ordinance which provided “that the license tax for the year * * * is hereby fixed as follows: On telegraph companies, $225, * " *” was held invalid as being an attempt to interfere with interstate commerce, and the supreme court of the United States said: “But it is urged that a portion of the telegraph company’s business is internal to the state of Alabama, and therefore taxable by the state. But that fact does not remove the difficulty. The tax affects the whole business without discrimination. There are sufficient modes in which the internal business, if not already taxed in some other way, may be subjected to taxation without the imposition of a tax which covers the entire operations of the company. * *

* In our opinion, such a construction of the constitution leads to the conclusion that no state has the right to lay a tax on interstate commerce in any form, whether by way of duties laid on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupiation or business of carrying it-on; and the reason is that such taxation is a burden on that commerce, and amounts to a regulation of it, which belongs solely to congress.” (Leloup v. Port of Mobile, 127 U. S. 640, 8 Sup. Ct. 1380, 32 L. Ed. 311.)

To the same effect is the decision of the same court construing a law of Kentucky which requires from the agent, of every express company not incorporated by the laws of Kentucky a license, before he can cany on any business for such company. In reversing the court of appeals of Kentucky, the court says: “We regret that wo are unable to- concur with the learned court of appeals of Kentucky in its view on this subject. The law of Kentucky which is brought in question by the ease requites from the agent of every express company not incorporated by the laws of Kentucky a license from the auditor of public accounts, before he can carry on any business for said company in the state. This, of course, embraces interstate business as well as business confined wholly within the state.” (Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. 851, 35 L. Ed. 649.)

And to the same effect is the decision of the same tribunal in construing a statute of Tennessee which provided with reference to sleeping cars used over roads, but not owned by such roads, as follows: “And the companies * * * shall pay * * * $50.00 (per annum) for each and every of said cars or coaches used or as run over said roads.” (Pickard v. Car Co., 117 U. S. 34, 6 Sup. Ct. 635, 29 L. Ed. 785.)

In Webster v. Bell, 15 C. C. A. 360, 68 Fed. 183, the court had under consideration an ordinance of the city of Alexandria, Va., which provided, among other things: “Sec. 49. On every express company having an office in the city of Alexandria, Virginia, and receiving goods, vrares and merchandise, and forwarding them to points within the state of Virginia, or receiving goods, wares and merchandise within the the state- of Virginia, and delivering them in the city of Alexandria, there shall be levied and collected a license tax of $150. This ordinance shall be of force from its passage,” — and, in construing its provisions, said: “The tax is on every express company having an office in the city of Alexandria, and receiving goods, etc., and forwarding them to points within the state of Virginia. Receiving them from what points ? Evidently from any quarter within or without the state, for the next sentence is, ‘or receiving goods, wares and merchandise within the state of' Virginia and delivering them in the city of Alexandria.’ This is a description of the business taxed. * * * The ordinance of the city of Alexandria malees no discrimination whatever between business done without and within the state, but, imposing a tax on the company if it has an office in that city, and if some of its business is between points in the state of Virginia, is repugnant to the interstate commerce law, and is void.”

To the same effect are the decisions in Southern B. Co. v. City of Asheville (C. C.), 69 Eed. 359, and Southern Exp. Co. City of Ensley (C. C.), 116 Fed. 756.

The province of this court is to construe the statute as we find it, not to read into- it terms which are not there under any fair interpretation of the language used.

The license tax imposed under Section 4074, above, is a gross amount imposed upon the entire business of the express company, and required as a condition precedent to its engaging in or following its occupation.

The statute does not, by its terms, attempt to make any discrimination between the local and-interstate business of the defendant company, and no such discrimination can be made under any fair construction of the language employed.

We hold, therefore, that the statute attempts to impose the license upon the entire business of the company, and, a portion of that business being interstate in its character, the license is an interference with, and an attempted regulation of, interstate commerce, and is void, as in contravention of the constitutional provisions conferring upon congress sole power to regulate commerce with foreign nations, among the several states, and with the Indian tribes.

It is also urged that Section 4014, above, is invalid for want of uniformity in its provisions, in that no license is required of companies doing business to tbe extent of $40,000 and under $50,000 per quarter; but, under our views of the case, it is unnecessary to consider this question.

The judgment appealed from is affirmed.

Affirmed.

Me. Justice MilbueN: I dissent.


author: MR. JUSTICE. HOLLOWAY

text:
    MALONEY et al., Respondents, v. KING et al., Appellants.
    (No. 1,812.)
    Submitted January 10, 1903.
    Decided February 10, 1903.)

      Mines and Mining — Ore Bodies — Title—Injunction Pending Appeal.

    1. Where, in an action to determine the ownership of certain ore bodies lying east of a particular line, it was undisputed that plaintiffs were the owners of the surface of that portion of the claim lying east of the line, and were, therefore, prima facie owners of all ore bodies within the planes of its boundaries, defendant was not entitled to an injunction pending appeal from a judgment in favor of plaintiffs to restrain them, from working the veins on proof that the amount removed amounted to about 160 tons, valued at $16,000, which was controverted by plaintiffs’ verified answer and affidavits, in which it appeared- that only a small quantity of ore had been taken out, valued at $190, and the only work done was development and exploration work necessary for plaintiffs to prepare for trial of another case.
    2. The undisputed owners of the surface of a lode mining claim are prima facie the owners of all ore bodies found within the planes of its boundaries.

      Appeal from District Gourt, Silver Bow' Gount'y; Willi-am Clancy, Judge.

    Action by James TL Maloney and others against Silas E. King and others to determine the ownership of certain ore bodies. From a judgment in favor of plaintiffs, defendants appeal. On motion for an injunction pending appeal.
    Denied.

      2£essrs. McBride & McBride, for Appellants.

      Mr. 0. P. Bremen, and Messrs. McEaiion & Cotter,,for Respondents.
   MR. JUSTICE. HOLLOWAY

delivered tbe opinion of the court.

This action was commenced in the district court of Silver Bovt county by Maloney et al., owners of the Plymouth lode mining claim, against the defendants King et al.. owners and lessees of the Silver King lode mining claim, to determine the ownership of certain ore bodies lying east of the line known as the “injunction line,” and within the planes of the boundaries of the Plymouth claim, but the apex of the vein in which such ore bodies are found is claimed by the ovmers of the Silver King to be wdthin that claim. The result of the trial in the district court wjas in favor of the plaintiffs. Eróm the judgment and an order denying defendants’ motion for a new trial, they appealed, and that appeal is now pending in this court.

The transcript on appeal was filed here on October 17, 1902. Ota. November 18, 1902, an application w?as made to this court for an injunction pending the appeal, by wdiieh it is sought to restrain the plaintiffs and their lessees from entering upon, mining, or doing any work or acts whatsoever in or upon that portion of ground in dispute. The application is made upon the verified petition of Silas E. King, the affidavit of Wakeman Sutton, and oral testimony of Sutton, introduced at the hearing; all of which is to- the effect that since April 5, 1902, the plaintiffs have removed about 160 tons of ore, of the value of about $16,000; that from June 10, 1902, to November 13, 1902, no work was done; that on November 13th a six-horse load of ore was taken out, and on December 20th another load of about 10 tons wras taken out and shipped.

The application is opposed by the verified answer of O. P. Drennan, one of the plaintiffs, and the affidavit of John Allen, the lessee of the Plymouth claim; and these are to the effect that not to exceed $4,800 worth, of ore has been taken from the ground in dispute since the rendition of the decree in the case,— April 5, 1902; that since June 10, 1902, only a small quantity of ore, amounting in value to about $190, bas been taken therefrom; that all the work being done on such disputed ground is development work and exploration necessary to enable plaintiffs to prepare for the trial of another case involving another portion of the Plymouth claim; and that at least a portion of this work is not upon the particular vein claimed by the defendants.

Upon this record this court is asked to issue an injunction which would have the effect of preventing any work whatever being done pending the appeal.

This court decided in Fimlen v. 'Heinze, 27 Mont. 107, 69 Pac. 829, that it has the power to issue such an injunction; but the mere fact that it has such power is not sufficient reason to justify its exercise upon every application which may be made. On the contrary, we regard it as an extraordinary power, to be exercised only in extraordinary cases. In Fimlen v. Heinze, above, the undisputed facts before this court were that very valuable ores to the extent of 400 tons per day were being taken out, and that, as the cause could not be heard on its merits for about two years if taken up> in its regular order, in the very nature of things the mine by that time would be greatly exhausted, and the value greatly diminished. Considering these facts, and the further very important fact that the title to the entire Minnie Healy claim was in dispute in that cause, and that an examination of the record showed that the questions involved are important and doubtful, this court deemed the exigency of the case sufficient to warrant it in issuing an injunction pending the appeal.

In this case the plaintiffs, being the undisputed owners of the surface of that portion of the Plymouth lying east of the injunction line, are prima» facie the owners of all ore bodies found within the planes of its boundaries (Maloney v. King, 25 Mont. 188, 64 Pac. 351; Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, 53 L. R. A. 491, 87 Am. St. Rep. 386), while the defendants are merely seeking to establish extralateral rights to ore bodies found in that portion of the claim. For whatever trespasses were committed before this court acquired jurisdiction of the case on appeal, no relief can be afforded on this application. If the statements made in the affidavits and oral testimony offered on behalf of defendants on this application were not denied, but taken to' be true, still we do not consider that a sufficient showing has been made to warrant this court in exercising its extraordinary power and granting the relief prayed for. We may say, however, that the testimony with reference to the extent of the work being done and threatened to be done at the time this application was made is conflicting, and this would furnish an additional reason, if any was necessary, why this application should be refused. However, in order that defendants may not deem themselves foreclosed from seeking this relief should the plaintiffs at any time hereafter, pending this appeal, manifest an intention to so prosecute their work on the ore bodies in dispute that the necessary result thereof would be to mine out the ground and greatly diminish its value, the application prayed for will be denied, with leave to these defendants to renew this application should the circumstances hereafter justify it.

Denied.


author: MR. CHIEF JUSTICE BRANTLY

text:
    BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Appellant, v. MONTANA ORE PURCHASING COMPANY et al., Respondents.
    (No. 1,756.)
    (Submitted January 6, 1903.
    Decided February 12, 1903.)

      Appeal from an Order Denying an Injunction — Finding on Contradictory Evidence — Law of the Case — Corporations—
      Appointment of Receiver — Stay of Proceedings — Poiver to Bring Action.

    1. The supreme court, upon an appeal from an order denying an injunction, will not reverse the order as being an abuse of discretion, where the finding of fact upon which the order rests is based on conflicting evidence, there being some evidence tending to support such finding.
    2. The decision of the supreme court upon a former appeal is binding only upon points necessary to the determination of the cause as then presented.
    3. Where an appeal from an order vacating a restraining order in a trespass case was decided on the ex parte showing of defendant that a receiver had been appointed for the plaintiff corporation, such decision did not become the law of the case so as to preclude a decision that the plaintiff might prosecute the action, when other material facts in regard the receivership were made to appear in subsequent proceedings.
    4. Where a receiver was appointed for a corporation, but a stay was granted pending a hearing in the supreme court, tne corporation had full power to bring suit until the receiver took possession, and after his discharge to prosecute to completion an action so commenced during the stay.

      Appeal from District Court, Silver Bov> County; D. W. Har-ney, Pudge.

    ActioN by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. From an order denying an injunction, plaintiff appeals.
    Affirmed.

      Messrs. Porbis £ Evans, for Appellant.

      Messrs. Mediation & Cotter, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was commenced on February 28, 1899. Through inadvertence the date is given in the opinion on a former appeal (26 Mont. 146, 66 Pac. 152) as February 28, 1898. Its purpose is to recover damages for trespasses alleged to have been committed by defendant on certain portions of the Pennsylvania claim. A second cause of action is added, containing allegations showing a continued trespass tending to destroy the value of the estate, and, as equitable relief, an injunction is asked pending the action.

The cause has been before this court twice heretofore upon appeal. In each instance the action of the district court was affirmed. (24 Mont. 142, 60 Pac. 990; 26 Mont. 146, 66 Pac. 752.) The first appeal was from an order vacating a temporary restraining order. It was. held upon that appeal that the district court did not err in dissolving the order, it being made to appear that a receiver for the plaintiff had theretofore been appointed in another cause, who had qualified; and it following from such showing that the plaintiff had no capacity to sue, but that the right of action, if any existed, was, by the fact of appointment and qualification of the receiver, vested in him under Section 955 of the Code of Civil Procedure. At the time the

district court dissolved the restraining order it retained the order to show cause, made at the time the restraining order was issued. Thereafter, on May 16, 1900, after a hearing -was had in pursuance of the order to show cause, an injunction was denied. Prom this order an appeal was prosecuted to1 this court. This order was also affirmed. (26 Mont. 146, 66 Pac. 752.) It was held that it was within the discretion of the district court to deny the injunction, it being made to appear that the defendant had in another case, wherein it was plaintiff, and the plaintiff in this cause the defendant, being adjudged to be the owner of the ore bodies in controversy. The cause in which the adjudication had been made is referred to in the opinion as cause No'. 7,337 of the district court files. It was at that time pending in this court upon appeal from the judgment and an order denying a nevr trial. Since that time this court affirmed the order denying a new trial, and also the judgment, with certain modifications. (Montana Ore Purchasing Co. v. Boston & Montana Con. Copper & Silver Mining Co., 27 Mont. 288, 70 Pac. 1114.) In the meantime, after this cause was remanded to the district court, two applications were made there for injunctions to restrain defendant from extracting ores from veins within the claim designated as veins Nos. 2 and 7. One of these applications was made on November 27, 1900, and the other on April 13, 1901. An order to show cause and a restraining order was issued in each instance. Finally, a hearing was had under these orders on May 15, 1901, the bearing being treated as a single application, with the result that on October 12, 1901, the injunction was denied. The present appeal is from this order.

1. It will be noted that the principal contention in Boston & Montana Con. C. & S. M. Co. v. Montana, Ore Pur. Co., 26 Mont. 146, 66 Pac. 752, was as to1 the admissibility of the judgment in cause No. 7,331 as evidence upon the application for the injunction. The principal contention at the hearing, at the termination of which the order now complained of was made, was upon the question of fact whether the ownership of the veins now in controversy was within the issues- in cause 7,337, and was adjudicated under the decree rendered therein. The plaintiff insists that the evidence shows them to be wholly separate and distinct veins from the ones described in the decree. We have examined the evidence on this point, and find that it is conflicting; so that we cannot say that the district court was guilty of an abuse of discretion in refusing the injunction. That court heard the evidence, and made its finding thereon, and this finding must be held to be conclusive upon this court for the purpose of this appeal, there being some evidence tending

, to show that the ore bodies in controversy are a part of the vein already declared to belong to the defendant.

2. Several errors are assigned by the plaintitf upon the admission and exclusion of evidence during the hearing in the district court. We have carefully examined them all, and find that they are without merit.

3. These remarks dispose of this appeal; but another question is presented, which requires a decision, inasmuch as it will arise at the hearing upon the merits. At the time the action was commenced, as has been stated, a receiver for the plaintiff corporation had been appointed by the district court of Silver Bow county in a cause entitled "Forrester and MacGinniss v. Boston & Montana, Con. C. & S. M. Co. et al.” The order of appointment was made on December 15, 1898. Oil December 16th, and after the receiver had qualified, but before he had taken possession of the plaintiff’s property, an application was made to tbis court for a writ of review to annul the order. Pending the hearing in this court proceedings under the order were stayed. On February 27, 1899, the order was affirmed (State ex rel. Boston & Montana Consol. C. & S. Mining Co. et al. v. Second Judicial Dist. Ct. 22 Mont. 241, 56 Pac. 281), but upon application to this court the stay was further extended until March 14, 1900. Counsel for defendant contend that from and after the date of the order appointing a receiver the plaintiff had no* capacity to bring an action in relation to its property, since the power to manage and control it, as well as the duty to protect it, was vested exclusively in the receiver, and that, therefore, this action, brought while the order of appointment was in force, cannot be maintained, though the order was afterwards stayed, and finally vacated on appeal by this court. (Forrester and MacGinniss v. Boston & Montana Con. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868, and Id., 24 Mont. 148, 60 Pac. 1088, 61 Pac. 309.) Counsel rely upon the decision on the former appeal in this case (Boston & Montana Con. C. & S. M. Co. v. Montana Ore Pur. Co., 24 Mont. 142, 60 Pac. 990), and insist that the declaration then made became the law of the case. That appeal was from an order vacating a restraining order made without notice, and upon an ex parte showing by the defendant, in which it was made to appear that the receiver had been appointed, and that the order was still in force. It did not appear that at the time the action was brought the powers of the receiver had been suspended, nor that they were still suspended at the date the hearing was had. At the hearing when the order was made from which the present appeal was taken, all the facts were made to appear, and they are embodied in the record. The decision upon the former appeal was not based upon the facts as they actually existed, nor had the plaintiff any opportunity to be heard, or to present the facts. Under these circumstanced, to hold that decision to be the law of the case, and the plaintiff bound by it, would be in violation of the rule announced by this court that the decision upon a former appeal is binding only upon points necessary to the determination of the cause as then presented. (Wastl v. M. U. Ry. Co., 24 Mont. 159, 61 Pac. 9, and cases cited.) Prom tbis point of view tbe former decision is not tbe law of tbe case as now presented, for tbe facts as they were shown to exist upon a full bearing of both parties are now presented for tbe first time. In our opinion' tbe order of appointment became effective to devest tbe plaintiff of tbe power to bring actions necessary to protect its -property from spoliation at tbe expiration of tbe stay granted by tbis court in tbe certiorav’i proceeding when tbe receiver assumed possession of tbe property. Tbe plaintiff bad tbe right to resist tbe m airing of tbe order, including tbe right of presenting it to tbis court for review; and, as a stay was granted pending tbe final determination of the questions involved, tbe stay including tbe time at which tbe action was brought, tbe action was properly brought by it, and could' be maintained by it in its own name until tbe receiver took possession of tbe property in the regular discharge of bis duties; and, after tbe receiver was discharged, its right would revive to prosecute tbe action to judgment. Until tbe agent appointed by tbe court took possession of tbe property, and tbe duty was cast upon him to care for it, and bring all suits necessary for its protection, tbe plaintiff was not devested of that right; otherwise, during the time when tbe order of appointment was stayed, tbe property was subject to waste and destruction, there being no person empowered to care for it. Until thac time tbe authority of tbe plaintiff extended to tbe proper management of its business, tbe employment of counsel for tbe prosecution of suits to enforce its rights and to protect its property. A receiver has no authority whatever until be has qualified and assumed tbe discharge of tbe duties of bis office under tbe order of tbe court. “When tbe order appointing him is stayed by an appeal and supersedeas, tbe property will not be deemed in tbe custody of tbe law until actually reduced to possession by tbe receiver after tbe affirmance of bis appointment upon the appeal, until which time it remains in tbe custody of-tbe original defendant, who is authorized to make necessary contracts for its preservation and for tbe protection of bis rights.” (High, Receivers, Sec. 136; Cook v. Cole, 55 Iowa, 70, 7 N. W. 419.) Tlie bringing of actions to protect tbe property is just as necessary as tbe making of contracts, or tbe doing of any other act required by the exigencies of tbe business, which does not have for its purpose an evasion of the order of appointment. It does not matter whether the suspension of the powers of the receiver are by means of a supersedeas pending appeal or an order staying proceedings pending any other mode of review.

The order is affirmed.

Affirmed.


author: MB. JUSTICE MILBUBN

text:
    MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent, v. MARTIEN, Appellant.

    (No. 1,855.)
    (Submitted January 12, 1903.
    Decided February 13, 1903.)

      Taxation — Collection—Officers—Statutes—Constitutional Law.

    Constitution, Article XVI, Section 5, declares that there shall be elected in each county certain officers, among whom shall be a treasurer, who shall be collector of taxes; and Article III, Section 29, declares that the provisions of the constitution are mandatory and prohibitory unless expressly declared otherwise, if eld, that Political Code, Section 3940, providing that the assessor must collect the taxes on all personal property, when, in his opinion, such taxes are not a lien on real property sufficient to secure payment thereof, is unconstitutional and void; the legislature having no power to vest any person other than the treasurer with power to collect taxes.

      Appeal from District Court, Lewis and Clarke County; Henry C. Smith, Judge.

    Application by the Mutual Life Insurance Company of New York for injunction against Charles U. Martien, an assessor of taxes, to restrain defendant from collecting taxes from plaintiff. From an order granting the injunction, defendant appeals.
    Affirmed.

      Mr. James Donovan, Attorney General, for Appellant.

      Portions of the constitution must be construed in connection with the other provisions of that instrument, and such a con-sruetion placed upon the whole as will best accord with its spirit and the intention of its framers, as well as give force and effect to its several parts. (Cooley on Constitutional Limitations, pp. 69, 71.)
    The sovereignty of the state is in the legislative or law-mak-ihg power, subject only to the express limitations contained in the constitution of the state, and to the limitation created by the delegation of certain powers to the United States. Such restrictions of the constitution upon the plenary power of the legislature are intended for the protection of the fundamental rights of the citizen, and when such rights are involved are to be strictly construed. But a liberal rule is to be given the provisions of the constitution with reference to the choice of means to be adopted by the legislature to enable the: different departments of the state, county and municipal governments to perform their functions and carry out the purposes for which they have been established. Furthermore, a solemn act of the legislature is not to be lightly set aside, unless it be clearly in conflict with the superior law. (State v. Kenvmy, 10 Mont. 412, 25 Pac. 1022; Commonwealth v. Hartman, 17 Pa. St. 118; People v. Burbank, 12 Cal. 385; Cohen v. Wright, 22 Cal. 308; Stockton, etc. v. Common Council, 41 Cal. 160.)
    Though part of a statute be unconstitutional and void, the remainder, if unobjectionable, will stand and be enforced. (23 Am. & Eng. Ene. Law, p. 225, and cases in note 4; People v. Burbank, 12 Cal. 393.)
    Where a party neglects to avail himself of a statutory privilege that affords him a full, complete and adequate remedy, he cannot obtain relief in an equity proceeding. (Vanlilburg v. Black, 3 Mont. 469; Boley v. Griswold, 2 Mont. 453; McCormick v. Hubbell, 4 Mont. 100.)

      Messrs. Toole & Bach, for Despondent.
   MB. JUSTICE MILBUBN

delivered the opinion of the ■ court.

The appellant assessor, being about to seize and sell the furniture and certain other personal property in the office of the respondent in order to enforce the payment of taxes for the year 1902, — there not being a lien on sufficient or any real estate to secure such payment, — the district court granted an injunction pándente lite. The assessor appeals from the order granting the injunction. The attorney general relies upon Chapter TX, Part III, Title X, — -being Sections 3940-3948 of the Political Code.

The only one of the sections comprising the Chapter IX necessary for us to consider is Section 3940, which is as follows : “The assessor must collect the taxes on all personal property when, in his opinion, said taxes are not a lien upon real property sufficient to secure the payment of taxes.” The legislature in the said chapter provides that the collection by the assessor may be made by seizure and sale of any personal property of the assessed person at the time of the assessment, or at any time before the second Monday in July.

The respondent maintained, and the court held, that the Aet-of the legislature, so far as it attempts to confer power upon the assessor to collect taxes, was unconstitutional, and therefore void, as being in contravention of Section 5, Article XYI, of the Constitution of this state, the pertinent part nf which is as follows: “Sec. 5. There shall be elected in each county the following officers: One county clerk, who shall be clerk of the board of the county commissioners and ex-officio recorder; one sheriff; one treasurer, who shall be collector of taxes: Provided, that no person shall hold the office of county treasurer for more than two consecutive terms; one county superintendent of schools; one county surveyor; one assessor; one coroner; one public administrator. * * *” The instrument declares that the provisions of this constitution are mandatory and prohibitory unless by express words they are declared to be otherwise. (Section 29, Article III, Constitution of Montana.)

We see that the people declared in their constitution that they proposed to- elect (that is, choose) the man‘who should collect and keep the money due for taxes. The members of the constitutional convention understood the meaning of the words “treasurer/’ “collector,” and “assessor,” and they used the words aptly. A public treasurer is one wlm receives public moneys, keeps them in his charge, and disburses them upon proper orders. A tax collector is a tax gatherer; he turns the money which he collects over to the treasurer, if he be not treasurer. The constitution provides that the keeper shall be the gatherer. The treasurer shall be the collector. This provision commands the treasurer to collect the taxes, and prohibits the assessor, the coroner, the jailer, the court house, janitor, or any other person than the treasurer, from collecting or keeping the moneys, except, of course, after the county collector has so gathered the funds he shall pay the part belonging to the state into the state treasury; the constitution providing, in Section 10 of Article XII, that all taxes levied for state purposes shall be paid into the state treasury. The only reasonable construction of the latter section of the constitution, in connection with a provision that the county treasurer shall be the collector, is that the collector shall collect, and then pay into the state treasury, all taxes levied for state purposes.

Mr. Chief Justice Marshall, speaking of the Constitution of the United States, says: “As men whose intentions require no concealment generally employ the words which most directly and aptly exquess the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” (Gibbons v. Ogden, 9 Wheat. 1.)

Counsel for appellant invokes the rule that one part of a constitution must be construed in the light of other parts thereof, and cites Sections 4, 11, and 18, of Article XII of our Constitution, as modifying the provision supra-, which declares that the treasurer shall be the collector. Examination of these sections does not disclose that either by implication or by express words the constitutional convention gave the legislature any power to make anybody but the county treasurer a collector of taxes.

No point is made that the complaint does not state sufficient special circumstances accompanying the attempted wrongful seizure to warrant the issuance of the injunction. As to this we express no opinion.

Said Chapter IN, so far as it attempts to confer any power upon the assessor to collect taxes, is void, being unconstitutional.

The order of the court granting the injunction is affirmed.

Affirmed.


author: ME. JUSTICE HOLLOWAY Me. Chiee Justice Beawtlt Me. Justice MilbueN :

text:
    STATE, ex rel. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,909.)
    (Submitted February 11, 1903.
    Decided February 16, 1903.)

      Discovery — Boohs and Papers — Order for Inspection — Affidavits — Sufficiency—Certiorari—Review.
    1. Constitution, Article III, Section 7, declares that the people shall be secure in their persons, papers and effects from unreasonable searches and seizures. Code of Civil Procedure, Section 1810, provides that any court in which an action is pending may order either party to give to the other an inspection of any document in his possession containing evidence relating to the merits of the action or defense. Held, that the court in which an action at law is pending has authority to make an order under Section 1810, the statute conferring on law courts authority inherent in courts of equity, and defining the circumstances under which an inspection of papers will not be deemed an unreasonable search.
    2. Where the affidavit in support of an application for an order for the examination of defendant’s books and papers contained no statement that an action was pending in the court, and failed to apprise the court of the nature of the action and relief sought, the application could not be granted.
    3. An order for the examination of defendant’s books and papers, containing no limitation on the time within which inspection shall be made, is void.
    4. Where the court makes an order for the examination .of a defendant’s books and papers without a proper showing, or makes an order which embraces the inspection of papers which, under the circumstances could contain no evidence relevant to the issue, or fails to limit the time within which the inspection should be made, it exceeds its jurisdiction, and certiorari will lie.

      5. Plaintiff claimed that defendant had, by fraud and collusion, induced him to sell for a small consideration his interest in an option to purchase a mining claim, and had subsequently purchased the claim; and plaintiff sued to recover an interest therein. He obtained an order authorizing him to inspect all letterpress copy books of defendant containing any letters written by any of its officers to any other officer, for the purpose of ascertaining what letters there were relating to .the claim and the acquisition. Held, that the order should have confined plaintiff to the inspection of such books as related to the purchase.
    6. A provision in the order permitting an inspection of all letters written to defendant concerning the claim was too broad, as defendant could not be bound by statements in letters written to it by persons not connected with the transaction involved.
    7. A provision in the order entitling the plaintiff to copies of maps of all workings made by the defendant in a certain year was too broad.
    8. A provision in the order permitting an inspection of the stope sheets and stope books showing ore extracted from claims other than that in controversy was erroneous, plaintiff being entitled to an inspection of such books only to the extent that they showed ore extracted through the workings of such claims from the claim in controversy.
    9. A provision in the order permitted inspection of all books of account showing transactions with the claim in controversy, and particularly such books as showed the amount and value of the ore extracted from it, and the expenditures made on account of it. Held, that the inspection should have been limited to particular accounts and items in the books which showed the facts mentioned, and should not subject defendant co have its books thrown open in their entirety.
    10. For like reason a provision in the order authorizing inspection of all books showing the cash account and investment account of defendant for a certain year was erroneous.
    11. A provision in the order authorizing an inspection of all books and records of the company which had owned the claim before defendant was erroneous, as the inspection should be limited to an examination of only those portions of the books which related to the option to the plaintiff or the sale of the claim to defendant.

      Certiorari by the state, on relation of the Boston & Montana Consolidated Copper & Silver Mining Company, to compel the District Court of the Second Judicial District for the county of Silver Boav, and William Clancy, the judge thereof, to set aside an order made for an examination of books and papers of defendant in an action by Patrick Mullins against relator.
    Order annulled.

      Messrs. Forbis & Evans, Mr. A. J. Shores, and Mr. C. F. Kelly, for Relator.

      Mr. T. J. Walsh, and Mr. C. B. Leonard, for Respondents.
   ME. JUSTICE HOLLOWAY

delivered the opinion of the court.

In November, 1902, an action was commenced in the district court of Silver Bow county by one Patrick Mullins, plaintiff, against the Boston & Montana Consolidated Copper & Silver Mining Company, defendant, to recover a three-fourths interest in the Comanche mining claim. The plaintiff claims that in 1893 he had a lease and bond on such claim from the Comanche Mining Company, which then owned the claim, and that by the terms of such lease and bond he had the option to purchase such claim at any time within a year for $200,000; that he sold an undivided one-fourth interest in his lease and bond, and thereafter, within the year, was, by fraud and collusion on the part of this defendant, the Butte & Boston Mining Company, one J. A. Coram, and plaintiff’s co-tenant in said claim, induced to sell for a small consideration the remaining three-fourths interest in said lease and bond, and that the defendant then became the successor to the Comanche Mining Company.

The complaint is lengthy, and assumes to set forth in detail the alleged acts of fraud and collusion, but the allegations set forth above are sufficient for the purpose of this decision. After the commencement of the action, plaintiff made an application for an order requiring defendant to permit plaintiff to examine and take copies of certain letters, letterpress copies of letters, maps, stope sheets, stope books, boobs of accoxint, and the original lease and bond executed to the plaintiff by the Comanche Mining Company, all of which are claimed to be in the possession of the defendant.. After notice, and upon hearing, the court made the order complained of. That order comprises nine sections or subdivisions and they are as follows:

“Ordered that the defendant herein produce for the inspection of the same by the plaintiff, and that it permit plaintiff to inspect the following:
“(1) All letterpress copy books of the Boston & Montana Consolidated Copper & Silver Mining Company containing any letters written by any of its officers from Butte, Montana, to the company or any of its officers or agents or J. A. Coram, between January 1, 1893, and August 30, 1893, but the right of the plaintiff to inspect such letterpress copy books shall extend no farther than to ascertain wliat copies of letters there are therein relating to the Comanche mining claim, or the acquisition of any interest therein by the defendant company, and as to such letters a complete inspection thereof.
“(2) All letters written to the company at Butte or to any of its officers or any of the officers of the Butte & Boston Mining Company concerning the Comanche mining claim, between January 1, 1893, and August 30, 1893.
“(3) All maps of workings of the company made in the year 1893.
“(4) All stope sheets and stope books showing ore extracted from the Comanche mining claim or the West Colusa or the Mountain View mining claim during the time from March 1, 1893, to August 10, 1893.
“(5) All stope sheets and stope books showing ore extracted from the Comanche mining claim since August 10, 1893.
“(6) All books of account showing transactions in connection with the Comanche mine, and particularly such books as show the amount and value of ore extracted from it, and expenditures made on account of it.
“(7) All books showing the cash account and the investment account of the defendant company for the year 1893.
“(8) All books and records of the Comanche Mining Company.
“(9) The lease and bond executed by the Comanche Mining Company to the plaintiff, Patrick Mullins, of the Comanche mining claim in the year 1893. * * *”

The relator thereupon made application to this court to have the order annulled.

Section 7, Article III, of the Constitution, provides, “The j>eople shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures/’' etc. Section 1810 of the Code of Civil Procedure provides : “Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in bis possession or under bis control, containing evidence relating to tbe merits of tbe action, or tbe defense therein. * * *”

It will be conceded that, in the absence of any statute, tbe district court, in tbe exercise of its inherent powers as a court of equity, could, upon a sufficient showing, make an order for discovery which would furnish plaintiff all the relief which he can obtain under Section 1810, above; that the legislative enactment added nothing to the power'of the court as a court of equity, but, on 'the contrary, apparently sought to confer on law courts the authority long exercised by courts of equity independent of statutory authority; and, in addition thereto, gave to Section 7, Article III, of the Constitution, a legislative construction defining the circumstances under which the inspection of the private papers and documents of one party by another will not be deemed an unreasonable search. We conclude, then, that the court — if an action was pending therein — had the authority, upon a sufficient showing, to make a proper order requiring the relator herein'to permit the plaintiff, Mullins, to make inspection and copies of such entries of accounts, documents, or papers in its possession or under its control as contain evidence relating to the merits of his action or the defense therein.

Our first inquiry, then, is: Was a sufficient showing made? The affidavits filed in support of the application for the order complained of did not contain any statement that an action was pending in the court at the time such application was made. Under Section 1810, above, the order for inspection can only be obtained from a court in xuhich an action is pending, or from a judge thereof; and in our view of the ease this fact must affirmatively appear from the face of the verified petition or affidavits upon which the application is based. We are further of the opinion that the application should, by express statement, or by apt reference to the pleadings on file, apprise the court of the nature of the action and the relief sought, in order that it may determine whether or not the evidence sought to be obtained by the inspection could, in any view of the case, be material or relevant to the issues. For its failure to show these facts, we consider tbe application insufficient to vest in tbe lower court authority to make any order of inspection.

If a sufficient showing had been made, the next inquiry is: Was the order made a proper order under the circumstances of this case, and within the purview of Section 1810, above ? Under the terms of that section only such papers, documents, etc., can be subjected to this search as contain evidence relating to the merits of plaintiffs action or the defense therein, as disclosed by the affidavits filed upon which the application for the order was made. A summary of the claims contained in those affidavits is to the effect that certain, letters passed between the officers and agents of the defendant company in Butte and its officers and agents and J. A. Coram and officers and agente of the Butte & Boston Mining Company in Boston, and that such letters contain statements relative to the acquisition of the C'o-manche mining claim, and, taken together, tend to show that such claim was acquired in the manner set forth in plaintiff’s complaint; and that letterpress copies of such letters were kept. It is further alleged that the defendant made maps in 1893, which show the work done on the Comanche claim, and also show work done on that claim through workings of the West Colusa and Mountain View claims; and, furthei’, that stope sheets and stope books were prepared and kept, which show the amount of ore taken from the Comanche mine and ore taken therefrom through workings on the West Colusa and Mountain View claims; and that defendant company kept and has books of account in which are kept the items of receipts and disbursements on account of each mine worked by it; and that it also has the books kept by the Comanche Mining Company, which show the transactions of that company with reference to its disposal of the Comanche claim. ' It is also claimed that the original lease and bond executed by the Comanche Mining Company to Mullins is in the possession of the defendant company. Upon this showing the district court made the order complained of.

Tested by the showing made and the provisions of Section 1810, above, we are of the opinion that the order made is alto-getber too broad in its provisions, and is void, as containing no limitation on the time within which such inspection should be made, as required by Section 1810, above. What remedy, then, has the defendant company? According to our views, to- the extent that the district court made its order without a proper showing, or, in the order made, embraced the inspection of any papers or documents which, under the terms of that section and the showing made in those affidavits, in the very nature of things could not contain evidence material or relevant to- the issues; and in making an order for inspection without limiting the time within which such inspection should be made' it exceeded its jurisdiction, and certiorari will lie to correct the error committed. In St. Louis M. & M. Co. v. Montana, Co., 9 Mont. 288, 23 Pac. 510, this court said, in speaking with reference to the provisions of the statute for an inspection of mining prop--erty: “The section of the Code under review does not empower any court or judge to grant an order that is fruitful of injustice or oppression. Whenever this is done, such action will exceed the authority that has been bestowed, and can be rightfully set aside.” The proceedings for the inspection of papers and documents are analogous to the proceeding to obtain an order for the inspection of mining property, and this court has held in St. Louis M. & M. Co. v. Montana Co., above; that certiorari will properly lie to correct an error made in improperly granting an inspection order in that case. In this, however, we are to be understood as speaking with reference to the particular facts of this case, as the technical record was all the district court had before it upon the application for the order complained of.

Section 1948 of the Code of Civil Procedure defines the extent of the remedy which may be had in this court: “When a full return has been made, the court or judge must hear the parties or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below.” The plaintiff below should be confined strictly to the rights to which he is entitled upon the showing made, and under the provisions of Section 1810 above, and at the same time the defendant company should be secure in the possession of its papers and effects against unreasonable searches.

Section 1 of the order complained of permits an inspection of all letterpress copy books of the Boston & Montana Company containing any letters written by any of its officers from Biitte to the company or any of its officers, or J. A. Coram, between January 1, 1893, and August 30, 1893, for the purpose of ascertaining what copies of letters there are therein relating to' the Comanche mining claim, or the acquisition of any interest therein by the defendant company. In our view of the case, this is altogether too much in the nature of a fishing expedition, and the order should have confined the plaintiff below to an inspection of such copies of letters in such letterpress copy books only as relate to the purchase of the Comanche mining claim, or the acquisition of any interest therein by the defendant company, and should not have permitted an inspection of all of the letterpress copies, in order to ascertain what letters there are therein of which cojfies are sought.

Section 2 permits an inspection of all letters written to the company at Butte, or to any of its officers, or to the officers of the Butte & Boston Mining Company concerning the Comanche mining claim between January 1, 1893, and August 30, 1893. Written to them by whom ? Manifestly by any person, whether an officer or agent of those companies or of either of them, or by an entire stranger. Certainly it could not be said that the Boston & Montana Company should be bound by any statements contained in letters written to* any of its officers or agents, or to the officers or agents of the Butte & Boston Company by disinterested third parties. The affidavits fail to' show wherein any of such letters could be material under any circumstances. , Section 3 permits an inspection of all maps of workings of the company, made in the year 1893. We cannot understand how this could be permitted under any view of the ease. Perhaps the plaintiff below would be entitled to copies of maps made in 1893 of the Comanche mining claim, or of any portion or portions thereof; but certainly he could not be entitled to copies of maps made by the Boston & Montana Company of workings in some other claim in no wise connected with the controversy between these parties.

Section 4 permits an inspection of stope sheets and stope books showing ore extracted from the West Colnsa and the Mountain View claims during the time from March 1, 1893, to August 10, 1893. If the stope sheets and stope books of those claims, or of either of them, show any ore extracted through the workings of those claims, or either of them, from the Comanche claim, to the extent only that such stope sheets and stope books do show this fact is the plaintiff entitled to such copies.

Section 6 permits an inspection of all books of account showing transactions in connection with the Comanche mine, and particularly such books as show the amount and value of the ore extracted from it, and expenditures made on account of it. This inspection, we think, should be limited to particular accounts and items in those books which show the facts mentioned,, and should not subject the defendant company to have such, books themselves thrown open in their entirety to perusal by the plaintiff. And the same may be said of Section 7.

Section 8 permits an inspection of all books and records of" the Comanche Mining CoiUpany. This company was in existence before the execution of the lease and bond to the plaintiff, Mullins, and the inspection should be limited to an examination of only those portions of the books and records as relate to Che-lease and bond to tire plaintiff or the sale of the Comanche mine-to the defendant company.

For the reasons herein set forth, the order of inspection made-by the district court on the 17th day of January, 1893, is annulled and set aside.

Annulled and set aside. ■

Me. Chiee Justice Beawtlt

(concurring): Whether the jurisdiction- — that is, the power to hear and determine — invoked by the application to the district court is derived from the statute or is one of the inherent powers of a court of equity, a sufficient showing must be made by the affidavit or petition to put the power in motion; otherwise the court is without newer to make the order at all. And when the application is sufficient to support an order, yet, if the court in granting relief thereon, goes further in the order than is justified by the facts stated, this is excess of jurisdiction to the same extent, and the order so made is void pro temto. To- say, as the defendant does, that an order not justified by the record is an error within jurisdiction, and that this court has no power to grant relief by way of certiorari or any other writ, is equivalent to saying that a district court has power to override the constitutional rights of á citizen, and that there is no remedy for the wrong thus done. If this position is tenable, then it follows that, if that court should make an order upon an oral application not under oath, the aggrieved party would have no remedy. There is no appeal from the order itself, nor any other adequate remedy. An appeal from the judgment would furnish no relief whatever. The order will have been executed long before the judgment is rendered, and the wrong thus done in the invasion of the relator’s rights will be beyond repair. Of course, the district court may decide wrong as well as right upon this kind of an application as well as upon any other, but its power to decide must first be invoked by a proper application. The only doubt I have is as to the remedy —whether this court should in this ease interfere by certiorañ or by its supervisory power. That it has power to grant the relief prayed for is beyond question. I am inclined to think that certiorari is the proper remedy, and hence concur.

Me. Justice MilbueN :

I concur with Me. Justice Holloway in his opinion and in the conclusion reached by him. I also agree with the Chief Justice in his concurring opinion.