text:
    STATE ex rel. INDEPENDENT PUBLISHING CO. et al. Relators, v. SMITH, JUDGE, Respondent.
    [No. 1,440.]
    [Submitted October 19, 1899.
    Decided November 6, 1899.]

      Mandamus to Com/pel Change of Venue.

    1. Refusal in the district court of a change of venue on the ground of residence is a judicial act, which by Code of Civil Procedure, section 1742, may be reviewed on an appeal from the final judgment; and hence mandamus will not lie to compel a judge to grant a change on such ground, the remedy by appeal from the final judgment being plain, speedy, and adequate.
    2. Mandamus lies to coerce into activity, but not to direct the making of a particular judicial decision or ruling in a matter within the jurisdiction of the court or judge.
    Application for mandamus by the state, on the relation of the Independent Publishing Company, a corporation, and others, relators, against D. E. Smith, Judge of the District Court of the Eleventh Judicial District, in and for Flathead County. Respondent demurs to the petition.
    Demurrer sustained, and application dismissed.

      Messrs. Carpenter (& Carpenter, Mr. M* Bullard, Mr. T. D. Long, Messrs. Boot c& Pomeroy, and Messrs. Cullen, Bay <& Cullen, for Relators.
    Mandamus lies to compel the performance of an act which the law specially enjoins as a duty. (Code of Civil Procedure, Sec. 1961.) The statute makes it the duty of the court upon the filing of a proper affidavit to grant the change. There is no discretion to be exercised. The defendants are entitled as of right to the change. J ustice Whitman, speaking of a statute identical with ours, says: “As a general rule, change of place of trial is eminently within the discretion of the court to which the motion is addressed; but when the motion is made under the peculiar language of the statute cited, on the ground of residence, there is no room for discretion. The statute is peremptory in that regard, and the party making such motion is entitled to have the same granted, that he may plead or take such other action as he may be advised; and to that end, it is his privilege to have the ruling and decision of the judge of the place of his residence, upon any question arising subsequently to the necessary order, upon his demand and motion. ’ ’ ( Williams v. Keller, 6 Nev. 141.) To the same effect is the case of Wathms v. JDegener, 63 Cal. 500. Both of the above cases were cited with approval in the case of Yore v. Murphy, 10 Mont. 304. Speaking of another subdivision of the same statute — that authorizing a change for the disqualification of the judge — Judge Beatty says: “The plain injunction of the statute leaves the disqualified judge, in such cases, no discretion. He has but one thing to do, and it is his duty to do that thing at once.” (KrumdicJc v. Crump {Cal.), 32 Pac. 800.) So, too, this court has held, in the matter of a motion for a change of venue in actions commenced before a justice of the peace, that the filing of the affidavits containing the required statements ousts the justice of his jurisdiction for further proceedings except to transfer the cause. (State v. Evans, 13 Mont. 239.) To the same effect is the decision of the Supreme Courts of Washington and Colorado. (State ex rel. Cummings v. Superior Court, 32 Pac. 45T; Smith v. People, 29 Pac. 924; see, also, 4 Amer. & Eng. Ency. Prac. 440.) It follows from these that the writ must be granted unless there is £ ‘a plain, speedy and adequate remedy in the ordinary course of law. ’ ’
    Prior to the adoption of the Codes there was an appeal from ‘ ‘an order refusing to change the place of trial. ’ ’ By their adoption that right 'has been taken away, and the action of the court in denying the motion cannot be reviewed on appeal until after final judgment. We submit that the remedy is neither speedy nor adequate. This court has held that an appeal to the district court from a judgment by a justice of the peace affords no relief against his order refusing to change the place of trial in a proper case, and that certiorari to review his action would therefore lie. (States. Evans, supra.) We submit that the same is true in this case. ‘ ‘The appeal, ’ ’ as Judge Harwood says, “would rather involve a submission to such action, as though it was fully within the justice’s (court’s) jurisdiction.” See, also, Krumdick v. Crump, supra, where mandamus was granted. Where the remedy by appeal is inadequate mandamus will lie. (Carr ay ea v. Fernald, 66 Cal. 351; Merrill on Mandamus, Sec. 53.)

      Mr. T. J. Walsh, for Respondent.
   PER CURIAM.

— This is an application for a peremptory writ of mandate to compel the judge of the district court of the county of Flathead to cause to be entered an order changing the place of trial in a certain action commenced and pending in that court, wherein one Whiteside is the plaintiff and the relators are the defendants, to the county of Lewis and Clarke. An„ alternative writ was issued, the verified petition in support of which shows these facts: The action was brought to recover damages for alleged libels published by the defendants in the county of Flathead; all the defendants were served with summons in the county of Lewis and Clarke, where they reside; at the time the defendants appeared and demurred, they made and filed a demand for a change of venue to the county of their residence, and accompanied the demand with an affidavit of merits, which demand was denied. To the petition the respondent demurs for insufficiency, asserting that mandmnus is not the proper remedy, and also that, even if the remedy sought be proper, the order of the district court refusing the request to change the place of trial was correct. The relators, on the other hand, contend that the provisions of Sections 613, 61é, 615, of the Code of Civil Procedure, made it the ministerial duty of the court, upon the filing of the demand and affidavit of merits, to grant the change, and that the performance of such act by the district court of which the respondent is the judge is a duty specially enjoined' by statute, to compel the discharge whereof there is no plain, speedy and adequate remedy in the ordinary course of law, and that therefore mandamus is the remedy.

Granting or refusing to grant a change of venue upon the ground of residence is a judicial act, when done by a district court of this state. ’ On appeal to this Court from the final judgment of the district court, an order denying a change of venue demanded by the appellant may be reviewed (Section 1742 of the Code of Civil Procedure); hence we are cleaxdy of the opinion that mandamus is not, under the statutes of Montana, the proper remedy to compel a court of general common-law jurisdiction, or its judge, to grant a change of the place of trial of an action for libel to the county where the defendant resides and was served with summons, nor to correct or annul an erroneous order denying such change. The writ lies to coerce into activity, but not to direct the making of a particular judicial decision or ruling in a matter within the jurisdiction of the court or judge. If final judgment shall be entex’ed against the defendants in the action brought by Whiteside, an appeal therefrom is a plain, speedy and adequate remedy afforded them in the ordinary course of law for the review and correction of the supposed error committed in refusing to change the venue. If the writ be proper on the present application, then it might well be invoked to review any intermediate order or decision of a court or judge, such as an order overruling a demurrer to a complaint, or striking out irrelevant matter from a pleading, or granting or refusing a motion to quash a summons, or granting or denying a continuance. Mandamus may not thus be diverted from its legitimate office. From a multitude of cases supporting the conclusion here announced, we cite People v. Sexton, 24 Cal. 78; People v. McRoberts, 100 Ill. 458; State v. Cotton, 33 Neb. 561, 50 N. W. 688; People v. Hubbard, 22 Cal. 35; People v. Judge of Twelfth Dist., 17 Cal. 548; People v. Clerk of Court, 22 Colo. 280, 44 Pac. 506; Ex parte Chambers, 10 Mo. App. 240; State v. Clayton, 34 Mo. App. page 569. See, also, High, Extr. Leg. Eem. (4th Ed.) Sec. 172, and 4 Enc. Pl. and Prac. 442, 443 and 492.

The relators invite attention to State ex rel. Gleim v. Evans 13 Mont. 239, 33 Pac. 1010. That was a proceeding in certiorari, in which it was held that, when an application was made to a justice of the peace for a change of venue on the ground of the prejudice of the justice, any proceeding by the justice thereafter, except to transfer the cause to another justice, would be beyond his jurisdiction, and that any judgment subsequently rendered the justice on whom demand for a change was made should be annulled upon certiorari. Herbert v. Beathard, 26 Kan. 746, is a case of the same kind. The statute of Kansas provides, in substance, that if, prior to trial, either party shall file with the justice of the peace before whom a case is pending an affidavit stating that he believes he cannot have a fair and impartial trial, on account of-the bias or prejudice of the justice against, the affiant, the trial of the case shall be changed to another justice of the peace; and the court held that upon the filing of such an affidavit the justice of the peace does not exercise any judicial discretion in determining whether he will grant the change of venue or not, but that the granting of the change of venue is, under-such circumstances, a purely ministerial act. So, in Krumdick, v. Crump, Judge, 98 Cal. 117, 32 Pac. 800, the court, held that ma/ndamus would lie to compel a judge who, having been the attorney for the defendant in the action, was confessedly disqualified to grant a change of venue, the court saying that the statute left the disqualified judge no discretion to exercise; moreover, if he had tried and determined the cause, the judgment would doubtless have been void because coram nonjudice, since no man may adjudge his own case. It was held that his duty was specially enjoined by the statute, and was ministerial. In State v. Superior Court of King Co., 5 Wash. 518, 32 Pac. 457, a writ of prohibition was issued to the superior court to prevent it from trying a certain action, wherein the defendant had made due application for a change of venue to the county of his residence; and the decision proceeds upon the assumption or premise that, after the demand for a change of venue was made, the court had no jurisdiction of the action for the purposes of trial. No one of the cases relied upon by the relators is persuasive authority for their position.

The demurrer is sustained, and the application dismissed, for the reason that mandamus is not the proper remedy. Judgment will.be entered accordingly.

Dismissed.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT

license: Public Domain

text:
    HARDING, Appellant, v. McLAUGHLIN, SHERIFF, et al., Respondents.
    [No. 1,172½.]
    [Submitted October 25, 1899.
    Decided November 13, 1899.]

      Appeal — £ £ Statement on Appeal ’ ’ — Bill of Exceptions — Refusal of Trial Judge to Settle or Alow Bill of Exceptions — Application to Supreme Cowrt to Prove Exceptions— Certification — Nonsuit.
    1. Since July 1,1895, the Statutes of Montana no longer recognize a “Statement on Appeal.”
    2. Under Code of Civil Procedure, Section 1157, and Supreme Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it in accordance with the facts, and requiring the bill, when proved, to be certified by the chief justice as correct, etc., a bill proved before a referee on leave granted, but not certified to as correct, will be disregarded.
    3. Under Code of Civil Procedure, Section 1157, and Supremé Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it, a bill proved before a referee will be disregarded when his report fails to show that the judge’s refusal to settle it because of delay in serving it was not justified.
    4. The remedy given by Code of Civil Procedure, Section 1157, and Supreme Court Rule IV, Subdivision 14, allowing a bill of exceptions to be proved before a referee, by leave of the Supreme Court, when the trial judge refuses to settle it in accordance with the facts, does not apply to a mere refusal of the judge to settle any bill whatsoever.
    5. Error in granting a nonsuit cannot be considered when there, is no bill of exceptions.

      Appeal from District Court, Missoula County; Frank II. Woody, Judge.

    Action by Edward Harding against H. W. McLaughlin, as sheriff, and another. From a judgment of nonsuit, plaintiff appeals.
    Affirmed.

      Mr. W. M. Bickford and Mr. E. E. Hershey, for Appellant.

      Mr. Jos. M. Dixon, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This is an appeal by the plaintiff from a judgment of non-suit entered in 1897 in ah action to recover the possession of personal property alleged to have been wrongfully taken and withheld by the defendants.

The transcript contains what is styled “a Statement on Appeal.” Since the 1st day of July, 1895, when the Code of Civil Procedure went into effect, the statutes of Montana no longer provide for or recognize a “statement on appeal” as a means whereby matters not part of the record proper may become parcel of the judgment roll; but, conceding that the mere name by which the paper is labeled is unimportant, and that it was intended as a bill of exceptions, we are nevertheless constrained to disregard it, for the reason that it is not authenticated. The judge who tried the cause refused to settle, allow, or sign the proposed bill; an application designed to be in conformity with section 1157 of the Code of Civil Procedure, and subdivision lé of Rule IY. of the rules of this Court (lá Pac. vi.), then in force, was made to, and granted by, the justices of this court, for leave to prove that the judge below had refused to allow the exceptions of the plaintiff in accordance with the facts; a referee took evidence on the matter, and reported findings, which were filed in the office of the clerk of the court below, and also with thp clerk of this court, —after which the plaintiff proceeded no further towards securing a settlement. The requirements of section 1157, supra, that the bill, when proved, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, were not complied with in any respect. Certification by the chief justice (or in his absence by the senior associate justice), and the subsequent filing with'the clerk of the trial court, are essential to the making of the bill, for section 1157 further provides that, when so certified and filed, ‘ ‘it has the same force and effect as if settled by the judge who tried the cause.” Moreover, had the proposed bill been so certified by the chief justice and filed, its contents could not properly be examined, for the reason that the judge a quo refused to settle or allow it upon the ground (among others) that it was not served on the defendants within the time prescribed by section 1155 of the Code of Civil Procedure, and, for aught that appears to the contrary, the refusal was justified. The action was tried with a jury on the 22d day of April, 1897, and judgment was formally entered on the 9th day of the following June; the proposed bill of exceptions, designated as a “Statement on Appeal,” was served upon the defendants on the 10th day of July, 1897. To preserve by bill the exceptions taken- at a trial had with a jury, a draft of the bill must be served within 10 days, or such further time as may be allowed, after the entry of judgment. In this case more than 10 days elapsed between the entry of judgment and the service, and there is absolutely nothing in the report of the referee or elsewhere to show that the action of the judge in declining to settle the bill was not correct. If there was any enlargement of the time by stipulation of parties or otherwise, or a waiver on the part of the defendants of the right to object to the settlement because not duly served, the plaintiff, confronted as he was with the refusal of the judge, should have shown such fact. Again, the supposed bill must be disregarded for another reason: The rule declared in In re Plume, ante, 23 Mont 44, 57 Pac. 408, is in point upon this question, for it was there held that the remedy given by section 1157 and the rule of this Court does not apply to a mere refusal of the judge to settle any bill whatsoever, and it may be remarked in passing that this is all that was decided in that case, the determination of the question as to what is the proper remedy being unnecessary to a decision.

All the proceedings on the trial being eliminated, we have nothing before us except the pleadings, the order granting the motion for a nonsuit, and the judgment; the only error specified is the granting of the motion for a nonsuit, and this cannot be considered without reference to the evidence which was before the district court. The judgment is therefore affirmed.

Affirmed.


author: PER CURIAM.

text:
    GRAGE, Appellant, v. PAULSON, Defendant, UNITED SMELTING AND REFINING COMPANY, Garnishee and Respondent.
    [No. 1,433.]
    [Decided November 27, 1899.]

      Appeal — Undertaking on Appeal — Ambiguity—Dismissal oj Appeal.

    A single undertaking in tbe sum of $300 to secure two appeals from two separate orders made at different times after judgment is void for ambiguity, justifying a dismissal of both appeals.

      Appeal from District Court, Lewis and Cla/rke County; S. M. Mclntire, Judge.

    Action by Henry Grage against Tony Paulson, defendant, .and the United Smelting & Refining Company; garnishee: On motion to dismiss appeals.
    Sustained.

      Mr. J. M. Clements and Mr. Chas. J. Geier, for Appellant.

      Messrs. Toole, Bach da Toole, for Respondent.
   PER CURIAM.

It appears from the record herein that two appeals have been taken from two separate orders made after judgment, — one entered on April 15, and one on June 10, 1899. It further appears that only one undertaking, in the sum of $300, is on file with the clerk of the district court to secure both appeals. A motion is made to dismiss the appeals on the ground that the undertaking is void for ambiguity. The motion must be sustained, upon the authority of Creek v. Bozemam, Waterworks Co., 22 Mont. 327, 56 Pac. 362; Murphy v. Northern Pacific Railway Co., 22 Mont. 577, 57 Pac. 278; Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866.

Let the appeals be dismissed.

Dismissed.


author: MR. JUSTICE PIGOTT,

text:
    COBBAN, Respondent, v. HINDS, Treasurer of Silver Bow County, Et Al., Appellants.
    [No. 1,450.]
    [Submitted October 5, 1899.
    Decided November 27, 1899.]

      Taxation — Assessment—Sale for Nonpayment — Injunction.
    1. An assessment is not void because made upon several parcels of land in gross, and equity will not enjoin the sale of separate lots, assessed in gross, for the collection of taxes thereon, where complainant does not show that he attempted to have the irregularity, of which he now complains, corrected by application to the board of equalization, and offers no excuse for not doing so. (Dekyuglirey v. Hines, 23 Mont. 260, affirmed).
    2. Under Political Code, Sections 4023-4026, which prohibit courts and judges from restraining the sale of property for nonpayment of any tax, except where the tax is •illegal or not authorized by law, or where the property is exempt from taxation, the listing of lands to the wrong person is no ground- for restraining the tax sale; since under Political Code, Sections 3700, 3916, 4014, it is but an irregularity or informality, which, of itself, does not avoid the assessment nor render the tax “illegal or unauthorized.”
    3. An owner of land is, in law, bound to know: that his property is liable to taxation, and would be assessed annually; that a listing to one other than the owner would not avoid an assessment otherwise regular; when the taxes would fall due and should be paid, hence he cannot successfully urge, as a reason why his lands should be relieved of the lien for taxes, that he did not know of the assessment, and had no opportunity to discharge the taxes.
    4. The fact that the notice under which a tax sale was threatened was published but three weeks, whereas the statute required four weeks, does not render the taxes “illegal or unauthorized by law,” within Political Code, Sections 4023-4026, so as to authorize the enjoining of the collection of such tax.
    5. The fact that a county treasurer intends to violate Political Code, Sections 3922, 3923, by exposing for sale for the delinquent taxes for 1898 part of the lands purchased by the county at the tax sales of 1897, and yet unredeemed, does not entitle the owner of the equity of redemption to an injunction; since Section 4026 provides that the remedy before the board of equalization shall supersede the remedy of injunction and all other remedies which might be invoked to prevent a collection of taxes alleged to be irregularly levied or demanded, except in unusual cases, where the remedy thereby provided is deemed by the court to be inadquate.

      Appeal from District Court, Silver Bow County; John lindsa/y, Judge.

    Action by W. F. Cobban against Thomas R: Hinds, treasurer of Silver Bow county, and said county. From a judgment entered on sustaining a demurrer to the complaint, defendants appeal.
    Reversed.

      Statement oe the Case.
    . The plaintiff is the owner of an undivided interest in certain real estate situate in the county of Silver Bow. The defendant treasurer being about to sell said real estate for the amount of the taxes due thereon and delinquent for the years 1890, 1892, 1893, 1891, 1895, 1896, and 1898, the plaintiff brought this action to enjoin him from selling, or offering for sale, the property, or any part thereof, for delinquent taxes for those years. The complaint charges, in substance, that the assessment of the property for 1890 is void because the tracts of land and city lots were not separately assessed or valued, but were assessed in gross, together with other lots and parcels of land, of which neither the plaintiff nor his predecessor in interest was the owner; that for each year, beginning with 1890 and ending with 1898, the real estate was assessed to persons other than the true owners, and that neither the plaintiff nor his predecessor in interest had notice of or opportunity to contest the assessment, or notice to pay the taxes; that in 1892 the treasurer of the county sold all of the property to the county of Silver Bow in satisfaction of the taxes delinquent for the year 1891, and that in 1898 the defendant treasurer sold a portion of the property to the county of Silver Bow for the delinquent taxes of the year 1897, and that the property has never been redeemed from either sale; that at the time of the assessment of 1890 the statutes of Montana provided that notice of the sale by the treasurer for delinquent taxes should be published once a week for four weeks the first of which publications should be at least four weeks before the day appointed for the sale, whereas the notice under which the treasurer now threatens to sell the property is but a three weeks’ notice. A demurrer for insufficiency was overruled, and, the defendants refusing to plead further, a judgment was entered, in accordance with the prayer of the complaint, perpetually enjoining the defendant treasurer from selling, or attempting to sell, or from offering for sale, the property, or any part thereof, for the taxes delinquent for any of the years mentioned. The defendants appeal from the judgment.

      Mr. C. B. Nolan, Attorney General, Mr. C. P. Connolly and Mr. R. L. Clinton, for Appellants.
    Citing: Casey v. Wright, 14 Mont. 316; Ward v. Co. Commissioners, 12 Mont. 32; German Natl Banh v. Nrmball, 103 U. S. 732; N. P. R. R. Co. v. Patterson, 10 Mont. 103; Fifield v. Marinette Co., 62 Wis. 532; First Natl Bank v. Bailey, 15 Mont. 308; Political Code secs. 4023, 4014, 4024, 4025; Constitution Art. XII., sec. 6; N. P. R. R. Co. v. Garland, 5 Mont. 153.

      Mr. J. K. McDonald, Mr. C. D. Tillinghast, Mr. Robt. McBride and Mr. F. T. McBride, for Respondent.
    Plaintiff had no notice of any of the alleged assessments complained of and no opportunity to be heard relative thereto.
    The Statutory and Code provisions of Montana under which the alleged assessments complained of were made, are as follows: Sec. 1684, Fifth Division, Comp. Statutes 1887; Sec. 13, Laws of Mont., Ex. Sess. 1887; Secs. 19, 20, Sec. Session, 1891; Secs. 3706, 3707, Political Code, 1895; Sec. 3725, Political Code, 1895.
    Montana has adopted almost without change the California law relative to the levy of taxes; the corresponding sections of the California Code relative to the assessment of real property being 3635 to 3638, inclusive, Political Code of California.
    A statute of a foreign state which has been adopted by the legislature of this state without provision respecting its interpretation is to be interpreted and construed according to the construction it has received in the courts of the state where it was enacted, and the intention of the legislature to adopt such construction is implied. (Bindley v. Davis, . 6 Mont. 463; First Nat. Bank v. Bell 8. <& C. M. Co., 8 Mont. 32; Price v. Lush, 10 Mont. 61; Murray v. Heinze, 17 Mont. 353; Lar gey v. Chapman, 18 Mont. 567; Oleson r. Wilson, 20 Mont. 552.)
    The California courts have frequently passed upon these provisions of the Code. In Grotefend v. TJltz the court says,. ‘ ‘The first duty of the assessor under these provisions is to ascertain the name of the owners of each piece of property and assess it to him\ his second, if he fails to ascertain the name of the owner, is to assess it to ‘unknown owners’ ”; an assessment otherwise made is void. (Grotefend v. TJltz, 53 Cal. 666; Kelsey v.' Abbott, 13 Cal. 609; Smith v. Davis, 30 Cal. 537; Blatner v. Davis, 32 Cal. 628; Eearst v. Egglestons, 55 Cal. 365; Bosworth v. Webster, 64 Cal. 1; Weyse v. Crawford, 85 Cal. 199; Shipman v. Fofbis, 97 Cal. 574; Gwin v. Dierssen, 36 Pac. ‘103; Black on Tax Titles, Sec. 105; Whitney v. Thomas, 23 N. Y. 281-285; Bird v. Benlisa, 142 U. S. 644; 12 S. C. Rep. 323; Powers v. Larrabee, 49 N. W. 727; Cooley on Taxation, pages 363, 364; Justice Field, in Cownty of San Mateo v. S. P. B. B. Co., 13 Fed. 752; Cooley on Taxation, pages 365, 366; Stuart v. Palmer, 74 N. Y. 183.)
    Provisions of the law for giving notice are mandatory and must be scrupulously observed. (Cooley on Taxation, 2nd Edition, page 287; Overing v. Foote, 65 N-. Y. 263, 269; Stuart v. Palmer, 74 id. 183; Thomas v. Gaine, 35 Mich. 155, 164; The State v. Jersey City, 24 N J. L. 4 Zabr. 662, 666; The State v. Newark, 31 Id. 360, 363; The State v. Trenton, 36 Id. 499, 504; The State v. Elizabeth, 37 Id. 357; The State v. Plainfield, 38 Id. 97; Comity of San Mateo, v. Southern Pacific B. B. Co., 13 Fed. 752; County of Santa Clara v. Southern Pacific B. B. Co., 18 Fed. 385.)
    To the effect that notice is jurisdictional, plaintiff cites, in addition to the authorities above presented, the cases decided by Judge Knowles in the circuit court, district of Montana. (Powder Biver Cattle Company v. Board of Coon., Custer County, 45 Fed. Rep. 323; and Western Banches v. Custer County, 89 Fed. Rep. 580.)
    ■‘This right to a hearing is fundamental and indestructible. Without it taxation is confiscation. The amount of tax demanded of the citizen is an arbitrary exaction if he has had no legal right to be heard. It is true that the hearing, to constitute due process of law, need not be the same in tax proceedings as in ordinary proceedings in courts of justice. Such a rule would cause intolerable delays. It cannot be doubted that our law providing for a hearing before the boards of equalization, and designating the time when such a hearing may be had, if desired, by the tax payer, is not vulnerable to-the constitutional objection that the property of the citizen is taken without ‘due process of law.’ ” (Hager v. Reclamation Dist. Ill U. S. 701, 4 Sup. Ct. Rep. 663; Davidson v. New Orleans, 96 U. S. 97; Trustees v. • City of Davenport, (Iowa) 22 N. W. Rep. 904; Kelly v. City of Pittsburg, 104 U. S. 78; Lent v. . Tillson, 72 Cal. 404, 14 Pac. Rep. 71; Railroad Company v. Commonwealth, 115 U. S. 321, 6 Sup. Court Rep. 57; State v. Tax Cases, 92 U. S. 575-610.) “But it is equally well settled, and it stands upon adamant, that there shall be a hearing of some kind before some person or body.” (Powers v. Larabee, 49 N. W. 727, and cases cited.)
    It is admitted that for the year 1890 the property was not separately assessed, was not assessed to the owner or to unknown owners (City of St. Louis, Mo., v. Wenneker, 47 S. W. 105), and that at the time of the alleged assessment that upon a sale of property for delinquent taxes a notice of four weeks must be given and that the notice under which it is proposed to sell the property for said year is for three weeks only. The argument relative to notice applies to this year with especial force. A notice for a shorter period than prescribed by' law is wholly illegal.
    An assessment in bulk of all the town lots in an addition to a stranger to the title of one-half of all the lots assessed and an. effort to sell all of said lots in bulk under such an alleged assessment is certainly something more than a mere “informality.” One of the requirements of law which is especially designed for the protection of tax payers, which is imperative, and which is practically universal, is that each separate and distinct parcel of land shall be separately assessed and valued, hence the assessment of a joint tax on two parcels of land belonging to different owners based on a joint valuation thereof creates no lien for the whole or any part of the tax. (Black on Tax Titles, Sec. 102.)
    In case property assessed for taxes is purchased by the county, it must not be exposed for sale until the period of redemption has expired. (Sec. 3922, Political Code.) The sale of the property and the deed executed to the purchaser would result in a cloud upon the plaintiff’s title. The deed, by Section 3897, Political Code, is made prima fa/:ie evidence of its validity.
    ‘ ‘If the proceedings in the assessment and levy of a tax upon land are not void upon their face, the tax will attach as a lien upon the land from the time fixed by the statute. And this tax lien, if it is illegal, but not patently so, will constitute a cloud upon the owner’s title, even before it is foreclosed by sale of the property. And even in jurisdictions where the tax is not made a specific lien upon land, the advertisement of the land, as intended to be sold for taxes, is a threat of the“ creation of an adverse claim, which, when brought into being, will be a cloud on the title. Now equity has power to avert, as well as to remove, such a cloud. On. both these grounds, therefore, equity may interfere, upon proper grounds being shown, not only after the sale to cancel the certificate or deed, but before any sale, to declare the assessment void and restrain the collection of the tax. ’ ’ (Black on Tax Titles, Sec. 216; Milwaukee Iron Co. v. Hubbard, 29 Wis. 51; Me Pike v. Pen, 51 Mo. 63; Peach v. Hayes, 58 How. Prac. 17; Pixley v. Huggins, 15 Cal. 132; Hogan v. Shirdler, 29 Cal. 55; Thomas v. Simons, 103 Ind. 538, S. C. 2, N. E. 203, and 3 N. E. 381; Cooley on Taxation, page 780.)
    Where the assessment complained of is illegal and void an injunction is the proper remedy, and no tender need be made. (Bank v. Maher, 9 Eed. 884; Yocum v. First Hat. Bank, 38 N. E.. 600; City of Delphi v. Bowen, 61 Ind. 33; Hobbs v. Tiplon Co., 3 Ñ. E. 263; Horthern Pacific B. B. Co. v. Galvin:, 85 Fed. 811; Powers v. larrabee, 49 N. W. 727.)

      The remedy by injunction against an illegal and void sale is the proper one. (Yocum v. First National Bank, 38 N. E. 600; rehearing denied, 45 N. E. 15; Cooley on Taxation, page 751; Black on Tax Titles, 217; Woodruff v. Perry, 103 Cal. 611.)
    And the statute and its remedies for errors and irregularities has no application. (Ogden City v. Armstrong, 18 Sup. Ct. Rep. 98-104.)
    The Code of Washington provides for the assessment of land to the owner or occupant, if known, and if not known, the land may be so assessed without stating the name of any owner.
    Under such law the supreme court of Washington, in Baer v. Choir, 32 Pac. 776, holds that the assessment of land not occupied in the name of a person not the owner was unauthorized and void. (Baer v. Choir, 7 Wash. 631, S. C. 32 Pac. 776; see also, Northern Pac. R. R. Co. v. Galvin, 85 Fed. Sll-814; Green Mountain 8. R. Co. v. Smage, 15 Moni. 189.)
    In the case at bar, plaintiff denies the jurisdiction of the assessor, and alleges that he had no notice or opportunity to be heard.
    In all cases, without exception, passed upon by our Supreme Court, the party complaining and seeking an injunction had notice and an opportunity to be heard as to the validity and justice of the assessments. {N. P. R. R. Co. v. Patterson, 10 Mont. 104-106; Ward v. Commissioners, 12 Mont. 23; Casey v. Wright, 14 Mont. 315; State ex rel. Beall v. Ellis, 15 Mont. 225; Nat. Bank v. Bailey, 15 Mont 301; rehearing same case, 16 Mont. 135.)
    In the case of Bank v. Bailey, 15 Mont. 301, the bank raised the point that it had no notice of the assessment, although it was apparently made in its name and it had furnished the list of property to the assessor to enable him to assess the stockholders. The Court did not say ‘ ‘notice is not required by law;” on the contrary, it acquiesced in the proposition that if no notice had been gipen the injunction should issue, and decided that the bank, by alleging it had furnished the list, had shown that it had notice, and that any error or illegality in the assessment was of such a nature as the bank could have had corrected by the board of equalization, 15 Mont, p. 308. The Court cites Stanley v. Supervisors, 121 U. S. 550, to the effect that “when the assessing officer has jurisdiction then before a citizen can apply to the court for injunction, he must have first applied to board of revision. ’ ’ The opinion in that case was delivered by Justice Field — there was no question as to notice. Per contra, if the assessing officer never acquired jurisdiction, the citizen would be entitled to injunction without having first made such application. In the rehearing had in Bank v. Bailey, reported in 16 Mont. 135, the question was.raised that the board had raised the assessment without notice. The Court assumes that if such act had been done that injunction would lie, but find as a matter of fact there had been no increase in the assessment.
    The statute provision, held by the courts to impart notice of the making of the original assessment, is that the real estate shall be assessed in the name of the owner when known and to unknown owners when the owner is unknown. Where the assessment is to be increased, notice is to be given by board. (Section 3780, Political Code.)
    Failure to give notice provided by statute in either case, would leave the assessor in the one case and the board of equalization in the other, without jurisdiction.
    The position taken by defendants that under no circumstances can a sale of property for illegal taxes be enjoined unless the plaintiff first tender the amount which he considers a proper tax upon his property, is not reasonable.
    With such a view of the law, it is wholly immaterial whether an assessment of any kind be made or attempted — it is a matter of no importance whether a board of equalization has been organized, met, or an opportunity been given for a hearing as to the valuation, or any irregularity, or any illegality in the proceedings looking toward the collection of the tax. It is a matter of unnecéssary labor and expense for the assessor to list the property in separate and distinct parcels, or to assess it to its respective owners; all that is necessary is for the treasurer to fix upon an amount which will probably be sufficient to meet the running expenses of the county and advertise all or any part of the property in his county for sale in such lots as may suit his fancy, or the fancy of his prospective purchasers, and if the tax payer is not satisfied with this arrangement, all that he is required to do is to approximate what, tax his particular lot should bear, and tender such an. amount to the treasurer, and then litigate the question whether his approximation was or was not sufficiently accurate to save his property from sale. All the safeguards which the Constitution provides for the preservation of property rights may be ignored, and the citizen is without remedy..
    Such, certainly, is not the law in0 Montana or elsewhere. •Defendants suggest that the rules which obtain in other states of the Union prohibiting the taking of private property for public purposes without due process of law, are without force or effect in this state — that in Montana, of all the states of the Union, the right to a hearing before judgment is dependent upon something else besides citizenship — that if any charge of any kind or by any proceeding has been made against the property of a citizen and has been by the powers that be designated a tax, whether such charge be illegal or not, the owner is an outlaw in the courts of the state and is deprived of the rights guaranteed to the humblest citizen unless he confess judgment for the amount of an assessment never made or pay the amount of a tax never levied. .
    The right of the state to impose upon all property its just proportion of the expenses of government is not questioned, but such right does not justify confiscation — the property of the citizen can only be taken by due process of law, and in eveiy case due process of law requires notice and an opportunity to be heard.
    Brief of Appellants in Reply.
    Cited: Sec. 154, page 119, Session .Laws 1891, and Sec. 3926, Political Code, 1895; Bucknall v. Story, 36 Cal. 70;
      Hannah Winkle v. Georgetown, 15 Wall. 548; Perrington v. People, 79 111. 13; De Witt v. Hayes, 2 Cal. 469; iSwc v.Hunt, 18 Cal. 307; Robinson v. Gaar, 6 Cal. 275; Rerri v. Patch, 13 Cal. 299, 300; v. Cilry of San Francisco, 1 Cal. 455; Hardenburg v. Kidd, 10 Cal. 403; Cooley on Taxation, page 779; Sanders v. Yonkers, 63 N. Y. 489; Temple Grove Seminary v. Cramer, 98 N. Y. 121; Messerole v. Brooklyn, 8 Paige 198; Wig gin y. N. Y, 9 Paige 16; Páre Doren y. FT. Y., 9 Paige 388; Livingston y. Hollenback, 4 Barb. 9, 16; VanRensselaer y . Kidd, 4 Barb. 17; Bouton v. Brooklyn, 15 Barb. 375; Cox v. Clift, 2 N. Y. 118; Scott y. Onderdonk, 14 N. Y. 9; Hatch v. Buffalo, 38 N. Y. 276; NewallY. Wheeler, 48 N. Y. 486; Dean y. Madison, 9 Wis. 402; Head v. James, 13 Wis. 641; óhepardson v. Sup. of Milwaukee, 28 Wis. 593; M. L. Co. v. Hubbard, 29 Wis. 51; Floyd y. Gilbreath, 27 Ark. 675; Mobile, etc. y. Peebles, 47 Ala. 317; Robinson v. Garr, 6 Cal. 273; Bucknall v. Story, 36 Cal. 67\ Ewing y. St. Louis, 5 Wall. 413; Hannewinkle y. Georgetown, 15 Wall. 547; Crane y. Randolph, 30 Ark. 579; Detroit y. Martin, 34 Mich. 170; Curtis y. East Saginaw, 35 Mich. 508; Briggs y. Johnson, 71 Me. 235; Harkness y. B. of P. W.,1 MacA. 121; Eastman v. Thayer, 60 N. H. 408; BusbeeY. Lewis, 85 N. C. 332; Sec. 3700, Political Code, 1895\ Lake Co. y. Sierre B. O. M. Co., 66 Cal. 19; Welty on Assessments, page 143; Landreyan y. Pepin, 86 Cal. 124; Sec. 3916 of the Political Code of 1895; Sec. 1736, P. 1133, Comp. Statutes, 1887; Sec 46, P. 99, Ex. 15 Leg. Sess. 1887; Sec. 148, P. 118, Sess. Laws, 1891; Sec. 3906, Political Code, 1895; Sec. 3780, Political Code, 1895; Sec. 22, Laws Extra Session, 1887; State R. R. Tax Case, 92 U. S. 604; Railroad Tax Case, 8 Sawyer, 274; Desty on Taxation, Yol. I., P. 600, 615; Meyer v. Rosenblatt, 74 Mo. 496; Munson v. Miller, 66 111. p. 383; Sec. 240, page 128, Laws of 1891; Sec. 197, page 127, Laws of 1891.
   MR. JUSTICE PIGOTT,

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

The contention of the plaintiff, to the effect that the assessment for 1890 was void because made upon several parcels of land in gross, and without separate valuation, has been considered in the late case of Deloughrey v. Hinds, 23 Mont. 260, 58 Pac. 709, and held untenable. The facts pleaded in the case at bar are not to be distinguished, upon principle, from those presented in the Deloughrey case, the doctrines whereof we affirm and again apply. The plaintiff, and those under whom he claims, were conclusively charged with knowledge of the time and place, appointed by law, when and where the board of equalization would meet; they knew that the lands owned by them would be assessed for the year 1890; and no excuse is offered for their omission to seek at the hands of the board a correction of the informality or irregularity of which they now complain.

The plaintiff insists that the assessments are void because the lands were listed by the assessor to persons other than the owners. The several statutes in force when the respective assessments were made furnish a complete answer to the contention. In 1890, Section 46 of “An act to provide for the levy of taxes and assessment of property, ’ ’ approved September 14, 1887, was in effect. It provided: “When, any lands or town lots are offered for sale for any taxes, it shall not be necessary to sell the same as the property of any person or persons; and no sale of any land or town lot for taxes shall be invalid on account of its having been charged on the assessment roll in any other name than that of the rightful owner or charged as unknown; but such land must in other respects be sufficiently described on the tax roll to identify it, and the taxes for which it is sold be due and unpaid at the time of such sale.” In 1891 there was passed “An act concerning revenue, ’ ’ approved March 6th of that year. Section 13 of this act, after providing that the assessor must assess property to the person by whom it was owned or claimed, or in whose possession or control it was, proceeds to declare that ‘ ‘no mistake in the name of the owner, or supposed owner, of real property, renders the assessment thereof invalid;” section 148 of the act is as follows: “When land is sold for taxes correctly imposed as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof, affects the sale or renders it void or voidable, ” — a paraphrase being: When land is sold, for taxes correctly imposed thereon, as the property of a particular person ('or when land is sold, as the property of a particular person, for taxes correctly imposed upon the land), no misnomer of the owner, or supposed owner, or other mistake relating to the ownership thereof, affects the sale or renders it void or voidable; and section 197 provides that “m> assessment or act relating to assessment or collection of taxes is illegal on account of informality, nor because the same was. not completed within the time required by law. ’ ’ These provisions of sections 13, 148 and 197 of the act of 1891 were incorporated into the Political Code of 1895, and appear as-sections 3700, 3916 and 4014. Under these statutes it is-plain that the listing of land in the name of a person other than the owner is but an irregularity or informality which, of itself, does not avoid the assessment nor render the tax illegal ’ or unauthorized. The name of the owner of the real property is, for all purposes of taxation except perhaps the imposition * of a personal liability, comparatively unimportant. Support for these views is found in Landregan v. Peppin, 86 Cal. 122, 24 Pac. 859; Haight v. Mayor, etc., 99 N. Y. 280, 1 N. E. 883; Merrick v. Hutt, 15 Ark. 331; Trust Co. v. Weber, 96 Ill. 346; State v. Matthews, 40 N. J. Law 268; Bradley v. Bouchard, 85 Mich. 18, 48 N. W. 208; Hill v. Graham, 72 Mich. 659, 40 N. W. 779; Stilz v. City of Indianapolis, 81 Ind. 582; Schrodt v. Deputy, 88 Ind. 90; Strauch v. Shoemaker, 1 Watts & S. 166. The listing of lands to the wrong-person affords no ground for restraining the collection, by sale of the property itself, of the taxes due thereon. "Sections 4023 to 4026, inclusive, of the Political Code, prohibit courts and judges from enjoining the collection of any tax, and from restraining the sale of the property for nonpayment of any tax, except in those instances where the tax is illegal, or not authorized by law, or where the property is exempt from taxation, and provide the means and remedies whereby the rights of persons who deem the taxes irregularly or improperly demanded of the owners, or sought to be enforced against the property, may be guarded and protected, and of these remedies the plaintiff, if injured, may avail himself. In this case it is not pretended that the property was exempt, nor that the taxes were not levied in conformity with the law, nor is there a suggestion that the valuation was unjust or excessive. The plaintiff and his grantors knew — or, what is equivalent to knowledge, were bound to know — that the property was liable to taxation, and would be assessed annually, and that a listing to one other than the owner would not avoid an assessment otherwise regular. He and they knew when the taxes would fall due and should be paid, and he cannot, in this action, successfully urge, as a reason why his lands should be relieved of the lien for taxes, that he did not know of the assessment, and had no opportunity to discharge the taxes.

Section 4017 of the Political Code provides that the taxes assessed prior to July 1, 1895, must be collected under the laws in force at the time the assessment was made, and in the same manner as if the Code had not been passed. When the assessment of 1890 was made, a notice of four weeks before the sale of property for delinquent taxes was required, whereas the notice under which the treasurer now threatens to sell the lands is but a three weeks’ notice. This irregular-' ity or infirmity, whatever consequences might flow from it touching the proposed sale when made, has not the effect of rendering the taxes illegal or unauthorized by law. Nor does the fact that the treasurer intends to violate sections 3922 and 3923 of the Political Code, by exposing for sale, for the delinquent taxes for 1898, part of the lands purchased by the county at the sale for the taxes of 1897, and yet unredeemed, entitle the plaintiff to an injunction. Section 4026, supra, declares that the remedy provided by sections 4024 and 4025 “shall supersede the remedy of injunction and all other remedies which might be invoked to prevent the collection of taxes or licenses alleged to be irregularly levied or demanded, except in unusual cases, where the remedy hereby provided is deemed by the court to be inadequate. ’ ’

There is nothing in this case sufficient to warrant the granting of the equitable remedy of injunction against the intended sale. The remedy at law is plain and adequate for the redress of the plaintiff’s alleged grievances. The judgment is therefore reversed, and the cause remanded, with instructions to sustain the demurrer to the complaint.

Reversed and remanded.


author: MR. JUSTICE HUNT

text:
    PENWELL, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LEWIS AND CLARKE, Respondent.
    [No. 1,435.]
    [Submitted October 18, 1899.
    Decided November 27, 1899.]

      Deputy County Attorneys— Compensation — Power of County Commissioners — Statutes—Construction.
    1. Political Code, Section 4596, declares that tbe “maximum annual compensation allowed to any deputy” is as follows, — setting out various officers whose salaries are declared “not to ‘exceed” the sum fixed, but in providing for the salary of chief deputy county attorney the words “not to exceed” were omitted. Held, that, since the statute by a general controlling limitation provided that all the amounts fixed should be “the maximum annual compensation allowed,” the words “not to exceed” were surplusage and hence the compensation of chief deputy county attorney was not fixed by the statute at a certain sum, but might be established at a sum less than the maximum named, provided the power to determine the number ¡of deputies and ' their compensation, within the maximum limits prescribed, may be exercised by some authority elsewhere recognized by law.
    2. Since deputy county attorneys are included by Act March 19,1895, in Political Code, Section «596, fixing the maximum salary of deputy county officers, the board of county commissioners have power to fix the salaries of deputy county attorneys under Session Laws, 1893, p. 60, establishing the number of deputy county officers, and providing that their compensation shall be determined by the board of county commissioners, within the maximum limits fixed by the act, though deputy county attorneys are not provided for therein.
    3. Repeals by implication are not favored.

      Appeal from District Court, Lewis and Cla/rke County; H. C. Smith, Judge.

      Action by Lewis Penwell against the board of county commissioners of the county of Lewis and Clarke. Judgment for defendant, and plaintiff appeals.
    Affirmed.

      Mr. T. J. Walsh, for Appellant.

      Mr. O. B. Nolan, Attorney General, for Respondent.
   MR. JUSTICE HUNT

delivered the opinion of the Court.

By the, agreed statement of facts before us, it appears that the plaintiff, Lewis Penwell, was, from and after January 1, 1899, the duly appointed, qualified and acting chief deputy county attorney, and only deputy county attorney of Lewis and Clarke county, that on January 31, 1899, he presented his bill for his salary for the month of January, 1899, amounting to the sum of $150; that thereafter the bill was audited for $125; that thereupon the board of county commissioners of Lewis and Clarke county, on the 1st day of February, 1899, allowed the bill for the sum of $125, but refused to allow the bill for the sum of $150. Plaintiff, Penwell, refused the warrant for $125. The district court held that the action of the county commissioners was lawful, and denied the plaintiff’s motion for judgment for $150. Judgment was entered accordingly in favor of the defendant, and from this judgment the plaintiff appeals.

The decision upon this appeal requires a construction of the statutes pertaining to the salary of the chief deputy county attorney. Section 4596 of the Political Code is in part as follows:

“The maximum annual compensation allowed to any deputy or assistant is as follows:
“First and second classes:
“Under sheriff not to exceed eighteen hundred dollars.
“Each deputy sheriff not to exceed twelve hundred dollars.
“Each deputy clerk not to-exceed twelve hundred dollars.
“Chief deputy cffirk of the district court not to exceed fifteen hundred dollars.
“Other deputy clerks of the district court not to exceed twelve hundred dollars.
‘ ‘Deputy treasurer not to exceed twelve hundred dollars.
“Deputy assessor not to exceed twelve hundred dollars.
“Chief deputy county attorney eighteen hundred dollars.
“Other deputy county attorneys fifteen hundred dollars.”

The contention of appellant is that by this section his salary as chief deputy county attorney was fixed at $1,800 per annum. He lays stress upon the omission of the words “not to exceed’ ’ from the statute in relation to the chief deputy and other deputy county attorneys, and forcibly argues that the frequent use of that expression elsewhere in the section quoted implies some significance to its singular omission in providing for the compensation of deputy county attorneys.

Much of this argument is answered, we think, by noting that the statute, in its general words of limitation, provides that “the maximum annual compensation allowed to eny deputy or assistant is as follows”; for this limitation controls the compensation of any and all deputies included in the list of deputies directly thereafter specified in the text, and it just as effectively provides a maximum compensation to be allowed to these deputies where the words “not to exceed” are omitted as is the compensation limited in the instances where they do appear. W e believe that all that could have been accomplished by the use of the words ‘ ‘not to exceed’ ’ had theretofore been done by fixing a maximum annual compensation, and that their repetition was therefore needless. The phraseology of the section seems to have been principally taken from an act of March 9, 1893 (Session Laws of 1893, p. 60), and an act of March 6, 1891 (Session Laws of 1891, p. 237), where a like tautology is apparent in fixing the compensation of various deputy officials other than deputy county attorneys. Deputy county attorneys were not included in these acts of 1891 and 1893, because the law nowhere specifically recognized such officials until the Codes of 1895 were adopted. When the Codes were enacted, however, the legislature of the session of 1895 whereat the Codes were adopted, and after their adoption, constructed a schedule of salaries and fees by apparently remodeling the Session Laws of 1891 and 1893 as far as they went, and by adding to the list of deputy officials embraced in such laws a schedule of compensation for deputy county attorneys, whose official status, as stated above, had been first expressly recognized by the Political Code as just theretofore adopted, on February 25, 1895. But, in adding the new offices of chief deputy and deputy county attorneys, the legislature of 1895 avoided the tautology of its predecessors as to those offices never before known, and for ■ which no provision had ever been made before the session of 1895. In our opinion, therefore, there was no evident intention on the part of the legislature, by the omission referred to, to fix the compensation of the deputy county attorney at a certain sum, or to take away the right to put it at a sum less than the maximum named, provided the power to determine the number of deputies and their compensation, within the maximum limits prescribed, may be exercised by some authority elsewhere recognized by the law.

Section 4602 of the Political Code provides in part as follows: £‘The whole number of deputies allowed the county' attorney in counties of the first and second class must not exceed one chief deputy and one deputy; and in all other counties such deputies as may be allowed by the board of county commissioners, not to exceed one chief deputy and one deputy. ” This section is part of the act of March 19, 1895.

Section 4603 of the Political Code is as follows: “The number of deputies allowed to county officers and their compensation must not exceed the maximum limits prescribed in this chapter. The officers entitled to deputies must within thirty days after this Code takes effect file a certificate of appointment of the deputies in their office with the county clerk. The salaries must be allowed and paid monthly upon the order of the board of county commissioners and paid out of the contingent fund. ’ ’ This section is also part of the act of March 19, 1895, which also includes section 4596, heretofore quoted.

It will be seen that section 4602 relates to the number of deputy county attorneys, while section 4603 is general in its language, only confining the number of deputies generally allowed to county officers and their compensation, within the limits prescribed “in this chapter” — so that, if the power to allow deputy county attorneys is vested in some authority, it must be ascertained, and, when that is found to exist, we may ask: Is it that same power which shall determine the number of deputies and the amount of their compensation, within the circumscribed limits of chapter IY. of the Political Code, which includes the sections and section 4596, just referred to? That the sections of the Political Code assume that there is an authority somewhere to make such a determination in respect to number and compensation is plain from the language of the sections cited; for it will not be presumed that provision for payment of deputy county attorneys was so carefully made with no regard to what authority was to make the decision upon the question of number and compensation, within the limits prescribed.

. As before stated, in 1891, by an act approved March 6, 1891 (Session Laws of 1891, p. 235), the legislature provided “for the maximum annual compensation of deputies for certain officers other than deputy county attorneys. This law also made general provision for allowing deputies and their compensation to county officers, “within the maximum limits named in this act,” and placed the determination of these matters upon the boards of county commissioners. In 1893 (Session Laws of 1893, p. 60) the legislature amended Section 4 of the act of 1891, referred to, by revision of the compensation, and reenacted the clause providing that ‘ ‘the number of deputies and their compensation allowed to the county officers within the maximum limits named in this act shall be determined by the board of county commissioners, ’ ’ but again we fail to find any provision for deputy county attorneys.

The further question is then involved: Was the authority given to the board of county commissioners by the act of 1893 carried forward so as to obtain in respect to a determination of the compensation of deputy county attorneys, such officials being recognized by the Codes of 1895 and the acts of 1895 amendatory of the Codes; or were the boards of county commissioners deprived by the act of March 19, 1895, of any such power through a repeal of that section of the law of 1893 which had given the necessary power ? The act approved March 19, 1895, just mentioned, was an act to amend Sections 3133, 3135, 3137, 3138, and 3139, and to repeal Section 3136, of the Political Code, adopted February 25, 1895. Its provisions appear in the Political Code as Sections 4594, 4596, 4597, 4602, and 4 603. Sections 4596, 4602, and 4603 have been already quoted in this opinion. Section 3136 of the Code, as first adopted and thereafter repealed by the act of March 1'9, 1895, merely authorized the appointment of deputies when in the judgment of the board of county commissioners the salary of the chief officer was inadequate and he was unable to perform the duties. The purpose of the repeal of this section has been stated by this Court in Jobb v. Meagher Co., 20 Mont. 424, 51 Pac. 1034, in the following language: “The purpose of the legislature in repealing Section 3136 was to prune the Code of this section, which was not in harmony with that portion of the act of 1893 upon the subject; and, in order to disencumber the Code of a redundancy or repetition, Section 3139, the subject-matter of which was substantially embraced in the act of 1893, was amended by omitting those provisions already incorporated; and, as we think, a. reading of Section 4603, which is Section 3136 as amended, discloses that intent. ” We do not attach importance to this, section in the consideration of the question under examination.

It was also held in Jobb v. Meagher Co., supra, that the section quoted from the act of 1893 remains in force, at least in so far as it vested in the boards of county commissioners, the power to determine the number of deputies, and their compensation, allowed to sheriffs and other county officers, whose existence was recognized by the Laws of 1891 and 1893. This conclusion was based upon the ground that there is nothing in the act of March, 1895, so inconsistent with the act of March 9, 1893, as to repeal that part of said act giving authority to the board of county commissioners to determine the number of deputy sheriffs. We now go further, and, by virtue of the doctrine that repeals by implication are not favored, hold that by Sections 5181, 5184 and 5186 of the Political Code the section referred to in the law of 1893 was brought forward to apply to a more extended field; and though at the time of its original adoption it had reference alone to deputies of officers then recognized by the statute of 1893, and notwithstanding the fact that certain legislation affected by it had been repealed by conflict with later enactments, still that particular provision was brought forward by the act of March 13, 1895, (Section 5186, Political Code), and obtains, as affecting legislation adopted in 1895 embraced in Chapter IV of the Political Code, and is to be construed in harmony therewith. It became a general provision, applicable to the determination of the compensation of deputies of all county officers, and, being especially preserved from repeal as not repugnant to other enactments the legislative intent was to extend its applicability to deputy county attorneys and other deputies provided for by the legislation of 1895. (State ex rel Aachen, Etc. Ins. Co. v. Rotwitt, 17 Mont. 41, 41 Pac. 1004.)

We are strengthened in this opinion by a policy pervading the statutes which generally gives to the board of county com: missioners power to control the number and compensation of deputy county officials. The legislature has selected such boards as best fitted to guard the economic interests of the county, doubtless recognizing that, in view of the fact that the county is to pay the deputies, a discretionary power in respect to their number and salaries might be exercised with more impartial regard to the public needs by boards of county commissioners, acting within certain bounds, than could be exercised by any other power, not excepting the legislature itself.

Our conclusion is that it was the intent of the legislation considered to give the boards of county commissioners power to determine the number of deputies to be allowed to the county attorneys in counties of the first and second class, and to determine their compensation, subject, always, to the limits of Chapter IY of the Political Code.

The j udgment is affirmed.

Affirmed.