author: MR. COMMISSIONER CALLAWAY

text:
    WESTERN RANCHES, Limited, Appellant, v. COUNTY OF CUSTER, Respondent.
    (No. 1,577.)
    Submitted May 15, 1903.
    Decided June 1, 1903.)

      Taxation — Board of Equalization — Increase in Assessment— Necessity of Notice — Waiver—Property Not Owned by Taxpayer —■ Action for Restitution — Propriety of Remedy— Constitutionality of Statute — Sufficiency of Title.

    1 Under Political Code, Section 3789, providing that persons interested must be notified by letter, at least ten days before action is taken, of tbe day wben an increase in a tax assessment -will be considered by tbe board of county commissioners sitting as a board of equalization, tbe ten-day notice is jurisdictional.
    2. Failure to give a taxpayer the ten-day notice of a proposed increase in bis assessment, required by Political .Code, Section 3789, is not waived by his subsequently appearing and securing a reduction of tbe increased assessment.
    3. A tax cannot be lawfully levied against a person for property which be does not own.
    4. Political Code, Section 4023, authorizes an injunction to restrain tbe collection of an illegal or unauthorized tax. Section 4024 provides that in all cases “of levy of taxes,” etc., deemed unlawful by tbe _ property owner, be may, under protest, pay such tax, and thereupon sue to recover it. Section 4026 provides that this remedy shall supersede injunction and all other remedies which might be invoked to prevent the collection of taxes alleged to be irregularly “levied or demanded,” etc. Held!, that Section 4024, being construed with Section 4026, is not restricted to cases in which the levy is assailed as unlawful, but suit thereunder might be brought where an assessment was void, notwithstanding Section 4023.
    5. Under Political Code, Section 5185, providing that if any of the acts enumerated in such Code are inconsistent with any acts passed by the Fourth legislative assembly the latter shall control, Sections 4024 and 4026, providing a special remedy by suit for the recovery of illegal taxes, being part of the special act approved March 18, 1895, will control, in case of conflict, Section 4023, authorizing injunction; the latter section having been recommended by the code commission.
    6 An increase in an assessment by the assessor in obedience to a void order of the board of equalization cannot be justified under Political Code, Sections 3701, 4014, under which the assessor may assess at any time property which has escaped taxation.
    7. Political Code, Sections 4024-4026, providing a remedy by action for the recovery of illegal taxes, were contained in an act approved March 18, 1895, and entitled “An Act providing for unlawful levy and collection of public revenue.” Constitution, Article V, Section 23, requires the subject-matter of acts to be clearly expressed in their titles.” Held, that the act • of March 18, 1895, was not unconstitutional, the words ‘(providing for unlawful levy,” etc., being construed as meaning “providing a remedy for unlawful levy,” etc.

      Appeal from District Court, Custer Gounty; O. H. Loud, Judge.

    Action by tbe Western. Ranches, Limited, against tbe County of Ouster. From a judgment for defendant, entered on sustaining a demurrer to tbe complaint, plaintiff appeals.
    Reversed.
    Statement oe the Case by the Commissioner Peeparing the Opinion.
    Tbis action was commenced by plaintiff to recover of tbe defendant tbe sum of $975.68 for taxes paid under protest After stating tbe corporate existence of plaintiff and defendant, it is alleged in tbe amended complaint that tbe only property tbe plaintiff owned, claimed, controlled, managed, or possessed at 12 o’clock m. on tbe first Monday of March, 1896, or at any other time during said year, which was situated in tbe county of Ouster or elsewhere in tbe state of Montana, consisted of 200 bead of horses and 1,000 bead of stock cattle; that said cattle, on tbe 1st day of March, and at all times during tbe said year, were not worth or of a cash value to exceed $17 per bead, and that during all such time tbe horses were not worth or of a cash value to exceed $15 per bead; that between the first Monday of March, 1896, and tbe second Monday in July, 1896, tbe assessor assessed to the plaintiff 1,000 bead of stock cattle at a valuation of $17 per bead, but that tbe commissioners of Custer county, sitting as a board of equalization, on tbe 20th day of July, 1896, “without notifying tbis plaintiff, and without tbis plaintiff being present or having any knowledge thereof, and without giving tbis plaintiff an opportunity to be beard, and without jurisdiction, or right, or authority so to do, and without any investigation or bearing any evidence as to' tbe properly of plaintiff, determined that tbe assessment to tbis plaintiff of 1,000 bead of stock cattle as aforesaid was incorrect and incomplete, and thereupon increased said assessment, and directed the said assessor to assess to this plaintiff, in addition to the assessment theretofore made, 300 head of beef cattle at a valuation of $25 per head; 4,000 head of stock cattle at a valuation of $17 per head; 300 saddle and work horses at a valuation of $20 per head; ranch improvements at a valuation of $100; wagons and harness at a valuation of $150; making a total of $149,350, which, together with the previous assessment, made a. total of $166,350, which assessment the assessor thereupon made pursuant to. and in accordance with said direction.”
    On the 6th day of August, 1896, the plaintiff appeared before the board of equalization, and made written application for a reduction of the amount of property assessed, and for a reduction of the valuation placed upon- the horses, but the board refused to reduce or correct the assessment, except to the extent of changing and reducing the number of he'ad of stock cattle to 2,750, and the number of beef cattle to 1,000, and the number of saddle horses to 200, but entirely abated and canceled the assessment on account of ranch improvements, wagons and harness. For the purpose of preventing the seizure and sale of plaintiff’s property, plaintiff, to satisfy the tax which it claimed was illegal, upon the demand of the treasurer of the county, paid the same under written protest upon the 7th day of December, 1896, to the extent of $1,325.63, but, claiming at the time that the sum of $975.63 was an invalid and illegal tax, notified the treasurer that it would institute an action against the county to recover the latter sum, with interset thereon, and costs.
    The defendant demurred to this complaint on the ground that it does not state facts sufficient to constitute a cause of action. This demurrer was sustained, and judgment entered thereon dismissing the complaint, and for costs, from which plaintiff appeals.

      Mr. O. B. Middleton, and Mr. M. 8. Gunn, for Appellant.

      Mr. James Donovan, for Respondent.
   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

1. In cansing plaintiff’s assessment to' be increased, the board of county commissioners, sitting as a board of equalization, assumed to act under Section 3789 of the Political Code, which reads as follows: “During the session of the board of county commissioners it may direct the assessor to assess any taxable property that has escaped assessment, or to add to1 the amount, number or quantity of property when a false or incomplete list has been rendered, and to make and enter new assessments (at the same time canceling previous entries) when any assessment made by him is deemed by the board so incomplete as to render doubtful the collection of the tax; but the clerk must notify all persons interested, by letter deposited in the postoffice, postpaid, and addressed to the person interested, at least ten days before action is taken, of the day fixed when the matter will be investigated.”

It is patent that the board had no jurisdiction to increase the plaintiff’s assessment without first giving the ten-days’ notice provided by statute. In Western Ranches v. Custer County (C. C.), 89 Fed. 577, Judge Knowles, in passing upon the above-quoted section, said: “Did the failure to give the notice before the listing of the property invalidate the tax? I think it did. The notice required by this section was for the protection of the taxpayer, and intended to give him a hearing before the listing of his property in a supplemental list, and was jurisdictional. Without such notice the board of equalization has no right to order the assessor to make the supplemental list. (Cooley, Tax’n (2d Ed.), 362-366; French v. Edwards, 13 Wall. 506, 20 L. Ed. 702; Powder River Cattle Co. v. Board of Commissioners of Custer Co. (C. C.), 45 Fed. 323; Dykes v. Mortgage Co., 2 Kan. App. 217, 43 Pac. 268.)” And see Commissioners v. New York Mining Co., 76 Md. 549, 25 Atl. 864; Myers v. Baltimore County, 83 Md. 385, 35 Atl. 144, 34 L. R. A. 309, 55 Am. St. Rep. 349; Commissioners v. Lang, 8 Kan. 284; Topeka Water Supply Co. v. Roberts, 45 Kan. 363, 25 Pac. 855.

The failure to give plaintiff the required notice having rendered tbe tax illegal because tbe board bad acquired no. jurisdiction to act with reference thereto, tbe fact that tbe plaintiff voluntarily appeared on August 8tb, and asked a reduction of its assessment, wbicb was partially granted, did not obviate or waive tbe want of jurisdiction in tbe board’s original action. Tbis question was not raised in Cosier v. McMillan, 22 Mont. 484, 56 Pac. 965, cited by defendant. Plaintiff was seeking a reduction of its assessment, and therefore properly appeared before tbe board to ask tbe same. (Barrett v. Shannon, 19 Mont. 397, 48 Pac. 746.)

But, without reference to tbe illegal action of tbe board,' it appears from tbe complaint that tbe plaintiff was assessed for a. large amount of property of which it was not tbe owner. It is fundamental that a tax cannot be lawfully levied against a person for property wbicb be does not own.

2. Tbe defendant contends', however, that Section 4024, Political Code, wbicb provides that “in all cases of levy of taxes, licenses or other demands for public revenue, wbicb is deemed unlawful by tbe party whose property is thus taxed or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or' any part thereof deemed unlawful, to the officers designated and authorized bylaw to collect tbe same; and thereupon tbe party so paying or bis legal representative may bring an action in any court of competent jurisdiction against tbe officer to' whom said tax or license was paid or against tbe county or municipality on whose behalf tbe same was collected, to recover such tax or license or pay any portion thereof paid under protest” — applies only to cases in wbicb tbe levy of taxes' is deemed unlawful, and does not apply to cases where tbe tax or tbe collection of it is complained of. It is argued that, where tbe tax is illegal, or is not authorized by law, the collection of it must be restrained under tbe provisions of Section 4023, or else must be recovered after a payment made under duress.

We do not think tbis argument is sound. Tbis section must be read- together with Section 4026, wbicb is as follows: “The remedy thereby [hereby] provided 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 execpt in unusual cases where the remedy hereby provided is deemed by the court to be inadequate.” The words “levy of taxes, licenses or other demands for public revenue” in Section 4024 are to be construed with the words “levied or demanded” in Section 4026. Section 4023 was recommended by the code commission, and adopted as part of the Political Code. Sections 4024 and 4026 were part of a special Act, which was approved March 18, 1895, and, if there be any conflict between Section 4023 and Sections 4024 and 4026, the latter sections control. (Section 5185, Political Code.) Speaking of Sections 4024 and 4026, supra, Judge Enowles said: “These sections provide a remedy for the collection of' money paid for or on account of an illegal tax to the treasurer or tax collector of any county or municipality of this slate. * * * This is a special statute, and is intended to give an exclusive remedy, except in unusual cases, where there is a dispute as to the legality of the tax between a taxpayer and a county or municipality. (End. Inter. St. Sec. 154.) When a special and exclusive remedy is given by a statute, we look alone to it, and are required to follow it” (Western, Ranches v Custer County, supra.) This is in accordance with our views, and we think the plaintiff pursued the proper remedy in paying the taxes demanded under protest, and afterwards bringing suit to recover them.

3. It is insisted by the defendant that under Sections 3101 and 4014 of the Political Code the assessor may assess property which has escaped taxation at any time, and therefore the assessment levied upon plaintiff’s property can be sustained under such sections. But this position is not maintainable for the reason that the record shows the action of the assessor to have been based upon the order of the board of equalization; and further shows that the property sought to be assessed did not escape taxation for tbe reason that, in so far as the plaintiff is concerned, it was not in existence.

4. Defendant further contends that Sections 4024, 4025, and 4026 are unconstitutional. These sections were enacted in the form of Senate Bill No. 69, which was approved March 18, 1895, and was entitled “An Act providing for unlawful levy and collection of public revenue.” It is argued that this title does not comply with Section 23 of ArticleV of the Constitution, which provides: “No bill, except general appropriation bills and bills for the codification and general revision of the laws shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” The purpose of this section was to prevent surprise and fraud in legislation, and generally to inform every one of the subject under* consideration. This'court, speaking-through Mr. Justice Milbum, in State v. Courtney, 27 Mont. 378, 71 Pac. 308, held that this section should receive a liberal construction, and the general rule is that “courts will not pronounce a statute unconstitutional unless it is clearly so, and both the statutes and the constitutional provisions with which they are claimed to be in conflict will be liberally construed with a view to sustaining législative action.” See note to Crookston v. County Commissioners, 79 Am. St. Rep. 453, and cases cited (s. c. 79 Minn. 283, 82 N. W. 586). “If the title of an Act is single, and directs the mind to the subject of the law in a way calculated to direct the attention truly to> the matter which is proposed to be legislated upon, the object of the provision is satisfied.” (Mobile Transportation Co. v. City of Mobile, 128 Ala. 335, 30 South. 645, 86 Am. St. Rep. 143.)

Testing the Act in question by these rules, it is manifest that the legislature enacted a law concerning the unlawful levy and collection of public revenue. The subjects included in the bill are all germane to the unlawful levy and collection of public revenue. Neither the legislature nor the public could have been misled by the title of the Act. Any other) interpretation of the language employed would be absurd. The author of the bill did not'happily frame its title. Probably he intended to say, “An Act providing a remedy for the unlawful levy and collection of public revenue,” but, aside from conjecture, he did express this meaning in the title of the bill. By reference to the Century Dictionary, the word “provide” will be found to be defined as follows: “To take measures for counteracting or escaping something; often followed by ‘against’ or ‘for;’ ” and the word “for” as follows: “In relation to; with respect or regard to; as affects or concerns; as regards.” Therefore the title in controversy clearly reads, “An Act providing with respect to [or as concerns] unlawful levy and collection of public revenue,” and easily comes within the intent and meaning of the constitutional provision.

It thus appears that the action of the board of county commissioners in raising the assessment upon plaintiff’s property was illegal for two reasons: first, that it had no jurisdiction to act without first giving the ten days’ notice provided by law; and, second, that it assumed to assess property which the plaintiff did not own. The plaintiff, having paid its tax under protest, agreeably to the provisions of the sections supra, and having thereafter brought this suit, is entitled to recover upon the showing made by the complaint.

In our opinion, the judgment should be reversed, and the cause remanded, with directions to overrule the demurrer.

'Per Guríaivi. — -For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to overrule the demurrer.

Mr. Justice Milbuen, being disqualified in this case, takes no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    MATADOR LAND & CATTLE COMPANY, Appellant, v. COUNTY OF CUSTER, Respondent.
    (No. 1,578.)
    (Submitted May 15, 1903.
    Decided June 1, 1903.)

      Taxation — Board of Equalization — -Increase in Assessment— Sufficiency of Notice.

    Political Code, Section 3780, requires tlie board of county commissioners to meet as a board of equalization on the third Monday of July, and continue in session from time to time not later than the second Monday in August. Section 3789 requires a ten-day notice to be given by mail to persons interested ’of a contemplated increase in a tax assessment by the board of equalization. Heldj that a notice mailed August 8th was void, the functions of the board as a board of equalization expiring on the second Monday of August, which was the 10th of the month.

      Appeal from District Gowrt, Ouster County; G. H. Loud, 'Judge.

    Action by the Matador Land & Cattle Company against the County of Custer. Erom a judgment for defendant, entered or; sustaining a demurrer to the complaint, plaintiff appeals.
    Reversed.

      Mr. G. B. Middleton, and Mr. M. S. Gunn, for Appellant.

      Mr. James Donovan, Attorney General, for Respondent.
   MR. COMMISSIONER CALLAWAY

prepared the opinion for the court.

As this case and Western Ranches v. County of Custer, 28 Mont. 278, 72 Pac. 659, decided this day, were heard together and as the main questions involved in both cases are the sam'e, the decision in that case applies to this, so far as the two cases are similar. The only difference seems to be that in the Western Ranches Case the boarcL of equalization utterly failed to give the plaintiff any notice, while in the case at bar the board on August 8, 1896, gave the plaintiff notice to appear on September 8th following, when the plaintiff might make such legal objections as it might desire, and when the board would take final action on the assessment. The -plaintiff appeared, and asked the board to reduce the assessment made, but the board refused so to do. On August 8th the board could not have given the plaintiff the ten days’ notice required by Section 3789 of the Political Code, as its functions as a board of equalization expired on the second Monday of August, which was on the 10th of the month. Section 3780 of the Political Code reads as follows : “The board of county commissioners is the county board of equalization and must meet on the third Monday of July in each year, to examine the assessment book and equalize the assessment of property in the county. It must continue in session for that purpose from time to time until the business, of equalization is disposed of, but not later than the second Monday in August.” While hoards of equalization are provided for in the ccnstitution, their periods of life are prescribed by the legislature, and they cannot hold for any other or longer period than the legislature has fixed. So, when the board of equalization of Custer county adjourned on the second Monday of August, 1896, its term- of existence for that year absolutely expired. (State v. Central Pacific Railroad Co., 21 Nev. 270, 30 Pac. 693; State ex rel. Evans v. McGinnis, 34 Ind. 452; Yocum v. First Nat’l Bank, 144 Ind. 272, 43 N. E. 231.)

It follows that the judgment should be reversed, and the cause remanded, with directions to overrule the demurrer.

Per Curiam. — For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to overrule the demurrer.

Mr. Justice MilburN, being disqualified, took no part, in this decision.


author: ME. COMMISSIONEE POOEMAN

text:
    STANFORD, Respondent, v. CORAM et al., Defendants; CORAM, Appellant.
    (No. 1,919.)
    (Submitted May 14, 1903.
    Decided June 1, 1903.)

      Judgments — Interest—Constitutional Law.

    1. Civil Code, Section 2588, provides that a judgment shall bear interest at the rate of 10 per cent, per annum. Laws of 1899, p. 116, amends Section 2588 so as to reduce the interest to 8 per cent., repeals all acts in conflict with it, and provides that it shall take effect from and after its approval. Held, that a judgment rendered prior to the date when the amendment went into effect bore 10 per cent, interest until that date, and only 8 per cent, thereafter.
    2. A statute changing the rate of interest which a judgment shall bear after entry is not unconstitutional as affecting a contract right within the meaning of Section 10, Article I, of the Constitution of the united States, and Section 11, Article III, of the Constitution of Montana.

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

    » Action by James T. Stanford, as receiver of tbe Northwestern National Bank of Great Falls, against Joseph A. Corani and another. From an order denying the motion of defendants to compel plaintiff to satisfy the judgment rendered in his favor, Joseph A. Coram appeals.
    Reversed.

      Mr. M. 8. Gunn, for Appellant.
    In the case of Morley v. Lake Shore & Mich. 8., JR. Co., 146 U. Si 162, it was decided that the legislature of a state has the power to reduce the rate of interest on existing judgments. See, also, O'Brien v. Young, 95 N. T. 428; Wyoming National Bank v. Brown, 61 Pac. 465, Si Cl 75 Am. St. Rep. 935 ; Palmer v. Laberee, 63 Pac. 216. It is held in these cases that a judgment is not a contract, and that the right to recover interest is a statutory right, and such holding is made the basis of the decisions. That the right to recover interest is a statutory right, see, also, Isaacs v. Me Andrew, 1 Mont. 437; Palmer v. Murray, 8 Mont. 174.. That a judgment is not a contract, ■ see, also, 1 Black, Judgments (2d Ed.), Secs. 7, 8, 9, 10.
    As a judgment is not a contract and interest is a creature of tbe statute, it necessarily follows that tbe legislature may change tbe rate of interest on existing judgments. When tbe amend-, atory act, approved February 28, 1899, went into' effect, it operated to repeal and render nugatory Section 2588 of tbe Civil Code. After sucb repeal tbe right to interest was dependent solely upon tbe amendatory act.

      Mr. M. M. Lyter, and Mr. A. 0. Gormley, for Respondents.
    Sedgwick, in bis work on tbe Construction of Statutes and Constitutions (2d Ed.), after stating that retrospective or retroactive statutes, independently of certain exceptions, are within tbe scope of tbe legislative authority, yet says that “such laws, as a general rule,.are objectionable, and tbe judiciary will give all laws a prospective operation only, unless their language is so clear as not to be susceptible of any other construction.” (Page 173.) Again be says: “Tbe courts refuse to give statutes a retroactive construction unless tbe intention is so clear and positive as by no possibility to admit of any other construction.” (Page 166.)
    Though tbe legislature may have tbe power to make a law operate retrospectively, it must clearly appear that sucb was tbe intention, the- presumption being that it was intended to operate on future transactions. (Cooley, Const. Lim., 370 ; Wade, Retr. Laws, Sec. 34; Duval v. Malorie, 14 Grat. 24; Murdoch v. Franklin Ins. Go., 10 S. E. 777; Wathins v. Glenn (Kan.), 40 Pac. 316; Auffmordí v. Basin,> 102 IT. S. 620.)
    Tbe foregoing principle was followed in tbe cases cited below, tbe court in tbe first named case saying: “Wben demands are finally merged into judgments, subsequent changes by law of tbe rates of interest will not affect sucb judgments, unless tbe statutes so declare.” (Missouri Pac. B. B. Go. v. Patton
      (Tex.), 35 S. W. 477; Saunders v. Carroll, 12 La. An. 793.)
    Tbe following additional cases bold that it is not in the power of the legislature to alter the rate of interest to which a creditor is entitled upon his pre-existing judgment: Cox v. Marlatt, 36 N. J. L. 389; Johnson» v. Butler, 2 la. 535; Rockwell v. Butler (Oolo.), 17 L. E. A. 611; Sharper. Morgan Co., 44 Ill. App. 346; Bond v. Dolby (Neb.), 23 N. W. 351; Freeman on Judgments, Secs. 217, 441.
    Some very pertinent and interesting observations upon the Morley decision, and also references to other decisions of the Supreme C'ourt of the United States, are found in the case of Bettman v. Crowley (Wash.), 40 Li E. A. 815.
    The Supreme Court of the United States has, however, in the cf'se of Texas & Pacific Railway Co., 149 U. S. 237, 37 L. Ed. ,717, virtually repudiated the doctrine laid down in the Morley Case. See, also, as bearing somewhat on principles involved, Barnitz v. Beverly, 163 U. S. 118, 41 L. Ed. 93, followed in State v. Qilliam, 18 Mont. 109.
    That the judgment did not express the rate of interest is of no moment, for, as stated in Amis v. Smith, 41 U. S., 16 Pet. 303, 311, “interest upon a judgment, secured by positive law, is as much a part of the judgment as if expressed in it.”
   ME. COMMISSIONEE POOEMAN

prepared the opinion for the court.

In this action judgment was entered for the plaintiff and against the defendants on the 3d day of December, 1898. On the 24th day of March, 1902, the defendant Coram paid to the plaintiff on account of said judgment the full amount of the principal sum thereof, with interest thereon at the rate of 10 per cent, per annum until the 28th day of February, 1899, and at the rate of 8 per cent, per annum from that date until the date of payment.- The plaintiff acknowledged partial satisfaction of the judgment, and the appellant proceeded by motion as provided by Section 1201, Code of Civil Procedure, for an order requiring tbe plaintiff to satisfy tbe judgment in full. It was stipulated that, if tbe plaintiff was only entitled to collect ii’terest on said judgment at tbe rate of 8 per cent, per annum from tbe 28tb day of February, 1899, said judgment was paid in full; otherwise there was a balance due. This motion was overruled. Tbe appeal is from tbe order of the court overruling tbe motion.

Tbe error assigned in this case is that tbe court erred in deciding that tbe judgment bad not been paid in full and in overruling defendant’s motion. It appears from tbe statement and tbe stipulation that tbe full amount of tbe judgment, with interest thereon at tbe rate of 10 per cent., until tbe 28th of February, 1899, and at the rate of 8 per cent, per annum thereafter has been paid. • Tbe question presented is whether tbe Act of tbe legislature approved February 28, 1899, reducing tbe rate of interest from 10 per cent, per annum to 8 per cent, per annum, relates to and affects tbe interest due on this judgment. Section 2588, Civil Code, in force at tbe time this judgment was rendered, provided that “interest is payable on judgments recovered in tbe courts of this state at tbe rate of ten per cent, per annum, and no greater rate, but such interest must not be compounded in any manner or form.” This section of tbe statute was amended by an Act approved February 28, 1899 (Laws of 1899, p. 125), so as to read as follows: “Interest is payable on judgments recovered in tbe courts of this state at tbe rate of eight per cent, per annum, and no greater rate, but such interest must not be compounded in any manner or form.” This amendatory Act further provides: “Sec. 2. All Acts and parts of Acts in conflict herewith are hereby repealed.” “Sec. 3. This Act shall take effect and be in full force from and after its approval.”

A judgment in a civil case is a judicial determination of rights existing between parties, or by one party and against tbe other. It does not create any new rights. It only defines and determines what rights already exist. Tbe right to have a judgment enforced is not inherent in tbe judgment itself. This right and authority coma fromi other provisions of law. The judgement is itself a creation of law. It bears no interest unless granted by legislative enactment. It is in the nature of a contract, but is not a contract within the meaning of Section 10, Article I, of the Constitution of the United States, and Section 11, Article HI, of the Constitution of the State of Montana. It lacks the element of consent necessary to a contract. It is in inviiwm as to the losing party. The contract between the parties is voluntarily surrendered and canceled by merger in the judgment, and ceases to exist. It is no longer looked to for any purpose except as evidence supporting the judgment. There is no longer any contract for the payment of either principal or interest. A party is not entitled to interest merely because he has a judgment, but solely because the legislature, in its discretion, has said he may charge interest. It is an arbitrary right. Parties appealing to the law can take only what the law awards them. It may be true that parties entering into contracts or appealing to the courts, have in mind the fact that any judgment obtained will draw interest at the rate then fixed by the legislature. It is likewise true that they have notice of the inherent power of the legislature to change this rate, or to annul it altogether, and such enactments are not retroactive or retrospective so long as they do. not interfere with the collection of interest already accrued. Laws changing the rate of interest apply to accounts with respect to which no agreement exists as to interest. Then why do they not apply to judgments when a judgment is not a contract, and the interest thereon is not the result of agreement between the parties ? The rate of interest is fixed by the legislature without reference to the contract on which the action is founded, and without regard to the will or assent of the parties to the action. The judgment creditor is entitled to the interest prescribed by law during the judgment debtor’s default in payment. “Where the transaction is not based upon any assent of parties, it cannot be said that any faith is pledged with respect to it, and no cause arises for the operation of the constitutional prohibition.” This law now •under consideration is a general law. A citizen can have no vested right in a general law which can preclude its amendment or repeal, and there is no implied promise on the part of. the state to protect its citizens against incidental injury occasioned by changes in the law. (Cooley’s Constitutional Limitations (6th Ed.), 343.)

In the case of Morley v. Lake Shore Railway Co., 146 U. S. on page 169, 13 Sup. Ct. 57, 36 L. Ed. 925, the Supreme Court of the United States* following the decision in O’Brien v. Young el at., 95 N. Y. 428, 47 Am. Rep. 64, in considering the same question here under discussion, uses this language: “It is contended * * * that the judgment is itself a contract, and includes within the scope of its obligation the duty to pay interest thereon. As we have seen, it is doubtless the duty of the defendant to pay the interest that shall accrue on the judgment if such interest be prescribed by statute ; but such duty is created by the statute, and not by the agreement of the parties* and the judgment ismot itself a contract within the meaning of the constitutional provision invoked by the plaintiff in error. The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. ‘A judgment is in no sense a contract or agreement between the parties.’ ” The court then holds that a legislative enactment reducing interest on- all judgments applied to a judgment then existing.

The Supreme Court of Wyoming, in the case of Wyoming National Bank v. Brown, 7 Wyoming, on page 502 (53 Pac. on page 292, 61 Pac. 465, 75 Am. St. Rep. on page 939), says: “An act reducing the rate of interest which judgments shall bear, passed after the rendition of the judgment, is a conclusive determination by the legislature that the damages accruing to the judgment creditor by being deprived of the use of the amount due are measured by a lower rate of interest during the period subsequent to the taking effect of the act than from the rendition of the judgment up to that time. If this view is correct, the plaintiff in this case has received all damages which accrued while its judgment remained unpaid, and none of its rights have been destroyed or interfered with by legislation. The defendants’ obligation to pay interest being simply that which the law imposed, they discharged that obligation by paying what the law exacted.”

In the case of Palmer et al. v. Laberee et al., 23 Wash. 409, 63 Pac. 220, the supreme court holds that a law reducing the rate of interest on judgments applies to judgments rendered prior to the passage of the Act and then existing.

Where the contract between the parties provides that interest shall be computed at a certain rate until payment is made, a question might arise not presented by the record in this case, and on which no opinion is here expressed.

We have examined the cases cited by respondent as modifying the decision in the Morley Case, and find that the same are not inconsistent with the doctrine announced in that case.

The principles involved in this case are so thoroughly discussed in the cases cited that further comment here is unnecessary. We are of the opinion that the Act of the legislature of February 28, 1899, reducing interest on all judgments, applies from the date of its approval to this judgment, and that the court erred in overruling defendant’s motion; and that, inasmuch as the stipulation and record show that the full amount due on this judgment has been paid, this cause should be remanded to the district court, with directions to set. aside the order made overruling defendant’s motion, and to enter an order sustaining said motion.

Pee Curiam. — For the reasons given in the foregoing opinion, it is ordered that this cause be remanded to the district court, with directions to that court to set aside the order heretofore made overruling the defendant’s motion for an order requiring the plaintiff to satisfy the judgment' in full, and to enter an order sustaining said motion.


author: MR. COMMISSIONER POORMAN

text:
    CONLEY, Respondent, v. DUNN, Appellant.
    (No. 1,579.)
    (Submitted May 15, 1903.
    Decided June 1, 1903.)

      Replevin — Judgment, Verdict'and Com/plaint — Conformity— Appeal.

    where, in an action in claim and delivery, the judgment contains a description of the property different from that found in either the complaint or the verdict, the judgment will, on appeal, be reversed.

      Appeal from District Court, Carbon County; Frank Henry, Judge.

    Action by Sena Conley against John Dunn. Verdict and judgment for plaintiff; from! which, judgment and from an order denying a new trial, defendant appeals.
    Judgment reversed.

      Mr. George W. Pierson, and Mr. George H. Bailey, for Appellant.
   MR. COMMISSIONER POORMAN

prepared the opinion for the court-..

This is an action in claim and delivery. Verdict and judgment for plaintiff, from which judgment, and the order of the court overruling the defendant’s motion for a new trial, this appeal is prosecuted.

The plaintiff, in her complaint, alleges that she “was the owner and entitled to the possession, and was in the possession,” of “six cows branded G U Y on the right ribs and El — 6 on the left hip; five cows branded W A on the right ribs and E — 6 on the left ribs; one cow branded El — -6 on the left ribs hip; all of said cattle of the value of $ktO' each; eight yearling heifers and steers branded E — 6 on the left hip-, of the value of $25 each; six calves branded E — 6 on tbe left liipi; and two unbranded calves, of tbe value of $18 each; one span of work borses, each animal branded V on tbe left shoulder, valued at $120’; one gelding branded N on tbe left shoulder, of tbe value of $40.” Tbe answer filed denies tbe ownership and right of possession of tbe plaintiff, sets up title in a third party, and claims justification for seizing tbe property under tbe terms of a chattel mortgage executed by such third party; tbe defendant being at tbe time sheriff of tbe county where tbe property was seized and tbe action tried. A' trial by jury was bad, and tbe following verdict returned: <cWe, tbe jury in tbe above-enti-tJed action, find tbe issues for tbe plaintiff, for tbe return of five cows branded W. A. on right ribs, and El — 6 on left hip; one cow branded E — 6 on left hip; one calf unbranded; one gelding branded N. on left shoulder; 6 yearlings branded El — 6 on left hip; 6 cows branded G-. 1J. T. on right ribs and E> — 6 on left hip; tbe property described in the complaint; and, in case a delivery cannot be bad, then for' tbe sum of $728.32, tbe value thereof.” Tbe judgment entered contains what purports to be a copy of tbe verdict, and further on contains this statement: “It is ordered adjudged and decreed that tbe defendant return to tbe plaintiff tbe above-entitled property, or, in case said return cannot be made,” etc.

Tbe description of tbe property as given in the complaint differs from that stated in the copy of the verdict found in the record, while the copy of tbe verdict incorporated in tbe judgment contains a description different from that found in either tbe complaint or the former copy of tbe verdict. As, to some of the property these descriptions are tbe same, but as to other items there is a radical difference. In tbe complaint appears this description: “Eive cows branded W A on tbe right ribs and E — 6 on tbe left ribs.” In the verdict tbe description reads, “5 cows branded W. A. on right ribs and El — fi on left hip.” Tbe judgment reads, “5 cows branded El — 6 on right ribs and E! — 6 on left hip.” Tbe pleadings do not contain any reference to cattle branded El — 6 on right ribs and Ei — '6 on left bip. These various descriptions may or may not refer to the same animals. A clerical error may have been committed in making the copies. We cannot indulge in presumptions in those matters. The record before us imports verity, and we are bound thereby. The verdict does not support the judgment, and the complaint does not support either verdict or judgment. Nor this reason the judgment of the district court should be reversed.

It is contended that the verdict m insufficient, that it is not responsive to the issues, that it does not find upon the question of ownership as to the property awarded to plaintiff, that it contains no finding as to either ownership’ or right of possession of the property not awarded to plaintiff, and that it is in the alternative. A? it is not probable that these alleged defects will appear upon another trial, it is not deemed necessary to pass upon them here.

We recommend that the judgment appealed from be reversed.

Pee Cubiam. — For the reasons stated in the foregoing opinion, the judgjment and order appealed from are reversed, and the cause remanded, with directions to the district court to grant the defendant a new trial.