author: MR. JUSTICE PIGOTT MR. JUSTICE PIGOTT

text:
    STATE ex rel. DONYES, Plaintiff, v. BOARD OF COMMISSIONERS OF GRANITE COUNTY, Defendant.
    [No. 1,452.]
    [Submitted July 13, 1899.
    Decided October 9, 1899.]

      Constitutional Law — Statutes — Compensation of Public-Officers — County Surveyors.

    1. The constitutional provision (See. 31, Art. Y) prohibiting any law increasing or diminishing the salary or emoluments of a public officer after his election or appointment, does not forbid the legislative assembly imposing upon a public officer additional duties, and (in the absence of a salary designed to cover such services), at the-same time allowing him compensation for the performance of such new duties.
    2. Appellant was, in November, 1898, elected county surveyor for the term of tivo years. The legislative assembly, by an act approved March 4, 1897, abolished the office of road supervisor, and imposed the duties of that office upon the county surveyor, and at the same time allowed him compensation for the discharge of such additional duties. On March 3, 1899, the legislative assembly, by an act, repealed the act of March 4,1897, and re-established the office of road supervisor and stripped appellant of the duties imposed, and deprived him of the compensation allowed therefor, by the act of March 4,1897. Held, that the act of March 3,1899, does not, as applied to appellant, violate Section 31, Article V, of the Constitution.
    ON MOTION FOR REHEARING.
    1. The legislative assembly is not prohibited by Section 31, Article V, of the Constitution, from adding duties and providing compensation for them affecting a county surveyor then in office, and thereafter taking away such duties and attendant emoluments from a subsequent surveyor elected before such last act of the legislature was passed.
    2. Where an officer is paid by fees or a per diem compensation measured by the services performed and the time employed, his emoluments are not, within the meaning of Section 31 of Article Y of the Constitution, diminished by a statute, taking effect after his election, which relieves him of the obligation to perform the duties resting upon him, and destroys the compensation which had theretofore been prescribed for their discharge.
    Application by the state, on the relation of Charles F. Donyes, for a writ of mandamus against the board of commissioners of Granite county, to permit plaintiff to perform, his official duties as general superintendent of the public roads of Granite county.
    Dismissed.

      Messrs. Durfee db Brown, Mr. Geo. A. Maywood, and Mr. C. B. Nolan, for Relator.

      Mr. Josiah Shull and Mr. W. E. Moore, for Defendant.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The object of this proceeding is to compel, by writ of mandate, the defendant to permit the plaintiff to perform his supposed official duties as general superintendent of the public roads of Granite county. To an alternative writ the defendant has answered by presenting an issue of law. The facts are these: The defendant is the board of commissioners of Granite county, — a county of the eighth class. The plaintiff is the county surveyor elected in November, 1898, foi the term of two years, beginning with the first Monday in January, 1899. By virtue of an act of the Fifth legislative assembly entitled “An act to define the powers and duties of county surveyors and to provide for their compensation, and to abolish the office of road supervisor,” approved March 4, 1897, he was general superintendent of all roads in the county from the time he entered upon the discharge of the duties of surveyor until March 10, 1899; on that day, conformably to the provisions of an act of the Sixth legislative assembly, approved March 3, 1899, entitled “An act to provide for the election of road supervisors, to define and regulate their powers and duties, to fix their compensation, and to repeal an act entitled ‘An act to define the powers and duties of county surveyors and to provide for their compensation, and to abolish the office of road supervisor,’ approved March 4, 1897,” the defendant divided the county into road districts, and appointed road supervisors, and on April 1st road supervisors were elected in the manner provided for in the act. Since the 10th day of March, 1899, the defendant has excluded the plaintiff from the management, control, and supervision of the highways of the county, and refuses to permit him to perform any of the duties of general superintendent of roads which were imposed upon him by the act of 1897.

Is the plaintiff the general superintendent of the roads in Granite county? If this question be answered in the negative, the proceeding must be dismissed. The answer to the question will be made when it shall have been determined whether or not that part of the act of 1897 which declares the county surveyor to be the general superintendent of all the roads within his county was repealed by the act of 1899, so as to affect a county surveyor in office at the time of the formal repeal.

' The act of 1897 abolished, in terms, the office of road supervisor, and imposed the duties of that office upon the county surveyor, who was made the general superintendent of all roads within his county. His compensation was fixed at the rate of $5 a day, the total compensation being graduated according to the classification of counties, and not to exceed $750 in a county of the eighth class. The act of 1899 repealed the act of 1897, and re-established the office of road supervisor. Plaintiff’s contention is that so much of the act of 189-9 as purports to repeal those provisions of the act of 1897 declaring the surveyor to be the general superintendent of roads, and allowing him compensation for his • services as such, is, as to the plaintiff, void, because repugnant to section 31 of Article Y. of the Constitution of Montana, ordaining that no law shall increase or diminish the salary or emolument of any public officer after his election or appointment.

We are of the opinion that the theory of the plaintiff is erroneous. By section 5 of Article XVI. of the Constitution, and by section 4312 of the Political Code, the county survey- or is declared to be a public officer, and the limitation upon the powers of the legislative assembly to increase or diminish salaries or emoluments is therefore applicable to statutes affecting his compensation in either of the ways denounced by the organic law; but the question presented is whether the act of 1899 does, within the meaning of the constitutional prohibition, diminish the emoluments of the surveyor. That the legislative assembly might require of the surveyor the performance of additional duties of the same general nature as were those imposed, upon him by the statutes in effect at the time of his election, and (in the absence of a salary designed to cover all services that the officer as such might perform) allow compensation for the discharge of the additional duties, must be admitted; that the right is also inherent in the assembly to enjoin new and different duties of the character described in the act of 1897, and (there being no such salary prescribed) at the same time allow compensation for the performance of them, and that it can do this without violating the constitutional limitation mentioned, must also be admitted. The imposition of the new services and allowance of fees for discharging them, is in no wise obnoxious to the prohibition of the Constitution against the increase or diminution of emolument after election or appointment; in illustration: Prior to the act of 1897, the principal, if not the only, duties of the county surveyor, were to make surveys for courts, counties, and persons, and to perform the labor incident thereto; to furnish plans and specifications for road and bridge work; and to act as chairman of all boards of road viewers. For these services he was paid at the rates specified in sections 2759 and 4639 of the Political Code. New, different, and arduous duties were imposed upon him by the act of 1897; 1¿he office of road supervisor was abolished, and the powers and duties theretofore vested in and confided for discharge to him were transferred to the surveyor; some of the labor which until that time had been done by the board of commissioners was likewise cast upon him. By the act of 1897 there was attached to his office a new function, — that of general superintendent of roads, the duties whereof were added to those which rested upon him when he was elected. For these additional services the act of 1897 provided compensation. If it attempted to increase or diminish the rate of compensation for the performance of services which were required of him by the statutes in force when the act was passed, it was to that extent inoperative with respect to a surveyor then in office, because in conflict with the prohibitory provision of the Constitution. In so far, however, as it allowed pay for the discharge of the new duties imposed, the act of 1897 was not obnoxious to the constitutional limitation mentioned. It is a well-settled principle of law that a provision such as is contained in the Constitution of this state, prohibiting any law increasing or diminishing the salary or emolument of a public officer after his election or appointment, does not forbid the allowance of compensation for new and different services exacted from him during his term, where the statute imposing the duties also prescribes the compensation for their performance. The constitutional limitation in question was intended to apply only to the salary and emolument to which the officer was entitled for services required of him by the law in force at the time of his election or appointment, unless the salary then provided was intended as compensation for all services which the officer, as such, might render. (Shiffert v. Montgomery Co., 12 Montg. Co. Law Rep’r. 100, S. C. 5 Pa. Dist. R. 570. See also, State v. Carson, 6 Wash. 250, 33 Pac. 428; San Luis Obispo Co. v. Felts, 104 Cal. 60, 37 Pac. 780.) The office of road supervisor is one of legislative, not constitutional, creation; it may be established and abolished at the pleasure of the legislative assembly. In abolishing the office of supervisor and transferring its duties to the county surveyor, the legislative assembly was acting within the scope of its power; and when, in 1899, it stripped the county surveyor then in office of the duties imposed, and deprived him of the compensation allowed therefor, by the act of 1897, it was still within the bounds of its authority, and did not diminish the salary or emolument of the plaintiff as general superintendent of roads. He has been relieved of the burden of rendering certain services exacted by a former statute which fixed, a rate of compensation; the gross receipts of his office may be diminished by the act of 1899, but the emoluments of the plaintiff as an officer have not been, and will not be, diminished, within the meaning of the Constitution. • “The rule is the same first and last; i. e. a certain sum for a certain service — compensation in propor-' tion to duty — the very rule which it was the design of the Constitution to establish. ’ ’ (San Luis Obispo Co. v. Felts, supra.) The act of March 3, 1899, is not subject to the specific objection urged against its validity. The plaintiff ceased to be tbe general superintendent of the roads in Granite county on the 10th day of March, 1899.

¡Submitted October 12,1899.

Decided October 16, 1899.]

The defendant attacks the act of March 4, 1897, upon the 'grounds that the title of the act, as well as the act itself, contains two subjects, that the title does not clearly express the subjects, and that Section 16 seeks to extend and apply the provisions of a statute which the act itself attempts to repeal, and to extend, make applicable, revise, and amend a portion of the Political Code without publishing it at length. The views already expressed suffice to dispose of this proceeding upon the merits, and we therefore decline to consider other questions.

Let a judgment be entered against the plaintiff and in favor of the defendant, dismissing the application, with costs.

Dismissed.

Mr. Justice Hunt, being absent, took no part in this decision.

ON MOTION FOR REHEARING.

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Upon this motion for a rehearing the learned attorney general insists that the opinion heretofore delivered fails to note or consider a question which, although not discussed at the bar, is now asserted to bé of vital importance. The point now earnestly pressed is that, when the plaintiff was elected, the ordinary duties of his office consisted of those imposed by the act of 1897 and by the Political Code; that at the time of his election and induction into office he was required to perform the duties enjoined, and was entitled to compensation prescribed by the act of 1897; that, although the act of 1897 imposed upon the surveyor then in office new and additional duties, and allowed compensation for their performance, yet the act did not have such effect upon the plaintiff, he having been elected while the act of 1897, was operative; and that, therefore, the act of 1899, in so far as it purports to repeal those portions of the act of 1897 imposing duties and allowing compensation for them, is, as to the plaintiff, in conflict with the constitutional prohibition against any law increasing or diminishing the salary or emoluments of a public officer after his election. It is contended that in the former opinion the Court erroneously applied to the plaintiff the rule applicable to a surveyor whose compensated duties might, after his ejection, have been augmented by the act of 1897, and then diminished during the same term of office by an act similar to the one of 1899. It is conceded that the act of 1897, in so far as it attached to the office duties not, at the time of its passage, pertaining to the office, and allowed compensation for their performance, was not repugnant to Section 31 of Article V of the Constitution; the concession is also made that, if the act of 1899, which repealed the act of 1897, had gone into effect while the surveyor whose duties were enlarged by the repealed acts was still serving his term, it would not be in conflict with the constitutional provision invoked. Counsel argue that it is within the authority of the legislative assembly to impose new duties upon the surveyor after his election, and fix a compensation therefor, and that it may, without violating the constitutional limitation in question, relieve the surveyor still remaining in office from the discharge of duties imposed, and deprive him of the compensation allowed, by the former statute. Counsel advance the view that the legislative assembly, after adding duties and providing compensation for them affecting the surveyor then m office, may not take away such duties and attendant emoluments from a subsequent surveyor, unless it be done before the election of such successor, — in other words, that the surveyor is entitled to discharge the duties and receive the fees which are prescribed and allowed at the time of his election, and that a statute purporting to curtail such duties, or to relieve him of some of them, is a law diminishing his emolument after his election. We are unable, to approve of the distinction attempted to be drawn. • The office of county surveyor was created by the Constitution, but his duties and emoluments are matters entirely within legislative control, subject to the prohibition of the fundamental law against the increasing or diminishing of his salary or emolument after his election. The legislative assembly may, from time to time, increase or lessen the duties required to be performed by the officer; it may allow compensation for the added duties; it may also lessen the duties, and deprive him of the emoluments attendant upon the performance of the duties of which he is relieved. Of course, if at the time of his election the statute prescribed a certain salary, designed to cover all services that the officer as such might perform, then it is not within the competency of the legislative assembly to increase such salary nor to diminish it while the obligation still rests upon the officer to perform all or any of the services enjoined upon him at the time of his election. Where, however, the statute in force at the time the surveyor was elected exacted from him the discharge of certain duties for which certain fees were allowed, — as in the ease at bar, —the legislative assembly may at any time relieve him of the duties, and deprive him of the compensation allowed; for it is not the intention of the Constitution to prohibit a lessening of the duties of such officer as the county surveyor after his election, even though the effect be to curtail or lessen his total income. . Where such officer is paid by fees or a per diem compensation measured by the services performed and the time employed, his emoluments are not, within the meaning of Section 31 of Article Y. of the Constitution, diminished by a statute, taking effect after his election, Avhich relieves him of the obligation to perform the duties resting upon him, and destroys the compensation which had theretofore been prescribed for their discharge. The supreme court of Kentucky, in Purnell et al. v. Mann et al., — decided on December 10, 1898, and reported in 48 S. W. 407, — had before it a question identical with the one presented in this case. A statute was enacted in March, 1898, which took away from the county judges, clerks and sheriffs in office at the time it was passed certain compensated duties, which, under the laws in force at the time of their election, they were required to discharge; and it was contended that the statute was violative of a constitutional provision similar to Section 31 of Article Y, for the reason that in depriving those officers of the fees allowed at the time of their election for the performance of the duties then required of them the statute changed their compensation after their election. The court say: “The act does not, as argued, violate section 161 of the constitution, which forbids the compensation of any city, county, town or municipal officer being changed during his term of office; for the duties imposed by the general election law upon the various county officers do not, except in virtue of a repealable statute, pertain at all to several offices; and, of course, when they are, by an amendatory statute, relieved of these duties, their per diem pay ceases without at all involving a change of compensation in the meaning of section 161.” Nor is the case of Bright v. Stone, decided by the same court, and reported in 43 S. W. 207, in conflict with the Purnell case, for in the former case the point decided was, as we understand it, that a statute enacted during the term of office of a circuit clerk, by which he was allowed fees for performing certain services required of him when he was elected, but not then compensated, was repugnant to the prohibition of the Constitution.

We think a careful reading of the original opinion (the language of which is, perhaps, not as clear as might be desired) will disclose that the decision therein announced is based upon the doctrines here referred to; and that it was not intended to declare that the new duties imposed by the act of 1897 were new, additional, or extraordinary in respect of the plaintiff, who was elected in 1898. Comments upon the fact that the office of road supervisor is a legislative, not constitutional, creation, were indulged in for the purpose of illustrating the power of the legislative assembly to abolish that office, and transfer its duties to the county surveyor.

The motion for a rehearing is denied.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    IN RE WELLCOME.
    [No. 1,401.]
    [Submitted October 17, 1899.
    Decided October 18, 1899.]

      Attorney — Disbarment — Witnesses — Deposition.

    1. A disbarment proceeding is not a criminal prosecution, so as to entitle tbe respond, ent to be confronted personally by the witnesses against him, under Constitution Article III, Section 16, providing that a person accused of a crime shall have the right to meet the witnesses against him face to face.
    2. Under Code of Civil Procedure, Section 3341, which provides that the testimony of a witness out of the state may be taken in a special proceeding at any time after a question of fact has arisen, a deposition may be taken in disbarment proceedings.
    Application in disbarment proceedings against John B. Wellcome, for commission to take deposition.
    Commission ordered issued.

      Mr. C. B. Nolan, amicus cwrice.

      Mr. Wm. Wallace, Jr., Messrs. Carpenter & Carpenter, and Mr. J. B. JRoote, for Accused.
   PER CURIAM

— The attorney general has applied to this court for the issuance of a commission out of this court, and under the seal thereof, to take the deposition of one James Marshall, residing at Minneapolis, in the state of Minnesota. The accused has filed written objections to the issuance of such a commission upon the ground that the statute does not authorize the proceeding, and because the accused has a right to meet the witnesses against him face to face, and because there is no constitutional power in the court to issue the commission prayed for.

The contention of the accused is that he has a constitutional right to face the witnesses testifying in the case. But a proceeding in disbarment is not a criminal prosecution. This was held in the former opinions filed herein. (In re Wellcome, ante, pages 140, 213, 58 Pac. 45, 47.) Section 16, Article III. of the Constitution, relating to the rights of an accused per sou in a criminal prosecution, is therefore inapplicable.

Section 3341 of the Code of Civil Procedure provides that the testimony of a witness out of the state may be taken by deposition in an action at any time after service of summons or the appearance of the defendant, and in a special proceeding at any time after a question of fact has arisen therein. A proceeding of this nature is not an action, that is, it is not an ordinary proceeding in court whereby one party prosecutes another for the enforcement or protection of a fight, the redress or prevention of a wrong, or the punishment of a public offense, as an “action” is defined by section 3471 of the Code of Civil Procedure. Not being an action, it is and must be classified as a special proceeding, for the reason that every remedy sought or administered under the Codes is classified as by action or special proceeding. There is no other place to put a proceeding of this nature, inasmuch as all remedies not embraced, in the one class are necessarily within the other. We therefore think that the statutes controlling the taking of depositions in special proceedings are applicable, and that the deposition sought may be taken (In re Cooper, 22 N. Y. 67; State v. Clarke, 46 Iowa 155.)

Ordered, that the commission issue, directed to the person to be agreed upon by the attorney general and the accused or his counsel.


author: PER CURIAM.

text:
    DELOUGHREY, Respondent, v. HINDS, TREASURER, et al., Appellants.
    [No. 1,449.]
    [Submitted October 5, 1899.
    Decided October 23, 1899.]

      Taxation — Assessment — Board of Equalization — Equity— Pleading — Injunction—Sta/re Decisis.

    1. Under Laws of 1889, page 219, Section 4, wliicli makes it the duty of a taxpayer to furnish the assessor a list of all his property, and Section 5, requiring the assessor to value each lot separately, and Laws of 1887, page 82, Section 22, which provides that any person feeling aggrieved by any assessment may apply to the board of equalization for the correction thereof, equity will not eDjoin the sale of separate lots assessed In gross, for the collection of the taxes thereon, where the complaint does not show that he attempted to have the irregularity corrected by application to the board, or some excuse for not doing so.
    2. In an action to restrain by injunction the collection of a tax alleged to have been irregularly and illegally assessed, a complaint which fails to show that plaintiff attempted to have the irregularity complained of corrected by application to the board of eqalization, and does not allege any excuse for not doing so, is bad on demurrer..
    3. A court of equity will not grant relief to a taxpayer when the only ground alleged to invoke its aid is an irregularity in the assessment.
    4. Under Laws of 1S89, page 219, Section 4. which makes it the duty of a taxpayer to furnish the assessor a list of property owned by him, and Section 5, which makes it the duty of the assessor to assess eachqot separately, where the complaint, in an action to enjoin the sale for taxes of one of several separate lots assessed in gross, alleges that complainant is the owner of the lot, but fails to show whether or not the complainant owned all of them at the time the assessment was made, and does not attack the assessment on any ground other than such assessment in gross, it will he presumed that he was either the owner of the several lots when the assessment was made, or that he purchased the lot since the assessment. In the former ease he is not entitled to relief, as it is his duty to pay taxes on all the lots; and in the latter he cannot complain, as he took subject to the burdens.
    5. In an action to restrain by injunction the collection of a tax alleged to have been irregularly assessed, a complaint which alleges that plaintiff “is” the owner of the lot in question, but fails to make tender of the amount of taxes admittedly just and due to the county and state, is bad on demurrer.
    C. The rule of stare decisis will be observed where it is apparent that no substantial injury or injustice will result therefrom.

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

    Action by Patrick Deloughrey against Thomas R. Hinds, as county treasurer, and the county of Silver Bow. From a judgment overruling a demurrer to the complaint, defendants appealed.
    Reversed.

      Mr. C. B. Nolan, Mr. C. P. Connolly, and Mr. P. L. Clinton, for Appellants.

      Mr. C.. D. Tillinghast, for Respondent.
    Section 1696 of the General Laws of Montana for the year 1887, relating to Revenue, requires that each town or city lot be valued and assessed separately, except when one or more adjoining lots are returned by the same person. Separate and distinct parcels of real estate are to be considered as distinct subjects of taxation and must be separately valued and assessed. The rule applies to lots and blocks in cities and towns, and failure to observe this requirement will render an assessment void., (Powder River C. Go. v. Commissioners, 45 Fed. 327; Am. and Eng. Enc. Law, Yol. 25, pp. 222 and 223 and Note 3, p. 223; Calwallader v. Rash, 73 Cal. 43.)
    A radical defect in an assessment is such a nullity that it cannot be cured by prescription. (People v. Holliday, 25 Cal. 300.)
    Lot 7, Block 18, the tax sale of which is sought to be restrained, is at least a full block distant from the other lots with which it was jointly assessed and taxed. It is claimed by the respondent that such assessment was not merely irregular but wholly void, being in palpable violation of the statute cited above, covering assessments at that time.
    Where the law requires a separate assessment of lots, the requirement is held mandatory by the courts of nearly all the states under the general principle that whatever is required for the protection of the tax-payer is mandatory. (Powder Rimer G. Co. v. Com., 45 Fed. 327; Am. and Eng. Enc. Law, Vol. 25, pp. 76 and 77 and Note 1, p. 78; also p. 222, Note 4 and cases there cited; also pp. 299 and 300; Black on Tax Titles, Secs. 198 and 199 and cases there cited; Life Association v. Assessors, 49 Mo. 512; Silsbee v. StocMe, 44 Mich. 567; Chicago Railway Go. v. Davenport, 51 Iowa 454; Ma/rsh v. Glamlce Comity, 42 Wis. 502; Hamilton v. Fon dm Lac, 25 Wis. 490; Hewes v. Reis, 40 Cal. 255; People v. Hollister, 47 Cal. 408; Ruby v. Himtsman, 32 Mo. 501.)
    The distinction between void and irregular assessments was clearly made by this Court in Casey v. Wright, 14 Mont. 315. In that case the complaint did not set out the fact of the joint assessment of several distinct lots or parcels, and the opinion of the Court, so far as it discusses the complaint, takes for granted that the assessment was irregular and not void. But the answer in that case discloses the fact that the assessment of several lots or parcels was made as one ' assessment at a single valuation for all of the parcels so jointly assessed, which is the fact in this case, and the Court holds that a sale under such an assessment would be void and ought to be restrained, and that being a sale under circumstances identical with those set out in the complaint in this action, would be a void sale and hence restrained. In Casey v. Wright, the plaintiff owned lots 1, 2 and 3, block 81, and claimed the assessment invalid for the reason that the lots were assessed in gross and not separately. It also appears that said three lots and eight other lots in different blocks were sold in gross for the total tax on all of said lots. In this case we only have to do with the gross assessment. From the numbering of the lots (1, 2 and 3) it is presumed that the three lots adjoined each other and that they belonged to the same owner, and hence the assessment of those three lots was not in violation of the statute. It appears from the record in that case that the three lots were assessed separately from the other lots. Hence, it could be easily ascertained what proportion of the whole tax should be charged against the three lots of the plaintiff. This case is distinguished from Casey v. Wright in this:
    1. In that case the lots assessed in gross were contiguous; in this case lots not contiguous were assessed in gross.
    2. Plaintiff’s lot in this case being assessed in gross with other lots not contiguous, was in direct violation of the statutes; whereas, in Gasey v. Wright the assessment of the three lots was lawful.
    3. The plaintiff in this case had no means of ascertaining what proportion of the whole tax should be charged against his lot, because there was one assessment in gross of alL the lots. In Casey v. Wright the plaintiff’s three lots were assessed separately from the other lots, and hence, the amount charged against those three lots could be easily ascertained.
    The defendant’s demurrer to the complaint in Gasey v. Wright was sustained for the reason that, while the assessment was irregular, the amount of taxes chargeable to the plaintiff’s three lots could be easily ascertained, and hence, should have been tendered. In Gasey v. Wright the assessment was merely irregular; in this case the assessment was void, and there is no method by which the amount justly chargeable to plaintiff’s lot could be ascertained, and for that reason no tender was required. It is not contended by respondent that the rule in Casey v. Wright is erroneous, but the facts of this case radically differ from those of that case, so as to take this case out of the rule laid down in Casey v. Wright.

    It will be observed that the case there cited (18 Cal. 149), being an assessment like the one in the case at bar, was held void, and this Court there held that the authorities are almost uniform that such a sale (and assessment) is void, and clearly holds that case identical with the case at bar in the latter part of the language above quoted. In Silsbee v. Stockle, 44 Mich. 561, it was held that the statutory provision that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes were paid or tendered, is unconstitutional so far as it sustains sales for taxes which are in part illegal. Also, it is a presumption of law that the land demanded for a delinquent tax bears some proportion to the sum to be paid, and that if the tax is in part illegal, some portion of the land sold to pay it is taken to satisfy an illegal demand.
    In Raynor v. Lee, 20 Mich. 384, it was held that a provision of law which requires that resident and non-resident real estate should be separately assessed, must be observed, or the assessment will be invalid, and a sale for such tax will convey no title.
    In Hewis v. Reis, 40 Cal. 255, it was held that, where the statute requires a series of acts to be performed before the owners of the property are properly chargeable with the tax, such acts are conditions precedent to the exercise of the power to levy the tax, and all the requirements of the statute must be complied with or the tax cannot be collected.
    In People v. Hollister, 47 Cal. 408, it was held that, when, several parcels of land are assessed to the same person, they must be separately valued. In Cadnjoallader v. Hash, 73 Cal.’ 43, it was held that town lots must be separately listed and valued for assessment, and an assessment of several lots as one undivided parcel is void. This latter case is under a statute practically identical with the statute of this state.

      The objection to the complaint in this case for the reason that no' tender has been made, is not well taken, as fully appears by the foregoing.

      Marsh et al. v. Supervisors of Clark County, 42 Wis. 502, was an action to restrain the county treasurer from issuing a tax deed where there was an illegal assessment. The statutes of Wisconsin require that lands shall be assessed from actual view. The assessors did not assess the land in question from actual view, the same consisting of a large tract of timber lands, some of which were broken and bluffy and of no value, except for timber, while other portions were level and fertile and valuable for agricultural purposes. The court held the assessment void.
    Tf the tax is void, plaintiff is under no obligations to tender anything. (Cooley on Taxation, p. 764, note 1; Powder Pi net' C. Co. v. Com., 45 Fed. 828, 329.)
    Under the statute in force at the time the assessment complained of was made, the powers of the board of equalization were limited to the supplying of omissions, correcting clerical errors, and increasing or diminishing any assessment or valuation. The board of review only have power to increase or lower individual assessments and to correct clerical errors. {S. V. W. W. Co. v. Schottler, 62 Cal. 69; also People v. Supervisors, 40 Cal. 613.) Nor is there anything to the contrary in First National Bank v. Bailey, 15 Mont. p. 308, cited by appellants.
    The assessment being void, and not merely irregular, could. not be cured by the board of review, and hence no application to such board was necessary. (Powder Piver C. Co. v. Com., 45 Fed. 327; Am. and Eng. Enc. Law, Yol. 25, p. 204, note 5, also pp. 222, 223, and note 5; also Marsh v. Clarke Counti/, 42 Wis. 402; also San Luis Obispo v. Pettit, 87 Cal. 499.)
    The case at bar is distinguished from N. P. Py. Co. v. Patterson, 10 Mont. p. 106, cited by appellants, in which relief was sought from a tax claimed to be excessive, and which was clearly within the powers of the board of review, and hence the complaint in that action, which failed* to allege any application to the board of review, or of a tender of the correct or proper portion of the tax, was clearly defective. In this case, one wishing to relieve the lot in suit from the lien of the tax could not by any possible means estimate the amount properly chargeable to that lot. It follows, that the board of ' equalization having no jurisdiction in such case, it was unnecessary to go before such board, because they would have no power to give life to a void assessment.
    In N. P. By. Go. v. Patterson, the assessment was irregular, not void, and the question to be'determined was, whether the court would interfere to diminish the assessment when the plaintiff had not applied to the board of review to obtain such relief. In that case it was conceded that part of the assessment was valid; in this case, it was wholly void.
    Section 3915 of the Political Code of Montana provided that if the treasurer discovers before sale that on account of irregular assessment the land ought not to be sold, he must not offer it for sale, and herein lies the secret of the failure of the defendant county to offer this property for sale during all of the years intervening between the assessment and the present year. If the section last cited debars the treasurer from selling when an irregularity is discovered, how much more when the assessment is void.
    We think it follows, the statute being mandatory, that the sale must be restrained. The remedy by injunction against an illegal and void tax is the proper one. (38 N. E. 600; Reilly v. Telegraph Co., 47 Ind. 511; Shoemaker v. Board, 36 Ind. 175; Williamsport v. Kent, 14 Ind. 306; Miles v. Ray, 100 Ind. 166; Knight v. Turnpike Co., 45 Ind. 134; Cooley on Taxation, pp. 746, 747, 773; Hobbs v. Tipton Co., 103 Ind. 575.) The owner of real estate may by injunction prevent a cloud being cast on his title. (Thomas v. Simmons, 103 Ind. 538; Bishop v. Morronan, 98 Ind. 1; Petry v. Ambrosher, 100 Ind. 510.) Where a tax is a lien, equity will interfere and remove the cloud upon the title. (Cooley on Taxation, pp. 746, 747, 761; Schulenberg-Boecker Lbr. Co. v. Town of Hayward, 20 Fed. 422; Albcmy City Bank v. Maher, 9 Fed. 884; N. P. Ry. Co. v. Galvin, 85 Fed. 811.)
   PER CURIAM.

— This is an action by the plaintiff, Patrick Deloughrey, for an injunction to restrain the defendant, Thomas R. Hinds, as treasurer of Silver Bow county, and his successors, from selling certain property situated in the city of Butte, in said county, for city and county taxes assessed and levied for the year 1890. After alleging the official character of the defendant, the plaintiff avers substantially that he is the owner of lot No. 7 of block No. 18 of the original townsite .of Butte, as it appears on the official plat of the city on file with the recorder of Silver Bow county; that in the year 1890 the duly elected, qualified, and acting assessor of the county of Silver Bow made an assessment upon the property above described, together with the south half of lots 6, 7, and 8 of block No. 8 of the original townsite of Butte, including all as one parcel, and putting a gross valuation upon the whole of $3,550; that the total county tax charged against all of said lots under said assessment was the sum of $19.70; that the city tax for that year levied and assessed upon the said lots, in the same manner, was the sum of $180.18; that the said assessment was and is fraudulent, illegal, and void, for the reason that the said property of this plaintiff above described then consisted of a town or city lot which did not and does not adjoin the other lots above described, but was and is separate, distinct, and apart from the other said lots; that for this reason it was impossible for the plaintiff, who is now the owner of the said lot No. 7 aforesaid, to “remove the said taxes from being a cloud to his said property by payment of the said taxes thereon”; that, pursuant to such illegal, fraudulent, and wrongful assessment, the sum of $229.88, alleged taxes, is illegally, fraudulently, and wrongfully charged against this plaintiff and his ‘ ‘said premises’ ’ for the said year 1890; that this plaintiff has no adequate remedy at law ‘ ‘for the purpose of removing the cloud upon the title to his said premises”; that the alleged taxes now appear spread upon the tax roll of the county of Silver Bow for the year 1890, an'd are apparently legal and valid, and are upon the face thereof a lien upon the said property of this plaintiff and a cloud upon his title thereto; and that the said Thomas 17. Hinds, as treasurer aforesaid, threatening to take proceedings to enforce the collection of said taxes so illegally, fraudulently, and wrongfully assessed and levied, has advertised the same for sale, and intends to expose said property of the plaintiff for sale, at public tax sale, and to sell the same, for the purpose of collecting the whole sum of said taxes, thereby casting a further cloud upon the plaintiff’s title to his said property, to his (the plaintiff’s) great and irreparable injury and damage. From a plat attached to the complaint, it appears that lot 7 is about one block distant from the other lots mentioned.

To this complaint the defendants interposed a general demurrer. After a hearing upon the demurrer, the district court overruled it, and, counsel for defendants electing to stand on the demurrer, the court ordered judgment in favor of the plaintiff that a perpetual injunction issue restraining defendant Hinds and his successors from proceeding with the sale. From this judgment defendants have appealed.

The defendants insist that the complaint is not sufficient to sustain the judgment of the distinct court, because its allegations are defective in two particulars, to wit:

1. That it fails to allege a tender of any part of the taxes due for the year 1890; and,

2. That no relief was seasonably sought from the board of county commissioners of Silver Bow county, sitting as a board of equalization, for the purpose of correcting the assessment.

The assessment was made under the provisions of the Laws of the 15th Extra Session of 1887 (page 82), as amended by the Laws of 1889, 16th Session (page 219). Under amended section 11 of this act (section 1, Act of 1889), it was the duty of the taxpayer, upon demand by the assessor, to make out a statement under oath containing a list of all his property, for the purpose of taxation. Under amended section 15 (section 5, Act of 1889), it was the duty of the assessor thereupon to determine and fix the true value of all items of property in-eluded in such statement, and to enter the same opposite each item, so that, when completed, such statement should truly and distinctly show ‘ ‘the number of town or city lots, giving the description and the value thereof.5 ’ Section 22 provided that upon the completion of the roll by the assessor, and on the third Monday of September, and from day to day thereafter, the board of commissioners of the county should sit as a board of equalization, ‘ ‘and any person feeling aggrieved by any valuation or amount of property listed, or by any other fact, appearing on such assessment, may apply to such board for the correction thereof.5 ’ The board was authorized thereupon to make such correction.

Questions arising out of assessments made under the provisions of this statute have been before this court in several cases, and we are of the opinion that the precise one involved in this case has been settled adversely to the plaintiff. In Northern Pac. Railroad Co. v. Patterson, 10 Mont. 93, 24 Pac. 704, an injunction was sought to restrain a sale of lands for taxes delinquent for the year of 1889. A part of the lands was alleged to be exempt from taxation under the laws of the territory of Montana, and as to the ocher lands — -which were town lots — the allegation was that the assessment was void, because the valuation made thereon was in gross, and not in conformity with the provisions of the statute. This court held, after an examination of the adjudicated cases, that the complaint was bad, in that it failed to allege a tender of the taxes delinquent upon that part of the lands not exempt, this amount being apparent from the assessment, and also in that it failed to show that the plaintiff had applied to the board of equalization to correct the errors complained of. The question arose in that case on demurrer. The same question was again presented, with others, in Ward et al. v. Board of Commissioners of Gallatin County, 12 Mont. 23, 29 Pac. 658. The treasurer o.f Gallatin county had sold the lands of the plaintiff for taxes delinquent for the year 1889. These lands, owned in separate parcels, not adjoining, had been assessed and valued in a lump sum, together with certain personal property. The whole amount of the lands had been sold for the taxes due upon them, and also upon the personal property. The time for redemption having expired, the treasurer was about to issue his deed to the purchaser. Suit was brought to set aside the sale and to enjoin the issuance of the deed. The complaint was by the lower court held bad on demurrer, and upon appeal to this court the judgment was affirmed. Chief Justice Blake, approving Northern Pac. Railroad Co. v. Patterson, supra, uses the following language: “The principles which were laid down in Northern Pac. Railroad Co. v. Patterson are applicable, and the appellants could have obtained an adequate remedy on account of these irregularities by appearing before the board for the correction of the assessment roll.And again, in another part of the opinion: “We cite again the case of Ralroad Co. v. Patterson, supra, and hold that the appellants cannot invoke the aid of an injunction, when they do not offer to do equity by tendering any part of the taxes which they owe to the county of Gallatin and the state. ” We agree with the conclusion reached that a court of equity will not grant relief to a taxpayer when the only ground alleged to invoke its aid is an irregularity in the assessment. In Casey v. Wright, 14 Mont. 315, 36 Pac. 191, the plaintiff sought to, set aside a tax deed issued to the defendant by the treasurer of Custer County to lots 1, 2 and 3, block 81, of Miles City, and to have it removed as a cloud from his title. The ground of complaint was that these lots had been assessed in gross, and that in making the sale the treasurer had sold them in gross with other lots. This assessment had been made for the year 1888 under the act of 1887, supra, the provisions of which were substantially the same as those of the amended act. The district court sustained a general demurrer to the complaint, and this court affirmed the judgment, citing, with approval, Railroad Co. v. Patterson and Ward v. Commissioners, supra, upon the ground that the plaintiff could not be heard to complain of an irregularity in the assessment so long as no tender of the taxes j ustly due had been made, and no showing was made of injustice or injury to the plaintiff resulting from the assessment. In the subsequent case of First National Bank v. Bailey, 15 Mont. 301, 39 Pac. 83, the case of Railroad Co. v Patterson, supra, was again cited with approval upon the point that, where the plaintiff had failed to apply seasonably to the board of county Commissioners for the correction of an irregularity in the assessment, he was not entitled to any relief from a court of equity. This case arose upon an assessment made under the provisions of section 6 of the act of 1891, substantially' the same as the provisions of the act of 1887, cited supra. In the case under consideration the plaintiff does not avoid the consequences of the rule laid down in the cases cited. He fails to show that he attempted to have the irregularity complained of corrected by application to the tribunal provided by law for that purpose; nor does he allege any excuse for not doing so. This failure on his part is, in itself, sufficient ground for denying him the relief sought herein.

We think the complaint bad, also, on the ground that the plaintiff does not offer to pay taxes admittedly just and due to the county and state. He is adroit in attempting to evade the rule of the cases just cited by claiming that he has no way of determining the amount due upon lot 7 of block 18, because he cannot fix from the gross valuation of the lots the amount due thereon. It will be noted, however, that he alleges that he is the owner of this lot. He does not say whether he was also the owner at the time the assessment was made. Again, in another part of the complaint, he alleges ‘ ‘that it is impossible for this plaintiff, who is now the owner of said lot, * * * to remove said taxes, ’ ’ etc. From this condition of the pleading we are left to make the inference (and we think it a fair one) either that he was the owner of all the lots assessed in gross in 1890, or that he has purchased the one in controversy since that time. Inasmuch as no complaint is made of the assessment other than that the valuation was made in gross, we presume that the return was properly made to the assessor by the owner under the provisions of section 14, supra, and that it was the assessor’s fault that the valuation was made as it was. If the plaintiff was the owner of all the lots, and still is, he can easily know what it is incumbent upon him to pay, no matter what the irregularity of the assessment was. As no complaint is made that the tax imposed is unlawful or unjust, except upon the ground that the assessment is irregular, it is clear that he should pay the whole amount of taxes assessed. If he purchased from the owner after the assessment was made, and the burden was then upon the property, he cannot complain to this court that he has been wronged in any respect, — his remedy is against his grantor. To hold otherwise would be to say that the owner of the property could be excused from the performance of his duty by selling out his property to different purchasers, thus escaping liability himself, and clothing the purchasers with such equities that they can escape also. Again, if we are to infer that the plaintiff owned the lots at the time of the levy, but has since sold all but the one in controversy, he is still at fault, because he should pay the full amount of taxes due upon all. In any event, he is not in position to claim, as he does, that he should be excused from tendering the amount of taxes due.

It is further urged by the defendants that the demurrer should have been sustained under the provisions of sections 4023-4026 of the Political Code, prohibiting the issuance of an injunction to restrain the collection of taxes except in unusual cases, and providing a remedy'for cases where the tax is deemed to be unlawful. As we have already concluded upon other grounds that the judgment cannot be sustained, we do not deem it necessary to enter into a discussion of these provisions.

Plaintiff insists that the conclusion reached by this ccxrt in the cases cited, that an assessment in gross is a mere irregularity, is not supported by the weight of authority. We do not feel inclined to examine the authorities to determine the correctness of this claim. These cases were decided after such examination, and the rule laid down by them has become so well established in this jurisdiction that we do not feel disposed to disturb it, it being apparent that no substantial injury or injustice will result from observing the rule of stare decisis.

The judgment is reversed, and the cause is remanded to the district court, with directions to sustain the demurrer.

Peversed and remanded.


author: MR. JUSTICE HUNT,

text:
    MANHATTAN TRUST CO., TRUSTEE, Respondent, v. DAVIS, et al., Appellants.
    [No. 1,133.]
    [Submitted July 10, 1899.
    Decided October 24, 1899.]

      Foreign Corporations — Conditions Precedent to Transaction of Business — Papers Required to be Filed — In What Counties Necessary— Contracts — Penal Statutes— Construction.

    1. The requirements of Compiled Statutes 1887, Sections 442-444, that a foreign corporation shall, before doing any business of any kind within the territory, file certain papers with the recorder of the county where it intends to do, or is doing, business, and invalidating its contracts and imposing on it a forfeiture of a certain sum per day during the period of its neglect, and Section 445, requiring it to file an annual report in the county where its business is carried on, are complied with by filing the same with the recorder of the county where its principal office for doing business within the state is located, and filings need not be made in every county where it may transact any item of business.
    2. Forfeitures of contracts not immoral or against public policy are not to be declared unless the law under which the forfeitures are claimed is so clear and direct in language that it admits of but one construction by which the contract sued upon must be adjudged void and unenforceable.
    3. A statute requiring foreign corporations, before doing any business of any kind ' within the state, to file certain papers in certain public offices, and prescribing penal- ' ties against the corporation which attempts, or commences, to do business in the state without first having filed the necessary papers, is, in a sense appertaining to construction, a “penal-’ statute, and is to be construed strictly — not liberally.
    4. Under the rules of construction laid down in Section 539, Division I, and Sections 207, 208, Division V. Compiled Statutes 1887, words, which are repugnant to the context, and to the real object of a statute, will not be interpolated.

      Appeal from District Court, Missoula County/ F. II. Woody, Judge.

    Action by the Manhattan Trust Company, trustee, against Mary M. and Smith Davis. Judgment for plaintiff, and defendants appeal.
    Affirmed.

      Statement of the Case.
    Action to foreclose a certain mortgage. On November 10, 1892, the Northwestern Guaranty Loan Company, a Minnesota corporation, loaned to Mary M. Davis and her husband, appellants herein, $2,350, for which loan the corporation accepted the joint promissory note of appellants for $2,350, dated at Minneapolis, Minn., November 7, 1892, and due three years after date, with interest at 6 per cent, per annum. To secure the payment of this loan the Davises executed and delivered to the Northwestern Guaranty Loan Company a mortgage upon certain lots in the city of Missoula, which mortgage was recorded with the county recorder of Missoula county. Thereafter, on November 27, 1892, the Northwestern Guaranty Loan Company, for value, and in the regular course of business, transferred said note to the respondent herein, the Manhattan Trust Company of New York, as trustee, by indorsement before maturity, and by a written instrument on the same day duly assigned the said mortgage to the trust company, as trustee. Thereafter, in June, 1896, the said Manhattan Trust Company, as the indorsee of the note of the Davises and as the assignee of the mortgage, brought this action to enforce its claim by foreclosure of the mortgage above described. The plaintiff, by an amended complaint, averred in detail that the Northwestern Guaranty Loan Company, its predecessor in title, had strictly complied with all of the provisions of the constitution and laws of the state of Montana in relation to the terms and conditions upon which foreign corporations might transact and carry on business within the state of Montana, and that such compliance had been had prior to the mortgage loan involved herein. The allegation in respect to a compliance with the laws pertaining to foreign corporations was, in effect, that the Northwestern Guaranty Loan Company had filed in the office of the secretary of the state of Montana, and in the office of the county recorder of the county of Lewis and Clarke, in which county said corporation intended to carry on and transact business, a duly authenticated copy of its certificate of incorporation, and also a statement showing the name of the corporation, and the location of its principal office or place of business within the state of Montana, at the city of Helena, county of Lewis and Clarke. The allegation is also specific in relation to other matters embraced in the provisions of sections 442 and 443 of Chapter XXIY., Fifth Division, Compiled Statutes of Montana, (1887.) The amended complaint did not state, however, that any certificates, papers, or statements had been filed by the corporation in the office of the clerk and recorder of Missoula county, wherein the loan was made and the note and mortgage were executed.
    The defendants demurred generally and specially to the amended complaint. The demurrer was overruled, whereupon they filed an answer, the substance of which is stated as follows by defendants’ counsel in their brief: “Denying that the Northwestern Guaranty Loan Company had complied with the laws of Montana respecting foreign corporations, requiring them, before doing business within the state, to file certain papers, certificates and statements in the office of secretary of state, and of the clerk and recorder of the county wherein they intended to carry on business, and alleging that the Northwestern Guaranty Loan Company established an office in the city and county of Missoula, state of Montana, under the management of one Francis L. Ide, its agent and manager, and, in addition to the business done with these defendants, said Northwestern Guaranty Loan Company negotiated for loans with numerous persons in Missoula county, and maintained and conducted said place of business in Missoula county, and had numerous transactions with the citizens of Missoula county, but never, either before or since transacting said business, filed any certificates, or papers in the office of the clerk and recorder of Missoula county, such as were required by sections 442 and 443 of the General Laws of Montana (Compiled Statutes of 1887) with respect to foreign corporations doing business in the state, and because of such failure to file the said certificate the Northwestern Guaranty Loan Company was not authorized to do and transact business in Missoula county, and that therefore the notes and mortgage described in the complaint are and were void, and that the plaintiff is not entitled to recover therein; that the Northwestern Guaranty Loan Company was insolvent during the time it transacted business in Missoula county, and the people with whom it did business had no opportunity of knowing its financial condition, because of its failure to . file the certificates required by law in the office of the clerk and .recorder of Missoula county; and that the transfer of the mortgages, notes, etc., negotiated for by the Northwestern Guaranty Loan Company with the people of Missoula county, to the plaintiff, was made in fraud of the rights of the people with whom said transactions were had, and for the purpose of depriving them of the opportunity of making their just and valid defense thereto. ” On motion of plaintiff the court struck out the foregoing quoted substance .of defendant’s answer. Judgment was thereafter entered against the defendants, after the court had heard plaintiff’s proofs and considered defendants’ admissions.
    It was admitted in the district court by the appellants (defendants) that prior to the making of the loan, and prior to the acceptance of the note or mortgage, the Northwestern Guaranty Loan Company had filed in the office of the secretary of state, and in the office of the county clerk and recorder of the county of Lewis and Clarke, Mont., all of the papers required by the constitution and laws of the state to be filed by foreign corporations before doing business in the state, while the plaintiff (respondent) admitted that the Northwestern Guaranty Loan Company had not at any time filed any of said papers, or copies thereof, in the office of the county clerk and recorder of Missoula county, which was the county in which the Northwestern Guaranty Loan Company negotiated and contracted the loan. The defendants appeal.

      Messrs. Marshall, Ogden & Banft, for Appellants.

      Messrs. Toole, Bach <& Toole, and Mr. I. Pa/rker Veazey, for Respondent.'
   MR. JUSTICE HUNT,

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

When the mortgage herein involved was made, and when the note described therein was assigned, the statutory provisions prescribing what formalities should be complied with by foreign corporations before doing business within Montana were included in Chapter XXIV, Fifth Division, Compiled Statutes of 1887; so we have assumed that defendants are correct in their argument that the question for decision involves an interpretation of the statutes just referred to, and that Section 4 of an act to provide the conditions upon which foreign corporations may do business in Montana, approved March 8, 1893, repealing Chapter XXIV of the Compiled Statutes, is immaterial to the controversy. Accordingly, we must ascertain whether the mortgage sought to be foreclosed is void for the reason that the Northwestern Guaranty Loan Company, the original mortgagee, failed to file any of the papers specified in the foreign corporation statutes referred to, in the county of Missoula, where the loan was made, the corporation having theretofore filed the papers required to be filed in the office of the secretary of state, and having also filed the papers, specified in Sections 442 and 443 of the statutes, in the office of the county recorder of Lewis and Clarke county, in which said county the corporation avers it intended to carry on and transact its business. The material parts of Section 442 are as follows:

“All foreign incorporations or joint stock companies, organized under the laws of any state or territory of the United States, or by virtue of any special act or acts of the legislative assembly of any such state or territory, or of any foreign government, shall, before doing any business of any kind, nature, or description whatever, within this territory, file in the office of the secretary of the territory, and in the office of the county recorder of the county wherein they intend to carry on or transact business, a duly authenticated copy of their charter, or certificate of incorporation, and also a statement, to be verified by the oath of the president and secretary of such incorporation, and attested by a majority of its board of directors, showing:
‘ ‘First. The name of such incorporation and the location of its principal office or place of business without this territory; and if it is to have any place of business or principal office within this territory, the location thereof. * *• * ”
The particular clause by which the appellants contend the mortgage is invalidated is as follows:
“Sec. 444. * * * Or if any foreign incorporation shall hereafter attempt or commence to do business in this territory without having first filed said statements and certificates required by this chapter, it shall forfeit to the people of Montana the sum of ten dollars for every day it shall so neglect to file the same, and all acts and contracts made by such incorporation, or any agent or agents thereof, during the time it shall so fail and neglect to file said statements and certificates, shall be void and invalid as to such incorporation. It shall be the duty of the district attorney of the county in which the business of such corporation shall be located to sue for and recover in the name of the people of the territory the penalty above provided, and the same, when so recovered, shall be paid into the treasury of such county for the use of the common schools therein. ’5

The consequences of attempting or commencing to do business without first having filed the statements and certificates are very severe, involving, as they may, a fine of $10 for every day’s neglect to file the papers, and the invalidity of the contracts as to the corporation. This may mean a very h.eavy fine, and the loss of rights to enforce contracts to recover immense sums of money loaned by a foreign corporation in the best of faith, and borrowed by citizens of the state who confess the justice of the corporation’s claims, but who refuse to pay the money borrowed for the reason that when the creditor corporation loaned the sum it had not complied with certain statutory regulations affecting foreign corporations. We do not mean to intimate a doubt of power on the part of the legislature of the state to prescribe regulations under which a foreign corporation can do business in the state, or to fix penalties for violations of such regulations— it is too well settled that a state has such a power — but we do say that, on principle, forfeitures of contracts not immoral or against public policy are not to be declared unless the law under which the forfeitures are claimed is so clear and direct in its language that it admits of but the one construction, by which the contract sued upon must be adjudged void and unenforceable. (Bishop on Contracts, Sec. 417.) The statute here relied upon by the defendants prescribes penalties against the corporation which omits to file the necessary papers. It is a penal law,- — not penal in the strict sense of being a criminal law, yet penal in the sense that a duty is imposed upon a foreign corporation before it can do business in the state, and a right conferred upon the citizens to claim a contract made to be invalid for the omission to perform that duty.

In Huntington v. Attrill, 146 U. S. 657, 13 Supreme Court 224, Justice Gray, for the court, said: “In the municipal law of England and America, the words ‘penal’ and ‘penalty’ have been used in various- senses. Strictly and primarily, they denote punishment, whether corporal or pecuniary, imposed and enforced by the state, for a crime or offense against its laws. (United States v. Reisinger, 128 U. S. 398, 402; 9 Supreme Court 99; United States v. Chouteau, 102 U. S. 603, 611.) But they are also commonly used as including any extraordinary liability to which the law subjects a wrongdoer, in favor of the person wronged, not limited to the damages suffered. They are so elastic in meaning as even to be familiarly applied to cases of private contracts, wholly independent of statutes, as when we speak of the ‘penal sum, ’ or ‘penalty’ of a bond. In the words of Chief Justice Marshall: ‘In general, a sum of money in gross, to be paid for the nonperformance of an agreement, is considered as a penalty, the legal operation of which is to cover the damages which the party in whose favor the stipulation is made may have sustained from the breach of contract by the opposite party.’ ' (Tayloe v. Sandiford, 7 Wheat. 13, 17.) Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal. ’ ’ And later on in the same opinion he wrote that a statute which imposed a “burdensome liability” on the officers of a corporation for their wrongful act might well be considered penal, “in the sense that it should be strictly construed;” yet that it was not penal in a sense that it could be enforced in a foreign state or country.

So, in a sense appertaining to construction, the statute is penal, and is to be so regarded. In Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. 554, the supreme court, in discussing the alleged liability of trustees of a corporation, formed for certain purposes under the laws of New York, for debts of the corporation, on failure to file the reports of capital and of debts required by a section of the statute of New York, said: “But, as we have already seen, the statute involved in this discussion is not a remedial- statute, to be broadly and liberally construed; but is a penal statute, with provisions of a highly rigorous nature, to be construed most favorably for those sought to be charged under it, and with strictness against their alleged liability. ’ ’

The decisions of this court have likewise characterized analogous statutes as penal. (Gans v. Switzer, 9 Mont. 408, 24 Pac. 18; Wethey v. Kemper, 17 Mont. 491, 43 Pac. 716; State Savings Bank v. Johnson, 18 Mont. 440, 45 Pac. 662; Giddings v. Holter, 19 Mont. 263, 48 Pac. 8.) Using the word, therefore, in its judicial sense, we affirm the doctrine that it is a penal statute, and is to be construed strictly, and not liberally — wherefore no construction should be adopted which prevents the collection of a debt confessedly justly owing to a foreign corporation, unless the court is constrained to pronounce its judgment in aid of a refusal to pay. (Eastern B. & L. Association v. Bedford, 88 Fed. 7.)

Section 442 requires a foreign corporation, before doing business of any kind, nature, or description whatever within Montana, to file in the office of the secretary of state, and in the office of the county recorder of the county wherein, it intends to carry on business, a duly authenticated copy of its charter, etc., and a verified statement showing, among other things, the location of its principal office or place of business, and, if it is to have a place of business or principal office within this state, the location thereof. It is also provided by subsection 6 that the corporation shall file at the same time, and in the same offices, a certificate consenting to be sued in the courts of this state, and that process may be served upon some designated person.

Section 444 relates to foreign corporations doing business in the state when the law was enacted, and requires that within four months after the publication of the act they should file in the office of the secretary of state, and in the office of the county recorder of the county wherein they are respectively doing business, the statement and certificate required to be filed by section 442, supra. Further on it is provided that, if any foreign corporation shall hereafter attempt or commence to do business in the state without having first filed said statements and certificates, all acts and contracts made by such incorporation during the time it so failed to file said papers shall be void and invalid as to such corporation, and the corporation shall forfeit to the people of the state §10 for every day that it has neglected to file such statements, and it is made the duty of the district attorney of the county in which the business of such corporation shall be located to sue for the penalty provided for.

Section 445 covers the filing of an annual report by foreign corporations, ‘ ‘which report shall be filed in the office of the county recorder of the county wherein the business of said corporation is carried on, and a duplicate thereof in the office of the secretary of state. ’ ’

In our judgment, the several foregoing provisions of the statute relating to the place wherein the corporation intends to carry on its business have reference to the location or place of doing business or principal office within the state, and not to every place where the corporation may transact any item of business therein, or in which it may do business subsequent to the first filings. Words concerning domestic corporations found in section 446 et seq., requiring a certificate to be filed in the office of the clerk of the county in which the business of the company shall be carried on, have been held to refer to the legal home of the corporation; and the reasoning which led the court in Gans v. Switzer, supra, to so hold, applies to similar expressions used throughout Chapter XXIY, pertaining to foreign corporations. The purpose of the legislation is to compel a foreign corporation desiring to avail itself of the privilege of doing business within the state to submit itself to the jurisdiction of the courts of the state, and to advise the public of its condition, so that those willing to deal with it may be informed of its affairs, by inquiring at the recorder’s office where its location has been taken up, and to punish those corporations which fail to comply with the law. Regulation is the primary policy of the legislation — and to make such regulations effective the penalties are imposed. But it never was intended that the statute could be easily invoked to prevent the enforcement of a contract which every principle of justice demands shall be upheld, if the law has been substantially complied with by the foreign corporation.

The law contemplates one filing with the secretary of state, and one filing with the county recorder of the county wherein the foreign corporation intends to carry on or transact business. If, for example, a foreign corporation expects to do its business in Dawson county, and its principal office is to be there, the requisite papers must be filed with the secretary of state, and with the county recorder of Dawson county. The statute requires these filings before doing any business of any kind, nature, or description whatever, and imposes a penalty for any attempt, even, or commencement, to do business in the state without homing first filed the statements and certificates required. Clearly, therefore, the statute contemplates and demands a full compliance with the law before even an attempt at business can be made. No subsequent filings are provided for; nor are subsequent acts to be done, as a condition precedent, to the right to do an extended business. This ' being true, the law has made no provision at all for the extension of a corporation’s business; but, if appellants’ argument is sound, a corporation could never extend its business beyond a single county it contemplated doing business in when it came into the state, unless at the time it filed its papers with the secretary of state it also filed like papers with every county recorder in the several counties of the state where its business might extend to. We do not believe the legislature contemplated any such policy, for, had they done so, they could easily have said that the papers provided for should be filed in each and every county in which the corporation intended to do business, or into which it might possibly thereafter extend its business. The words “the county” particularize that county where the corporation intends to carry on its business, while the words “each county” would mean every county in which they intended to do business, and, if extension was contemplated, a filing in every county into which extension might go would be essential, and all filings would have to be made before attempting to do business, or there could be no extension without violating the statute. It may be that the legislature assumed that a foreign corporation would do business in but the one county wherein it filed its statement and certificates. That is conjectural, however, and we shall not pursue the probability involved, but are thoroughly satisfied to hold to those rules of strict scrutiny which justify the reasonable and just construction by which the foreign and domestic corporations are put as near the same level as possible, where the purposes of the laws requiring the certificates and statements are substantially the same. (See Chapter XXV., Compiled Statutes of 1887.)

It is said that the word “county” should be read “county or counties,” in Section 442, under the rules of construction laid down in Section 539, page 201, First Division, and Sections 207, 208, page 649, Fifth Division, of the Compiled Statutes of Montana, and that when so read the legislative intent is made clear and may be effectuated. The sections cited require that when any subject, matter, party, or person is described or referred to by words imparting the singular number, several matters and persons shall be deemed to be included, unless it be otherwise especially provided, or unless there be something in the subject or context repugnant to such construction. The difficulty with this argument is that it requires the interpolation of words which, in our view, make the proposed amendment repugnant to the context, and to the real object of the statute as indicated above. For this reason we are unable to construe the statute as suggested.

The question before us has been decided by Judge Knowles, of the United States court, who reached the same conclusion we do, saying: “In looking at the 442d section of Chapter XXIY, Compiled Laws of Montana, it will be observed that foreign corporations are to make the statement and record required thereby ‘in' the office of the secretary of the territory, and in the office of the county recorder of the county wherein they intend to carry on or transact business,’ and the statement shall state the ‘principal office or place of business. ’ There is no requirement that the record shall be made in every county wherein the said corporation may transact any business. * * * As it does not clearly state or imply that a foreign corporation should make the statement specified in said Chapter XXIY in each county of the state before doing business therein, it should not be so construed. If the statute is complied with in filing the necessary statement in the office of the secretary of state, and in the county wherein the corporation has its principal office or place of business, it will be sufficient. ” (See Black v. Caldwell, 83 Fed. 883.)

The judgment is affirmed.

Affirmed.