text:
    YANK, Appellant, v. BORDEAUX, Respondent.
    [No. 1,136.]
    [Submitted July 11, 1899.
    Decided July 24, 1899. ]

      Fra/udulent Conveyances— Chonga of Possession— Contracts— Construction — Mining Lease — Rights of Lessee.

    1. Where a joint owner of personalty which is in the possession of another joint owner sells his interest, the purchaser’s failure to take possession does not, as against execution creditors of the seller, avoid the sale, under Civil Code, Section 4491, providing that every transfer of personal property by a person in possession or control of the property shall be conclusively presumed to be fraudulent, and therefore void, if not accompanied by an immediate delivery, and followed by actual and continued change of possession. Such presumption is to be indulged only where the person making the transfer has at the time the possession or control of the property.
    2. Where one of several joint owners of personalty sells his interest, the purchaser need not notify the other co-owners of the sale, in order to make it valid as against execution creditors of the seller.
    3. After plaintiff had purchased personalty in possession of third persons, it was seized by an officer under execution against the seller. In an action against the officer for the proceeds of its sale, held, that plaintiff’s failure to notify defendant and the seller’s creditors of the sale, prior to the levy, did not preclude his right to recover.

      Obiter: The general rule is that an attaching or execution creditor succeeds to and acquires only the rights of his debtor, while a purchaser for value and without notice may acquire greater rights and a higher title than his vendor possessed.
    4. The lessees of a mine agreed with plaintiff’s assignor to operate the mine, in consideration of plaintiff’s assignor furnishing all necessary supplies, the net proceeds of the ore, after milling, to he equally divided between the lessees and plaintiff’s assignor. Held, that in determining the net proceeds only the cost of smelting, and not the costs of mining, hoisting and handling the ore, should be deducted from the gross proceeds.
    5. Where plaintiff purchased ore of one who obtained it of the lessees of a mine, his title was not affected by a forfeiture of the lease after the ore had been mined, in the absence of evidence that such forfeiture carried with it the right to ore previously mined.

      Appeal from District Court, Silver Bow Countyy John Lindsay, Judge.

    Action by John Yank against T. J. Bordeaux, constable. From a judgment tor defendant, and an order overruling plaintiff’s motion for new trial, plaintiff appeals.
    Reversed.

      Messrs. Howell <& Harney, for Appellant.

      Mr. John W. Cotter, for Respondent.

      The transfer of personal property, not accompanied by an immediate delivery and an actual and continued change of ■¡possession, is, conclusively presumed to be fraudulent and -therefore void as against the creditors of the vendor. (Civil «Code, Sec. 4491; O'Gary v. Lowry, 5 Mont. 427, 431-32; Bunting v. Salts, 84 Cal. 168.) The mere fact that the appellant’s grantors had an undivided interest in the property 'Would not relieve appellant from the necessity of taking possession of the property and complying with the provisions of .Section 4491 of the Civil Code. Where one of two partners ¡sells to a third person his interest in a stock of goods belonging to the partnership, there must be an immediate delivery .and continued change of possession as required in the said section, o.r the sale will be void as to creditors. (Newell v. Desmond, 63 Cal. 242.) Section 4491 of the Civil Code applies to a sale of an undivided interest by a joint tenant of a .chattel in actual possession. {Brown v. Niel, Sheriff, 95 Cal. ■262, 30 Pac. 538.) If the property is so situated that the purchaser can take possession of it at pleasure, his failure to .do so renders the previous transfer void as to the creditors of the vendor. {Pierce v. Boggs, 99 Cal. 340, 33 Pac. 906.) If a debtor in anticipation of a judgment or ilaim against him .fraudulently conveys his property to another, who is privy to ■the fraud, with intent to hinder or delay his creditors who thereafter obtain judgments and levy executions on the property in the hands of the fraudulent grantee, such grantee can-mot recover the property from such judgment creditor or from ■the officer levying upon the same. (Greer v. Wright, 52 Amer. Dec.- Ill, Notes 113, 114 — 19; Marshall v. Buchanan, 35 ■Cal. 264.)
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The plaintiff, claiming to own an undivided one-half interest, amounting ¡to 1434.38, in certain ores treated at the Par,rot smelter, brought this action for damages against the defendant, who, as.constable, had levied upon and seized such ¿interest on exQcutions against the property of Pohndorf, Pearson and Thompson, in favor of their judgment creditors, and who, upon demand, refused to release the levy, or to pay the said amount to the plaintiff. The issues were tried by jury, and a general verdict for the defendant was returned. The plaintiff appeals from an order overruling his motion for a new trial and from the judgment.

For the purposes of the case, the facts to be considered in deciding the questions necessarily involved may be summarized as follows: On the 11th day of March, 1896, one Hughes and seven men associated with him, became the lessees for the term of 90 days of the West Elbe lode mining claim. On the same day a written contract was entered into between Hughes and his associates as parties of the first part, and Pohndorf, Pearson and Thompson, as parties of the second part, in which the parties of the first part described themselves as being lessees of the West Elba lode mining claim, and whereby it was agreed, among other things, that the parties of the first part should furnish the labor of eight men each day, and operate the mine, and the parties of the second part should provide all supplies and materials necessary to carry on the work; the net proceeds of the ore, after milling or reduction, to be divided equally, the parties of the first part to have one half and the parties of the second part the other half. From the 12th day of March to the 1st day of May, 1896, the parties of the first part were in actual possession of and working the mining claim, and whatever possession the parties of the second part had was merely constructive. On April 29, 1896, the parties of the second part, named in the contract, for a valuable'consideration sold and assigned to the plaintiff all their right, title and interest in and to about 20 tons of silver and gold ore then contained in the ore house and bins of, and extracted from, the West Elba mine, as well as their right and share in and to the net proceeds of the same as soon as it should have been milled or worked, as their interest appeared by the contract mentioned. After the delivery of the bill of sale to the plaintiff, his agent, in company with Pohndorf, went to the mine, where they found Hughes, who was the only one of the lessees on the surface. They notified him of the transfer, and read the bill of sale to him, requesting him to inform his associates that the transfer had been made, which Hughes promised to do. Hughes, Pohndorf and the plaintiff’s agent then went to the ore house, and identified and examined the 'ore in the bins, but the plaintiff did not at any time take actual possession thereof. Even if the. parties interested had desired to divide the ore, it was not susceptible of fair division, as it was of unequal grades, some portions of it going several hundred, and some only twenty, dollars to the ton. This ore was afterwards delivered by the lessees to the Parrot smelter, and while in the possession of the smelter, and between the 1st and 7th days of May, the defendant, as constable, levied upon one-half of the net proceeds of the ore as-the property of Pohndorf, Pearson and Thompson, under executions against their property, issued upon judgments rendered in actions brought by three of the lessees to enforce claims in existence when the assignment to plaintiff was made. The proceeds of. the ore, after deducting the charges for its-treatment, amounted to $868.76, one-half of which the defendant, by virtue of the writs in his hands, collected from the Parrot company as belonging to Pohndorf and others. While the net proceeds claimed by. the plaintiff were in the possession of the defendant, and before he had applied any thereof towards the satisfaction of the .judgments, the plaintiff demanded the release of the money, and requested the defendant to pay it to him, which the defendant refused to do. In the view we take of the case, the other evidence need not be stated.

Section 4491 of the Civil Code declares that ‘ ‘every transfer of personal property * * * is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession.” The theory of the court and oí the counsel for the defendant was that this section applied to the facts disclosed by the evidence, and the jury were accordingly instructed that, if the ore had been broken, and hoisted out of the mine,- and was in the bins, at or before the time of the transfer by Pohndorf, Thompson, and Pearson to the plaintiff of their interest in the ore, and the plaintiff did not take and retain the actual and continued possession thereof thereafter, then the sale to the plaintiff was void, and the verdict must be for the defendant. The theory of the court was wrong, and the instruction erroneous. The conclusive presumption that a transfer of personal property, in the absence of an immediate delivery and actual and continued change of possession of the subject of the transfer, is fraudulent and void as to the creditors’ of the person making the-transfer, is to be indulged only where the person making the transfer has at the time- the possession or control of the property. The presumption does not arise from want of immediate delivery unless the seller or assignor had at the time possession or control of the thing sold or assigned. Pohndorf, Thompson, and Pearson were the owners, in common with Hughes and his associates, of certain ore in bins situate upon the West Elba mining claim. They transferred their title and interest to the plaintiff. At the time of the transfer they were not in possession or control of the ore, but their co-owners were then lawfully in the actual possession and control of the common property, and so remained until it was sent to the smelter for milling and reduction. Under such circumstances, a sale by a tenant in common may not be avoided by creditors upon the ground that the chattel was not delivered to the purchaser, for, as Mr. Freeman expresses the rule of law. in Section 167 of' his work on Co-Tenancy and Partition: “If A. and B. together own personal property, of which A. is in actual possession, and B. sell his moiety to C., the possession of A. immediately becomes the possession of C. also. Therefore, being at once, by presumption and construction of law, put in possession as tenant in common with A., it is not necessary that C. should take actual possession with A. to make his purchase good under the statute of frauds as against the creditors of B. If A., the co-tenant in possession, had sold his interest, then the sale should have been followed by an actual change of possession, because there was no co-tenant whose actual possession could have operated for the benefit of A.’s vendee.” And in Section 153 of his treatise on Executions: . “The sale by one of several joint owners also furnishes an exception to the rule that there must be a change of possession. If the co-tenant selling is in the sole possession, he ought to give possession to his vendee; but, if the other co-tenants are in possession, the vendor has no right to take it from them. He may, therefore, from necessity, make a valid sale without placing the property in the custody of his vendee. ’ ’ The distinction pointed out is recognized in California, from the statutes of which state Section 4491, supra, was adopted. (Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538.) Additional reason for applying this rule to the case at bar lies in the fact that the several portions of the ore differed so greatly in value as to make a division impracticable without defeating the design of the owners, and working injustice to some of them. Eor practical purposes, the ore was indivisible. In Brown v. Graham, 24 Ill. 628, the court-say: “Property indivisible in its character, owned by tenants in common, is incapable of a several possession by each tenant. It therefore follows that the possession of one of the defendants is a constructive possession of the others. And when one of the joint owners, not in the actual possession, sells his interest in the property, the purchaser succeeds to all of the rights of his vendor, as held by him, without an actual delivery of possession. He, by such a purchase, becomes a tenant in common, and the possession of his co-tenant is constructively his possession. It is, however, otherwise when the tenant in common, having the actual possession, makes a sale of his interest, as the possession must, in that case, to be valid as against creditors and purchasers, accompany, and remain with, the title.”

Whether or not Hughes informed his mining partners of the assignment made to the plaintiff is, as matter of law, immaterial. Our attention has not been drawn to any rule of law requiring notice to be given to co-owners in actual possession of the common property of a sale by co-owners whose possession is merely constructive. We do not think that the omission of notice avoids such sale as to creditors of the vendors, and hence we do not decide whether the notice given to Hughes served as a notice to his associates.

The jury were instructed that, if the plaintiff had not, prior to the levy, notified the defendant and the attaching creditors of the sale to the plaintiff of a half interest in the ore and its net proceeds, the verdict should be in favor of the defendant. This was prejudicial error. Whatever may be the correct rule as to the necessity, in some cases, of giving notice in order to complete a transfer, or to protect or make secure the title of a vendee or assignee, as against a subsequent good-faith purchaser or assignee of the same chattel or interest therein, or of the same chose in action, — a subject upon which the courts hold divergent views (see Graham Paper Co. v. Pembroke [Cal.] 56 Pac. 627), — it is not applicable to the facts of the case at bar. Subject to certain exceptions, none of which is presented in this case, the general rule is that an attaching or execution creditor succeeds to and acquires only the rights of his debtor (Reynolds v. Fitzpatrick, 23 Mont. 52, 57 Pac. 452; Oppenheimer v. Bank, 20 Mont. 192, 50 Pac- 419; McAdow v. Black, 4 Mont. 475, 1 Pac. 751), while a purchaser for value and without notice may acquire greater rights and a higher title than his vendor possessed (Pomeroy, Equity, Jur. Sec. 698). Had the defendant, prior to notice of the plaintiff’s claim, paid over the money collected under the levy, the plaintiff would doubtless be without remedy against him. It is plain, however, that notice to the defendant of the sale while he held the funds under the writs was sufficient to save and protect the right of the plaintiff thereto.

That the sum of $434.38 was one-half of the net proceeds of the ore was not controverted on the trial. Moreover, the funds levied upon were net proceeds, within the meaning of the contract between Pohndorf and others and Hughes and others. Hughes and his associates were to furnish and pay for the labor, while Pohndorf, Thompson, and Pearson were bound at their own cost to furnish all things necessary to the proper working and operation of the mine; and the net proceéds of the ore after milling or reduction were to be equally divided. So the contract provides. It is therefore apparent, at least in the absence of evidence' in respectbf pbssible outlay incident to delivery at the smelter, that the expression i(net proceeds” was employed and understood as signifying th¿' avails of the ore, less charges of milling and reduction only.' The instructions of the court to the effect' that the burden was upon' the plaintiff to show that there were net proceeds, and that the term meant net value of the ore after deducting all proper charges for ' mining, hoisting, handling, and smelting and reducing it, were misleading, confusing and erroneous.

Another instruction was to the effect that if, at the time the defendant levied upon the proceeds of the ore, ‘James A. Murray, one of the owners of the said claim, had forfeited the said lease, and thereupon the said Carston, Wallin, and Olson commenced suits against the said Pohndorf, Thompson, and Pearson to recover the amounts due them, the lease had been canceled and forfeited, the said Pohndorf, Thompson, and Pearson had no right to the net proceeds of the said ore, and you should find a verdict in defendant’s fav- or. ” With respect to this instruction, it is sufficient to say therb was no evidence tending to show that the right of Pohn'dorf, Thompson, and Pearson' to' a share of the ore already mined, and its net proceeds, would be lost or impaired by the act of the owner of'the claim in'declaring or enforcing a forfeit'ur'e of the léase made to Hughes and his mining partners.

Under the instructions of the court "the jury were in duty bound to find for the defendant, whereas wé are constrained to believe that the evidence tended strongly arid without contradiction to establish the plaintiff’¿'right fo'récover. ‘ There was not even a suggestion of, nor was an effort made to show, any fact or circumstance casting doubt upon the genuineness, the validity, or the bona fieles of the assignment to the plaintiff.

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

Reversed and rememded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE WELLCOME.
    [No. 1,401.]
    [Submitted July 28, 1899.
    Decided August 1, 1899.]

      Attorney — Disbarment—Materiality of Evidence as to Failure of Criminal Prosecution — Bribery of Legislator — Sufficiency of Attempt at Criminal Prosecution— Verification of Accusation.

    1. In disbarment proceedings grounded on an alleged bribery, an affidavit stating the existence of prejudice in favor of the accused in the county where criminal proceedings were attempted against him is immaterial, when it does not state that the failure of the criminal proceedings was due to this prejudice.
    2. Where evidence tends to show that an attorney has been guilty of bribing a legislator, it is sufficient to justify disbarment proceedings, although the act was done in his private, not in liis official, capacity.

      Obiter: A lawyer who is guilty of willful bribery of members of the legislature is unworthy of the honors and responsibilities accompanying the office of an attorney and counselor at law.
    3. In disbarment proceedings based on alleged bribery of a legislator, it appeared that a grand jury had been called to investigate the bribery by the accused; that they had examined witnesses, and failed to find an indictment; that thereupon the attorney general stated to the court that there were grounds for indictment, and asked for another grand jury, which was refused. No further criminal proceedings were instituted. Held, that this attempt at criminal prosecution was sufficient to justify the investigation of the charges by the Supreme Court as grounds for disbarment’.
    4. It is not necessary that, as a condition precedent to the exercise of the jurisdiction of the Supreme Court in a disbarment proceeding, repeated efforts be made to secure an indictment for crime, or that unusual and extraordinary procedure be invoked under the Criminal Code; it is sufficient to justify the institution of disbarment proceedings in the Supreme Court, if the ordinary and usual forms of the criminal practice and procedure have been pursued.
    5. ’ Under Code <jf Civil Procedure, Section 420, providing that an accusation must be verified by an oath that the charges therein are true, an accusation in disbarment proceedings wherein some of the charges are verified only on information and belief, and others are positively sworn to, is partially valid, and will stand against an objection aimed at the entire accusation.

      In the matter of the disbarment of John B. Wellcome. Accused” objects to the sufficiency of the accusation.
    Overruled.

      Mr. Jesse B. Roots, Messrs. Carpenter <& Carpenter, and Mr. William Wallace, Jr., for accused.

      Mr. C. B. Nolan, Attorney General, amicus curiae.

   PER CURIAM.

— After our decision holding that this Court had jurisdiction to hear and determine the charges made against the accused herein, but that we would decline to inquire into the truth of the charges unless the accusation stated facts warranting the exercise of our jurisdiction, and which 'were not stated in the accusation considered on the former hearing (ante p. 140, 58 Pac. 45), the attorney general filed affidavits stating the grounds upon which he asks the interposition of this Court. The affidavit of the attorney general is as follows:

‘ ‘Affiant shows that during the session of the last legislative assembly, and bearing upon the corrupt use of money to influence the action of the members of said legislative assembly in voting for a United States senator, testimony was given before a legislative1 committee appointed for the purpose of hearing testimony regarding rumors as to the corrupt use of money, and that on the 10th day of January, 1899, a report was made by said committee, at a joint session of the legislative assembly, in which report was incorporated the testimony of Fred. Whiteside, W. A. Clark, Henry L. Myers, members of said legislative assembly, and A. J. Campbell; that upon the presentation of said report, a resolution was duly moved, seconded, and adopted by said joint assembly, which said resolution is as follows:
‘ ‘ ‘Resolved, By the house of representatives in joint assembly with the senate, that the evidence submitted to the joint assembly by the joint committee of the senate and house is sufficient to convict the persons therein named of the crime of bribery in any district court of this state, and therefore we request that the judge of the district court of the First judicial district in and for the county of Lewis and Clarke call a session of the grand jury in said district to take up and examine into the matters stated in said report, as they would in any other case of alleged crime against the peace and dignity of the state. ’
“That on the 12th day of January, 1899, the Honorable Sidney H. Mclntire, judge of the district court of the First judicial district, deeming occasion therefor, issued a call for a grand jury to investigate the charges of bribery reported in connection with the election of a United States senator, and that on the 14th day of January, 1899, a grand jury was regularly impaneled, and thereupon entered upon the performance of its duty; that from the said 14th day of January, 1899, with interruptions through adjournment, the said grand jury continued in session until the 26th day of January, 1899; that several witnesses were examined before said grand jury respecting the alleged use of money in the senatorial contest then pending.
“Your affiant says that he was present at all the sessions of said grand jury when witnesses were examined, and that there was also present at all of said sessions Odell W. McConnell, the duly elected, qualified, and acting county attorney of Lewis and Clarke county.
‘Your affiant further says that he conducted the examination of all of the witnesses touching bribery charges appearing before said grand jury, with the exception of .John B. Well-come, who was not examined by your affiant, and who, in the judgment of your affiant, considering the character of the testimony adduced before said grand jury, should not have been brought before said grand jury, as will appear further on; that all of the witnesses appearing before said grand jury were likewise examined by said Odell McConnell, and that the examination of Mr. Wellcome was conducted entirely by the said Odell W. McConnell.
“Your affiant further says that he made a stenographic report of the testimony given before said grand jury, and attaches hereto, in narrative form, all of the testimony adduced before said grand jury, except in the few instances where the • testimony appears by question and answer; that the testimony affixed hereto is correct, and represents substantially all of the testimony of any materiality adduced before said grand jury during its session until the time when the report hereinafter set forth was made by said grand jury, and the report thus made was based exclusively upon the testimony herewith: set forth.
‘“That on the 26th day of January, 1899, the said grand jury completed its investigation of said bribery charges, and reported to the said Hon. Sidney H. Mclntire, judge of the district court of the First judicial district of the state of Montana, in and for the county of Lewis and Clarke, as follows:
“ ‘In the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clarke.
‘ ‘ ‘In the Matter of the Grand Jury.
“ ‘To the Honorable Sidney H. Mclntire, Judge of the District Court of the First J udicial District of the State of Montana, in and for the County of Lewis and Clarke:
‘ ‘ ‘The grand j ury of Lewis and Clarke county, state of Montana, duly impaneled, sworn, and charged on the 14th day of January, A. D. 1899, herewith submit the following report of its deliberations upon the charges made by the committee of investigation appointed by the Sixth legislative assembly of the state of Montana, now in session:
“ ‘We have been in session ten days, and have examined forty-four witnesses, and have also examined all papers, documents, and other legal evidence touching the questions under consideration, and have had produced before us all witnesses who we had reason to believe could shed light upon the questions of bribery, perjury and conspiracy. In the interrogation of witnesses, and in the construction of the law appertaining to matters before us, we have been ably assisted by the attorney general and the county attorney of Lewis and Clarke county.
‘We have carefully weighed all the evidence submitted to us, and, while there has been some evidence which tends to show that money has been used in connection with the election of a United States senator, it has been contradicted and explained in such a way that all the evidence introduced before us, taken together, would not, in our judgment, warrant a conviction by a trial jury.
“ ‘While we have not finally concluded our labors, we deemed the investigation of the matters relating to bribery, perjury, and conspiracy of so paramount importance that a full report on these should be made before taking up other matters cognizable by us, and bringing in a final report.
“ ‘Respectfully submitted.
“ ‘C. F. Ellis, Foreman.’
“Your affiant respectfully shows and says that upon the presentation of said report he objected to its acceptance, and that in the event this report was final, so far as the investigation of bribery charges or the commission of conspiracy and bribery went, he asked that another grand jury be impaneled to take up the investigation of these bribery, perjury, and conspiracy charges. That, as an item of evidence, were thirty thousand dollars alleged to have been deposited with one Fred Whiteside, in consideration for which votes should be cast for W. A. Clark for the office of senator of the United States, and that, so long as said evidence had a physical existence, with all the participants, as shown by the testimony, appearing before said grand jury, an investigation which failed to make findings for bribery or perjury was incomplete.
“But your affiant says: That, respecting his said application to secure a further and more effective investigation, the Honorable Sidney H. Mclntire, judge of said court aforesaid, refused to impanel another grand j ury, and received said report as a final report, so that no further investigation was conducted by said grand jury then impaneled respecting those bribery charges.
“Respecting the proceedings had upon the submission of said report, the minutes of the court, of date January 26, 1899, read as follows:
“ ‘The grand jury came into court this day, and, upon being called, all answered to their names. Whereupon the court asked if they had anything to report. Whereupon the foreman of said grand jury, in the presence of the grand jury and in open court, presented to the court a partial report in writing. Whereupon the said partial report was read by the clerk by order of the court. Whereupon the attorney gener-. al of the state of Montana addressed the court in reference to said report, objecting to the receipt of same, and requesting the court to impanel another grand jury. Whereupon the court ordered that the said partial report of the said grand jury be received and filed, and the partial report was then and there duly filed by the clerk, and thereupon the grand jury retired to their room to continue their labors. ’
“That no further investigation was had by said grand jury, until finally discharged, of the charges of bribery, perjury, and conspiracy consequent upon the alleged use of money as hereinbefore set forth.
“Your a [Bant further says that no information has been filed against the said John B. Wellcome, charging him with the crime of bribery or any other offense, and there is not now pending in any court, so far as your affiant is informed, any charge for any acts of bribery alleged to have been committed by him as set forth in the petition for disbarment now on file in this court.
“That during the sessions of said grand jury the question of the propriety of securing the presence of John B. Wellcome before said grand j ury to testify arose, and your affiant verily believed that some risk attached to his being compelled, through the process of the court,"to appear before said grand jury, in the event an indictment was found against him. Section 200 of the Penal Code of the state of Montana provides as follows:
‘ ‘ ‘A person offending against any provision of any section of this Code relating to bribery is a competent witness against other persons so offending, and may be compelled to attend and testify on any trial, hearing, proceeding or investigation in the same manner as any other person, but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted shall not thereafter be liable to indictment, prosecution or punishment for that bribery, and may plead or prove the giving of testimony accordingly in bar of such indictment or prosecution. ’
“Notwithstanding the risk attendant upon the presence of John B. Wellcome before said grand jury, and of his testifying regarding bribery charges then under investigation, by reason of the provisions of this section, the said Wellcome was subpoenaed to appear, and did appear, before said grand jury, and was examined as a witness respecting said bribery charges; and further affiant saith' not.”

•The attorney general filed with his own affidavit one made by Fred Whiteside, in which affiant says that in the senatorial contest had during the session of the Sixth legislative assembly of the state of Montana, in 1899, the people of the county of Lewis and Clarke, which is the county in which the seat of government is situate, “were overwhelmingly favorable to the candidacy of W. A. Clark’ ’; that the reason for this sentiment was that the people of said county “felt that they were discharging an obligation due to the said Clark on account of the assistance rendered to the said county of Lewis and Clarke in the selection of the city of Helena as the state capital, and that any means which would. accomplish the election of said W. A. Clark were justifiable against the opposition which was offered to his election.” Affiant further says that the sentiment of said county was that no indictment should be found against Wellcome, even though he was guilty of the acts of bribery alleged to have been committed by him, that the press and public sentiment indicated opposition to an indictment against Wellcome; and that the sentiment then existing has not abated to any appreciable extent.

Some 24 different counter affidavits were filed in behalf of the accused. These affidavits, for the most part, were made by residents of Lewis" and Clarke county, Mont. Affiants therein stated that there never was at any time during the senatorial contest a sentiment among the people of Lewis and Clarke county that any means were justifiable which would result in the election of W. A. Clark as United States senator, and that the people did not feel that any improper means would be justifiable against the persons who were opposed to his election; and, further, that there never was any sentiment against the finding of indictments by the grand jury empaneled in the district court of Lewis and Clarke county to investigate the charges of bribery, fraud, and conspiracy, but, on the contrary, there was a strong wish and an expressed desire that justice should be done; that neither the press of the city of Helena, nor the people of said city, expressed opposition to the finding of an indictment, but, on the contrary, the general feeling was that the grand jury should and would do its duty, and that a full, fair, and impartial hearing would be given to any case presented; and that the sentiment at that time prevailing has not changed, and affiants believe that full justice can be had in the courts of Lewis and Clarke county.

The Honorable Sidney H. Mclntire, one of the judges of the district court of the First judicial district of the state, made the following affidavit, which was also filed in behalf of the accused:

“I am one of the judges presiding in the First judicial district court in the state of Montana, and the one who acted in the matter of the grand jury proceeding referred to in the affidavit of the attorney general filed herein. When the request was made by the attorney general that I call another grand jury to investigate the charges of bribery, the partial report of the.existing grand jury was before the court for acceptance or rejection. In this particular report that grand jury stated, in substance, that all the evidence produced before them was insufficient, in their judgment, to justify the finding of indictments by the grand jury, or conviction by a trial jury. No showing, by evidence, affidavits, or otherwise, in support of his request, was made by the attorney general, either to the effect that indictments should have been found by that grand jury, that under the evidence available another grand jury would find indictments, or that by corruption or disregard of their oath the then grand jury wrongfully refused to find indictments in the face of sufficient evidence. I regarded the report of the then grand jury as final and conclusive upon the matters investigated by them, in the light of the showing made before me. No valid reason was suggested why the matters should be submitted to another grand jury upon the same evidence, and I refused the attorney general’s request. ’ ’

Counsel for the accused have filed their objections to the sufficiency of the accusation and the affidavits in support thereof on the following grounds:

“(1) They fail to show that all means to set in motion the machinery of the criminal law have been exhausted in the county or district having jurisdiction of the alleged offenses, in this:
(a) ‘ ‘The request was for resubmission to another grand jury, and made before the one then acting had made final report or been discharged, a,nd was made on no other showing than the partial report itself.
(b) ‘ ‘It does not appear that any request for order of resubmission was ever made to the other presiding judge of the First judicial district, to whom, by rule of court, is generally confided the criminal business in the district..
(c) ‘ ‘It does not appear that any request has ever been made of either judge for an order directing the county attorney to file an information.
(d) “There is no charge that either judge or the county attorney would not fully discharge all official duty, if called on to act.
(e) ‘ ‘The showing discloses that Judge McIntyre fully discharged every official duty devolving on him in the matter.
(2) “The Whiteside affidavit is immaterial, as neither the community nor the public prefers an accusation of crime, or orders its preferment, and the state has a perfect right to change the place of trial to another locality when general prejudice is shown to exist.
(3) “The ‘synopsis’ attached to the Nolan affidavit may not legally be disclosed or considered on this hearing. Said synopsis does not purport to be the whole evidence, or the substance thereof, but only the substance of so much thereof as the affiant, Nolan, considered, in his judgment, material. The evidence in said synopsis discredits itself.
(4) “The said synopsis of evidence is no stronger than, and lends no additional force to, the direct accusations of Whiteside, already before the court, and gives no additional reason for taking jurisdiction.
(5) “The presence of Wellcome before the grand jury is no bar to a further criminal prosecution.
(6) “The grand jury’s action is no bar either to a resubmission to another grand jury or to the filing of an information.
(7) The verification is insufficient.”

The accused also moves the court to strike from the affidavit of Nolan, filed in support of the accusation, the exibit denominated “Synopsis of Evidence before Grand Jury,” on the following grounds:

(1) “The ‘synopsis’ attached to the Nolan affidavit may not legally be disclosed or considered on this hearing.
(2) “Said synopsis does not purport to be the whole evidence, or the substance thereof, but only the substance of so much thereof as the affiant, Nolan, considered, in his judgment, material.
(3) ‘ ‘The evidence in said synopsis discredits itself. ’ ’

The question which we shall briefly consider and decide is, does the showing now made in support of the accusation present reasons sufficiently cogent to warrant and to require us, in the proper exercise of our discretion, to take jurisdiction by proceeding to inquire into the charges made against the accused, a member of the bar of this court? We agree with counsel for the accused that the affidavit of Whiteside, stating that there was a prejudice in the city of Helena and county of Lewis and Clarke in favor of the election of Clark as United States senator, and against the indictment of Wellcome for alleged acts of bribery, is not material to this motion. White-side does not say that the grand jury which investigated the charges of bribery were moved by this local sentiment, or that the grand jury were corrupt or acted from improper motives, or that the judge of the district court was in any way or at all so affected, or was influenced in any degree by it. We have therefore eliminated the entire matter of alleged prejudice or sentiment from our consideration.

The record before us, then, shows the following condition of affairs: It shows that the matter of the alleged bribery of members of the legislature in connection with the election of a United States senator was inquired into by a grand jury called by the Honorable Sidney H. Mclntire, judge of the district court of the First judicial district; that the grand jury made a report, stating that they had examined áí witnesses, and various papers, documents and other legal evidence, touching the charges of bribery of members of the legislature, and had considered all the evidence that they believed could shed any light upon the questions of bribery, perjury or conspiracy, but that they had not sufficient evidence before them, in their judgment, to warrant a conviction by a trial jury, and that for these reasons, presumably, no indictment was found or presented. It next appears that the attorney general, at the time that the grand jury made its report consequent upon their investigation upon matters relating to alleged bribery, perjury and conspiracy, asked the court to impanel another grand jury to take up the investigation of these same charges; accompanying the request with the statement that, as an item of evidence, there were %30,000 alleged to have been deposited with Whiteside in consideration of votes to be cast for Clark for senator, and that so. long as this evidence existed, and with all of the participants appearing before the grand jury, as shown by the testimony, their investigation, which resulted in no findings of bribery or perjury, was incomplete. The judge of the district court refused to impanel another grand jury, and ordered the partial report as made by the grand jury to be filed, and directed the grand jury to retire and continue their labors. No further investigation was had respecting the bribery charges, and no further proceedings have been instituted under the criminal statutes of the state, charging Well-come with bribery or any other offense; nor is there pending now in any court any charge for any acts of bribery alleged to have been committed by Wellcome, as set forth in the petition for disbarment filed in this court.

In our opinion, it matters not what the reasons were which moved the judge of the district court to deny the request of the attorney general to impanel another grand jury. Assuming that the motion was addressed to his discretion, whether or not he acted wisely or unwisely is not of importance. The fact that he declined to act is material, however, and has been considered of .significance by us. The evidence heard by the grand jury, and which accompanies the showing now made by the attorney general, is also material. The failure to lay this evidence before the lower court when it was asked to call another grand jury cannot control the exercise of our discretion in this original proceeding to disbar. The office of that testimony in this court and at this time is to support the application of the attorney general by furnishing reasons why we should, in our discretion, hear these charges, to inquire into the truth of which we have original jurisdiction. For this purpose the evidence is competent. And we are cited to no statute or decision against its use for such a purpose. We have examined the evidence. It tends strongly to show bribery of members of the legislature or conspiracy. If it is true, and there was bribery, it tends further to directly inculpate Wellcome, a member of the bar of this court. On the other hand, if.it is untrue, Wellcome is entirely exculpated by the necessary conclusion from the evidence that there has been a conspiracy which implicates others in grievous crimes. It must be laid down as a reiteration of our former decision that a lawyer who is guilty of willful bribery- of members of the legislature is unworthy of the honors and responsibilities accompanying the office of an attorney and counselor at law; and if, after fair, impartial, and searching investigation, a lawyer be clearly proven guilty of such an offense, it is due to the profession, and to the courts of which he is an officer, and to the state, that his license to practice be revoked, or that he be suspended from the performance of the duties of his high office for a stated period of time. Lord Chief Justice Cockburn, in In re Hill, L. R. 3 Q. B. 543, said: “When an attorney does that which involves dishonesty, it is for the interest of the suitors that the court should interpose and prevent a naan guilty of such misconduct from acting as attorney of the court. * * I should add, there is one consideration I omitted, and which I think is entitled to great weight. It is that put to us in the course of the discussion, namely, that if these facts had been brought to our knowledge upon the application for this gentleman’s admission, we might have refused to admit him; and I think the fact of his having been admitted does not alter his position. Having been admitted, we must deal with him as if he were now applying for admission; and as, in the case of a person applying for admission as an attorney, we should have considered all the circumstances, and either have refused to admit or have suspended the admission for a certain - time, so, where a person has once been admitted, we are bound, although he was not acting in the precise character of an attorney, to take notice of his misconduct. ’ ’

In line with the view of the English judges is the following argument of Chief Justice Whipple in In re Mills, 1 Mich. 394, where he said: “If our courts are restricted to the causes set forth in the statute, there. would seem to be a lamentable defect in our laws. The words ‘deceit’ and ‘malpractice’ in the statute have direct reference to the conduct of an attorney, as such attorney; and, if the authority of our courts to remove or suspend an attorney is to be thus restricted to official .delinquencies, it follows that, however degraded his moral character may be, — whatever fraud or deception he may be guilty of, — if such fraud or deception is unconnected with his professional acts, he is deemed worthy of a place at the bar. In other words, an individual may be guilty of acts which involve a violation of every moral precept, and yet retain our license and practice in our courts, provided these acts were committed in his private, and not official, capacity. If it is of consequence to the community that those who are in any way concerned in the administration of justice should possess a reputation unstained by those vices which in their nature tend to degrade and corrupt, then is it important that a power should be lodged in some tribunal to purge the bar of such as may have become the victims of such vices. That no person can faithfully and honorably discharge the delicate and responsible duties of an attorney, unless fortified by strong moral principles, is too clear for argument. The nature of those duties necessarily implies the possession of high moral character, in order to their conscientious performance. This our statute contemplates, for it is only those who are ‘approved by the court for their good character’ who are permitted to wear the honors and bear the responsibilities of an attorney. If it fie neccessary, to gain admission to the bar, that a person should furnish the evidence of ‘moral character, ’ as required by the twenty-seventh section, how infinitely greater the necessity that he should actually possess that character when he shall have entered upon the active and exciting theater of professional life, where he is beset at every moment by .temptations well calculated to test the firmness of his principles.” See, also, Baker v. Com., 10 Bush 592; Smith v. State, 9 Tenn. 1 Yerg. 228; State v. McClaugherty, 33 W. Va. 250, 10 S. E. 407; In re Blake, 3 El. & El. 33; In re O-, 73 Wis. 602, 42 N. W. 221.

It is not necessary that, as a condition precedent to the exercise of the jurisdiction of this Court in a disbarment proceeding, repeated efforts be made to secure an indictment for crime. Nor will we hold that it is requisite that the attorney general appeal several times to one judge, or one time to several judges, to impanel a grand jury to investigate charges of bribery, where there has been an investigation into the very charges which are made the foundation for disbarment proceedings by a grand jury duly impaneled under the forms of law, and specially directed to inquire into the truth of such charges.

We did not hold, and we shall not now decide, that unusual and extraordinary procedure be invoked under the Criminal Code before our jurisdiction will be exercised. It is disclosed by this record that the ordinary and usual forms of the criminal practice and procedure were pursued, by the investigation had by the grand jury called by Judge Mclntire. This, we believe, was enough to justify the institution of proceedings in the - Supreme Court. But, if it were necessary that further steps should have been taken, it affirmatively appears that they were pursued in this matter; for it was a somewhat unusual and extraordinary course that the attorney general adopted when he made his statement to the district court to the effect that there ought to have been an indictment for some crime, in the light of the evidence before the grand jury, and when he requested the court to impanel another, to the end that there might be a resubmission or re-examination into the charge.

Nor should our discretion be turned against hearing this matter because no further steps under the Criminal Code have been taken since the request for another grand jury was denied. Whatever argument can be fairly deduced from the inaction of counsel for the state since the grand jury made its report tends to lend additional support to the strength of the reasons why, in the light of the showing, this court should proceed at this time, for it would seem improbable that any criminal action will be had. This is not a criminal prosecution, nor an aid to a criminal investigation (Jackson v. State, 21 Tex. 668; Case of Austin, 5 Rawle 191), but is to ascertain if the accused is worthy of the confidence and is possessed of that good moral character which is a condition precedent to the privilege of practicing law;, and of continuing in the practice thereof. The case is extraordinary, — without parallel, so far as we are advised; but, as it is presented at this time, we conceive our duty to be to order the accused to answer the charges, and to require him to do so within 10 days from now.

The form of the verification of the petition is as follows:

“Fred. Whiteside, being first duly sworn, upon oath deposes and says, that he has read carefully the foregoing accusation against John B. Wellcome, and that the charges therein contained are true, except in those instances where the allegations are made upon the best information and belief of affiant; and as to such allegations thus made, he believes them tq be true. Fred. Whiteside.”

It is said that this form is insufficient, under Section 420 of the Code of Civil Procedure, which provides, “The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true. ” The objection of the accused is aimed at the entire accusation, and is clearly too broad, inasmuch as portions of the accusation consist of allegations positively made. It must therefore be overruled.

The court expresses the opinion that a more correct conclusion can be reached in the case by the justices hearing the testimony themselves, if it shall come to a hearing at all. The court will hereafter set a time for further proceeding.


author: MR. CHIEF JUSTICE BRANTLY, PER CURIAM

text:
    HILBURN, COUNTY TREASURER, Respondent, v. ST. PAUL, M. & M. RAILWAY CO. et al., Appellants.
    [No. 1,360.]
    [Submitted June 28, 1899.
    Decided October 9, 1899.]

      ■ Taxation — School Taxes — Submission to Voters — Statutes— Conflicting Provisions — Statutory Construction — Interpretation.

    1. Courts will sustain the acts of the legislature in every case in which it is possible to do so under the recognized rules of interpretation. It is only where, after an act of the legislature has been subjected to the test of all the standards of interpretation, the intention cannot be discerned, or the means of carrying it out are not provided or are inadequate, or it is so conflicting and inconsistent in its provisions that it cannot be executed, that it will be declared inoperative and void.
    [Decided October 30, 1899.]
    2. Political Code, Section 1940, as amended by Act of March 8,1897, and numbered as Section 1940 b, providing for the submission to the voters of the district of the question whether school taxes, not to exceed 10 mills on the dollar, should be levied, which requires a notice stating the amount to be raised, but which does not provide for a determination of such amount, before the submission of the question, and which provides, in mandatory terms, for a form by ballot in which the rate, but not the amount, is to be inserted, is inoperative and void, since it contains conflicting provisions, with no means of carrying either into execution.
    3. Under Political Code, Section 5162, providing that, if the provisions of any title therein conflict with the provisions of any other title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title, Section 1940, as amended by Act of March 8,1897, and numbered as Section 1940b, contained in Title III, relating exclusively to “Education,” which provides for the levy of school taxes on a different basis of taxation than that provided for other taxes in Sections 3670-4083, in Title X, relating to “Revenue,” but which contains no provision for the collection of the tax, or by which the roll on which such tax is computed can get upon the regular assessment roll of the county, provided for in Title X, is inoperative and void.
    ON MOTION FOR REHEARING.
    1. The rule, in construing statutes, that, where it is manifest on the face of the act that an error has been made in the use of the words, the court may correct it, and read the statute as corrected, to give it the obvious intent of the legislature, does not justify the court in reading such a change into a statute as that the effect will be to abrogate a specific provision made therein.
    2. It is the rule in regard to special taxes, that the various steps provided by law to be taken in laying them must be observed; and the record of the proceedings must show chat the provisions of the law have been complied with.
    3. The rules of construction: “That the contemporaneous and long-continued practice of officers required to;exeeute or take special cognizance of a statute is strong evidence of its true meaning,” and that, “if the legislature, by its inaction, has long sanctioned a certain construction, language apparently unambiguous may be given by the court such construction, especially if the usage has been public and authoritative.” are only applicable in a condition of things where vested rights have been acquired, and where for many years the construction insisted upon has been the rule of action; and to disturb it would be to work great public and private injury and inconvenience. They are inapplicable in a case where the practice has not become inveterate, and the terms of the statute are both ambiguons and conflicting with each other and with other provisions of law which they cannot be held to amend or repeal.

      Appeal from District Court, Flathead County; D. F. Smith, Judge.

    Action by Samuel Hilburn, as county treasurer of Flathead county, Mont., against the St. Paul, Minneapolis & Manitoba Bailway Company and Great Northern Bailway Company. There was a judgment for plaintiff, and defendants appealed.
    B ever sed.
    STATEMENT OF THE CASE.
    Action by the plaintiff, as county treasurer of Flathead county, to foreclose a lien claimed on account of special taxes levied in school districts Nos. 6, 17, 19, 21, 23, 26, and 15, in Flathead county, for the year 1897. The complaint sets forth seven separate causes of action. In the first 'cause of action, after setting forth the official character of the plaintiff and the corporate character of the defendants, it proceeds to allege substantially as follows: That on the first Monday of March, 1897, and during all that day, the defendant the St. Paul, Minneapolis & Manitoba Railway Company was the owner of 197.5 miles of roadbed, roadway, rails, and certain rolling stock, the assessed valuation of which was fixed for the year 1897 by the state board of equalization of the state of Montana, at the time and in the manner provided by law, at §4,600.00 per mile; that on the second Monday of September, 1897, the board of commissioners of Flathead county caused to be entered in the proceedings of said board an order stating and declaring the number of miles of said railroad in school district No. 6 of said county to be 62.65 miles, at the assessed value aforesaid of §4,600.00 per mile; that the defendant the Great Northern Railway Company, on the first Monday of March, 1897, and during all that day, was the lessee of the above-described property belonging to its co-defendant railway company, and during all of said day was in control of said line of railway and rolling stock, and operating the same; that at the same time it, the Great Northeim Railway Company, was the owner of certain depots, section houses, water tanks, tool houses, and other property located in said Flathead county upon the right of way of its said co-defendant, and upon the line of the Great Northern Railway, a particular description of which is shown by the return of said Great Northern Railway Company for the year 1897 to the county assessor of said county, and attached to and made a part of the complaint as Exhibit A.; that at all times mentioned herein school district No. 6 of Flathead county was, and is now, a duly and regularly created and organized school district of said county, with a board of trustees consisting of three members; that at a regularly called special meeting of the board of trustees of said district, held at the school house therein, on the 15th day of March, 1897, certain proceedings were had by the said board, as shown by its records, as follows: “The board voted to submit to the qualified voters of this district the levy of a special tax of $2,000.00 to maintain schools, to be voted on at the next- school election, April 3, 1897”; that at said meeting the purpose for which said money was to be used, if voted, was discussed by the said board, and that said money was to be raised for the purpose of paying salaries of teachers of the schools of said school district, and for furnishing other additional school facilities; that the trustees at said meeting understood and intended the words “to maintain schools” to cover and include, and said words did cover and include, the purpose of raising money to pay the salaries of teachers and furnish other school facilities; and that, in pursuance of said action of the board of trustees to submit the question aforesaid to an election of the qualified voters of said district, such election was called by posting notices in three public places in said district for a period of time more than 15 days before the day of election, a copy of which notice is as follows:
    “Notice oe Election.
    “The annual meeting of school district No. 6, Flathead county, for the purpose of electing one trustee, and submitting to the qualified electors of the district the question whether a tax of $2,000.00 (dollars) shall be raised for maintaining school in said district, will be held on Saturday, April 3, 1897, at the district school house. The polls will be open between the hours of 2 and 6 P. M.
    “C. H. Selvage,
    “C. S. Garrett,
    “John Hall,
    “C. F. Sully, Clerk District No. 6. “Trustees.
    “Dated March 15, 1897.”
    It is further alleged that the words .“for maintaining school” in said notice were understood and intended by said board of trustees to cover and include, and the said words did cover and include, the purpose of raising money to pay the salaries of teachers and furnish other school facilities; that the said election was held at the district school house in said district on the 3d day of April, 1897, andthatatsaid election 117 legal votes were cast for “Tax, Yes,” and 4 votes for “Tax, No”; that the officers of said election thereupon certified to J. B. Gibson, the assessor of Flathead county, the fact that a majority of the votes cast at said election were for “Tax, Yes”; that said J. B. Gibson, as assessor, thereupon copied from the last assessment roll of said county the list of property liable to taxation situated in or owned by residents of said school district, and delivered the same to the board of trustees of said school district; that said list included the taxable property of said defendants in said district situated therein on the first Monday of March, 1897, viz: As belonging to the St. Paul, Minneapolis and Manitoba Railway Company, Great Northern Railway Company, lessee: franchise, roadbed, rails, and rolling stock, 62.65 miles, assessed at $4,600.00 per mile, making a total valuation of $288,190.00; as belonging to the Great Northern Railway Company: buildings, turntables, water tanks, tool houses and coal docks at Summit, Bear Creek, Java, Essex, Paolo, Nyack, Belton, Coram, and Columbia Falls stations, assessed for the year 1897 at a valuation of $12,675.00; and that the total valuation of the taxable property of said defendants in said school district for the year 1897 was $300,865.00; that the board of trustees of said school district, upon receiving the assessment roll aforesaid from the county assessor, gave five days’ notice thereof, by posting a notice in three public places in said district, and sat for one day as a board of equalization at the school house in said district on the 16th day of August, 1897, for the purpose of equalizing the property in said district; that the said board of trustees, upon receiving from the assessor the said list of property, deducted 10 per centum therefrom for anticipated delinquencies, and devided the $2,000.00, the sum voted as stated in said notice of election, by the amount stated in said list, less the 10 per centum deducted, and from such •division ascertained that the rate per centum required was six mills on each dollar of the taxable property in said district; that the special school levy in said district for the year 1897 was then and there fixed at six mills on each dollar of the taxable property; that, as soon as they had ascertained the rate of taxation to be six mills on each dollar as aforesaid, the board certified the same to Michel Therriault, the county clerk of said Flathead county, who extended the same on the general assessment roll of said county for the year 1897, and certified the same to Samuel Hilburn, the plaintiff herein, as treasurer, for collection; that the amount of taxes so extended for the year 1897 against the property of the defendant the St. Paul, Minneapolis & Manitoba Railway Company, the Great Northern Railway Company, lessee, was $1,729.14, and the amount of taxes so extended against the property of the defendant Great Northern Railway Company was $76.05; that said special taxes for the year 1897 were not paid, but became delinquent; that thereupon the plaintiff, as county treasurer, published in the delinquent list, as required by law and in the manner provided, the names of the said defendants, and a description of the property owned and controlled by them in said school district No 6, together with a notice that, unless the taxes delinquent, with the costs and percentages, should be paid, the real property on which said taxes were a lien would be sold at public auction in front of the county treasurer’s office on the 17th day of January, 1898; that the cost of said publication was one dollar; that thereafter, on Janury 10, 1898, the defendants, by their attorney and agent, A. J. Shores, filed a written protest with the treasurer, protesting against such sale, claiming that the assessment of said special school taxes was void, and specifying the grounds upon which said claim was founded; that thereupon the said county treasurer withdrew the said property from sale, and reported the case to the board of commissioners of said county, for its direction in the premises; that thereafter, and before the commencement of this suit, the said board of commissioners directed the foreclosure of the lien of said tax by action; that no part of said taxes levied as aforesaid, amounting to $1,805.19, has been paid, and the same are now due and owing, together with 10 per centum penalty upon the said sum added for the nonpayment thereof, and 12 per cent-um interest thereon from the first Monday of December, 1897, with costs of collection, including one dollar for advertising and 10 per centum for attorney’s fees.
    The allegations set forth in the other causes of action are substantially the same as in the first cause of action. They are therefore omitted from this statement.
    Judgment is demanded by plaintiff for the amounts alleged to be due and delinquent on account of the levies in the various districts, with penalties, interest and costs, including attorney’s fees, and a foreclosure of the lien under the statute upon the property mentioned' in the complaint. Defendants interposed a general demurrer to each cause of action. After argument, the trial court sustained the demurrer to the sixth and seventh causes of action, and overruled it as to the others. The defendants declined to plead further, judgment was thereupon rendered against them personally upon the first, second, third, fourth and fifth causes of action, and execution awarded thereon against their joint property, no provision being made for the sale of any specific property to satisfy the lien. From this judgment defendants have prosecuted their appeal to this court.

      Mr. A. J. Shores, for Appellants.

      Mr. G. B. JVolan, Attorney General, for Eespondent.
   MR. CHIEF JUSTICE BRANTLY,

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

The contention is made by appellants that the statute under which the elections were held in the various districts is not capable of being executed, and that, therefore, no valid assessment can be made thereunder. If this contention is sustained, the result will be, not only that the taxes involved herein will be declared invalid, but also that no school district in the state can hereafter vote any special tax, in aid of its own schools, until new legislation be enacted granting the power and providing a method by which it may be done; for the statute in question contains the only provision we have on the subject. The parts of it pertinent to this inquiry are Section 1940 of the Political Code, as amended by an act of the legislative assembly approved March 8, 1897, and numbered as Section 1940b (Session Laws of 1897, page 134), and Section 1941, which follow:

“The board of trustees of any district may at any time when in their j udgment it is advisable submit to the qualified electors of the district the question whether a tax not to exceed ten mills on each dollar on the taxable property in the district shall be raised to purchase lots and to furnish additional school facilities for said district or for building one or more school houses, or for removing or building additions to one already built, for the purchase of globes, maps, charts, books of reference and other appliances or apparatus for teaching, or for any or all of these purposes. Such election shall be called by posting notices in three public places in the district for at least fifteen days before the election and by publishing for at least one time in some newspaper published in the county in which the said district is located a notice of such election, provided that this shall apply only to districts containing a school board of more than three trustees and conducted as nearly as practicable according to the provisions herein made for holding annual school elections. The notice shall contain the time and place of holding the election, the amount of moneys proposed to be raised and the purpose or purposes for which it is intended to be used. At such elections the ballot shall be in form as follows: ‘Shall a tax not to exceed --- mills be raised to furnish additional school facilities for said district or for building a school house or for improving a school house or for building additions to one aL ready built, as the case may be.
“ ‘Tax, Yes.
“ ‘Tax, No.’
‘ ‘The elector shall prepare his ballot by crossing out thereon parts of the ballot in such a manner that the remaining part shall express his vote upon the questions submitted. If a majority of the votes cast are ‘Tax, Yes,’ the officers of the election shall certify the fact to the assessor of the county, who shall at once proceed to copy from the last assessment roll of the county assessor the list of -property liable to taxation, situated in or owned by residents of his district, and shall deliver the same to the board of trustees, who shall allow him therefor out of the proceeds of said tax two dollars per day. The trustees shall upon receiving the roll, deduct ten per centum therefrom for anticipated delinquencies, and then by dividing the sum voted, together with the estimated cost of assessing and collecting added thereto, by the remainder of the roll, ascertain the rate per centum required and the rate so ascertained (using the full cent on each one hundred dollars in the place of any fraction) shall be and is hereby levied and assessed to, on or against the persons or property named or described in said roll; and it shall be a lien on all such property until the tax is paid and said tax if not paid within the time limited within the next section for its payment shall be recovered by suit in the same manner and with the same costs as delinquent state and county taxes. The trustees upon receiving any assessment roll from the assessor shall give five days’ notice thereof by posting a notice in three public places in the district and shall sit foi at least one day as a board of equalization at such time and place as shall have been named in said posted notices; and they shall have the same power as county boards of equalization to make any change in said assessment roll. ” (Section 1910 b.)
“As soon as the rate of taxation has been determined, as provided in the last preceding section, the trustees shall certify the same to the county clerk, who shall extend the same upon the general assessment roll of the county, and certify the same to the county treasurer, who shall proceed to collect the tax in the same manner and at the same time, and with the same power and authority to enforce the payment of the same, as in the case of the county and state taxes. The county treasurer shall place any tax so collected to the credit of the district to which it belongs.” (Section 1941.)

The act of which section 1940b is a part was passed during the closing days of the session of the legislature, and, as Justice Pigott well says of it in State ex rel. Knight v. Cave, 20 Mont. 468, 52 Pac. 200, “presents an example of the careless legislation which is common, and which the courts are continually called upon to interpret or construe.” It is nevertheless an expression of the legislative will on the subject under consideration, and must be executed, if its intention can be discerned and it is possible to carry it out as directed. It is fundamental that the courts will sustain the acts of the legislature in every case in which it is possible to do so under the recognized rules of interpretation. It is only where, after the measure in question has been subjected to the test of all the standards of interpretation, the intention cannot be discerned, or the means of carrying it out are not provided, or are inadequate, that it will be declared inoperative and void. A brief review of the history of the sections under consideration will be helpful. Section 1940b was brought-forward from the Compiled Statutes of 1887 (Fifth Division, Section 1905) as part of an act approved March 11, 1895, and adopted as a part of the Political Code of 1895. It appears in that Code as the latter part of section 1940. In course of the transfer into the Code, a change was made in the requirement as to the form of question to be submitted to the voters by the trustees. Under the older statute, the trustees were required to determine the amount of money desired, and after notice, the same in form as that required by section L940b, the voter indicated his desire by voting “Yes” or “No” as to this amount. In case of a favorable vote, the method of determining the rate was the same as is now provided. In section 1940, supra, the question to be submitted to the voter is whether a tax not to exceed ten mills upon each dollar of taxable property in the district shall be raised. The form of the ballot is prescribed, and is, ‘ ‘Shall a tax not to exceed -mills be raised, etc., ’ ’ the purposes named in both acts being the same, except that the additional purpose “to purchase lots” is inserted in the new section. The work of obtaining the assessment roll under the old act was done by the district clerk. Under the act of 1895 this is enjoined upon the county assessor. By an oversight in the drafting of the act of 1895, the words, “the board of trustees of any district, ’ ’ were omitted, and this defect appeared in the act as it was approved; so that, there being no subject for the following verb ‘ ‘submit, ’ ’ no person was expressly authorized to submit the question to the voters. This section was therefore thought to be inoperative, and to cure this defect, it was amended by the act of 1897. There was then added section 1940a, which contains provisions for the raising of funds for ordinary school purposes. Section 1940b is the same as the latter part of section 1940, except that the words, “the board of trustees of any district,” were inserted, and the words, ‘ ‘or to maintain any school or schools in such district,5 5 were-omitted from the enumeration of purposes for which a special tax could be voted. From this brief statement it can be readily seen that, under the provisions of the section under consideration, as it stood in the Compiled Statutes, no limit was. fixed beyond which the trustees could not go in determining the amount of money needed or to restrain the voters in giving their consent. In the transfer of the provision to the Code of 1895, an attempt was made to impose a limit in both these- particulars. The intention to do this is manifested by the form of resolution to be determined upon by the board in its deliberations, and also by the form of ballot required. The notice required by the old provision remains the same in the new, but it is not in conformity with the theory of the provisions just mentioned. It does conform, however, to the theory of the old statute, which makes the rate as found thereunder mandatory. The rate, under the theory of the other provisions of the new act, was evidently designed to be fixed by the board upon considering the matter further at a time subsequent to the date of the election; for these provisions cannot be construed to contemplate any other method of fixing the rate. In any event, they are inconsistent with the provision for fixing the rate as it now stands, because they do not furnish any dividend into which the sum or amount of the taxable property in the district may be caused to enter in order to find the quotient rate. No amount is voted which can be used as such dividend. The vote must be upon the limit. If it be said that the terms ‘ ‘amount’ ’ and ‘ ‘rate’ ’ refer to the same thing, and that the board in the resolution adopted should fix the amount as well as the rate, and insert the rate also in the notice, a conclusive answer is that the words have totally different significations. The former means “a sum or total, — the aggregate”; while the latter means “a fixed measure of estimation. ’ ’ These are clearly the significations given to these terms as used in the statute. Putting the rate limit' in the notice would not avoid the difficulty, because the voter would still not vote upon the amount. The amount could not be inserted in the ballot, because that would not be permissible, the statute using mandatory terms in providing for the form of this. We therefore have in this section of the statute, the manifest intention of which is to authorize school districts to levy special taxes for school purposes, two conflicting theories, with no means provided sufficient or adequate to carry either into execution. We are therefore constrained to the conclusion that it is inoperative and void. As stated in the foregoing part of this opinion, we are mindful of the rule that the courts must endeavor to so interpret a statute that it will stand. We are also mindful of another requirement, none the less binding upon us, that we cannot usurp the power appertaining to the legislature, a co-ordinate branch of the government, and legislate, where it has not done so. As the court well said in State v. Partlow, 91 N. C. 550: “A statute must be capable of construction and interpretation; otherwise, it will be inoperative and void. The court must use every authorized means to ascertain and give it an intelligible meaning; but if, after such effort, it is found to be impossible to solve the doubt and dispel the obscurity, if no judicial certainty can be settled upon as to the meaning, the court is not at liberty to supply — to make — one. The court may not allow conjectural interpretation to usurp the place of judicial exposition. There must be a competent and efficient expression of the legislative will. ”

So, if an act of the legislature is so vague and uncertain in its terms as to convey no meaning; or if the means for carrying out its provisions are not adequate or effective; or if it is so conflicting and inconsistent in its provisions that it cannot be executed, it is incumbent upon tUe courts to declare it void and inoperative. (State v. Partlow, supra; Chaffee’s Appeal, 56 Mich. 244, 22 N. W. 871; Ward v. Ward, 37 Tex. 389; Drake v. Drake (4 Devereaux’s Law), 15 N. C. 110; Hughes’ Case, 1 Bland 46; In re Hendricks (Kan. Sup.), 57 Pac. 965; Farmers’ Bank v. Hale et al., 59 N. Y. 53; Pillow v. Gaines, 3 Lea 466; Suth. St. Const. Sec. 220.)

There is still another cogent reason why Section 1940b is inoperative. The evident meaning of Section 1941 is that, after the rate has been fixed as provided in 1940b, not only the rate, but also the roll, prepared and equalized by the trustees, must be certified to the county clerk for extension upon the general tax roll of the county for collection by the treasurer. The word £ ‘same, ’ ’ as used in the latter section, evidently refers to the equalized roll as well as to the rate; otherwise, the work of the board, sitting for the purposes of equalization, would be nugatory, and, the rate only being certified, the basis of taxation to which the rate would be applied would be different from that upon which it was computed. We cannot suppose thatothe legislature intended that the rate should be computed upon one valuation, and the tax collected upon another. And yet this would be the case if the rate only were to be certified, for the mandate of Section 1940b, supra, is that the last assessment roll must be used; that is, presumably, the one of the previous year. That this was not the intention of the legislature is made clear by reference to the following language in Section 1940b: “And the rate so ascertained * * * shall be and is hereby levied and assessed to, on or against the persons or property named or described in said roll, and it shall be a lien on all such property until the tax is paid.” The Political Code of 1895, as reported by the code commission, contained a scheme for assessment, equalization, levy, and collection of taxes complete in itself, which was designed to be, and is, available for all taxing purposes for the state, county, and subdivisions of counties. This plan or scheme was adopted with the Code practically as it was reported, and constitutes Title X, Part 111 of the Political Code relating to revenue (Sections 3670— 4083). The fundamental idea of this scheme or plan is that there must be one tax roll for all purposes, and that the board of county commissioners must levy all taxes for the county and its subdivisions, except incorporated cities and towns which have ordinances providing for the assessment and collection of their own taxes. To carry out this idea, the contents of the assessment roll are prescribed, so that the situation of all property in any subdivision of the county appears thereon (Section 3724). When this roll has been completed for the county, it is equalized by the board of county commissioners for the county, and, with the rolls of other counties, by the state board of equalization. There is then added the proportion belonging to each county of the assessment made by the state board of equalization upon railroads operated in more than one county, and upon mortgages upon property situated in two or more counties. This last item is apportioned by the commissioners among the subdivisions of the county. Thus, the roll is completed (Sections 3738-3809), and is the only basis of taxation for o the county, or any subdivision thereof, with the exception of cities • and towns, as noted (Section 3743). The levy is then made by the county commissioners for all county purposes. In perfect conformity with this scheme, the code commissioners, in their draft of the Code, presented a chapter with provisions for levying and collecting special taxes for school districts. The method of submitting the question of a special tax to the voters was the same as that provided in the Compiled Statutes (Section 1905, supra). After the amount was voted, this was to be certified to the county commissioners before the final levy for the county was to be made. This board was thereupon to determine the rate by summing up the property belonging to the particular district as it appeared upon the roll for the current year, and using this as a divisor for the dividend furnished by the amount certified by the trustees. The rate thus determined was to be thereupon levied by the commissioners, and the tax extended and collected with other taxes of the county. Had these provisions been adopted, there would have been a plain and easy method provided for the levying and collection of these taxes, entirely consistent with the title relating to revenue. These provisions are found in Sections 1245-1253 of the Political Code as reported by the code commission. But, as has been noted already, the report of the commission upon this subject was rejected. The act of 1895, supra, and the act of 1897, amendatory of this act, are now among our statutes in their stead. These go to make up the provisions of Title III of Part III of the Political Code (Sections 1510— 2028) relating to education. This Code (Section 5162) also provides that, if the provisions of any title therein conflict with the provisions of any other title, the provisions of each title must prevail as to all matters and questions arising out of the subject-matter of such title. Now, the acts of 1895 and 1897 deal exclusively with the matters relating to education. They have no reference to the general scheme of revenue provided for in the title relating to revenue. They do not, in terms, change in any way the machinery devised in this title touching assessment, equalization, levying, and collecting taxes. They do not, in themselves, provide a way by which the basis of taxation contemplated by them can get a place upon the assessment roll of the county, so that the tax authorized by the vote of the district can be collected with the other taxes of the county. They are inconsistent with the provisions of Title X, in that they provide a different basis of taxation; but they may not on this account be construed as amending or repealing, by implication, any of the provisions of that title. They do not purport to amend any portion of it, and, under the rule of construction laid down in Section 5162, supra, the provisions of Title X must be allowed to stand, notwithstanding the inconsistent provisions of these acts; for the same rule must be applied to acts amending the different titles of the Code, when they do not refer to the subject-matter of other titles. The county clerk may not, therefore, change the assessment roll provided for by Section 3713, supra, nor is he authorized to keep a separate one for each school district, Title X nowhere so providing, and there being no direction to him to do so in Title 111. These acts, therefore, not containing in themselves any provisions under which the special tax can be collected, and there being no means provided under Title X by which the roll upon which they are computed can be placed upon the assessment roll of the county, so that the tax may be collected under that title with the other taxes of the county, the means for carrying out the provisions of these acts do not exist at all. To the extent, therefore, of the provisions contained in the sections quoted supra, these acts must be held to be inoperative and void.

Section. 1910b was considered by this Court in State ex rel. Knight v. Cave, supra, but the question presented here was not involved in that case. The only question presented there was upon the meaning of the expression “additional school facilities, ’ ’ used among the enumerated purposes for which a tax might be voted.

The judgment of the district court will therefore be reversed, and the cause remanded, with directions to sustain the demurrer.

Reversed and remanded.

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

[Decided October 30,1S99.]

ON MOTION FOE EEHEAE1NG.

PER CURIAM

__Counsel for plaintiff, in his motion for rehearing herein, while admitting that he has no substantial ground upon which to base the application, insists that the importance of the question involved is alone sufficient to justify a re-examination of the case. At the time the original opinion was handed down, we were fully aware of the importance of the case, and of the probably disastrous consequences of the conclusion reached therein to many of the school districts throughout the state. Yet, when confronted with the necessity of a choice between declaring the sections of the statute in question invalid and assuming the functions of the legislature, there was but one course left to us. We could find no other legitimate solution of the matter. Nor are we now, after a further examination of the statute itself and the authorities cited by counsel, able to announce a different conclusion.

It is admitted that under the provisions of Section 1940b, Political Code, touching the submission of the question of a tax to the voters of the district, no sum can be voted. But it is urged that by substituting for the words ‘ ‘the sum voted, ’ ’ in the latter part of the section, in the provision directing the trustees how to determine the rate, the words ‘ ‘the sum mentioned in the notice,” one of the difficulties in executing the statute will disappear. In support of this suggestion the rule is invoked that, where it is manifest upon the face of an act that an error has been made in the use of words, the court may correct the error, and read the statute as corrected, in order to give effect to the obvious intent of the legislature. It is not uncommon for the courts, in construing statutes, where it is manifest that error has been committed, to make the correction necessary to give them effect. One word or phrase may be read for another. (Haney v. State, 34 Ark. 263; People ex rel. Escott v. Hoffman, 97 Ill. 234; Moody v. Stephenson, 1 Minn. 401 (Gil. 289); Burch v. Newbury, 10 N Y. 374; Lancaster Co. v. Frey, 128 Pa. St. 593, 18 Atl. 478.) Words, phrases and clauses may be expanded or restricted in their meaning (Suth. St. Const. Secs. 218, 246) so as to carry out the obvious intent of the legislature. The obvious sense in which words are intended to be understood, and not their abstract force, is to'be followed. (Id.) Words and phrases may be omitted. (U. S. v. Stern, 5 Blatchf. 512, s. c. 27 Fed. Cases, 1310; State v. Acuff, 6 Mo. 55; State v. Beasley, 5 Mo, 91.) An erroneous description may be corrected. (Lindsley v. Williams, 20 N. J. Eq. 93; Palms v. Shawano Co., 61 Wis. 211, 21 N. W. 77; State ex rel. Agricultural Society v. Timme, 56 Wis. 423, 14 N. W. 604.) Phrases may be transposed in order that the sentence may be read in its obvious sense, and attributive words be applied to the proper object. (Babcock v. Goodrich, 47 Cal. 488; Matthews v. Commonwealth, 18 Grat. (Va.) 989.) So the court will adopt any other method to make the law effective, provided the context furnishes the real intent of it, and‘it is not necessary to add substance to it to make it effective. It may look, also, to statutes in pari materia. (Suth. St. Const. Secs. 283-285.) But it must be understood that these rules apply only to cases where the intention is manifest from the context and provisions in pari materia, and always with the limitation that, after the correction is made, the means of executing the law are provided for. The court will not add substance where there is no substance, nor will it provide means where the law provided none. And we apprehend that no authority can be found to sustain a court in reading such a change into a statute as that the effect will be to abrogate a specific provision made therein.

We do not think the suggestion made by counsel will avoid the difficulty. The aim of the provision fixing the form of question to be submitted and the ballot to be used is to have the voter authorize the tax, and at the same time to impose a limit upon the burden to be borne for any one year. Can it be said that when a voter has consented to be taxed specially within certain limits he has consented to the raising of a sum already fixed by the board without reference to a limit, and which the board was not authorized to fix ? Or, after he has been notified that he may vote for the sum mentioned in the notice, and undertakes to do so, can he do it by using the prescribed form of ballot ? Who is to say that he intended to vote for the sum named in the notice when he does not say so himself. If the suggestion made by counsel can be adopted, why not adopt an expedient more convenient and effective, and make the prescribed form of the ballot read: “Shall a tax of-dollars be raised to furnish” etc? Yet counsel would not contend that this would be lawful. Nor would he contend that it would be lawful for the trustees to fix a sum, instead of using the rate limit, in their preliminary resolution. It is the rule, particularly in regard to special taxes, that the various steps provided by law to be taken in laying them must be observed. “The municipal corporations of a state, having no inherent power to tax, must take such power as is conferred under the conditions and limitations that may be prescribed, and only for such purposes as may be expressed. This is fundamental. ” (Cooley on Taxation, 329.) The record of the proceedings must show that the provisions of the law have been complied with. “Every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the record of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under the laws. ” (Cooley on Taxation, 339; Moser v. White, 29 Mich. 59; Farrar v. Fessenden, 39 N. H. 268.)

The fundamental idea of the section under consideration is that the voter must give his consent to a tax limited by bounds over which the trustees cannot step even with the voter’s consent. After a suitable resolution has been passed by the board, the notice is given, the vote taken, and the record made up. From the record it does not appear that the voter has consented to the tax contemplated by the notice. It does appear that tie has consented that the board may levy a tax not to exceed 10 mills on the dollar, and yet the law leaves no option to the trustees to act upon this «theory, but enjoins upon them the duty to proceed to find out the rate by another process, in which their discretion has no place. If it happens to exceed the rate limit, it must still be the rate. They cannot change it. In the meanwhile they are presuming, without any evidence before them to establish the tact, that the voters have consented to what they do.

In our opinion, it is impossible to observe the requirements of the statute, under the rules of construction applicable to it, without making a substantial amendment to it sufficient to carry out one or the other of the theories contemplated by its inconsistent provisions.

But, even if we agree with counsel as to the proposed change in the reading of section 19+0b, what disposition shall we make of the difficulty touching the tax roll? Section 19+1 is a part of the old act, but, reading it in connection with 19+0b, it is perfectly apparent that the tax rate, however it may be fixed, is levied upon the roll as equalized by the board. As we showed in the original opinion, this roll must be based upon the valuations of the previous year, and there is no authority of law, either in the title relating to revenue or in that, relating to education, to use this roll. In fact, it contravenes the express provisions of the former in this respect, and under the rule of construction laid down by the legislature, itself (Political Code, Section 5162) these must prevail where there is a conflict with other titles. Counsel seeks to avoid this difficulty, however, by invoking other rules of construction, viz: ‘‘That the contemporaneous and long-continued practice of officers required to execute or take special cognizance of a statute is strong evidence of its true meaning, ’ ’ and that ‘ ‘if the legislature, by its inaction, has long sanctioned a certain construction, language apparently unambiguous may be given by the court such construction, especially if the usage has been public and authoritative,” — citing, among other authorities: 23 Am. & Eng. Enc. Law, 340, 342, and notes; Rogers v. Goodwin, 2 Mass. 477; U. S. v. Moore, 95 U. S. 763; People ex rel. Escott v. Hoffman, 97 Ill. 234; Scanlan v. Childs, 33 Wis. 663; The Laura, 114 U. S. 411, 5 Sup. Ct. 881; U. S. v. Hill, 120 U. S. 169, 7 Sup. Ct. 510. Under these authorities counsel argues that in view of the inveterate construction which the county treasurers throughout the state must have given to this feature of the act, and especially in view of the acquiescence therein of the legislature, this court should allow it to stand. While the old act stood for many years upon our statute books, it was essentially different from the law as passed in 1895 and amended in 1897. This difference was pointed out in the original opinion. Prior to 1895, the power of the voter was unlimited in consenting to the laying of special school taxes. In the act thus amended a limit was imposed upon this power. Moreover, there was no express provision in the revenue laws touching the basis of taxation, and the legislature had not, prior to that time, laid down the rule of construction to be applied. While, in favor of vested rights and really inveterate practice and procedure, we should be strongly inclined to yield to the argximentum ab convenienti, we cannot consider it in face of the conditions here presented. The authorities cited are only applicable in a condition of things where vested rights have been acquired, and where for many years the construction insisted upon has been the rule of action, and to disturb it would be to work great public and private injury, and inconvenience. Under the act before us and the other provisions of law to 'which we must also look, the practice has not become inveterate. This tax was levied for the year 1897,— within two years of the date of the passage of the act. Its terms are not, apparently, unambiguous. They are both ambiguous and conflicting with each other and with other provisions of law which they cannot be held to amend or repeal.

The motion for a rehearing is denied.

Denied.