author: MR JUSTICE PIGOTT

text:
    BUTTE & BOSTON CONSOLIDATED MINING CO., Appellant, v. MONTANA ORE PURCHASING CO. et al., Respondents.
    (No. 1,460.)
    (Submitted May 6, 1902.
    Decided July 28, 1902.)

      Appealable Order.

    An order, “Demurrer herein * * * sustained, and, plaintiff not desiring to amend complaint, judgment is # * * entered in favor of defendants and against plaintiff for costs of suit,” does not distinctly show that the rights of the parties are thereby finally determined, and therefore is not appealable. •

      Appeal from District Court, Silver Bow Gowvty: John Lindsay, Judge.

    -Action by the Butte & Boston Consolidated Mining Company against the Montana Ore Purchasing Company and others. Erom an order, plaintiff appeals.
    Appeal dismissed.

      Messrs. Forbis & Evans, and Mr. Ransom Cooper, for Appellant.

      Messrs. McHatton. & Cotter, Mr. J. B. Clayberg, Mr. Robert B. Smith, and Mr: Chas: R. Leonard, for Respondents.
   MR JUSTICE PIGOTT

delivered tbe opinion of tbe court.

Tbe defendants demurred to tbe complaint, aüd tbe plaintiff bas in form taken an appeal from an order made by tbe district court, of wbicb tbe following is a copy: “Tbis day demurrer herein is argued by counsel and by tbe court sustained, and, plaintiff not desiring to amend complaint, judgment is by tbe court entered in favor of defendants and against plaintiff for costs of suit.”

Tbe defendants move a dismissal on tbe ground that tbe order or judgment is not appealable. Tbe plaintiff contends that tbis order of tbe court finally determined tbe rights of tbe parties, and is therefore a final judgment, and appealable. We do not think it is. Even if it be conceded that for tbe word “entered” was intended tbe word “rendered,” tbe fatal defect would not be cured. That tbe court thereby finally determined tbe rights of the parties does not distinctly appear. It omits to state that tbe plaintiff should take nothing by tbe action, or that tbe action be dismissed, or that tbe defendants go thence without day, or anything of similar import. To constitute a final judgment there must be a disposition of tbe subject-matter, and not merely of an incident; “the form of tbe judgment is immaterial;, but in substance it must show intrinsically and distinctly, and not inferentially, that tbe matters in tbe record bad been determined in favor of one of tbe litigants, or that tbe rights of tbe parties in litigation bad been adjudicated. Tbe costs are regulated by statute, and are an incident or appendage of tbe judgment, and generally are recoverable by tbe victor in tbe contest. But, as an incident, they cannot be substituted for tbe principal; and a judgment for their recovery is not a decision of tbe matter at issue; and it is, therefore, no such final judgment as can, by law, come within tbe revisory power of tbis court.” (Scott v. Burton, 6 Tex. 322, 55 Am. Dec. 782; 1 Black on Judgments, Sec. 31, note 38.) We may remark parenthetically that, where tbe costs are tbe principal, an order or judgment awarding them may be appealable. None of tbe cases cited by tbe plaintiff from tbe reports of this court support tbe contention that an appeal lies from an order such as tbe one quoted.

Let tbe purported appeal be dismissed for tbe reason that tbe order or judgment from which it has been taken is not appeal-able.

Dismissed.


source: Caselaw Access Project

author: MR. JUSTICE MILBURN

license: Public Domain

text:
    RAMSEY, Respondent, v. BURNS et al., Appellants.
    (No. 1,429.)
    (Submitted March 10, 1902.
    Decided July 28, 1902.)

      Appeal — Record—Justice of the Peace — Liability for Acts of Special Officer — Levying Attachment — Possession of Premises — Instructions.
    1. Sufficiency of the evidence cannot be considered on appeal, the record not showing that it contains all the evidence.
    2. An officer attaching goods in a building may, without liability to the debtor, enter, and have possession of the premises a reasonable time for packing and removing the goods.
    3. An instruction in action for levying -on personalty in a cafe and lodging house, and taking possession of the premises, that if plaintiff sustained any damages, and defendants were liable therefor, she would not be limited to the damages she sustained for the time the business was closed, but would be entitled to all damages from their unlawful acts, is objectionable as allowing the jury to include remote and fanciful damages.
    4. An official act of a special officer, for which a justice of the peace will be liable, is what is done under color of or by virtue of his office, but in excess of his authority, as where, having a writ of attachment, he destroys the property instead of seizing and holding it, or imprisons the debtor while seizing and holding the goods, and pretends to do these things under warrant or color of his office.
    5. A requested instruction, though technically stating the law, being expressed in language which will probably be misunderstood by the jury, and requiring more than verbal change to make it clear, may be refused.
    6. An instruction to tne effect that, in determining questions of fact, the jury should be governed solely by the evidence introduced, and that they have no right to indulge in conjectures or speculations not supported by the evidence, should be given when requested.

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

    ActioN by Cora E. Ramsey against P. H. Burns, justice of tbe peace, and others. Judgment for plaintiff. Defendants appeal.
    Reversed.

      Mr. John N. Kirie, for Appellants.

      Mr. M. J. Cavanaugh, and Mr. A. J. Campbell, for Respondent.
   MR. JUSTICE MILBURN

delivered tbe opinion of tbe court.

Tbis is an appeal from an order denying defendants’ motion for a new trial. Tbe appeal from tbe judgment was dismissed heretofore.

An attachment having been issued out of tbe court of one P. H. Burns, a justice of tbe peace for Silver Bow county, tbe justice appointed one Rodgers as a special officer to serve tbe summons and tbe writ of attachment in tbe suit of tbe Beaver-head Meat Company, a corporation, plaintiff, against Cora E. Ramsey, defendant. Said Rogers, as such special officer, levied upon tbe personal property belonging to tbe defendant, Ramsey, being tbe furnishings and supplies of a certain Elwood cafe and lodging bouse conducted by her. It appears that said officer entered tbe premises referred to, closed tbe doors, and remained in possession of tbe personal property and tbe premises from the 31st day of July up to and including tbe 5th day of August, 1897; be having appointed two custodians, S. O. McCall and George H. Chapman, to remain in tbe possession of tbe property and premises during tbe said period of time. On tbe 5th day of August, 1897, tbe officer released tbe said personal property, and left tbe premises, having discovered that all of tbe personalty bad been bona fide mortgaged to another party. Tbe plaintiff sued tbe justice, tbe special officer, and tbe sureties of the justice for damages alleged to have resulted from tbe destruction of parts of the personalty, for false imprisonment of the-plaintiff in that she was detained in the house, and for interruption of her business as proprietor of said cafe and keeper of the lodging house. The trial resulted in a verdict in favor of the plaintiff in the sum of $500.

The alleged insufficiency of the evidence cannot be inquired into, for the reason that there is not anything in the record to show that all the evidence adduced at the trial is before us. Such of the evidence as is in the record may be considered with exceptions saved thereto, and in connection with the instructions complained of, but for no other purpose.

It is not necessary to discuss the- specification relating to the ruling of the court upon the objection to the question propounded to the plaintiff as to the amount of damages, for the reason that, if the case be tried again, probably the obscurity and involved character of the question will not appear again.

The appellants specify as erroneous a number of instructions which were given. Instruction No. 3, complained of, tells the jury, pointedly, that an officer with a writ of attachment has not any right or authority to take and hold possession of any building in which the personal property to be seized is, and that he and his bondsmen are liable in damages “if he takes possession of such room or premises.” This is error. An officer has the right to enter a business place against the will of the occupant, permission having been asked and refused, and to seize the property therein belonging to the occupant and subject to levy. It is impossible to- make such levy in many cases, as where a whole stock of goods is seized, without taking possession of the place where.the goods are. The officer must not linger longer than reasonably necessary to- carefully pack up and prepare the goods for removal (Waples, Attachm. Sec. 298) ; to do this packing may take an hour or it may require a week. The instruction is not cured of its vice by another part thereof which says that, if the juiy believe from the evidence that defendant Rodgers took possession of the building, or any part thereof, and held the same for storage of the property, they then should find for the plaintiff, etc. The officer has a right to enter and bave possession of tbe place, as above stated, for a reasonable time, and be may bave there tbe goods in storage for sucb reasonable time as be may require to pack tbem and to procure tbe necessary transportation for their removal. He may also store tbem in tbe place for an indefinite time with tbe consent or acquiescence of tbe occupant of tbe place. Tbe instruction as drawn did not state tbe law. It told tbe jury that tbe officer could not bave possession of or use tbe place at all without being liable in damages to tbe debtor plaintiff.

So far as instruction No. 4 is criticised, it does not appear to bave been prejudicial to tbe appellants. Tbe question raised, in connection with this instruction, as to responsibility of tbe appellants, or any of tbem, for acts of tbe custodians, will be discussed infra. Tbe instruction is not a model, but we refrain from discussing points not raised.

Instruction No. 5, given and complained of, is not discussed in tbe brief, and we do' not pass upon it.

Instruction No. 16 is as follows: “You are further instructed that if you find that tbe plaintiff sustained any’damages in this action, and that the defendants are liable therefor, she would not be limited to tbe damages which she sustained for tbe time that tbe business was actually closed, but is entitled to a verdict for all damages by reason of tbe unlawful act of tbe defendant, which arose from tbe acts complained of.” Appellants complain of this instruction, saying that it was given upon an erroneous idea “that tbe plaintiff was entitled to simply abandon her business — not endeavor to continue it after tbe attachment was released, or to endeavor to settle tbe attachment suit; and that all damages following as tbe result, incidental or otherwise, of tbe closing of tbe business, should be allowed to tbe plaintiff.” We think that a jury might easily be led into error by this instruction. We do not find any other instruction which, in connection with this one, states tbe law. It is not safe to say to a jury that an injured party is entitled to “all damages” which arise from unlawful acts, leaving each juror to determine what are damages, and in bis discretion to award “all damages,” whether they be remote or proximate, fanciful or reasonable, as be may determine, without any limitation by the court in its charge to the jury.

The appellants, in two prayers for instructions, Nos. 1 and 2, asked the court to instruct as follows: “(1) You are further instructed that the defendant Alexander Rodgers cannot be held liable for any independent wrongful acts, if any such there were, of S. O. McCall or George H. Chapman, not authorized by said Rodgers, or within the scope of the authority conferred upon them in their capacity of custodians of the property of said Cora E. Ramsey. (2) Yóu are instructed that the writ of attachment issued by Justice Burns in the case of the Beaverhead Meat Company against Cora El. Ramsey was directed only against the property of Cora'El Ramlsey, and if you should find that, in the service of such process-, Alexander Rodgers or any person under his authority committed any wrongful acts against the person of said Cora E-. Ramsey not authorized or sanctioned by the said Justice Burns, or within the scope of the authority conferred upon him by such justice, then such justice and his official bondsmen are not liable for such acts.” The responsibility of a constable, sheriff, or justice of the peace who- appoints a special constable, for the acts of the deputy, or of the special constable, is, we think, well stated in Dysart v. Lurty, 3 Okl. 601, 41 Pac. 724. The court in this case said: “The general rule seems to be that if the deputy is acting under a writ or process, and, while attempting to execute the process, he exceeds his authority and commits a wrong, or fails to perform the duty imposed upon him, his principal and the principal’s sureties will be liable for any damages arising from such acts or omissions, or, if he is acting without process and under the orders or instructions or with the assent of his superior, then the principal and sureties are liable. On the other hand, if the deputy assumes to act without process, or without the knowledge or assent of his principal, and performs unauthorized acts, or commits a wrong, whether negligently, wantonly, or maliciously, he will be liable for a personal trespass, but his principal and the bondsmen of the principal are not liable.” (9 Am. & Eng. Enc. Law, 2d Edition (note), 392; State v. Moore, 19 Mo. 369, 61 Am. Dec. 563.) Instructions Nos. 1 and 2 are not the law, and the court properly refused to give them. It may he assumed that the responsibility of a justice of the peace for the acts of the special officer (Section 1688, Code of Civil Procedure), and that of a sheriff for the doings of his deputy, are alike. The statute above cited makes the justice responsible for the official acts of the special officer. What are official acts? An act, although unauthorized, may be an official act. If the act of the deputy from which an injury results is an official act, the chief is answerable. If not official, but personal, then the latter is not liable. But by an official act we do not mean what the deputy may lawfully do in the execution of his office. If so, no action would ever lie against a sheriff for the misconduct of his deputy. An official act is what is done under color or by virtue of his office. (Knowlton v. Bartlett, 1 Pick. 273; 9 Am. & Eng. Enc. Law, 2d Edition, p. 393, and cases cited.) The ordinary citizen, unlearned in the law, and not knowing his rights, may resist one’s servants in doing certain things which, if done by an officer of the law, having a writ of attachment or execution, and wearing the badge of his office, he would fear to oppose. If the officer destroy property instead of seizing and holding it as security for a debt sued for, or imprison the debtor while seizing and holding the goods, and pretend to do these things under warrant or color of his office, such acts, under the law as we have stated it, would be in excess of his authority, and Wrongs done under color of his office, and the principal and his sureties would be liable for any natural and proximate damages resulting therefrom to the injured person.

The refused instruction No. 3, possibly, technically states the law as we have outlined it above, but is not expressed in such language as to be understood by jurors, who would .probably misunderstand what the words “official duties” and “independent wrongs” mean, and the court did not err in refusing to give the same. It required more than mere verbal change to make it clearly state the law.

The appellants properly, we think, complain of the refusal of the court to give the following instruction, numbered 4: “In determining any of the questions of fact presented in this case, the jury should be governed solely by the evidence introduced before them. The jury have no right to indulge in conjectures or speculations not supported by the evidence.” District judges and all practicing attorneys know that jurors are prone h>, and very often do> talk about and weigh, in the jury room, matters affecting the case and the parties thereto' which do not appear in evidence. This instruction is correct, and should be given in some form when asked for.

Instruction No. 5 (refused) was asked for by appellants. As it states some propositions, which are not the law, which we have already commented upon, and which even are complained of by appellants as having been given in the charge to> the jury, to the prejudice of appellants, at request of respondent, we see no reason why the appellants assign as error the refusal of the court to give it.

The fact that the goods seized belonged to the debtor, and that not she, but the mortgagee only, might complain of their seizure under an attachment admitted to have been valid, is not mentioned or suggested by appellants.

Because of the errors referred to, the order of the district court overruling the defendants’ motion for a new trial is reversed.

Reversed and remanded.


author: MR. CHIEF JUSTICE BRANTLY

text:
    ANACONDA COPPER MINING CO., Appellant, v. HEINZE et al., Respondents.
    (No. 1,706.)
    (Submitted January 23, 1902.
    Decided August 2, 1902.)

      Mines and Mining — Ore Vein — Ownership—Burden of Proof —Injunction—Equitable Title — Evidence —• Rebuttal — Appeal — Rules of Trial Gourt.

    1. In an action to restrain defendants, who are engaged in removing ores from beneath the surface of plaintiff’s ground, the burden is on defendants to show that they are not trespassers, and that they have a right to follow the vein into plaintiff’s territory ; and in case of doubt an injunction should be granted.
    2. where, on an application for an injunction, affidavits offered by defendants were received over plaintiff’s objection that copies had not been served on his counsel, as required by the rules of the district court, and the record does not show the provisions of such rule, the supreme court is unable to say whether the ruling was erroneous.
    3. On an application for injunction to restrain defendants from removing ores from plaintiff’s ground, the court cannot consider the evidence in another action involving the title to the same vein, but to which this plaintiff was not a party, or interested, either where such evidence is embraced in affidavits or on the court’s own recollection thereof.
    4. under Civil Code, Secs. 1012, 1013, providing that the trustees or officers of any mining corporation shall not have power to sell any part of the mining ground unless tne sale is first authorized by a vote of two-thirds of all the stockholders at a meeting called for that purpose at which three-fourths of the stock is represented, a proposition by the president that on deposit of a specified sum as the purchase price the corporation will at once proceed to obtain the requisite consent of its stockholders for selling, and will then sell and convey a specified portion of its mining claim, and the acceptance of such proposition and deposit of the money, do not give the proposed purchaser an equitable title to the mine, or right to extract ore therefrom.
    5. Where, in an action to restrain defendants from taking ore from beneath the surface of plaintiff’s ground, defendants had introduced evidence that the apex of the vein was in their ground, and that it could be traced to the point where they were working, evidence by plaintiff tending to show that the vein was not continuous was proper rebuttal.
    6. where, on a motion for an injunction to restrain defendants from taking ore from beneath the surface of plaintiff’s ground, the court has received incompetent evidence for defendants, and excluded material evidence offered by plaintiff, and it is reasonably apparent that the court was influenced thereby in denying the motion, the order will be reversed, even though the competent evidence received was sufficient to sustain the order.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    ActioN by tbe Anaconda Copper Mining Company against F. Augustus Heinze and others. From an order denying a temporary injunction, plaintiff appeals.
    Reversed.

      Mr. W. W. Dixon> Mr. A. J. Shores, Mr. C. F. Kelly, and Mr. D. Gay Stivers, for Appellant.

      Messrs. Mcllatton & Cotter, and Mr. James M. Denny, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

Action in ejectment and for damages, in wbicb plaintiff seeks to recover possession of tbe Snow Bird quartz lode mining claim, situate in Silver Bow county, and tbe value of ores removed therefrom by tbe defendants'. Equitable relief by way of injunction is also sought to.restrain removal of ores pending tbe action, and perpetually, in case plaintiff succeeds in obtaining judgment.

Upon filing tbe complaint the plaintiff applied for and obtained an order requiring tbe defendants to show cause why they should not be enjoined pending tbe action. They appeared and filed a joint answer, and, after denying that they were guilty of trespassing upon tbe property, set up an equitable counterclaim, by wbicb they seek to obtain a decree adjudging tbe defendant F. Augustus Heinze tbe owner of it under a contract by wbicb he purchased it from tbe plaintiff, with other property, for tbe price of $100,000, wbicb has been fully paid. After a bearing tbe temporary injunction was denied. Tbe plaintiff has appealed.

. Tbe subjoined diagram's will serve to illustrate tbe contentions of tbe parties.

Tbe main controversy at tbe bearing turned upon tbe question where tbe apex of tbe vein in wbicb certain ore bodies are found is situated, — whether within tbe boundaries of tbe Snow Bird claim, or within those of tbe Johnstown and Rarus claims to tbe north, wbicb belong to tbe defendants, tbe Johnstown Mining Company and tbe Montana Ore Purchasing Company. Tbe plaintiff contended that tbe apex of a vein, known as tbe “Windlass Vein,” passes through tbe northeastern portion of tbe Pennsylvania claim in tbe direction indicated by tbe words “Windlass Vein” upon diagram 1, and that this apex is also found within the perpendicular planes descending into the earth through tbe exterior boundaries of tbe Snow Bird claim.

Tbe Snow Bird is a fractional claim, and a portion of it shown on diagram 1 is indicated by tbe letters G-, H, K, L, M. Portions of tbe Johnstown, and Rarus claims to tbe north are indicated by tbe letters G, O, D, I, K. Tbe Pennsylvania, to the south, belongs to tbe Boston & Montana Consolidated Cop1per & Silver Mining Company. Tbe lines AA and BB represent, substantially, parallel fault fissures extending through tbe country in a northeasterly and southwesterly direction, and dipping into tbe earth at an angle of about 50 degrees toward tbe northwest. Under tbe theory advanced by tbe plaintiff tbe fault occasioned by geological disturbances in tbe crust of tbe earth was attended by such a movement of tbe portion between tbe fissures as to cut off and destroy tbe identity and continuity of the vein to tbe east and west; and tbe Windlass vein, having its apex near tbe surface toward tbe east end line of tbe Pennsylvania, is cut off by tbe fault so that its top or apex descends into tbe earth under tbe face of tbe east fault fissure until it passes through tbe north side line of that claim into* tbe Snow Bird, thus presenting what plaintiff claims is a subfault apex within tbe boundaries of tbe latter. A A, represents tbe face of the east fault near tbe 900-foot level of tbe Rarus workings; BB tbe face of tbe west fault at or near tbe 1,000-foot level. Tbe vein, as it descends under tbe east fault fissure, enters tbe Snow Bird ground across tbe line Hi between tbe 800-and 900-foot levels, and, traversing tbe claim-under tbe dip of tbe fault, passes into tbe Johnstown across the line GrK about the 1,000-foot level. The plaintiff’s witnesses state that the vein is practically vertical. Let ns suppose a plane passed downward through the. earth in the direction of the strike and along the southeast wall of the vein fissure, and the portion of the earth toward the southwest rempved. To a person facing the northeast the vein would be exposed with the various levels ending at the east fault fissure represented by the line CE on diagram 2. This is the line of the subfault apex as contended for by the plaintiff, and, if its theory is correct, it is entitled to the portion of the vein intercepted by a plane passing through the line CE (AA, diagram 1) on the strike and dip of the fault, and perpendicular planes passing downward into the earth through the lines GrK and HI (diagram 1). The plaintiff introduced evidence tending to sustain this contention.

The defendants contended, and produced evidence tending to show, that the so-called “Windlass Vein” has no existence in fact; that there is a vein the top or apex of which is found in the Johnstown and Raras claims; that the vein dips to the south or southeast, and in its descent into the earth passes beyond the boundaries of these claims through the Snow Bird and into the Pennsylvania claim; that it has been so developed as.to demonstrate its continuity from its apex to the ore bodies in question; and that the apex of the vein being so situated with reference to the end lines of the Johnstown and Karas claims as to give extralateral rights thereon, the ore bodies belong to the defendant corporations by virtue of their ownership of the apex. While admitting that the fault runs through the country as plaintiff claims, they also produced evidence tending to show that it does not so interrupt the vein as to destroy its continuity and identity along its strike, but that it can be readily traced entirely through the fault by substantially continuous ore bodies of a character and composition identical with that on either side of it. There is no controversy but that defendants are entitled to follow the vein which has its apex on their claim; so that, if their contention as to its identity and continuity upon the dipi and strike through the fault is well founded, they are the owners of the ores in dispute.

1. The contention is made in this court that, it being made to appear that the defendants were at the time of the hearing engaged in removing ores from beneath the surface of the plaintiff’s ground, the burden was upon them to show that they are not trespassers, and that the evidence produced by them was not sufficient to warrant a refusal of the injunction. As the order must be reversed upon other grounds, We shall not now undertake to decide where the preponderance of the evidence is, but leave the whole matter to the discretion of the district court upon the evidence which the parties may produce at another hearing. We agree with the contention of the plaintiff, however, that in such cases the burden rests upon the defendant to show that he is not a trespasser, but that he possesses a title which justifies an intrusion upon the territory of his neighbor; and, unless the evidence is reasonably clear and satisfactory that the defendant is in the right, the injunction should be granted. In such cases the doubt, if any, should always be resolved in favor of granting the writ; but granting or refusing it is so much a matter of discretion in the trial court that this court will not interfere unless there has been a manifest abuse of discretion.

2. The defendants filed in support of their contention the affidavits of George H. Robinson and others. Objection was made to them on the ground that copies of them had not been served upon counsel for plaintiff, as required by the rules of the district court. The objection was overruled, counsel excepting. It does not appear from the record what are the provisions of the rule upon which counsel rely. We are therefore unable to say whether the ruling was erroneous.

3. The affidavit of Robinson was devoted mainly to a history of a certain cause heretofore tried and determined in the district court of Silver Bow county, in which there was an issue between the defendants in this cause and the Boston & Montana Consolidated Copper & Silver Mining Company as to the ownership of the vein in controversy in this action, the cause mentioned being designated on tbe calendar of the district court as “Cause No-. 7,837.” Judgment therein was for the defendants in this action. The plaintiff herein was not a party to the action. The findings and judgment of the court therein are referred to in the affidavit of Robinson, and made a part of it as fully as if set out therein. The other affidavits contained similar, though not such extended, references to the same matter. Objection was made to this evidence on the ground of its incomp eteney. The objection was overruled.

Counsel for the defendants undertake to justify this ruling of the court upon the theory that the references made to cause 7,337 and the result therein served to enlighten the court as to the issue in this cause-, and furnished aid to a proper determination of the respective rights of the parties. The matter was put in the form of affidavits, counsel say, in order to avoid the necessity of “having to present, as was the case in said cause No. 7,337, ten volumes, comprising about 6,000 pages, of testimony.” As we understand counsel, the affidavits were introduced for the purpose of showing that the issue before the court was the same as that in cause 7,337, and that the evidence upon which defendants based their claim of title in that controversy was the same as that upon which they would have to rely in case they took the time and trouble to establish it in the present controversy. In other words, since the court had theretofore in another action, upon an issue of -title between the defendant corporations and a stranger, heard a large amount of evidence, and had reached the conclusion that the said defendants were entitled to the ore bodies in controversy, and it would be inconvenient to go into the merits of the present case and establish title against the plaintiff, the plaintiff should be bound by hearsay statements or the court’s recollection of the evidence adduced in the other action, and the judgment of the court thereon. It requires no argument to demonstrate the fallacy of this reasoning. The evidence’was wholly incompetent as hearsay, and the findings and judgment of the court of no- binding effect whatever, except upon the parties to that action and their privies. The plaintiff was not, upon the record before us, even remotely interested in tbat controversy. Had tbe record in 1,837 been offered, instead of tbe affidavits, it should bave been excluded as exhibiting a res inter alios acta, and of no eviden-tiary value whatever. Tbe statements of tbe witnesses made at tbe bearing therein could, under no circumstances, be considered for any purpose in this case, except for impeachment, and then only after tbe attention of tbe particular witness testifying bad been called to tbe contradictory statements then made. Nor was tbe court at liberty, upon its recollection of tbe evidence in tbat case, to consider it in determining tbe rights of tbe plaintiff, but was bound to hear only legal evidence, offered and admitted in tbe regular way at the bearing, and to reach a conclusion thereon without reference to what bad theretofore appeared in other controversies touching tbe same subject matter between other parties. Knowledge of tbe issues to be tried is to be obtained from tbe allegations and contentions of tbe parties in tbe particular case, and not by reference to issues framed between other parties in other eases in tbe merits of which tbe parties whose rights are being tried bave no interest.

4. T’o show equitable title to tbe Snow Bird claim in F. Augustus Heinze, tbe defendants offered, and there were admitted in evidence, certain telegrams, and a receipt for tbe sum of $100,000, tbe purchase price agreed to be paid by said Heinze for tbe claim, with other property, as tbe result uf negotiations between him and J. B. Haggin, tbe president of tbe plaintiff during the year 1897. They are tbe following:

“New York, 10 September.
“Mr. Arthur P. Heinze:
“On deposit with tbe Anaconda Copper Mining .Company of one hundred thousand dollars, said company wi]l at once proceed to* obtain tbe requisite consent of its stockholders for selling, and will then sell and convey, to F. A. Heinze, or bis nominee, all its interest in tbe Sullivan claim, lot number two thirty-nine, and in and to tbe portion of tbe Snow Bird claim lying between tbe Pennsylvania, Karus, and Johnstown claimls, and east of tbe projection of tbe east end line of tbe St. Lawrence; and also1 assign any and all claims which it may bave for damages for trespass on said mines to date of said deed. Said deposit to be applied to tbe payment of purchase money when deed is ready for delivery. Answer.
“J. B. Haggin, Prest.”
“New York, 14 September.
“F. Aug. Heinze:
“That is not my proposition. Money must be d&posited with the Anaconda Copper Mining Co. No delay will be necessary except the legal publication, as sufficient stockholders, are represented here.
“J. B. Haggin.”
“New York, September 16th, 1897.
“Beceived of Montana Ore Purchasing Company the sum of one hundred thousand dollars ($100,000)'for deposit in pursuance of telegram to Arthur P. Heinze, dated September- 10th, 1897, of J. B. Haggin, president, for the purposes stated in said telegram.
“[Signed] J. B.‘ Haggin, Prest.”

It was shown by other evidence that negotiations for the purchase and sale had been pending for some time; that they had been conducted for the plaintiff by said Haggin; and that the receipt was for a deposit with Haggin for the company, pending consent of the stockholders, which Haggin undertook to secure. It was shown that the signature of Haggin to the receipt is genuine; but no other foundation was laid for the introduction of the telegrams, except that it was slioum that they had been received in the usual way at the office of the Western Union Telegraph Company at Butte, and delivered to- F. Augustus Heinze, or his brother, Arthur P. Heinze, who was acting for him, and that F. Augustus Heinze acted upon them in making the deposit. There was also evidence tending to show that the proposed sale for the company by Haggin had been enjoined at the suit of some of the stockholders, and'for that reason that it had not been consummated; also that the purchase price had been paid back to Heinze upon bis depositing in its place $150,000 in first mortgage bonds of the Montana Ore Purchasing Company as security for the performance of tbe contract on bis 'part in case the necessary consent of the stockholders should be obtained,.' and that these bonds are still in the hands of Haggin.

For present purposes we shall assume, without deciding, that the reference in the receipt to the telegram of September 10th, and the oral evidence, showing that the deposit was made in pursuance and as an acceptance of the proposition therein made, would have been sufficient preliminary proof to enable the court to admit and consider the telegrams and receipt as evidence in an action brought for the purpose of charging Hag-gin upon a contract made by him. It will be observed, however, that the proposition made was, not that the plaintiff would convey unconditionally, but that it would convey in case it could secure the necessary consent of the stockholders at a meeting to be held for that purpose-, which the president would proceed to do. Hnder the provisions of law in force at the time these negotiations took place, the board of directors of a mining corporation organized under the laws -of this state had no authority to sell, lease, mortgage, or otherwise dispose of its real estate, nor could the board confer such authority upon an agent, whether he was an officer or other person. Sections 492 and. 493 of the Fifth Division of the Compiled Statutes of 1887, brought forward into Civil Code (Secs. 1012, 1013), are applicable, and require any such disposition of property to- be authorized by consent of stockholders owning at least two-thirds of the shares of the capital stock at a meeting called and conducted as therein directed. Hnless these provisions of law are observed, a sale, lease, mortgage or other disposition of the property could not be made.

It is apparent from the telegram of September 10th that Haggin claimed no authority to act for the corporation, for he expressly states that the corporation will obtain authority in case the deposit should be made. Therefore, while he might possibly be personally liable under his undertaking to answer in damages for failure or refusal to carry it out, he did not, nor could he, bind the corporation by any promise or undertaking whatever in its behalf. Had he made an agreement in the name of the corporation, another question would be presented. As he did not, it is entirely clear that he did not, prima facie, bind the corporation, and there being no proof of authority in him to do so, the evidence offered to show equitable title was wholly incompetent. Why the security for the purchase price has been retained does not appear. The conveyance certainly ought to be made or this should be returned. But until the necessary authority is obtained by the board of directors, neither they nor the president can execute a conveyance, nor can a specific performance by the corporation itself be enforced.

5. The plaintiff offered to introduce evidence tending to rebut defendants’ evidence in chief to the effect that the vein could be traced through the fault by means of continuous ore bodies identical in composition and character with those found to the east and west of the fault and of substantial commercial value. The evidence consisted of a number of assays from samples taken from the fault matter, and tended to support the contention of the plaintiff that the fault matter consisted of country rock, which contained no mineral except such as could be found in the country rock anywhere in that locality. Upon objection this was excluded on the ground that it was a part of the plaintiff’s case in chief, and not proper rebuttal.

The plaintiff’s theory was, as we have said, that a prima facie case for an injunction was made out by a showing that the defendants were engaged in removing ore from beneath the surface of the Snow Bird claim. This it attempted to do. After the defendants had gone fully into' their evidence tending to ■establish title to the ore, basing their claim in part upon the identity and continuity of the vein through the fault matter, it was clearly competent for the plaintiff to rebut the evidence adduced in this behalf. It was, therefore, error to exclude the evidence offered, as it tended to1 fortify plaintiff’s contention, and to rebut the claim of defendants. If, as defendants contend, the plaintiff had gone into this phase of the evidence in chief, it would ordinarily have been within the discretion of the court to exclude further evidence upon this point; but the record discloses that it had not done so.

6. It is said by defendants that, even though the court below did commit error in admitting and in excluding evidence, the order should not be reversed on that ground, if there is sufficient competent evidence in the record to justify the refusal of the injunction. They cite Montana Ore Purchasing Co. v. Butte & Boston Consol. Mining Co., 25 Mont. 427, 65 Pac. 420. There is no doubt that this case states the general rule observed by this court in equity cases where it is reasonably apparent that the error committed in the admission or exclusion of the evidence has wrought no prejudice in the result This rule, however, has no application where the error complained of is fundamental, and it is not reasonably apparent that it did not result in prejudice. If the evidence admitted or excluded is trifling, or unimportant, as compared with the competent evidence. admitted and considered, and if its exclusion or admission could not have affected the result reached, the judgment or order appealed from will not be reversed on the ground of error in admitting or excluding it. Where, however, the evidence in question is of import, and by the ruling of the court thereon it is made reasonably apparent that it was so regarded by the court, and for that reason probably affected the result reached, the judgment or order based upon it cannot be sustained. The statement made in the case cited is not properly guarded, but it must be interpreted in the light of the conditions there presented. So interpreted, it is apparent that this court did not intend to lay down the broad declaration that a judgment or order made in an equity case will never be reversed upon appeal on the ground that the trial court has erred in admitting and excluding evidence. The intention was to follow, and not overturn, the rule correctly stated in Merchants' Nat'l Bank v. Greenhood, 16 Mont. 395, 41 Pac. 250, 851, which was cited in support of the view entertained of the evidence under consideration. In that case the evidence admitted was of doubtful relevancy and materiality. It was also trifling and unimportant, and could not have affected the result. In the present case the finding of the court may have been founded entirely upon the objectionable evidence, and, were it competent, such finding would have been justified. If this bad been excluded, and tbat admitted and considered wbicb was improperly excluded, it is possible tbat tbe result would bave been different. Under sucb circumstances tbe order must be reversed, and another bearing ordered.

Nothing said herein is to be understood as 'an intimation to tbe district court tbat upon another bearing, after considering all competent evidence offered by the parties, it should or should not issue an injunction; nor are we to be understood as having prejudged tbe alleged equitable title of defendant Heinze. Let tbe order be reversed, and tbe cause remanded.

Reversed and remanded.


author: MR. CHIEF -JUSTICE BBANTEY

text:
    STATE ex rel. DORAN, Relator, v. HAYS, Defendant.
    (No. 1,870.)
    (Submitted October 15, 1902.
    Decided October 15, 1902.)

      Elections — District Judge — Filing Certificates of Nomination.

    under Political Code, Sec. 1312, tbe certificate of nomination of a candidate for district judge of a district containing only one county is, like tbat of a county officer, to be filed with the clerk of the county.
    Application for writ of mandate, on the relation of John Doran, to George M. Hays, secretary of state of the state of Montana.
    Denied.

      Mr. L. P. Forrest ell, and Mr. J oJm J. McHaMon, for "Relator.
   MR. CHIEF -JUSTICE BBANTEY

delivered the opinion of the court.

Application for writ of mandate. Erom the affidavit filed by relator the following facts appear: On O'ctober 2d, inst., in response to a regular call of the committee of the party in Silver Bow county, a convention of the People’s Party assembled in the city of Butte. One of its purposes was to nominate candidates for the various county offices to be filled at the general election to be held on November 4, 1902, and also a candidate for the office of district judge for the Second judicial district, consisting of the county of Silver Bow, to be voted for at the same time. One John B. McClernan was regularly nominated for the office last named. Thereupon the chairman and secretary of the convention prepared and signed a certificate setting forth the action of the convention; and on October 4th the said secretary, the relator herein, caused the same to be presented and delivered to the defendant, as.secretary of state, with a request that it be filed by him in his office, and that at the proper time the name of the candidate be certified to the clerk of Silver Bow county, to be printed upon the official ballot under the proper party designation. The defendant refused to receive or file the certificate, and has thus indicated his intention to refuse to certify the name of the candidate so that it may appear on the ballot, although, relator alleges, these duties are enjoined upon him by law. The relator has instituted this proceeding in order to compel the defendant to perform his alleged legal duty in the premises, in order that the relator and other electors of the Second judicial district of like political faith may be allowed to vote for the candidate of their choice.

We shall assume, without deciding, that the certificate is, in form and substance, sufficient to meet the requirements of the law, and that the convention nominating the candidate was called and conducted in conformity with the statute applicable. The question for decision, then, is whether certificates of nomination of candidates for the office of district judge of judicial districts, each containing'only a single county, shall be filed with the secretary of state, or whether they shall be filed in the office of the clerk of the particular county.

The provision of the statute to which reference' must be had is found in the Political Code, and provides:

“Sec. 1312. Certificates of nomination of candidates for offices to be filled by the electors of the entire state, or of any division or district greater than a county, must be filed with the secretary of state. Certificates of nomination for county, township and precinct officers, must be filed with the clerks of the respective counties wherein the officers are to be elected. Certificates of nomination for municipal officers must be filed with the clerks of the respective municipal corporations wherein the officers are to be elected. The certificate of nomination of joint member of the house of representatives must be filed in the offices of the county clerks of the counties to be represented by such joint member.”

This'provision was enacted by the territorial legislature in 1889 (Laws of 1889, p. 136), at a time when the justices of the supreme court of the territory of Montana, who also- presided in the several district courts, were appointed by the president of the United States. In the enactment of it, the legislature, therefore, made no provision for the nomination and election of these officers. Upon the creation of the state government, the Act was continued in force by the constitution (Schedule, -Sec. 1). When the present Code was adopted, in 1895, the Act, amended in other particulars, but containing substantially unchanged the section quoted, was included therein as Section 1312 of Chapter VIII, Part III, Title II of the Political Code. The Code commission, and the legislature in adopting its compilation, evidently proceeded upon the assumption that the provisions of the section governed the nomination and election of district judges in districts comprising a single county. An examination of it, however, reveals an omission in its provisions, so that it does not, in terms-, apply to the condition presented in tbis case. A district judge is a state officer, but there is no provision in the section requiring the certificate of nomination of such an officer from a district containing only a single county to be filed with the secretary of state. In this regard, therefore, there is no specific provision enjoining any duly upon this officer. The policy of the Act, which is in accord with the policy of the constitution, appears to be that the nomination and election of officers in any county of the state shall be controlled exclusively by the electors therein and their local officers. It is only where the electors voting for a particular officer occupy a greater portion of the state than a single county that the secretary of state is required to file and certify the nomination. The only exception to this general rule is the nomination and election of joint representatives, whose certificates of nomination must be filed with the clerks of all the counties represented by such officer. It was certainly not the intention of the legislature, in omitting a specific provision upon this subject, that the certificates of nomination of district judges in districts comprising a single county should be filed-nowhere. The question presented, therefore, must be determined by a construction of the second sentence of the section, so as to carry out the manifest policy of the legislation. It is therein provided that “certificates of nomination for county, township and precinct officers must be filed with the clerks of the respective counties wherein the officers are to be elected.” While district judges do not fall literally within the designation of “county officers,” nevertheless it is not a forced construo tion of that sentence to hold that it means that certificates of nomination of officers to be voted for by the electors of a single county shall be filed with the clerk of a particular county. It is only by this construction that we may find a provision governing the controversy here to be decided.

We therefore conclude that this provision of the statute must be so- construed, and that it applies to the office of district judge when this officer is to be elected exclusively by the voters of the particular county, and that his certificate of nomination must be filed with the clerk of the county composing the particular district. The result is that the writ applied for herein must be denied.

Denied.


author: ME. CHIEE JHSTIOE BRANTLY

text:
    STATE ex rel. McCRATH, Relator, v. HAYS, Defendant. STATE ex rel. SAMPSON, Relator, v. HAYS, Defendant.
    (No. 1,871.)
    (No. 1,872.)
    (Submitted October 15, 1902.
    Decided October 15, 1902.)
    For syllabus see State ex rel. Doran v. Mays, ante, page 174.
    Application for writs of mandate, on the relation of J ames J, McCrath, and Ben. Sampson, to George M. Hays, secretary of state of Montana;. Denied.

      Mr.-L. P. Forrestellj and Mr. John J. MePLoMon, for Rela-tors.
   ME. CHIEE JHSTIOE BRANTLY

delivered the opinion

of the court.

Applications for writs of mandate to the defendant, the secretary of state, to compel him to file in his office certificates of nomination of John B. McOlernan to the office of district judge in and for the Second judicial district of Montana, composed of the county of Silver Bow, purporting to have been made by the Anti-Trust Democratic and Labor Parties, respectively, and certify the name of said McOlernan to the clerk of Silver Bow county to be printed upon the official ballot as the candidate of these parties under their respective party designations. The facts presented by the applications are, in'substance, identical with those presented in cause No. 1,870 (State ex rel. Doran v. Hays, ante, page 174, 70 Pac. 321), this day decided, and the questions presented are the same. Upon the authority of that case the writs are denied.

Denied


author: MR. JUSTICE PIGfOTT

text:
    STATE ex rel. PRESCOTT, Plaintiff, v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT et al., Defendants.
    (No. 1,877.)
    (Submitted October 24, 1902.
    Decided October 27, 1902.)

      District Court — Appeal from Justice — Motion to Dismiss— Jurisdiction — Certiorari.
    Code of Civil Procedure, Sec. 1763, provides tbat, where the sureties of the party appealing from a justice to the district court do not justify upon notice, “the appeal must be regarded as if no such undertaking bad been given.” Held, that, as the district court has jurisdiction of a motion to dismiss an appeal in which the sureties have not so justified, certiorari to review an order refusing to dismiss such an appeal will be denied, as not the proper remedy; it being limited to proceedings in which the court has exceeded its jurisdiction.
    Application for a writ of certiorari, on the relation of A. K. Prescott, to review an order of the district court of the Third judicial district refusing to dismiss an appeal from a justice’s court.
    Application denied.

      Mr. John W. James, for Plaintiff.
   MR. JUSTICE PIGfOTT

delivered the opinion of the court.

This is an application for a writ of certiorari to review an order of the district court of Deer Lodge county refusing to dismiss an appeal taken to tbe court from a judgment in a justice’s couif. Prom the affidavit filed in support of the application it appears, prima facie> that the plaintiff recovered judgment against one Thomas in the court of the justice of the peace. Thomas duly appealed therefrom to the district court and gave the undertaking required by law. The plaintiff, availing himself of the privilege granted by Section 1763 of the Code of Civil Procedure, duly excepted to the sufficiency of the sureties on the undertaking given to effectuate the appeal. It is alleged, and for the purpose of the present proceeding we assume, without deciding, that the sureties^ or others in their place, did not justify upon notice, as is required by the following provision of Section 1768, supra: “The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.” It further appears that the plaintiff moved the district court to dismiss the appeal on the ground that notice of the justification by the sureties was not given or served, as provided by the statute quoted. The motion to dismiss was denied and the refusal of the court to grant the motion is asserted to have been in excess of the court’s jurisdiction. The purpose of this application is to annul the order refusing to dismiss the appeal.

Upon the presentation of the petition counsel for the plaintiff stated that the facts recited in the affidavit demand the application of the rule declared in State ex rel. Allen v. Napton, Judge, 24 Montana Reports, 450, 62 Pacific Reporter, 686, but the present case is wholly unlike the case which counsel cites in support of his position. In the Napton Case the.dis~ trict court had proceeded by making an order in an action of which it did not have jurisdiction. There Allen recovered before a justice of the peace a judgment against Gibbs, and Gibbs appealed to the district court- Thereupon Allen exl-cepted to the sufficiency of the sureties on the undertaking; none of the sureties justified nor was notice that they would justify ever given, nor did Allen waive justification. When the transcript on appeal was lodged with the clerk of the district court, Allen moved to dismiss the appeal upon the ground that the sureties had not justified as required by statute, which motion the court denied. Thereafter the district court, by order, required Allen within thirty days to file an undertaking in the sum of $300, conditioned according to the statute, in default of which the action should stand dismissed at plaintiffs costs.

We held that the district court had no jurisdiction of the action and, of course, was without power to dismiss it or to order a dismissal unless Allen complied with the conditions imposed by the court. The order requiring the undertaking to be filed and declaring that the action should stand dismissed in default thereof we declared void for lack of jurisdiction and for that reason annulled the order. Inquiry touching the jurisdiction of the court, to deny the motion to dismiss the appeal was not pertinent and the question was therefore reserved, — it was reserved not because there was any serious question in respect of what the answer should be, but merely because the question was not involved in the case.

The application is without merit. In this state certiorari is a remedy which may be successfully invoked only when an inferior tribunal, board, or officer exercising judicial functions has exceeded its or his jurisdiction, and the review may not extend beyond a determination whether authority — that is, jurisdiction — has been regularly pursued. Such is the settled rule which has so frequently been announced by this court that reference to the cases is unnecessary. Now, the question of whether or not the district court, even if it was without jurisdiction of the action, should have dismissed the appeal cannot be investigated in the present proceeding. Let it be granted that the court had no jurisdiction of the action. It had jurisdiction of the motion to dismiss the appeal, — that is to say, it possessed the power to hear and determine the motion, and such power necessarily implies authority to decide wrong as well as right. Hence the district court regularly pursued its authority and its ruling upon the mjotion to dismiss tbe appeal was neither •without nor in excess of its jurisdiction. If the ruling was erroneous, correction may be had at the proper time and in the appropriate way. We remark, in passing, that the annulment of the court’s refusal to dismiss the appeal could not, as it seems, aid the plaintiff, for annulment of the refusal would simply leave the case in the condition it was at the time the motion was submitted. But however this may be, it is manifest that certiorari is not the remedy for the supposed wrong of which the plaintiff complains.

The application is therefore denied and the proceeding dismissed.

Denied.


author: MR. CHIEF JUSTICE BRANT'LT ME. CHIEF JUSTICE BEANTLY

text:
      In re NEWTON.
    (No. 1,201.)
    (Submitted October 28, 1902.
    Decided October 28, 1902.)

      Attorneys — Disbarment — Reimtatemmt — Application — Sufficiency.

    1. Where an attorney has been disbarred, an application for his reinstatement must be verified, and must set forth the facts touching the proceedings in disbarment, with the reasons why petitioner should .be reinstated, and should comply in all respects with the rules applicable to the admission of attorneys to practice in the first instance.
    2. Where it appears from the application for reinstatement and the proofs submitted in support thereof that the larceny, upon conviction of which the petitioner was disbarred, was committed while he was under the influence of intoxicating liquor; that he was never theretofore convicted of any criminal offense; that since disbarment he has become sober and has lived an upright, honorable life; that in the estimation of his fellow citizens and of reputable members of the bar, he is a fit person to be permitted to practice law; and he expresses the utmost contrition for his offense, the same is, under the statute and the rules of the supreme court, sufficient to warrant his reinstatement.
    ApplicatioN by William Newton for reinstatement as an attorney.
    Application granted.
   MR. CHIEF JUSTICE BRANT'LT

delivered tbe opinion of tbe court.

Tbe petitioner was disbarred by order of tbis court on January 11, 1898; it being made made to appear that be bad theretofore been convicted of tbe crime of petit larceny in a justice’s court of Silver Bow county. On June 21, 1901 be presented to tbis court bis petition asking that tbe order of disbarment be vacated for reasons therein stated. Tbis petition was denied, the court being of tbe opinion that tbe reasons stated therein were not sufficient to warrant tbe vacation of tbe order of disbarment, (25 Mont. 572, 69 Pac. 1131.) On tbis day be has petitioned tbe court, through John N. Kirk, Esq., a member of tbe bar, that be be restored to tbe rights and privileges of a member of tbe bar. Tbe court has examined tbe petition presented, and finds it insufficient to meet tbe requirements of tbe statutes and rules of tbis court, applicable to such cases, in several particulars; among others, in that it is not verified, and in that it fails to state whether any proceedings for disbarment of tbe petitioner or criminal charges have been instituted or prosecuted against him in any jurisdiction. Tbe court is of tbe opinion that tbe petition in such cases should not only set forth tbe facts touching tbe proceedings in disbarment in tbis court, with reasons why tbe petitioner should be reinstated, but should also in all respects comply with tbe rules applicable to tbe ad-, mission of candidates to practice law in tbe first instance.

It is therefore ordered that tbe proceeding depend, with leave to said Newton on or before December 1, 1902, to file with tbe clerk and present to the court an amended petition in conformity with tbe statutes and rules of this court touching applications for admission to tbe bar, which shall contain such other pertinent matters as be may be advised should properly be embraced therein, and shall be duly verified by tbe oath of said Newton, and be accompanied by tbe statements, under oath, of those who may join in tbe prayer thereof, together with certificates of reputable members of tbe bar as to tbe moral standing and character of the petitioner in tbe comimunity in wbicb be resides.

(Submitted December 15, 1902.

Decided December 15, 1902.)

O'N AMENDED PETITION.

ME. CHIEF JUSTICE BEANTLY

delivered the opinion of tbe court.

Tbe petitioner having- amended bis petition in order to meet tbe suggestions of this court made upon a bearing bad on October 28 of tbe present year, has this day again submitted bis application with bis proofs in support thereof. It appearing therefrom that tbe larceny upon conviction of wbicb tbe petitioner was disbarred, was committed while tbe petitioner was under tbe influence of intoxicating liquor; that be was never theretofore convicted of any criminal offense; that since tbe order of disbarment was made be has become sober and has lived an upright, honorable life; that in tbe estimation of bis fellow citizens in tbe community in wbicb be resides and also of reputable members of tbe bar of this state, be-is a fit person to be permitted to practice law in tbe state; and that be expresses tbe utmpst contrition for bis said offense; tbe court is of tbe opinion that under the provisions of tbe statute and tbe rules of this court, no reason exists why tbe applicant should not be reinstated to tbe privileges of bis office. It is therefore ordered that said William Newton, upon taking the oath required by law, be re-admitted to practice law as attorney and counselor-at-law in all tbe courts of this state.


author: ME. CHIEF JUSTICE BEAN1TLY, ME. CHIEF JUSTICE BBANTLY

text:
    STATE ex rel. GILCHRIST, Relator, v. WESTON, Defendant.
    (No. 1,876.)
    (Submitted October 28, 1902.
    Decided October 29, 1902.)

      Elections — County Central Committees — Contests — Decision by State Convention — Effect — Voting — Ballots — Party Name — Mandamus—Jurisdiction.
    1. Where, by reason of dissensions in the central committee of the democratic party of a county, the committee divided, and each faction elected delegates to attend the state convention, and the contest so occasioned was presented to the state convention on the application of the delegates of both factions for seats, and the state convention decided such contest before any candidates for county offices were nominated, the decision so made was conclusive, and the candidates subsequently nominated by the successful faction were entitled to have their names printed on the official ballot under the party name.
    2. Where a contest between the delegates of two factions in a state convention was submitted for decision, and the vote on the issue disclosed a clear majority of all the delegates present in favor of one of the contesting delegations, without the votes of such contesting delegates, the fact that such delegates voted on the question was immaterial.
    3. Where the county clerk and recorder erroneously refused to place the names of all the candidates on the official ballot who had been nominated by one faction of a political party, on the ground that the opposing faction was legally entitled to the use of the party name, the court, in madamus to compel the clerk to print the name of one of the candidates so excluded on the ballot, had jurisdiction to decide the entire controversy, and require the printing of the names of all the candidates so erroneously excluded.
    ApplicatioN by the state, on relation of M. P. Gilchrist, for mandamus against John Weston, as county clerk and recorder of Silver Row county, Montana, to compel respondent to place relatoras name on the ballot to be voted at the November, 1902, election, as a Democratic candidate for election as district judge.
    Granted.
    STATEMENT OP TI-IE CASE.
    Application for writ of mandamus. The facts out of which this controversy arose, so far as a statement of them is necessary to present the questions involved, are the following: On Sep-temer 6, 1902, eme G-eorge H. Casey, the chairman of the central committee of the democratic party of Silver Bow county, gave notice that a meeting of the committee would be held on September 11th, at 8 o'clock in the evening, at one of the,court rooms of the district court in the city of Butte, the particular room being designated in the notice. The purpose of the meeting, as disclosed by the notice, was to1 designate a date and to select a place for holding a county convention of the democratic party to nominate candidates for all offices to be filled by the electors of the county at the general election to be held on November 4th, including a candidate for district judge and members of the legislative assembly, and to select delegates to* the state convention to be held at Bozeman on September 23d; to apportion delegates to the various precincts in the county; to fix the date and to name the places for primaries for the choice of delegates to the county convention; and to transact such other business as might properly come before the committee. As early as the date of the notice there had developed a difference of opinion between the chairman and some of the members of the committee as to whether the power1 to fill vacancies in the membership of the committee was lodged in the chairman or in the committee, the chairman asserting that the convention which had selected him in 19Ó0 had, by resolution expressly so providing, clothed him with such power. There was also a division of opinion among the members of the committee, as. well as among the electors, as to party policies in the county. This division of opinion had resulted in a factional fight for the control of the committee by the opposing factions, and, through this means, for the control of local party affairs. Under the rule established by party usage, the committee should have been composed of 52 members, one for each voting precinct in the county at the close of the campaign of 1900; but for some reason, not stated, seven out of the 52 precincts were not represented, no appointments having been made for them. It was claimed by the chairman that there were also other vacancies occasioned by death or removal of certain members of the committee from the state or county. Before the committee assembled, the chairman appointed persons front the different precincts to fill all vacancies existing at the date of the call, and added one member for a precinct lately created by the board of connty commissioners. In all, the chairman made 16 appointments,— eight for the precincts for which no appointments had theretofore been made, and eight for vacancies which he claimed had occurred by death or change of residence. When the chairman went to the place of the meeting at the appointed hour, he found present, either in person or by proxy, 41 of the old members, and the 16 members lately appointed by himself. The court room was filled with a crowd composed partly of persons attracted by curiosity, but mainly of the adherents of the rival factions. Confusion prevailed, and the chairman, after attempting to call the committee to order, announced that no business would be transacted until the hall should be cleared. The crowd refused to retire from the hall, and after much delay, during which the chairman refused to proceed with the business in hand because of the disorder, a portion of the committee, under the leadership of one P. J. Gilligan, the secretary of the committee, adopted a resolution deposing the chairman from office, and proceeded to elect another in his stead. The person selected for chairman in this way was one James H. Lynch. Thereupon Chairman Casey entertained and declared carried a motion for adjournment. This motion included a provision that the committee should meet again at the call of the chairman. The chairman then announced that the committee would assemble in ten minutes at the Auditorium, — another hall, a few blocks away. Thereupon he, in company with 33 persons who claimed to be members of the committee, or to hold proxies, left the hall and went to the Auditorium. Of these 33 persons, 1Y were old members of the committee^ and the remaining 16 were persons appointed by the chairman to fill vacancies, or their proxies. Secretary P. J. Gilligan remained at the court room with 25 persons, all of whom had been old members of the committee, or were holding proxies. Pive of them, it was claimed by Chairman Casey, had no right to take part in the proceedings, either in person or by proxy, for the reason that they bad removed permanently from the state or county. On reaching the Auditorium, Chairman Oasey called the meeting to order, and thereupon, claiming to act as the regular committee, it proceeded, after selecting a secretary, to the dispatch of the business outlined in the call. The date of the county convention was fixed for September 19th, and a call was regularly issued for primaries to be held on the 17th to elect delegates to attend it. The place named for the meeting of the convention was the Auditorium. Primaries were held and the convention assembled'pursuant to call, but, after perfecting the organization and selecting delegates to attend the state convention, it adjourned to meet again at the same place on September 29th to nominate a ticket. On the date then fixed the convention reassembled, nominated candidates for all offices to be filled by the electors of the county, and its chairman and secretary filed a certificate of nomination with the defendant, the clerk of the county, as required by law. The committeemen who remained at the court room claimed to be in the majority, and therefore authorized to act for the party. Under the leadership1 of Lynch, they proceeded to accomplish the business for which the committee had been called together by Chairman Casey. The date of the county convention was fixed for September 18'th. A call was regularly issued and published for primaries to be held on September 12th to elect delegates to attend it. Primaries were held under the call, and the. convention assembled on September 18th. After completing its organization, it selected delegates to the state convention, and thereupon adjourned over until October 9th. At that time it reassembled and completed the business for which it was called, by nominating candidates for the offices to be filled by the electors of the county, and eansed certificates of nomination to be filed with the defendant, as required by the statute. These conventions will hereafter be referred to, respectively, as the Casey and Lynch conventions. In the meantime both delegations attended the state convention at Bozeman on September 23d, and each claimed recognition by that body as the regulaily accredited delegation of the democratic party of Silver Bow county. Tinder tbe party usages, these claims were submitted to the state central committee, wbicb was then in session in Bozeman, for the purpose of determining the rights of the contesting delegations to participate in the preliminary organization of the convention. This committee, after considering the controversy, decided that the Casey convention was regular, and declared the delegates selected by it entitled to be seated. The whole controversy wTas then by the convention referred to a committee on credentials, which again held in favor of seating the Casey delegates, and so reported to the convention. The report was thereupon adopted, and accordingly the Casey delegation was formally recognized as regular, and took part in all subsequent proceedings. The state convention was composed of 512 delegates. "When the vote was taken upon the report of the committee on credentials, only one vote was recorded in the negative. The Casey delegation, however, voted upon the adoption of the report. When the time arrived for the publication of the tickets as provided by law, the defendant, whose duty it wTas to publish them, refused to publish the county ticket named by the Casey convention, and signified his intention not to cause the same to be printed upon the ballot in the column designated “Democratic,” or at all, but to' cause to be printed instead thereof the ticket nominated by the Lynch convention. Thereupon the relator, being the nominee for state senator upon the ticket named by the Casey convention, filed his verified petition in this court, setting forth the foregoing facts, and asked for a writ directing the defendant to cause to be printed upon the ballot the names of himself and other candidates nominated by that convention, and otherwise to prepare the ballot as the law requires. The petition was filed and the alternative writ issued on October 21st. Owing to the shortness of time before the date of the election, the writ was made returnable on October 23d. The defendant appeared on that date and filed his answer, putting in issue all the material allegations set forth in the petition. The application was thereupon submitted upon the evidence of the parties in support of their respective contentions. After consideration of the evidence and the contentions of the parties, the court adjudged that the writ should issue, directing the defendant to cause to be printed upon the ballot, in the column headed “Democratic,” the ticket nominated by the Oasey convention, and to omit therefrom entirely the ticket nominated by the Lynch convention. The judgment was entered on October 29th, the court stating that its reasons for the conclusion reached would be announced at a subsequent time.

      Mr. W. M. Bickford, Mr. O. F. Kelly, and Mr. B. Lee Word, for Eelator.

      Mr. J. J. McEatton, Mr. L. P. Forrestell, and Mr. Guy Star pleton, for Defendant.
   ME. CHIEF JUSTICE BEAN1TLY,

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

At the hearing, counsel for the relator argued that, inasmuch as the controversy between the contending factions in the com•mittee and the party in Silver Bow county had been submitted to and determined by the state convention in favor of the Casey convention, this determination must be regarded as conclusive upon the right of the nominees on the Oasey ticket to have their names appear upon the ballot under the party designation. The contention was also made that, though the judgment of the state convention should be treated as of no import whatever, nevertheless the decided preponderance of the evidence was in favor of the conclusion that Chairmlan Casey was empowered to fill vacancies upon the committee; that his appointments were properly made; both for the purpose of increasing the number of members to one for each precinct in the county, and also for the purpose of filling places rendered vacant by death or change of residence; that the committee was unable to transact any business because of the confusion brought about by the presence of the crowd; that he and those associated with him were justified in leaving the hall to seek a place where they could dispatch the business properly before the committee; and therefore that tbe portion of tbe committee led by bim was tbe only committee authorized to act for tbe party.

On tbe other band, counsel for tbe defendant contended that tbe judgment and determination of tbe state convention was of no significance whatever; that tbe evidence showed clearly that tbe chairman bad no authority to fill any vacancies upon tbe committee, but that such authority was vested in tbe committee itself; that, even if tbe chairman bad such authority, be bad no power to decide whether a vacancy existed by reason of a change of residence of any committeeman, or other cause; and that by reason of tbe fact that be and bis adherents left tbe court room, which bad been appointed as tbe place of meeting, they lost all right to act for tbe party in any capacity whatever. Accordingly, all evidence touching tbe final determination reached by tbe state convention, though not controverted, was objected to by the defendant as incompetent and irrelevant. Tbe evidence was admitted subject to tbe objection, tbe court not being willing to decide tbe question thus presented by the objection without further consideration. There was thus brought to our attention for decision tbe question: What force should be given to a determination by tbe highest judicatory in tbe party of tbe right of contending local factions to nominate tbe local ticket, and thus to give the candidates named by it tbe right to use tbe party designation?

It will be noted that, at tbe timle tbe controversy arose and tbe decision was made by tbe state convention, no candidates bad been nominated by either of tbe factions. That convention, therefore, did not undertake to determine, directly or indirectly, tbe right of any candidate to have bis name appear on tbe ballot ás a nominee of tbe party. Had one or both of the rival county conventions nominated candidates for tbe local offices before tbe meeting of tbe state convention, a different question would have been presented, and this court would perhaps have been required, under its former decisions, to bold tenable tbe position taken by tbe defendant,- — that the action of tbe state convention was without significance.

It was held in State ex rel. Scharnikow v. Hogan, 24 Mont. 383, 62 Pac. 583, that no action had by a state convention can render valid a nomination for the office of district judge, where the convention assuming to make it does not properly represent the electors of the district. That case turned upon the question of fact whether the delegates who sat in the district convention had been regularly chosen by the electors of the district to- make the nomination. It being made to appear that such was not the case, this fact was held determinative of the right of the candidate to have his name appear upon the ballot, although the state convention had assumed to declare that the delegates were the regularly accredited delegates from1 the counties composing the district. The decision rests upon the theory of our state government that the people in the political subdivisions of the state have the right to nominate candidates for local offices through representative conventions .composed of electors of their own choosing, or in mass meetings, held after due notice, as well as to elect officers from among candidates so nominated; and no action on the part of the state convention may dispense with a substantial observance of this fundamental principle.

Again, in the case of State ex rel. Kennedy et al. v. Martin, 24 Mont. 403, 62 Pac. 588, which grew out of the same factional fight in Deer Lodge county that gave rise to the case just cited, it was held that where a ticket had been nominated by a representative county convention, regularly called for that purpose by the local party authorities, prior -to the meeting of the state convention, the state convention, though the delegates chosen by the county convention refused to sit in the state convention, but joined in an independent movement, in which some of the local candidates also joined, had no power to authorize loyal members of th¿ party residing in the county to take charge of party affairs therein, and to nominate a ticket to be printed upon the official ballot under the party designation, to the exclusion of the-ticket already nominated. This decision rests' upon the principle that when the candidates of a party have been once regularly nominated by a representative convention of the party, and their certificates of nomination filed with the proper officer, the right of such candidates to have tbeir names appear upon tbe official ballot becomes fixed bylaw, and is not subject to control by a state convention. Tbis conclusion was based upon tbe fact that there is no provision of law by which the place of any candidate upon the ticket may become vacant, except by death, resignation, conviction of a felony, judicially declared insanity, or removal from the county or state. When nominations have been so- made, the presumption arises that the convention was authorized to' make use of the party designation, either by virtue' of the power conferred by the state convention by its recognition during the preceding campaign of the regularity of the local administrative agencies which called it together, or by established party usages. The same conclusion was reached in State ex rel. Hatch v. Smart, 24 Mont. 413, 62 Pac. 591. In each of these cases this court felt impelled, in view of the provisions of the election laws and the constitution, to investigate the facts, and to determine therefrom whether the candidates whose rights were in issue had been nominated by representative conventions called by authority and conducted in accordance with party usages.

We agree with counsel for the defendant in their opinion that these cases were correctly decided, both upon reason and principle, and that political conventions should not be permitted to assume; the exercise of judicial functions to the exclusion of the courts in matters involving rights conferred by law. But we do not concur with them in the view that they apply to the conditions presented in the ease at bar. In this case the state convention was appealed to for recognition by the contending factions, and for the right to use the party designation. This was before either had assumed to act for the party in selecting candidates under the provisions of the statute. Each was claiming the right to control the local administration of party affairs. These claims were submitted to* the ultimate party judicatory, which decided the controversy after an examination of disputed questions of fact, and presumably in accordance with party usages. The principle underlying the cases cited does not therefore apply. Furthermore, in each of those cases the necessity for party organization and discipline as a means to secure p>arty existence was expressly recognized, as was also tbe proposition that in mere matters of party control, wherein no effort is made to declare and enforce legal rights, the determination of the party judicatory is binding upon all the members of the party, and upon the courts as well.

It was said in State ex rel. Kennedy v. Martin, supra, that the declarations of the state convention are effectual to change the administrative agencies of the party in a particular county. This power also implies exclusive authority to recognize as regular one of two contending factions in any local subdivision of the state, and to give the one authority b> control all the party affairs within its jurisdiction to the exclusion of the other, so long as the exercise of it does not interfere with legal rights.

Again, in State ex rel. Hatch v. Smart, supra, it was said: “Within its legitimate field, the democratic party of the state, in convention assembled, is paramount, and the final judicatory. Its determination of matters within the scope of its powers cannot be questioned or set aside by the courts. Such state convention represents the democratic party of the state as an entirety, and in a limited sense it speaks for the territorial subdivisions of the party. It is the judge of the election and qualification of its members; it may adopt a general policy, and nominate candidates for office, to be filled by the vote of the electors of the state, and (so long as it keeps within its legitimate sphere) do whatever may be necessary or proper to maintain the integrity and advance the interests of the party.” The designation belongs to the party, and the party, as a political body, has the exclusive right to control the use of it, not only in the state' but in the local subdivisions thereof, until, by the exercise of power on the part of the local organization, rights of private individuals are involved. It is then only that courts will undertake to interfere. It would he intolerable if, upon the occasion of every factional dispute in a county or district in the state, the courts could be called upon to determine which faction is entitled to the use of the party designation. The well-being and safety of the party organization require that it should hold and exercise this power: Nor illustration, if in the present case this court should hold that the Lynch convention was regular, notwithstanding the determination made by the state convention, the result would be that the ticket nominated by the Lynch convention, though declared by the regularly constituted party authorities not to be the regular democratic ticket, would be placed upon the ballot under the party designation, and so from time to time, as the period for electing local officers would recur, this anomalous situation would be presented, to the utter demoralization and destruction of all party discipline. The party would be left utterly without power to preserve its own organization and integrity, and one of the most effective means for the preservation of our institutions would be wholly destroyed. The power to decide these disputes must rest somewhere, but it is far safer and much more in accord with our free institutions that it should remain Avith the judicatories of our political parties, where it of right belongs.

This view we deemed conclusive of the case. We therefore did not go into an examination of the evidence to determine Avhat authority Chairman Casey had to make appointments to fill vacancies in the membership of the committee, nor whether the claim of his faction that the committee was prevented by the confusion in the court room from proceeding to transact there the business for which the committee Avas called together Avas Avell founded.

jReference was made during the argument to the fact that the Casey delegation voted upon the question of the title to seats in the convention. It was said that this fact vitiated the judgment of the convention. It is a sufficient answer to this suggestion to say that the evidence disclosed that a clear majority of all the delegates present voted in the affirmative, without including the contesting delegation. We did not undertake to determine Avhat the result would have been had the vote of that delegation been necessary to create a majority.

Counsel for relator, in making this application, proceeded upon the assumption that this court would not by mandamus grant the whole relief to which relator was entitled, and under tbis writ direct tke defendant to omit from the ballot altogether the ticket named by the Lynch convention. They therefore instituted another proceeding for injunction to accomplish this end. (Post, 197, 70 Pac. 1134.) Upon consideration, however, the court concluded that the preparation of the ballot involved but- a single duty, and that, as the proper performance of this duty under the statute, as construed by the decisions of this court, required him to omit the Lynch ticket from the ballot [State ex rel. Kennedy v. Martin and State ex rel. Hatch v. Smart, supra), the whole matter could he adjusted under the writ in this proceeding. This we deemed in conformity with the suggestion contained in Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, and approved in State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390, that, “where defect and excess meet in a single case, the court might meet both, in its discretion, by one of the writs, without being driven to send out both tied together with red tape for a single purpose.” Accordingly the following order was made and entered:

It is therefore considered and adjudged that a peremptory writ of mandate issue to the defendant, as clerk of Silver Bow county, directing him forthwith to' print upon the official ballot to be used at the election to be held on November 4, 1902, the ticket containing the names of the relator and his associates, and known in this proceeding as the ticket nominated by the Casey convention, in the column entitled “Democratic,” and that he do' not print tbereon the ticket nominated by the convention called by the so-called Lynch committee, and known in this proceeding as the Lynch convention. It is further ordered that the defendant pay all the costs of this proceeding. Let judgment be entered and the writ issue forthwith.

Writ granted.

(No. 1,875.)

ON Application bob Wbit of Injunction.

(Submitted October 28, 1902.

Decided October 29, 1902.)

ME. CHIEF JUSTICE BBANTLY

delivered the opinion of the court.

Application for a writ- of injunction to restrain the defendant, as clerk of Silver Bow county, from causing to be printed upon the official ballot under the designation “Democratic” a certain ticket which, it was alleged, was not the regular party ticket. An order to show cause was issued and made returnable on October 23. A demurrer and a motion to strike out portions of the petition being overruled pro forma, the defendant filed his answer controverting such allegations of the petition as he deemed material. A decision of the questions, raised by the demurrer and motion was reserved. Thereupon the cause was heard and submitted with the application for mandamus (ante p. 185), upon the evidence adduced at the hearing thereon. The conclusion reached in that cause having rendered it unnecessary to examine and decide any of the questions presented herein, this cause was dismissed at the cost of the relator.

Dismissed.