author: ME. JUSTICE PIGOTT,

text:
    HUGHES, Appellant, v. GOODALE, Respondent.
    (No. 1,367.)
    (Submitted November 13, 1901.
    Decided November 25, 1901.)

      Guardian and ’Wan'd — Sale of Beal Estate. — Special Bond— Omission — Validity of Sale — Judgments—Sureties.
    1. Probate Practice Act, Sec. 387, Compiled Statutes 1887, provides that a. guardian authorized to sell real estate must, before the sale, give bond to-a probate judge to sell the, same in the manner and to account for the proceeds of the sale as provided for in the chapter. Held, that a sale by a guardian duly appointed and qualified, but who omitted to give the special bond required, was not void.
    2. Quaere: whether, under the Probate Practice Act, Compiled Statutes 1887,. an executor, administrator or guardian is required in every case to give a special bona before making sales of real estate.
    3. Sureties on the general bond' of a guardian are liable for any loss which-the ward may suffer by reason of the default of the guardian with respect to the proceeds of sales of real estate.
    4. ' The orders and judgments of a court may be voidable for error or irregularity, but such error or irregularity does not of itself avoid such orders, or judgments.
    • Appeal from District Court, Silver Bow County; Willia/m Clancy, Judge.

    Peoceedings by Mary E. Hughes against Charles W. Good-ale, as guardian of Francis Arthur Linforth and Geraldine Linforth. -From a judgment for defendaant, plaintiff appeals..
    Reversed.
    Statement op the Case.
    This cause was submitted to the court below upon an agreed, statement showing the following facts: By an order of the district court of- Silver Bow County the defendant was duly appointed guardian of the estates of Francis Arthur Linforth and Geraldine Linforth, minors. Having filed the bond required to -be given by Section 358 of the Probate Practice Act, Compiled Statutes of 1887, and having taken the oath prescribed by law, letters of guardianship were issued to’ him on tbie 18tb day oí November, 1890, since which, time he has been, and now is, the qualified and acting guardian. On the 16th day of November, 1893, the district court duly ordered the guardian to sell certain lands owned by his wards in the county of Silver Bow. In pursuance of the order, and on¡ the 4th day of February, 1894, the defendant as guardian sold the lands to the plaintiff for the sum of $1,850. On February 28, 18.94, the court approved and confirmed the sale, whereupon the property was conveyed by deed to the plaintiff. Before the sale the guardian omitted to give the special bond required by Section 381 of the Probate Practice Act, Compiled Statutes of 1881, and has never given the bond provided for therein. , The guardian and his wards threatened and intended to bring’ an action for the purpose of ejecting the plaintiff from the possession, of the property, and to obtain a decree declaring the plaintiff to have n.o title thereto. The parties prayed the court to adjudge from these facts whether the plaintiff was the owner in fee simple of the real estate in question as against the defendant and his wards, and whether the omission of the guardian to give the special sale bond constitutes a cloud upon ¡ the plaintiff’s title. The court below decided that the omission of the guardian to give the bond before the sale rendered, the sale null and void so far as the infants were concerned, and that’ no title passed from them, and that the plaintiff is not the owner of the property. From a judgment-entered in accordance with the views of the court below, the plaintiff prosecutes this appeal.

      Mr. H. Lowndes Maury, for Appellant

      Mr. William I). Burbage, for Bespondent.
   ME. JUSTICE PIGOTT,

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

The single question arising upon the agreed statement is whether the omission of the guardian to give a special bon'd before the sale invalidated the sale authorized by the- order. Both parties assume that the provisions of Section 387 of the Probate Practice Act, Compiled Statutes of 1887, require such a bond to be given whenever the sale of a ward’s real'estate is directed to be made. Before proceeding to consider the arguments of counsel based upon this assumption, we deem it not-improper to suggest á possible solution of the ultimate question upon a ground not discussed by counsel. It might be argued, with plausibility at least, that Section 387 does not require a sale bond to be given in all cases. This section provides that “every guardian, authorized to sell real estate must, before the sale, give bond to the probate judge [district judge], with sufficient surety, to be approved by him, with conditions to sell the same in the manner, and to account for the proceeds of the sale, as provided for in this chapter and Chapter VII of this title.’’ Section 388 provides that “all the proceedings under the petitions' of guardians for sales of property of their wards, making orders, rejecting or confirming sales, and reports of sales, ordering and making' conveyances of property sold, accounting and the settlements of accounts, must be had and made as-required by the provisions of this title concerning estates of decedents, unless otherwise specially provided in this chapter.” Section 407 declares that the provisions relative to estates of decedents, so far as they pertain to the practice in the probate or district court-, apply to proceedings touching estates of minors under guardianship. Now, Section 76 of Chapter III, of the title referred to in Section 388, supra, after imposing upon the district judge the duty to require an additional bond whenever the sale of lands belonging to a decedent is ordered, proceeds : “But no such additional bond must be required when it satisfactorily appears to the court that, the penalty of the bond given before receiving letters, or of any bond given in the place thereof, is equal to twice the value of the personal property remaining in, or that will come into, the possession of the executor or administrator, including the annual rents, profits, and issues of real estate, and twice the probable amount to be realized on the sale of the real estate to be sold.” If Section 387 is to be read with and interpreted in tbe light of Section 76, a special bond need not be required of a guardian when, in tbe opinion of tbe court, tbe penal sum mentioned in bis general bond is sufficiently large to cover the items enumerated in Section 76, and affords ample security to tbe waid for the pi’oceeds of tbe intended sale. If this theory be correct, “it is not otherwise specially provided” in the chapter relating to guardians that they must always give a bond before making sales of real estate; hence in tbe case at bar the guardian was under no obligation, so far as the record discloses, to furnish a special bond, for the presumption that the court below properly refrained from requiring a special bond must be indulged. We merely mention this as a possibly correct construction of the statutes. Counsel have not suggested it and we do not decide that the theory advanced is the correct one, nor intimate an opinion upon it, its determination being unnecessary to a decision. For the purposes of this appeal we shall treat Section 387 as unaffected in this regard by Section '76.

The contention of counsel for the defendant is that Section 387 requires a guardian to give a special bond in every case, that the provision is mandatory, and that an omission so to do renders the sale void. Counsel for the plaintiff insists that the requirement is directory only.

The question presented is one of first impression in this court. In Power v. Lenoir, 22 Montana 169, 56 Pacific Reporter 106, it was held that the.giving of the general bond required by a guardian by Section 358 of the Probate Practice Act, Compiled Statutes of 1887, is indispensable to the validity of his acts so far as the rights of the ward are concerned, the section providing that “before the order appointing any person guardian under this chapter takes effect, and before letters issue; the judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law; and the following conditions shall form a part of such bond without being expressed therein: First. To make an inventory of all the estate, real and personal, of his ward, that comes to his possession or knowledge, and to return the same within such time as the judge may order. Second. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. Third. To render an account, on oath, of the property, estate, and moneys of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of the same, within thi*ee months after his appointment, and at such other times as the court directs, and at the expiration of his trust to settle his accounts with the probate judge, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys and effects remaining in his hands, or due from him on such settlement, to the person or persons who are lawfully entitled thereto. Upon filing the bond, duly approved, letter’s of guardianship must issue to the person appointed. In form the letters of guardianship must be substantially the same as letters of administration, and the oath of the guardian must be endorsed thereon, that he will perform the duties of his office as such guardian according to law.” In that case we said: “Section 358 of our probate law plainly and positively provides that, before the order appointing any person guardian takes effect, and before letters issue, the judge must require of such person a bond to the minor, with sufficient sureties. The intention of the legislature could hardly have been more plainly manifested. From the other sections of the statute cited supra, it appears that it did not even deem it wise to allow the parent to relieve the guardian of this duty by testamentary direction; for, though a provision is made recognizing the right of parents to select by will the person to whom they wish to intrust the care of their children and their estates (Section 351, supra), yet it requires such person so selected (Section 362) to give bond and qualify as other guardians. It is not, therefore, the recognition by any court of the relation of guardian and ward that gives it validity, but the fact that the relation has been properly established by a complance with the requirements of the law. A person who purchases the property of a minor, or who seeks to devest him of title to his property, will not be heard to say that the minor is .estopped and concluded by the irresponsible acts and doings of some person who has presumed to act as his guardian without first giving the minor the protection and security the law requires for him. * * * The latter [the ward] is, so to speak, the special favorite of the courts, and the courts will always see that his rights are protected.’’ The de-cisión was that the order appointing a guardian is without effect unless and until the bond required by Section 358 shall have been given. Section 75 of the Probate Practice Act-, Compiled Statutes of 188?, requires that “every person to whom letters testamentary or of administration are directed to issue must, before receiving them,” execute a bond. In In re Craigie’s Estate, 24 Montana 37 (60 Pac. 495), we intimated, by way of argument, that the failure of the person appointed administrator to give a bond does not ordinarily or usually render void the letters of administration issued to him. It is proper to observe that Section 15 requires a person to whom letters are directed to issue, to execute a bond before receiving them, but does not declare that the order is ineffectual unless the bond be given. The decision ini the Grcdgie Case was to the effect that the failure of a public administrator who had duly qualified by giving bond and taking oath, to file an additional bond required by the district judge as further security for the interest of an estate in his hands, did not, ipso■ facto, create a vacancy in the office of public administrator, although the statute declared that upon failure of any public administrator to give such bond as might be required by a probate judge, his office should become vacant. Neither of these cases announces a rule which must govern the decision of the case at bar.

If the omission to give a sale bond was sufficient to deprive the court of jurisdiction, the judgment must be affirmed; in other words, if the order of sale was invalidated by the omission to give a special- bond, then by the sale the plaintiff took no title as against the minors. If, upon the other hand, the court was clothed with jurisdiction to make the order of sale, and the omission to give the special bond did not deprive the order of its legal force, then the plaintiff by virtue of the confirmation of the sale, followed by the deed of conveyance, acquired all the title which the minors had to the property.

The orders and judgments of a court within its jurisdiction may be voidable for error or irregularity, but such error or irregularity does not, of itself, avoid the orders or judgments. This rule applies to courts of general common-law jurisdiction, to courts of equity, and to inferior courts of limited powers; it is applicable to all courts alike. Whenever it appears that the act done, the order made, or the judgment rendered Avas within the scope of the poAver conferred, jurisdiction must be admitted, and, unless that jurisdiction is shoAvn to have been lost, the act, order, or judgment cannot be characterized as a nullity. Did the omission of the guardian to give a special bond render ineffectual the order of sale and the confirmation, thereof, thereby depriving the court of jurisdiction in the premises ? That the defendant Avas the duly appointed, qualified and acting guardian is conceded; it must be presumed that upon a proper petition and after a hearing the court- ordered the guardian to sell the lands of his Avards; in pursuance of that order the sale Avas made and confirmed; a deed of conveyance was thereupon duly executed by the guardian and delivered to the plaintiff. That the district court had jurisdiction of the class of cases or proceedings to Avhieh the one at bar belongs, and therefore of the subject-matter of this proceeding, and had jurisdiction of the persons of the wards, is also conceded. Its jurisdiction Avas regularly invoked. In making the order of sale its jurisdiction Avas duly exeraised. As Ave have said, the sale Avas not void unless the omission to give a special bond rendered .the order of sal© ineffectual; that is to say, unless the court lost jurisdiction of the subject-matter by the failure of the guardián to execute a special sale bond, tbe plaintiff by the sale acquired title to the lands. No mere irregularity, however great, can avail the defendant or his wards in such an attach as is here made. Such defect or irregularity cannot, be inquired into by means of a collateral action.

The object sought to be attained by Section 887 is the protection of the financial interests of the ward. Eor any loss which a decedent’s estate may suffer by reason of the failure of an administrator properly to account for and pay over the proceeds of a sale of land, the sureties on his general bond are certainly answerable. This appears by Sections 75 and 76, supra, and we perceive ño reason why, under the statutes of Montana, any different rule should be applied to sureties on the general bond of a guardian. By Section 358- the guardian must execute to the minor a bond with sufficient sureties in such sum as the judge may order, conditioned for the faithful performance of his trust according to law. As appears from the quotation hereinbefore made, the following implied conditions form a part of the bond: “Second. To dispose of and manage; the estate according to law and for the best interest of the ward,’ and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody, and education of the ward. Third. To render an- account, on oath, of the property^ estate, • and moneys of the ward in his hands, and all proceeds or interest derived thereform, and of the management and disposition of the same, within three months after his appointment, and at such other times as the court directs, and at the expira-. tion of his. trust to settle his accounts with the probate judge, of with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the estate, moneys, and effects remaining in his hands, or due from him on such settle^, ment, to the person or persons who are lawfully entitled thereto.” Among the powers and duties of the guardian are the following: To pay all debts of the ward'out of his personal estate and the income óf his real estate, but, if these sources, are insufficient, then out of his real estate, upon obtaining- an.. order for its sale, “and disposing of the same in the manner provided in this title for the sale of real' estate of decedents.” (Section 367) ; he must, if the income and profits of the estate be insufficient for the purposes, sell the real estate of his ward upon obtaining an order of the court therefor, and apply so much of the proceeds as may be necessary to the maintenance and support of the ward and his family (Section 369) ; and to sell the ward’s real'estate when it appears for the benefit of the ward to do so, and put the proceeds' out at interest or otherwise reinvest the same (Section 37 †). These powers are conferred and these correlative duties are imposed upon guardians generally, to be exercised and performed whenever the conditions contemplated by the statute arise; in brief, whenever it appeal’s either necessary or for the benefit of the ward that his real estate or some paid; of it should be sold, the court may grant an order therefor. (Section 386.) To obtain an order to sell, to sell and to account for the avails of the sale ordered, is one of the general duties of the guardian. We think the sureties on such bond of the guardian are liable for any loss which the ward may suffer by reason of the guardian’s failure faithfully to execute the duties of his trust, among which are those pertaining to sales of real estate, and that they are, consequently, liable for his default with respect to the proceeds of such sales. Section 402 of the Probate Practice Act, Compiled Statutes of 188?, authorizes the judge to require a new bond to be given by a guardian whenever he deems it necessary. He may at any time, even after sale, require a new or additional bond. These provisions illustrate the design and show the intention of the legislative assembly in enacting Section 387. This section provides no penalty for the omission to require or give a special bond, nor does it declare that the order of sale depends upon the performance of such a condition subsequent. Nowhere does the statute declare that if a special bond be not given the sale shall not be made, or, if made, shall be void. It is not provided that the order of sale becomes effective only when such special bond is given. In Stewart v. Bailey, 28 Michigan Reports 251, the statute required a special sale boud and provided that in ease of an action relating to any estate sold by a guardian in which the ward should contest the validity of the sale, the sale should not be avoided on account of any irregularity in the proceedings, provided it should appear, among other things, that the guardian gave a special sale bond. This was tantamount to declaring a sale made without bond to be voidable in such an action, and the court so held. The same statutes governed the decision in Ryder v. Flanders, 30 Michigan Reports, 336. The interpretation of similar statutes was involved in McKeever v. Ball, 71 Indiana Reports, 398 ; Weld v. Johnson Manufacturing Company, 84 Wisconsin Reports, 537, (54 N. W. 335, 998) ; in Bachelor v. Korb, 58 Nebraska Reports, 122, (78 N. W. 485, 76 Am. St. Rep. 70) ; and in Goldsmith v. Gilliland (C. C.), 23 Federal Reporter, 645. In Barber s Administrators v. Hopewell (Ky.), 1 Metcalfe, 260, the statute in force provided that if the guardian failed to give the special bond the sale .should not be made, and “any decree, sale, or conveyance thereof shall be voidand the court held that a sale of lands without giving the special bond rendered the sale a nullity as to the ward. These decisions, owing to the difference between our statutes and those under which they were rendered, are not in point. Other cases seemingly in favor of the defendant’s position may readily be distinguished; for example, Williams v. Morton, 38 Maine Reports, 47 (61 Am. Dec. 229), holds that a conveyance of land by the guardian of a ward, under order of a court of probate, vests no title in the grantee unless the guardian shall have given the sale bond required by statute; but the, court so held for the reason that in Maine the general bond of the guardian, did not stand as security for the proper application of the proceeds of a sale of real estate. Such was the condition, likewise, in Vanderburg v. Williamson, 52 Mississippi Reports, 233. This is also the basis of the decision in Lyman v. Conkey (Mass.), 1 Metcalf, 317.

We are of the opinion that the omission of the court to require and of tbe guardian to give the special sale bond in the case at bar was a mere irregularity in no wise affecting or impairing the jurisdiction of the court which ordered and confirmed the sale. As has already been said, the general bond of the guardian stands as security for the proper application of the proceeds of the sale; the court was clothed with, power to entertain the petition praying for the sale; it had jurisdiction of the subject-matter and of the parties; it made the order of sale; the property was sold, the sale was confirmed, and a conveyance executed. The statute omits to denounce as void, for want of a special bond, a sale made pursuant to such an order. The sale was not void. Many eases support this conclusion. In Palmer v. Oakley, 2 Douglass, 433 (47 Am. Dec. 41), the following language is used: “The last objection to the regularity of the proceedings by the guardian in conducting the sale is, that the notice of sale given was insufficient, and was given before the bond was executed. The statute requires that, before mating sale of any real estate by a guardian, a bond shall be given with sureties* and thirty days’ notice of the intended sale. An oath is also required. The requirement in respect to the bond and notice is contained in a proviso, and may be considered as a limitation or restriction, upon the authority to sell. But does the neglect on the part of the guardian to comply with these several provisions of the statute render the sale absolutely void, and can it affect the rights of an innocent bona fide purchaser, claiming through the decree authorizing the sale? I think the rights of such, a purchaser, especially after the lapse of so many years, are not to be disturbed in consequence of the failure of the guardian to perform acts m pais subsequent to the decree of sale. The acts of the guardian are, in legal contemplation, the acts of the ward, whom he represents; and it cannot now be permitted to the ward to come in and allege the nonfeasance of his guardian, to disturb a title derived from him through such, his legally constituted, representative. All that a purchaser at judicial sale is bound to look to with a view to his protection is to see that the court by: whom tbe sale was authorized was empowered to make tbe decree. If tbe court bad tbe power, tbe failure of tbe guardian, as in tbis case, to.fulfill certain directions wbicb tbe law imposed on ber, should not and cannot prejudice the rights acquired by such purchaser. If tbe ward is prejudiced by any neglect on tbe part of the guardian in tbe execution of tbe trust reposed in her, bis remedy is upon ber bond. It never could have been contemplated by tbe legislature that tbe validity of a sale should be made to depend upon tbe observance of those provisions of the law, which are in their nature directory to tbe guardian. If such a rule were to obtain, but few purchasers wofild be found at judicial sales; for but few would incur tbe hazard of purchasing and paying their money when tbe purchase so made may, at the distance of ten or fifteen years, be held void, in consequence of a noncompliance by a guardian with tbe requisitions of tbe statute. Such a rule would also operate injuriously on tbe war’d, as upon every sale made the purchaser would take into account tbe hazard be incurs. Tbe best interests of infants require that no unnecessary obstacles should be thrown in the way of obtaining the best possible price for their estates when sold. • If a wrong is done them- by their guardians, they have a full and ample remedy. In tbe case of Perkins v. Fairfield, 11 Mass. 227, it was held that a failure by an administrator to give tbe bond required by tbe act of Massachusetts of 1183 before tbe sale of real estate of bis intestate would not invalidate a title derived. through such administrator.” In Bunce v. Bunce, 59 Iowa Reports, 533 (13 N. W. 105), tbe court said: “The remaining objections — the want of a sale bond, and tbe alleged want of approval of tbe sale — may be considered together. .The statute provided that, before a sale can be executed, tbe guardian must give, security. (Revision, Sec. 2556.) Tbe statute also required that tbe sale-must be approved. (Id. Sec. 2558.) In tbe absence of a sale bond, it would doubtless be error to approve tbe sale; but, where jurisdiction has attached,- and tbe sale has been approved, it cannot, we' think, be successfully attacked in a collateral pro•ceeding by alleging tbe want of a sale bond. The question •raised must be deemed to have been passed on, and whether correctly or incorrectly, the court cannot, we think, in a collateral action, inquire.” This was approved in Hamiel v. Donnelly, 75 Iowa Reports, 93 (39 N. W. 210). The same doctrine or principle is announced in Perkins v. Fairfield, 11 Massachusetts Reports, 227; Lockhart v. John, 7 Pennsylvania State Reports, 137; Merklein v. Trapnell, 34 Pennsylvania State Reports, 42, (75 Am. Dec. 634); Dixey’s Executors v. Laning, 49 Pennsylvania State Reports, 143; Foster v. Birch, 14 Indiana Reports, 445; Dequindre v. Willimis, 31 Indiana Reports, 444. In Arrowsmith v. Harmoning, 42 Ohio State Reports, 254, the court, in approving Mauarr v. Parrish, 26 Ohio State Reports, 636, said: “The decision in Mauarr v. Pairish was right. The probate court had jurisdiction of the subject-matter; — i. e. it ivas clothed with authority to order the sale of the lands of a minor on the petition of his guardian; and it is fair to say from the record that notice of filing the petition, provided for by the statute, had been served on the minor, before any order was made in the proceeding, in the manner in such statute provided; and hence, when the order of sale was made, and also when the sale was confirmed, the probate court had not only jurisdiction of the subject-matter, but also the parties. This being true, the order of sale and the order of confirmation, although they may have been erroneous, were not void. ‘The judgment or final order of a court having jurisdiction of the -subject-matter and parties, however erroneous, irregular, or informal such judgment or order may be, is valid until reversed •or set aside, * * * within which rale the orders of pro-hate courts are classed. (Shroyer v. Richmond, 16 Ohio St. 455.) If the judgment or order is erroneous, it may be reversed; if it is irregular or informal, it may be corrected on motion; in neither case, however, is it subject to collateral attack.’ (Wehrle v. Wehrle, 39 Ohio St. 365.) True, Mauarr v. Parrish is very briefly reported on the question we are considering. But the strength of an. opinion is not to be determined from its length. Frequently cases are disposed of by the application of principles so firmly settled that the citation of authorities in support of them would be a work of supererogation. The judge delivering the opinion in Mauarr v. Parrish probably thought the case belonged to that class, and hence the brevity of the report; but the ground of the decision is clearly indicated,- — that is, that, the court having jurisdiction of the subject-matter and parties, the order of sale and the order of confirmation, though they may have been erroneous, were not void,. —and that is sufficient. The record and a brief on each side of the case have remained on file in this court, and we have no-doubt that the question received the careful consideration, as in its decision, in the way stated, it received the concurrence, of every member of this court. And although cases in apparent: opposition to Maumn v. Parrish have been cited, yet nearly all of them are clearly distinguishable from it, when regard is had to the statutes on which they were based; and Mauarr v. Parrish is fully supported by Watts v. Cook, 24 Kan. 278; Bunce v. Bunce, 59 Iowa 533, 13 N. W. 705; Lockhart v. John, 7 Pa. St. 137; Merklein v. Trapnell, 30 Pa. St. 42; Appeal of Thorn, 35 Pa. St. 47; Dixcys Ex’rs v. Laning, 49 Pa. St. 143.” Watts v. Cook, 24 Kansas Reports 278, is also directly in point. The statute of Kansas (Comp. Laws 1879, c. 46. Sec. 15) provided that before any guardian’s sale of lands “can be made or executed, the guardian must give security to the satisfaction of the court, the penalty of which shall- be at least-double the value of the property to be sold, * * conditioned that he will faithfully perform his duties in that respect,, and account for and apply all moneys received by him under the direction of the court.” It was said (Mr. Justice Brewer, Mr. Chief Justice Horton, and Mr. Justice Valentine, composing the court) : “The authorities differ as to the validity of guardians’ sales in the absence of security. Some hold such sales void (Williams v. Morton, 38 Me. 47, 61 Am. Dec. 229), and others merely erroneous (Lockhart v. John, 7 Pa. St. 137; Perkins v. Fairfield, 11 Mass. 227; Foster v. Birch, 14 Ind. 445). We are inclined to believe tbe latter tbe true rule. Probate courts should cautiously obserye tbe provisions of tbe section quoted, and are greatly negligent in permitting sales on mortgages by guardians -without security; yet we cannot bold that the failure to give security deprives tbe court of jurisdiction. It is an error of a court having competent and full jurisdiction, subject to reversal or avoidance by due proceedings. The absence of the security did not render tbe proceedings void, blit only irregular.” This case was approved in Howbert v. Heyle, 47 Kansas Reports 58 (27 Pac. 116), although tbe judge writing the opinion entertained the view that the decision in Mauarr v. Parrish was against tbe great weight of authority.

We are satisfied, upon reason as well as by the weight of authority, that the provisions of Section 387 are directory, and hence that the sale was not void because the guardian omitted to give the special bond required thereby. The judgment must therefore be reversed and the cause remanded with directions to the court below to render judgment in favor of the plaintiff, and it is so ordered.

Reversed and renumded.


source: Caselaw Access Project

author:
ME. JUSTICE MILBÜEN Me. Chief Justice BeaNtly:
      Mr. Justice Pigott:

license: Public Domain

text:
    STATE, Respondent, v. WHITWORTH, Appellant.
    (No. 1,636.)
    (Submitted October 3, 1901.
    Decided November 25, 1901.)

      Criminal Law — Homicide—Prosecution—Assistant Counsel— County Attorney — Evidence—Threats—Requested Instructions.

    1. Political Code, gees. 4318, 4319, providing that county officers, except epunty commissioners and justices of the peace, may appoint necessary deputies fop the prorppt discharge of the duties of the offices, have no appji-cation to the appointment by the court of counsel to assist a county attorney in prosecuting persons charged with crime.
    ■2. Where a criminal cause is removed to another county, the attorney of the county to which the cause is removed must prosecute it.
    •3. The statutes declaring who shall be charged with the duty of prosecuting persons charged with crime does not exclude power in the court to appoint counsel from members of the bar to assist in the prosecution.
    4. In trial for murder it appeared that deceased had threatened to kill “any Missourian m the employ of V. who undertook to move hay on High Tower ranch,” and had made other threats against Missourians so employed, and that defendant was a Missourian, and employed on said ranch; but the evidence also showed that at the time defendant struck the fatal blow he was not in immediate danger, but that he went up to deceased, who was standing in a threatening attitude over a friend of defendant, who was "not shown to be a Missourian, and who was on top of, and was fighting with, a friend of the deceased. Held, that- it was not error to refuse to instruct that the jury should take such threats into consideration in determining the nature of the attack made on defendant’s friend, and what was the purpose of deceased and his friend in making such attack.
    5. A court should not be captious or hypercritical and refuse an important requested instruction solely on the ground of verbal inaccuracy; still it is not the duty of the court to undertake, in all cases, the labor necessary to prepare and rewrite defective requested instructions which if correctly states might well be given in the charge.
    Mr. Justice Pigott dissenting in part.

      Appeal from District Court, Broadwater County; F. K. Armr strong, Judge.

    William Whitwoetil was convicted of manslaughter, and appeals.
    Affirmed.

      Mr. William Wallace, Jr., for Appellant.
    I.
    What county attorney prosecutes in Broadwater county? Section 1978, Penal Code, on removal, says the case must proceed to trial and judgment as if begun there. Laws of 1899 (amending Section 4450 Political Code) say each county attorney must attend the district court, conduct all proceedings at all times and at all places within his county. The italicised language represents one of the features accomplished by the amendment as shown by an examination of the original section. Under Section 1981, if removed as to part of defendants, different county attorneys would try. Where as here the duties of the officer are limited to his county or district, so are his rights; and where a case is transferred out of his county hé does not follow it. (17. 8. v. Winston, 170 TJ. S. 522, 42 CoOp. Ed. 1131.) That a different practice has prevailed unchallenged can cut no figure, when the question is raised and the law plain. (Modoc Co. v. Spencer, 103 Cal. 498, 37 Pac. 483, 484.)
    II.
    May the court permit a private attorney to represent the state in prosecuting a criminal charge? The following authorities hold that this may not be done: Bunnell v. Stale, 71 Wis. 444; Modoc Co', v. Spencer, 103 Cal. 498, 37 Pac. 484; People v. Hurst, 41 Mich. 328, 1 N. W. 1027; People v. Hendryx, 58 Mich. 319 -,Meisler v. People, 31 Mich. 99; Commonwealth v. Knapp, 10 Pickering 477, 482; Commonwealth v. Williams, 2 Cushing 582, 584; Commonwealth v. Gibbs et al., 4 Gray 146; Commonwealth v. King, 8 Gray 501. Special statutes in some states authorize employment of private special counsel —in Iowa, by board of county commissioners (Hopkins v. Clayton Co., 32 Iowa 15) ; in Kentucky; by the attorney general (Hendrick v. Posey et al., 45 S. W. 525) ; in Nebraska, by the district attorney (Sands v. Frost Co.,’ 42 Neb. 837). The same in Pennsylvania (Com. v. Shire, 178 Pa. St. 409)."
    . By Subdivision 7 of Section 460 of the Political Code, the attorney general is required to assist the county attorney when required by the public service or when directed by the governor. And Sections 4318 and 4319, Political Code, provide for the appointment by the county attorney, himself, in writing, of an assistant, subject to allowance by the board of county commissioners. It would seem clear that our statutes are framed on the theory that public officers alone shall prosecute for crime and that the county attorney of the trial county shall act in person, or by authorized assistant, duly appointed; and that emergencies are provided for by authorizing the incoming of tbe attorney general as needed. It is not intended to deny the inherent power of a court, finding itself without a prosecuting officer, to supply one temporarily, but no such question as that is here presented, because the county attorney was in court, had been conducting other business, — only said he was not feeling well, in his own affidavit, and actually remained and prosecuted the case.
    As to the instructions, the following principles are laid down; (a) “It is the right of the parties to have the jury instructed on the law applicable to the ease clearly and pointedly, so as to leave no reasonable ground for misapprehension or mis-talce. And it is the duty of the judge when requested to give in the charge any requested instruction which is correct, as a proposition of law, and applicable to the issues.” (People v. Jacks, 42 N. W. 1135; Parker et al. v. State, 35 N. E. 1105, 1108; People v. Taylor, 36 Cal. 256, 266; 11 Ene. PI. & Pr. p. 213, 214 and cases.) As especially applicable to this kind of case see also: People v. Payne, 8 Cal. 343, 344; Townsend v. Briggs, 34 Pac. 111. The court must correct inaccuracies in offered instructions and charge on the propositions embodied. (Connors v. State> 2 N. W. 1143.) (b) The charge as given must cover every phase of the evidence. (11 Enc. PI. & Pr. 191, 193, and cases; Perry v. State, 44 Tex. 473, referred to; Martin v. The State, 47 Ala. 564.) (c) Offered instructions 3, 4 and 7 deal with phases of question of occupancy and immateriality of title not covered by the charge. Each correctly states the law. On immateriality of title: Sims v. State, 44 S. W. 522 ; People v. Payne, 8 Cal. 341. On occupancy and forcible tearing down: People v. Payne, 8 Cal. 341, 343, 344; The People v. Homshell, 10 Cal'. 83, 88; Sim-s v. State, 44 S. W. 526. Particularly as- to offered instruction No. 4: Butte & B. Gem.. Mng. Go. v. M. O. P. Go., 60 Pac. (Mont.) 1043. (d) Offered instructions Nos. 10 and 17 deal with above and also' declare whose duty it was to retreat and whose right it was to stand their ground, under supposed facts within the evidence in the case, a matter not directly charged on elsewhere, and wbicb was so vital to defendant that there should have been no chance left for any misapprehension by the jury. They correctly state the law in this regard. (Wallace v. U. 8., 162 IT. S. 474; Townsend v. Briggs, 34 Pac. 111.) They must form a part of the charge. (State v. Bolla, 55 Pac. 524; Oonnors v. State, 2 N. W. 1143!) The statute itself has recognized the importance of advising the jury whose duty ¡t is to retreat and whose right it is to stand, in other words, who may lawfully make resistance, and who nlust yield and give way because in wrong. (Sections 1411 and 1412 of the Penal Code.)
    The defendant was entitled to be where he was. The deceased and his companion were engaged in a willful and forcible trespass upon the property of appellant’s employer which had been put expressly in his charge, and it was vitally important to him to enable the jury to clearly judge his case that there should be no uncertainty in their minds as to who had the right to stand their ground and resist and whose duty it was to yield, fall back and give way, and the court did not in this case make this matter clear and certain to the jury, as the offered instructions 10 and 17 would have done.
    (e) Offered instruction No. 23 deals with the ]aw as to deceased’s threats, which was wholly omitted from the charge of the court.

      Mr. James DonovanAttorney General, for the State.
   ME. JUSTICE MILBÜEN

delivered the opinion of the court.

This case is before the court upon appeal from the judgment and the order denying a motion for a new trial.

The defendant was charged with the crime of murder in the first degree, alleged to have been committed in Meagher county. A change of venue was had to Broadwater county. The accused was convicted of the crime of manslaughter. The county attorney of Broadwater county prosecuted the action, and over the objection of tlio appellant the county attorney of Meagher county and Max Waterman, Esq., attorney at law, assisted in. the prosecution as of counsel for the state.

The evidence in the case is as follows: The deceased, William Cameron, was mortally wounded by the defendant on January 17, 1900, on the ranch of one Van Camp, in Meagher ■ county. Van Camp had occupied the premises peaceably and: without dispute for over five years prior to August, 1900. The-place was entirely inclosed by a fence built by Van Camp, who. had also built, used and occupied thereon during the same* period a cabin, a sheep corral, a sheep shed, a hay corral and' a stable; cutting the hay each year and feeding it to his sheep. and horses, and occupying the shed and corral with his sheep > at the usual seasons of the year. In August, 1899, while Van; Camp, was cutting hay, the deceased entered the fenced Enclosure, and about seventy yards from the sheep corral pitched a-tent, and proceeded, with the aid of one Johnson, to build a. cabin. On October 5 the deceased and his father took down, some poles from the Van Camp sheep corral and piled them in-front of the sheep-shed door. When Van Camp’s sheep came, up, a “word row” occurred between deceased and defendant,, in the course of which the defendant, using an opprobrious epithet, said, “If you persist, you will be put in a wooden box.”"’ At his dinner table, about November 20, defendant stated,. “Deceased better be careful, or he might be carried off in a box.” On January 15, 1900, at one Blethen’s blacksmith shop, her said, “Cameron was liable to be o-ut of there in, a box.”’ On the evening of January 16, defendant and one James Ham - vey, both employes then and there of Van Camp, were engaged' in-feeding the horses and milking the cows at the stables and corrals of Van Camp; the sheep feeding outside. At this’time, deceased and Johnson, having a few minutes previously fired' a rifle shot' from their cabin, started across to the Van Camp,, sheep corral, carrying an ax and a hatchet, for the purposej as; the deceased said, “of tearing it down.” As soon as they ar- - rived at the corral they began to chop posts and remove poles.. Defendant and Hanvey (tbe latter putting down an oat sack which, he was carrying to feed the horses) urged Cameron and Johnson several times not to tear down the fence, deceased saying that he would tear it down; and he and Johnson continued their work of destruction. Hanvey picked up a corral stake about three feet long and two inches thick, and leaned on it. He and Johnson said each to the other that he could “lick him.” Johnson “gave Hanvey the lie;’’ defendant saying, “Go- for him, Hanvey.’’ The too started for each other, Hanvey striking Johnson on the elbow with the club; and then, he dropping it, they clinched; Johnson backing a few steps and falling on his back, with Hanvey on top; the latter’s face beginning to bleed as they fell. Cameron ran up to where they fell, and stood near their heads, in a “striking position.” At this time the defendant, having picked up the club, went toward the other three, and, facing Cameron, struck him with the club on the side of the head, and, turning, also struck Johnson on the head with the club, as he lay upon the ground. One Hanvey testified that he was near the center of the corral, about fifty feet away from the defendant and the deceased, and was going toward them, and that he told the defendant not to strike the deceased or Johnson, who was then on the ground, under Hanvey. The defendant then started rapidly away across the corral;; Hanvey getting up. and following him, with his face and head bleeding freely. The defendant told Harvey that he struck the-hoys because he “could not bear to see them cutting Jim up- so.” Harvey saw a ridge about the size of a finger across the center-of the first joints of Hanvey’s fingers, which Hanvey said was. caused by a knife of some kind. Cameron died the nest day-from fracture of the skull. At the time the lie passed between Hanvey and Johnson, the defendant picked up the ax and hatchet that deceased and Johnson had brought, and threw them out of the way, on top- of the roof of the sheep shed.

In defense it was testified that all the defendant had said in the October 5 altercation was that he “could lick deceased on less ground than it would take to bury him on, or that he stood on,” and that during November, after tbe 7th. until the 29th, defendant was not at the Van Camp home ranch; where testimony tended to show that he on November 20 made a threat against deceased. The defendant also denied all other threats. It also appears in evidence that deceased in August, 1897, had threatened to hill any “damn Missourian in the employ of Van Camp who undertook to move a load of hay on the “High Tower Hanch.” The Van Camp ranch was known as the “High Tower Hanch.” The defendant was from Missouri. He weighed about 115 pounds, and was about 5 feet and 5' inches high. Deceased was about 5 feet and 10 inches in height, and weighed about 140 or 150 pounds. Johnson was 5 feet and 9 inches high, and Hanvey 5 feet and 6 inches in height. This alleged threat was communicated to the defendant long before the day of the homicide. Johnson had ill will against Van Camp, and a few days before the day of the killing said that “if Van Camp did not quit keeping Missourians around him, he would lick the whole bunch of them, and take the first chance he got to do it.” It was assumed that the rifle shot was fired by deceased in the direction of the defendant and Hanvey when near the High Tower cabin, because they heard the bullet whistle; Johnson testifying that deceased was shooting at some magpies that were around the house. It also appears in evidence that the defendant at the beginning of the quarrel picked up the hatchet, only throwing it on the shed, and that he and Hanvey repeatedly asked deceased and Johnson to quit tearing down the corral ; saying that they wanted to put the sheep in it that night. Defendant and Hanvey testified that deceased and Johnson wore mittens, and gloves underneath, and had knife blades or some sharpi instrument fastened to the back of their hands, underneath the mittens. The testimony for the defense was also to the effect that, as Johnson, and Hanvey fell; Cameron, who was 34 feet away, grabbed the ax and started toward them. Defendant jumped up and wrenched the ax from his hand as he was raising it, and threw it on the shed. Deceased then grabbed the club or stake, and defendant quickly jerked that from Ms band, saying it must be a fair fight. Deceased tben went to tbe beads of tbe men on tbe ground, and was “in tbe attitude of striking” at Hanvey from tbe side; Johnson striking from below. Defendant, Hanvey and Harvey testified that Hanvey was bleeding freely at tbe time defendant went over to tbe spot where deceased was, and struck Johnson and deceased each a blow with tbe club. It was also shown in tbe testimony for tbe defense that there were four cuts about tbe bead of Hanvey, evidently made by soma sharp instrument, still bleeding after a trip of 20 miles to another Yan Camp ranch, — tbe bandages around tbe bead being saturated with blood, — and that tbe wounds on tbe bead bled a great deal during tbe night. Dr. Kumpe, a practicing physician, testified that be examined the bead of Hanvey eight days after tbe killing, and could only find two small wounds, mere scratches, neither of which cut through tbe skin, and that, in bis opinion, they were not made with a knife; that they looked more like pin scratches.

The first and second specifications are: (1) “Tbe court erred in permitting tbe county attorney of Meagher county to prosecute tbe action, against tbe objection of appellant;” and (2) “tbe court erred in permitting Attorney Waterman to prosecute on behalf of tbe state in said action, against tbe objection of tbe appellant.” It appears from tbe record that tbe county attorney of Broadwater county appeared in open court and asked that tbe county attorney of Meagher county and Max Waterman, Esq., be appointed to assist him in tbe trial of tbe cause, at tbe same time filing bis affidavit setting forth that be (tbe county attorney of Broadwater county) was tben and there physically unable to assume tbe entire burden of tbe prosecution; and tbe court, finding that tbe attorney general was absent from tbe county of Broadwater, and that tbe cause was tben ready for trial, granted tbe motion of tbe said county attorney of Broadwater county, and said county attorney of Meagher county and tbe said Max Waterman, Esq., were tben appointed by the court' to assist in the prosecution of tbe cause, and the objection of the defendant to tbe appearance of said parties as assistants to tbe county attorney of Broadwater county was then and there overruled. At tbe time of tbe making of tbe defendant’s objection, bis counsel made and filed tbe affidavit of said counsel to tbe effect tbat tbe county attorney of Broadwater county was not sufficiently ill to prevent bim from giving’ tbe necessary attention to- tbe ease. It appears also tbat tbe said Waterman bad been, before tbe defendant’s preliminary examination in Meagher county, employed by the chairman of tbe board of county commissioners of Meagher county as special counsel to assist in prosecuting tbe charge, and bad appeared for tbe state at said examination. It does not appear tbat any one of tbe three attorneys appearing for tbe state bad received or been promised any compensation by any one whomsoever, except possibly such compensation as may be inferred as promised because of the employment of Mr. Waterman by tbe chairman of tbe board of county commissioners of Meagher county.

Defendant’s counsel, in. bis argument, inquires: Eim, “What coiinty attorney prosecutes in Broadwater county ?” and, second, “May tbe court permit a private attorney to represent tbe state in prosecuting a criminal charge?”

In tbe light of tbe provisions of tbe Penal Code pertinent to tbe matter, it is apparent what answer must be given to the first question; tbat is to say, tbe county attorney of tbe county to which tbe cause is removed must prosecute, in tbe same manner as if tbe action bad been begun in tbat county.

Counsel cites a large number of authorities tending to show tbat the court may not, over tbe objection of tbe defendant in a criminal action, permit a “private attorney” to represent tbe state in tbe prosecution. Examination of these authorities not only shows tbat they are not relevant to tbe question raised in tbe record at tbe time of tbe objection of tbe defendant to tbe appearance of tbe assistant attorneys, but at least one of them, Commonwealth v. Knapp, 10 Pick. 477, 20 Am. Dec. 534, even fails to support tbe proposition advocated by counsel for defendant, — that the statute which declares who shall prosecute excludes the appointment of other attorneys by the court over the objection of the defendant; the case referred to being one wherein Mr. Webster was allowed to appear as counsel for the prosecution, over the objection of the defendant, upon the request of the prosecution. It is not necessary to pass in this opinion upon the question asked by the counsel, for it does not appear that the county attorney of Meagher county or Mr. Waterman,'in any wise, in this case, was a “private' attorney.” A private attorney, as in the view of the courts whose opinions are cited by counsel, is an attorney employed by, and in the interest of, private persons, and. not paid out of public funds. He is one who1 has a special interest in the securing of a conviction, being employed by private persons to prosecute. He is not one who-, like a public prosecutor, is presumed to- do his duty in an earnest and faithful manner, impartially, and with the sole purpose of presenting the whole truth to the court and jury, both as to law and facts. We do not find anything in the record to show that either of the two assistant counsel appointed by the court was employed in. the interest of any private person.

It is contended by counsel in the argument that the county may have assistance only as provided in Sections 4318 and 4319 of the Political Code, except that the attorney general may appear, and that the court, when it finds itself “without a prosecuting officer,” may “supply one temporarily.” The two1 sections of the Political Code do not apply, as they are intended to provide for as many deputies in the office of any county officer, except a county commissioner and a justice of the peace, “as may be necessary for the faithful and prompt discharge of the duties of his office.” It is obvious that these provisions do not pertain to the appointment by the count of such assistant counsel as it may think necessary in the prosecution of any particular criminal case, when, in the opinion of the court, owing to the physical weakness of the county attorney, assistance is needed.

We think the great weight of authority is in support of our opinion that the court may legally, in its discretion, appoint counsel from tbe members of its bar to assist the prosecution, over the objection of the defendant, and that no error was made by the court in the present case in the matter.

In support of our position that the statute declaring who shall be ^charged with the duty of prosecuting persons charged with crime does not exclude the power of the court to appoint assistant counsel, we refer to the numerous citations in Tull v. State ex rel. Glessner, 99 Ind. 238, wherein the court says that: “The people do not surrender the right to employ just means of prosecuting criminals by choosing’ an officer and charging him with the special duty of prosecuting the pleas of the state. * * * The community does not avow that it will not employ counsel to assist him when the occasion demands.” Numerous other authorities might be cited.

Defendant also complains that the court erred to his prejudice in refusing to give to the jury six certain instructions prayed for by him. Three of them, numbered 3, 4 and I, deal with phases of a question of occupancy of the land upon which the hilling occurred, and the immateriality of the title to the lands in the case; counsel claiming that the points were not covered by the charge. There was no testimony as to who held or pretended to hold title to the premises. The charge, as given, sufficiently covers the rights and privileges of the defendant- in relation to the place where the homicide was committed.

As to requested instructions 10 and 17, defendant assigns error in their refusal, and says that they “declare whose duty it was to retreat, and whose right it was to stand their ground, under supposed facts within the evidence in the case, — a matter not directly charged on elsewhere, and which was bo vital to defendant that there should have been no chance left for any misapprehension by the jury;’’ also that they touch upon the points raised in instructions numbered 3, 4 and 7. The charge states the right of the employes of the owner of the property (they being the defendant and one other) to defend the property witb necessary force. .The reasonable and palpable deduction from the language of the charge is that the defendant and his co-employe, Hanvey, had the right to stand their ground on their employer’s premises, and defend the property and themselves. The apparent conclusion to be drawn by any reasonable man from the charge is, besides, that the deceased had no right or business on the premises if the jury believed “the supposed facts within the evidence;” that is, the allegations of the defense that deceased and his comrade were trespassing upon the premises and engaged in destroying the property of the defendant’s employer, in charge of which defendant was. Those paits of these two refused instructions which correctly state the law, and should be given in such a case as the one at bar, in our opinion, are sufficiently covered in the charge.

The defendant’s refused instruction No. 23 is as follows: “As to threats by deceased, it is in evidence that a threat generally directed toward Missourians was made in connection with the High Tower ranch. If you find that the defendant belonged to the class mentioned, you should take into consideration such threat, if you find it proven, in determining what the nature of the attack, if any, made by the deceased upon Hanvey, was, and what the purpose of Johnson and deceased was in making such attack.” The evidence shows that, at the time the defendant struck Cameron the fatal blow, he (defendant) was not in any immediate danger, but that, as indisputably appears in evidence, he went up to deceased and Johnson; Hanvey then being on top of Johnson, who was lying upon the ground; the deceased"standing at the heads of the two, in an attitude threatening to Hanvey. It appears in evidence that the defendant was a Missourian. There is nothing tending to show that Hanvey was from Missouri. The alleged threat of deceased toward Missourians would not tend to indicate “the nature of the attack, if any, made by the deceased upon Han-vey,” or “what the purpose of Johnson and deceased was in making such attack” upon Hanvey.

We note that counsel contends that “the court must correct inaccuracies in offered instructions, and charge on the propositions embodied,” and in support of this cites Conners v. State, 47 Wis. 523, 2 N. W. 1143. Examination of this case shows that it cites as authority State v. Wilner, 40 Wis. 304, wherein the court held that it could not sustain a judgment of conviction of a high crime; an important instruction having been refused solely on the ground of verbal inaccuracy. In that case the defendant asked for an instruction to the effect that “* * * insanity, once proved to exist, is presumed to exist until the presumption is overcome. * * *” The court thought the word “insanity” was too broad, and should have been qualified by the lower court, and the instruction given as thus modified. In other words, it was rightly held that a court should not be captious or hypercritical, and in this we agree; but it is not the duty of tire court to undertake the labor and research necessary to prepare and write instructions, in all cases, where the counsel has in a proposed instruction, embodying, perhaps, argument, ambiguous language, misstatements of fact, or palpably incorrect statement of law, merely suggested certain principles which, if correctly stated, might well be given in the charge. We do not mean to say that the refused instructions in this case should be characterized as the above language might imply, but we merely wish to be understood as saying that the refused instructions could well be refused for sufficient reasons other than that they were verbally inaccurate.

The instructions given were favorable to the defendant, and were clear enough to be understood, we think, by a juror or average intelligence, and, further, we think they covered sufficiently such appropriate points as were raised in the refused instructions.

The judgment and the order denying the motion for a new trial are affirmed.

Affirmed.

Me. Chief Justice BeaNtly:

I concur.

Mr. Justice Pigott:

I concur witb tbe majority of tbe court in bolding that there was no error in permitting counsel to assist tbe county attorney; but I am not satisfied that tbe matters contained in prayers for instructions 10 and 17, touching tbe right of tbe defendant and Hanvey, under supposed facts which the evidence tended to establish, to stand their ground, were sufficiently covered by tbe charge, nor is it clear to me that refused instruction 23 was irrelevant. I am inclined, therefore, to think that there should be a reversal. This conclusion has been reached after much doubt and hesitancy, for I appreciate the force of the opinion upon these questions.


author: ME. CHIEF JUSTICE BEANTLY

text:
    STATE ex rel. STATE BOARD OF MEDICAL EXAMINERS, Relator, v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT, DEPARTMENT NO. 2, Defendant.
    (No. 1,738.)
    (Submitted November 25, 1901.
    Decided December 2, 1901.)

      Courts — Jurisdiction — Physicians and Burgeons — Right to Practice Medicine — Bxamination — Refusal of Medical Board to Grant Certificate — Right to' Practice Pending Appeal.

    "Whether acting under its general constitutional powers or as exercising a special and limited jurisdiction derived exclusively from the statute (Political Code, See. 603), the district court has no power to allow an applicant to practice medicine pending his appeal from a refusal of the state board of medical examiners to grant him a certificate.
    Application for a writ of certiorari by the state, on relation of the State Board of Medical Examiners, against the Eirst 'Judicial District Court, Department No. 2, in and for Lewis and Clarke County, to annul an order allowing a petitioner to practice medicine pending an appeal.
    Order annulled.

      Mr. James Donovan, Attorney General, for Relator.

      Mr. R. 8. Btochton, for Defendant.
   ME. CHIEF JUSTICE BEANTLY

delivered tbe opinion of tbei court.

Application for writ of certiorari. Tbe board of medical examiners of tbe state of Montana was organized under tbe provisions of Article XVI, Part III, Title I, Chapter III (Secs. 600-608) of tbe Political Code. It bas power to grant certificates of proficiency to persons wbo desire to begin tbe practice of medicine or surgery in any of tbeir branches in this state; and to this end it is its duty, among othér things, to bold meetings at tho city of Helena on tbe first Tuesday of April and October each year, and at such other times at tbe same or any other places tbe board may choose, for tbe purpose of ascertaining tbe proficiency of all applicants for such certificates. Any person is deemed to be proficient wbo is possessed of a diploma from a medical school legally organized and in good standing, whose teachers are all graduates of a legally organized medical school, provided be is able to pass an examination upon tbe subjects enumerated in the statute and on such other’s as tbe board may think necessary; and provided, also, be can present evidence that be bas attended four courses-of lectures of at least six months each. Tbe board is empowered to refuse a certificate to any applicant wbo, in its opinion, does not show himself proficient, or wbo, upon an investigation after charges preferred, is found to have been guilty of unprofessional, dishonorable or immoral conduct. On tbe ground last mentioned, and after a similar investigation, tbe board may also revoke a certificate already granted. In all cases of a refusal or revocation of a certificate, tbe person aggrieved thereby may appeal from tbe decision of tbe board to tbe district court of the county in which tbe decision is made, and tbe court may affirm or reverse tbe action of tbe board, according to tbe facts as they are made to appear. Tbe possession of a license or certificate is made a prerequisite to engaging or continuing in tbe practice of medicine or surgery by any person, except a midwife of skill and experience; a commissioned surgeon of the United States army or navy while in the discharge of duty, or a physician or surgeon from another state or territory while in actual consultation. If, during the time intervening between the.sittings of the board, a person desires to begin practice, he may do so after obtaining a certificate from the secretary of the board, who has power to issue the same, upon presentation to him of a diploma meeting the requirements stated above. This certificate is good until the next regular meeting of the board. A violation or disregard of these provisions of the statute is denounced as a misdemeanor, and subjects the offender to the penalty of a fine or imprisonment, or both, at the discretion of the court having cognizance of the offense.

On October 1, 1901, one J. N Grinstead presented his diploma to the said board, then in regular session at Helena, and asked that he might be permitted to submit to the required examination. He was allowed to begin the examination, but during the course of it, as was alleged by the secretary of the board, he was detected in the use of certain notes and memo-randa to aid him in answering the questions propounded, and thus to obtain an undue advantage over the board and the other candidates then being examined. He was thereupon denied the privilege of continuing the examination. A charge: was preferred to the board by its secretary, accusing him of “unprofessional, dishonorable and immoral conduct,” the specification being that he had been detected in the use of said notes and memoranda for the purpose stated. After written notice, and an examination by the board into the facts, he was found guilty and refused a certificate. He immediately appealed to the district court of Lewis and Clarke county, and thereupon applied to that court for an order permitting him to engage in the practice of his profession until a hearing could be had upon the merits. The judge required him to submit to an examination in open court as to his qualifications, and thei*eupon made the following order: “Upon reading and filing the petition of J. U. Grinstead, praying that he be authorized, during the pen-dency of the appeal taken by him in the above-entitled pro•ceeding, to practice medicine and surgery in the state of Montana, and after having duly considered the same, I do hereby authorize and empower the said J. F. Grinstead, petitioner, to practice medicine and surgery in the state of Montana pending the said appeal.” It is sought by this proceeding to have this order annulled on the ground that it was made in excess of jurisdiction.

The only question presented is whether the district court having jurisdiction of the appeal has also- the power to make the order complained of, and thus to grant to the appellant, pending a hearing, immunity from punishment for doing that which the statute denounces as a misdemeanor.

Section 603 of the Political Code, after providing generally that an appeal may be taken' from the decision of the board refusing or revoking a certificate and regulating the procedure to be observed upon a trial of the merits, closes with the following provision: “In case of an appeal from a decision revoking a certificate the appellant may be permitted, in the discretion of the court, to practice during the pendency of the appeal.” It is silent as to the power of the court in cases in which the board refuses a certificate.

Counsel for the defendant, as we understand him, assumes the position that the district court is a court of general jurisdiction; that the right to practice medicine and surgery is a n'atural right; and that the court having jurisdiction of the appeal, also has the inherent power, in the absence of an express prohibition to the contrary, to permit the appellant to exercise this natural right until it is determined by a trial upon the merits that he does not possess the requisite qualifications. The attorney general argues that the jurisdiction conferred by the statute over these appeals is special and limited, and that the district court, in the exercise of it, has no other powers than those expressly given. It follows, therefore, he says, that, as the statute nowhere in express terms authorizes the court to grant permission to practice pending the appeal in this class of eases, the order in question was without jurisdiction and void.

It may be stated, as a general proposition, that every person has a natural right to pursue any lawful business or profession. This general statement is subject, however, to the limitation that the person asserting such a right must, before attempting-to exercise it, comply with all reasonable police regulations made by the state touching the qualifications declared necessary for the particular calling. In the absence of such regulations, the right is absolute, and may be exercised at pleasure; but where they exist compliance with them is a condition precedent, and until this condition is fulfilled the right- is in abeyance, and may not be exercised a-t all.

The power to ascertain, in the first instance, whether this condition precedent has been fulfilled, and to- declare that the-right may be exercised, is therefore, in a qualified sense, a power to create and grant the right. Under the constitution district courts have jurisdiction extending to all classes of cases-therein enumerated, and to all special actions and proceedings not otherwise provided for, as well as to appeals from justices’ and other inferior courts in such cases as are provided for by law and consistent with the constitution. Yet they have no power to create a right where none exists, or to’ permit the exercise of existing ones contrary to law. Their powers are confined to the ascertainment of existing rights, and the enforcement of them when so ascertained. It is the exclusive province of the legislature to- declare the law regulating the rights of citizens. So long as it does not violate any provision of the constitution, its will is absolute. It is the province of courts, to enforce the law, and they have no power to disregard it, or-to suspend its operation, except in the cases and upon the conditions expressly declared. In this case no question is made as to the power of the legislature to create the board of medical examiners, and to define its powers; nor is any complaint made that any of the prescribed regulations are unreasonable. Such legislation has always been upheld as a wise exercise of the police powers of the state, and necessary to the protection of' the public. This is particularly true of a calling or profession wbicb requires technical knowledge and skill. Without such knowledge and skill in the practitioner, there is dang'er that damage will result to those who employ him. Therefore one may be prohibited from pursuing such a calling or profession until he has been examined by the lawfully constituted authorities, and declared sufficiently qualified to engage in it with safety to the public.

The legislature, in the exercise of its legitimate power, has prescribed the conditions precedent upon the fulfillment of which one may begin and continue the practice of medicine and surgery, and has prohibited it in all other cases. It has also established the board of examiners, whose province it is, in the first instance, to declare whether these conditions have been observed, and made the determination of the board final, subject only to revision by the courts for errors and abuses'. The courts, therefore, have no power to suspend the operation of the will of the legislature thus declared, and usurp' the authority lodged in the board. To do this would be equivalent to an exercise of the exclusive functions of the legislature and of the hoard. This the courts may not do, even though a violation of the statute was not denounced as a misdemeanor. As it is, the prohibition directed to the individual citizen is as much a limit to the power of the court as if it had been expressly provided that the court should not grant permission to pursue the practice pending the appeal in this class of cases.

Dor obvious reasons the legislature deemed it proper, in a case where a certificate has been revoked, to authorize the courts, in their discretion, to grant the appellant permission to practice pending his appeal. In his case the conditions precedent have all been fulfilled. His right has accrued. He has, perhaps, by his energy and application, built up a profitable practice. It is the means of support for himself and family. This should not be taken away without good cause. It is therefore but just that he be permitted to exercise his right until it is finally adjudged that he has forfeited it; especially so, if it is made to appear prima facia that the forfeiture has been de-dared upon doubtful evidence, or from bad motives on tbe part of tbe board. In case of an applicant for a certificate in tbe first instance no sncb reason exists. No right bas been established. No practice depends upon bis’ attention. He will suffer no immediate material injury if tbe certificate be withheld for a reasonable time until be can demonstrate that tbe action of tbe board in denying it was arbitrary or erroneous. Tbe burden is upon him to establish bis right. In tbe other case tbe burden rests upon tbe state represented by tbe medical board.

Tbe statute recognizes this clear distinction between tbe two classes of cases, and tbe intention of tbe legislature in this regard is manifested by tbe explicit provision touching tbe former and its silence touching tbe latter. Tbe principle contained in tbe maxim, “Expressio unius est exclusio alterms” clearly applies, and the order was clearly unauthorized, whether tbe district court be regarded as acting under its general constitutional powers or as exercising a special and limited jurisdiction derived exclusively from tbe statute. It was not within its power to insert in tbe statute what was omitted therefrom by manifest-intention, and thus to grant a right expressly prohibited.

Counsel for defendant suggested during tbe argument that, though tbe order be held to be in excess of jurisdiction, it should not be annulled in this proceeding, because it is manifest that it will not result in injustice or wrong to any one. In support of this suggestion be cited Meads v. Belt Copper Mimes (Mich.), 84 N. W. 615. Conceding that we might, in our discretion, refuse to issue tbe writ in tbe first instance in a case where it is -apparent that no injustice would be done, or dismiss tbe proceeding on this ground after tbe writ bas issued and tbe record of tbe district court bas been certified up, tbe case cited is not in point. Tbe relator herein, as such, would suffer no injustice if tbe order were permitted to stand. Tbe people, however, have a right to have tbe law administered according to its manifest spirit and purpose. To disregard this right would be to permit a public wrong, and to- set aside tbe will of tbe people as expressed through tbe legislature.

A judgment may therefore be entered annulling the order at.tbe cost of defendant.

Order annulled.