author: MR. JUSTICE MILBURN Mr. Chief Justice Brantly: Mr. Justice Pigott :

text:
    STATE ex rel. KING et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,547.)
    (Submitted February 4, 1901.
    Decided April 1, 1901.)

      Mandamus — Court’s Discretion — Court Rules — Affidavits Not Served with Motion — Consideration.
    1. Under -a rule of court requiring that affidavits -and papers to be used in support of a motion shall be served on the attorneys of the parties at .the time notice of motion is-served,’ it was mot error for the court -to refuse to consider affidavits of the moving party served two days after the. notice and three days before the hearing of a motion, such affidavits not referring to matters coining to the attention of the movants after notice was served.
    2. Reasonable rules of the district courts, when made and published, are part of the law of the land so far as procedure in such courts is concerned, and so far as the Supreme Court is concerned in passing upon the action of such courts in relation thereto.
    3. Mandamus will not apply to a judicial act to correct an error.

      i. Mandamus will not lie to compel the court to hear a motion for dissolution of an injunction, where the court had dismissed the motion after haying its attention called to the pleadings, orders and records in other cases between the saíne parties, and having determined that the same question had been decided, though the’ evidence on which its determination was based . was unsatisfactory, since mandamus cannot be used to control the discretion of an inferior court acting within the scope of its authority.
    Application by the state of Montana, on the relation of Silas F.' King and others, for mandamus against the Second judicial district court and the judges thereof.
    Application denied.

      Mr. E. N. Harwood and Messrs. McBride & McBride, for Delators.
    It is sufficient answer to the first subdivision of plaintiff’s objection, to call the attention of the Court to the fact that the rule which is referred to in said subdivision does not provide a penalty for a failure to serve and file the affidavits with motion. The construction of the rule which would preclude relators from a hearing because one day intervened between the service and filing of their motion and the service and filing of their affidavits, would be very unreasonable. There is nothing in the second subdivision of plaintiff’s objection, which is to the effect that the temporary injunction which relators seek to dissolve was “granted after notice.” The court’s power over its process is not abridged by the fact that it was “granted after notice.” By virtue of the constitutional provision creating courts of equity in the state of Montana, they have inherent power to control the process of the court. The district court shall have original jurisdiction in all cases of law and equity. (Constitution, Sec 11, Art. VII.) The power to isssue an injunction implies a power to dissolve it, and a court which has' issued a preliminary injunction has inherent power to suspend, dissolve or modify it upon attention being called to the impropriety of the order. (E'ney. of PI. & Pr., Vol. 10, page 1027.) Courts of equity have ample power to control the processes of the court, and the use which Maloney et al.,
      or any other person, may make of such process. ( Van Zandt v. Mining Co., 48 Eed. 770.)
    The third subdivision of plaintiff’s objection is not tenable. Relators’ motion stated facts sufficient to warrant the court in hearing the same. The sole object of a temporary injunction in cases of this kind is to preserve the subject of controversy, pending the trial of the case upon its merits. (1 High, Injunctions, Secs. 4 to 15; Bluebird Mimi. Co. v. Murray, 9 Mont. 468-476; 10 Ency. PL & Pr. 878, and cases cited; Helm v. Gilroy, 26 Pac. 851.) It is a gross abuse of the process of the court for a party to disregard his own injunction, after having, by means thereof, tied the hands of his adversary. (Van Zandt v. Mining Co., 48 Eed. 770; Haight v. Lucia 36 Wis. 355, 361; Mowrer v. State, 107 Ind. 539, 543, 8 N. E. 561; 10 Am. & Eng. Ency. Pl. & Prac. 1104; Silver Peale Mines v. Hanchett, 93 Eed. 76-77.) When a district judge refuses to perform the functions of his office, mandamus will lie to compel performance. (Code of Civil Procedure, Sec. 1961.)

      Mr. C. P. Drennan and Messrs. McHatton & Cotter, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This cause is before this Court upon the petition of the relators for a peremptory writ of mandamus, and upon the motion of defendants to quash the alternative writ and to dismiss the action with costs. The motion to quash and the matter of the petition were argued and submitted at the same time. The relators interposed a motion to strike certain parts of the answer and return of the defendants. This motion was not argued by counsel, and it is not necessary to consider the same in this opinion, except to say that in arriving at a determination the parts objected to have not been taken into consideration.

In cause numbered 8,059 in the court below, wherein Maloney et al. were defendants, commenced in July, 1899, in Department II of the district court of Silver- Bow county, the court granted an injunction pendente lite enjoining the defendants from working certain mining property claimed by plaintiffs as their property, and underlying the surface of the Plymouth lode claim.

On April 24, 1900, relators served and filed in said suit a motion to dissolve the injunction, setting out as grounds for said motion “that Maloney et al-. had abused, and were in the act of abusing, the process of the court, in that they had been, since the issuance of said injunction order, and were then engaged in the commission of acts going to the destruction of the estate, which the order they had procured 'was intended to preserve.” This motion came on for hearing before the district court in Department II on May Y, 1900, when Maloney et al. objected to the hearing of the same on the following grounds:

“First. Said court should not entertain or hear said motion, because the affidavits filed in support thereof were not filed with said motion, and copies thereof were not served upon said plaintiffs or their attorneys with said notice, or at the time said notice was served upon them, as required by Buie 3 of this Court.
“Second. Because said restraining order and injunction was granted by the court after notice to the defendants, and upon the order to show cause served on them, and after a full hearing of the same.
“Third. Because at the time said restraining order and injunction was granted the same was granted upon a hearing, and after due and legal notice to' the defendants, and that said defendants did not ask for or obtain, at the time or thereafter, any or leave or order of court allowing them the privilege or permitting them thereafter to apply for the dissolution or modification of said order, and the right to do so was not created or reserved in the order granting said injunction and restraining order.
“Fourth. Because defendants’ motion does not state any facts or reasons which would justify the court in hearing the same, or which, if shown to exist, would authorize or justify the court in modifying or dissolving said restraining order and injunction.
“Fifth. Because the defendants’ motion and the affidavits filed in support thereof are insufficient to justify or warrant the court in entering upon the hearing of said motion, or to authorize or warrant the court to modify or dissolve said injunction and restraining- order; and because, if the court should grant said motion, its order granting the same would be an abuse of judicial discretion, and would result in irreparable injury and damage to plaintiffs.
“Sixth. Because the defendants herein heretofore presented and had heard by this court their motion to dissolve said restraining order and injunction, and the court, after a full hearing of the same, made and entered its order refusing to dissolve the same, and the defendants have never obtained any leave to renew the said application, or to again move the court for the dissolution of said restraining order.
“Seventh. Because said motion and the affidavits filed in support thereof are sham, and show upon their faces that the matters and things therein stated and attempted to be charged are immaterial and insufficient to justify the court in entertaining said motion, or in entering upon a hearing of the same, or in making any order with reference to said injunction order. And because since the granting of said injunction order the defendants brought an action in Department No. 1 of this court against the plaintiffs, and applied to the Honorable John Lindsay, judge of said department, for an injunction against these plaintiffs to restrain and enjoin them from doing any of the acts or tilings mentioned in .the complaint in said action, and that in said complaint the matters set forth in the affidavits and motions filed herein are stated; and that said matter came on before said court, the Honorable John Lindsay presiding, upon the application of these plaintiffs therein fi> dissolve the restraining order theretofore issued in said action against them, and for an order of the court refusing the application of the plaintiffs therein for an injunction; and that the various matters complained of in the motion herein and stated in the affidavits filed in support thereof were presented at said time by the plaintiffs in said action; and that said court, through said judge, after a hearing upon the same, dissolved said restraining order issued in said action, and refused to grant the plaintiffs therein an injunction against these defendants. And because, after the granting of the injunction order herein, the defendants herein brought an action against these plaintiffs and others in this department of the court, and sought to obtain an injunction against them preventing them from breaking or removing any rock or ore or mineral, or carrying away any ores or mineral from the ground and vein in controversy herein; and a full and complete hearing was had therein upon the testimony and evidence submitted by the respective parties, and After said hearing the court dissolved the restraining order theretofore issued therein, and entered its order refusing to grant to the plaintiffs therein an injunction. And because, by reason of the hearing had before this court in which the restraining order herein was granted, and of the said motion in Department 1 and the hearing had therein before the Honorable John Lindsay, judge thereof, and because of the hearing had and the orders made in the action brought by the defendants against these plaintiffs above referred to, and being cause No. 8,213 of the files of this court, the matters complained of in the motion herein, and all of the things stated or attempted to be set forth in the affidavits in support thereof, have been determined by the orders of this court against the defendants, and the same are res adjudícala.” ' The court sustained the objection, and made its order dismissing the motion to1 dissolve the injunction.

On October 20, 1899, said King et al. commenced an action numbered 8,213 in the same department, against said Maloney et al., praying that defendants be, among other things, enjoined from entering or working the mining property in dispute, in which cause the court issued an order to show cause and a restraining order pending the hearing. On February 3, 1900, the court denied plaintiffs’ application for an injunction pendente, lite, and dissolved its restraining order. In this cause the complainants, King et (A., alleged that defendants had entered upon the disputed property, and were extracting a large quantity of valuable ore therefrom, and threatening to continue to do so. On February 15, 1900, said King et al. commenced in Department 1 of said district court their action numbered 8,418, against Maloney et alpraying, among other things, that the defendants be enjoined from entering or working the mining property in question. The judge of the said department dismissed the said cause for want of jurisdiction, the principal reason given being that it was apparent from the pleadings that the principal cause of action stated was identical with that of suit numbered 8,213, and it and the other matters set up in said suit were such as could have been presented for adjudication' in the former action by supplemental or amended pleadings; and therefore the court held it to be incumbent upon it to dismiss the cause, the other department having acquired and taken jurisdiction.

In the complaint in cause No. 8,418 it is alleged that Maloney et al. had entered upon and were working the mining property in controversy, and were extracting valuable ores, and filling up the plaintiffs’ drifts and tunnels, and destroying the workings and developments showing the identity and continuity of the vein.

Upon the hearing of May 1, 1900, of the motion to dissolve the injunction in cause No. 8,059, the court, considering the objections of the plaintiffs in said cause, made an order dismissing the motion to dissolve, recited in its. minutes as follows: “This day motion to dissolve injunction comes regularly on for hearing, Esq. John J. McIIattan appearing on behalf of plaintiffs, and defendants are represented by Esqs. F. T. McBride and E. N. Harwood; whereupon counsel for plaintiffs objects to tbe hearing of motion to dissolve injunction for the reason that it is res adjudicata. Evidence is adduced upon said objection, and arguments heard, and the objection by the court sustained, and motion is thereupon by the court dismissed; to which ruling defendants duly except.”

Defendants moved to quash the alternative writ. The court thereupon ordered them to answer, and issues to be made, reserving all questions presented until final hearing. At the hearing evidence was taken, and the cause submitted.

Judge Clancy, „ answering, avers that upon the hearing on 'the objections the objectors offered the pleadings, .orders and records in cases 8,059, 8,2.13 and 8,118, saying also: “There was also in evidence in support of said objections, the testimony taken upon the hearing of said order to show cause, and the minute entries of the court showing said hearing, and the order of the court, made on February 3, 1900, overruling the application for an injunction therein and dissolving the restraining order theretofore issued in said cause.” This quotation refers to cause numbered 8,213, wherein, as heretofore stated, the relators, as plaintiffs, set up that' said Maloney et aldefendants, were engaged in working the property in dispute, and extracting valuable ores therefrom, belonging to the plaintiffs. It appears that the court did not consider the affidavits accompanying the motion. The testimony of Mr. J. J. McHatton, counsel for the defendants herein, is somewhat in conflict with the return of the district judge, in that it declares that the testimony taken in the several causes referred to was not actually introduced, but that the attention of the judge was directed to the same, and that counsel was informed by the judge on the hearing that it was not necessary to actually produce the transcript of such evidence before him, as he would take notice of it.

We are, in effect, asked to declare that the court did not take up and consider and determine the motion; that the court’s record of its order is false, and that the verified answer of the judge is also false in some particulars; to vacate the said order, and to issue a mandate directing the court and its judge “to forthwith hear relators’ said motion for the dissolution of the said injunction order issued May 5, 1899,” made in said cause numbered 8,059.

It appears from the evidence submitted in this Court, from the petition and the briefs, that at the time of the hearing of the objections there was no objection to the consideration by the lower court of the question as to whether or not the motion was res adjudicate, as declared in the objections.

The court, under its rule, was at liberty, -on the objections, to entirely-disregard the proofs in the form of affidavits accompanying the motion to dissolve; and it appears that it did so, they not having been served and filed with the motion, but served and filed two days after service of notice of motion, and three days before the day noticed for hearing.

The hearing of the motion to dissolve had been continued on the court’s own motion. The plaintiffs in the cause in which the motion was filed had the right toi rely on the court’s rule, and to invoice the same, as they did, in their objections filed on the day that said motion was noticed to be heard. Their right to have said affidavits disregarded by the court accrued on the same day, and they evidently relied upon the court’s rule, and did not offer any counter affidavits. The court’s rule is a reasonable and a just one, and we cannot say that the court erred in disregarding the affidavits, as they were not filed or served contemporaneously with the motion, as required by the said rule, and did not refer to matters coming to the attention of the movers after notice was served. Beasonable rules of court are by law permitted to be made and adopted, and, when made and published, are part of the law of the land, so far as procedure in the court where they are made and published is concerned, and so far as this court is concerned in passing upon the action of such courts in relation thereto. In this connection we pause to say that we disapprove of the decision of the Supreme Court in the case of Stevenson v. Cadwell, 14 Montana 313, 36 Pac. 185, as we do not believe that it is error to apply rules of court if their application has been invoked by parties to an action who had a right to invoke the same.

The contention of the relators is that the court below erred in finding that the matter was res adjudicata. They declare that the court did not have before it actually the evidence averred by the respondent judge to have been introduced, and they deny that the matter ivas res adjudicata.

“Superior tribunals may, by mandamus, command an inferior court to perform a legal duty where there is no other remedy, and the rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, — as where the act has been erroneously performed.” (Mr. Justice Clifford, in Ex parte Newman, 14 Wall. 169, 20 L. Ed. 880.) If the duty is unperformed, and it be judicial in its character, the mandate will be -to the judge, directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be performed. The writ must not be extended too far, or used to control the discretion of an inferior court acting within the scope of its authority. (Ex parte Newman, 14 Wall. 169, 20 L. Ed. 880; Ex parte Denver & Rio Grande Ry. Co., 101 U. S. 711, 25 L. Ed. 875; Ex parte Many, 14 How. 24, 14 L. Ed. 311; People v. Arapahoc Co. Dist. Ct., 14 Colo. 396, 24 Pac. 260; State ex rel. Independent Pub. Co. v. Smith, 23 Mont. 329, 58 Pac. 867; State ex rel. Northern Pac. Ry. Co. v. Loud, 24 Mont. 428, 62 Pac. 497; Montana Ore Purchasing Co. v. Lindsay, 25 Mont. 24, 63 Pac. 715.) We do not consider that this is a matter wherein the court has erred in the consideration of some question of law or of practice preliminary to the whole question, or any part thereof, but a simple question of whether or not the court, having taken up and considered — on perhaps insufficient evidence — the question whether or not the matter was res ■ adjudicata, erred' in its ruling. If it were a question simply of the court’s having erred in a conclusion of law or on a question of practice, presented as a preliminary objection, and because of such error no consideration had been given-to the motion to dissolve, mandamus would lie (Raleigh v. First Judicial Dist. Court, 24 Mont. 306, 61 Pac. 993) ; but in the case at bar we are of opinion that mandamus is not within the power of this Court to grant.

It appears that at the time of the hearing on said objections it was admitted and understood by the court and all the parties that the property in dispute was the same property mentioned in said causes numbered 8,059, 8,213 and 8,418.

The relators, upon the hearing on said objections, and upon the question of res ad judicata, then considered, did not offer any testimony outside of said affidavits to which objection was made under said rule.

Did the court err in its finding that the matter was res adjudicataf If so, tnandamus will not apply to- a judicial act to correct an error. If evidence was considered, and on it the court acted, mandamus will not lie to reverse its decision, and to coerce it into finding otherwise. 'It is apparent from the evidence before this Court and from the answer of the district judge that the court, having had its attention directed to the pleadings, orders and records in the cases numbered 8,059, 8,213 and 8,418, and having been asked to notice the evidence in the two cases in which testimony had been taken, and to which its attention was specifically directed then and there, although the evidence was not produced before the court in the actual form of a transcript, concluded, after consideration thereof and of the subject-matter of the motion and said objections, that it had already once heard and determined the question of the alleged abuse of its injunction by the parties who had sued out the same.

We cannot, under the circumstances of this case, hold that the court has refused to consider and determine said motion. The motion was considered on the objections, although perhaps erroneously decided to be res adjudicata, and we cannot,. by mandamus, order the court to set aside the objections, and to reconsider the motion, to the end that it may be forced to have more or better evidence than it did on the said hearing.

The alternative writ is quashed, and the petition for a peremptory writ is denied.

Mandamus denied.

Mr. Chief Justice Brantly:

I concur in the result reached by Mr. Justice Milbum in the foregoing opinion, but do so on the ground that the district court was justified in refusing to hear the motion to dissolve the injunction because the relators had disregarded the rule of the district court requiring the affidavits to be filed and served with the notice of motion. Objection was made by the plaintiffs in No. 8,059 on this ground at their earliest opportunity, and the only proper course for the court to pursue under the circumstances was to enforce the rule by refusing to hear the motion on this ground. It was, therefore, unnecessary to proceed to a hearing of .the evidence upon the question whether the matter presented by the motion was in fact res adjudicata. Without expressing an opinion as to the correctness of Mr. Justice Milhum’s conclusions on this branch of the case, I do not think a consideration of the question involved at all necessary to a decision.

Mr. Justice Pigott :

I concur in the conclusion announced by Mr. Justice Milburn to the effect that the alternative writ should be set aside, and judgment entered dismissing the proceeding.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    CONKLIN, Appellant, v. CULLEN, Respondent.
    (No. 1,657.)
    On Motion to Strike.
    (Submitted April 1, 1901.
    Decided April 8, 1901.)

      Appeal — Record — Evidence — Authentication — Stenographer’s Certificate — Stipulation of Counsel.

    1. Under tbe provisions of tbe Code of Civil Procedure of 1895, neither the certificate of the court stenograph©, nor the stipulation of counsel can perform the office of the certificate of the judge to preserve and authenticate the evidence for the purposes of an appeal.
    2. Under Code of Civil Procedure, Secs. 1736, 1196, the evidSnee heard at the trial is no part of the judgment roll so as to be included in the record on appeal, unless incorporated in a bill of exceptions or statement settled by the judge or referee before whom the trial takes place, hence a copy of the stenographer’s report of evidence, not included in any bill of exceptions or statement settled by the judge, identified merely by the stenographer’s certificate, and accompanied by a stipulation of counsel that such statement contains all the evidence, but without waiver of any right to object to the evidence as not being a part of the record, must be stricken from the record on motion, as it could only be made a part of the record under Code of Civil Procedure, Secs. 1150-1158, relating to the making of bills of exceptions, or under Sec's. 1170-1176, providing the method for obtaining a new trial.

      Appeal from, District Court, Lewis and- Clarke County; •Henry C. Smith, Judge.

    Action by S. L. Conklin against W. E. Cullen. Judgment for defendant, and plaintiff appeals. Motion to strike part of tbe transcript as not part of the record.
    Granted.

      Mr. A. I. Loeb, for Appellant.

      Messrs. Cullen, Day & Cullen, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

This is an appeal from a final judgment. The transcript filed in this Court contains what appears to be a copy of the stenographer’s report of the evidence submitted at the trial. This is not included in any bill of exceptions or statement of the case settled and allowed by the judge who- tried the cause1. The only identification accompanying it is a certificate by the stenographer that it is a true, correct and complete transcript of his shorthand notes of all the testimony introduced at the trial, and the following stipulation by counsel: “We, the undersigned, counsel for the plaintiff and defendant, hereby stipulate that the above and foregoing record contains all of the evidence introduced in the said action, and all of the proceedings had and done therein, and is a correct transcript thereof, without waiver, however, of any right toi object to the evidence as [not] being a part of said transcript and record.” The respondent has submitted a motion asking that this part of the transcript be stricken out as being no1 part of the record on appeal. The motion must be sustained.

“On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or ■ statement in the case, upon which the appellant relies. Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” (Section 1736, Code of Civil Procedure.) Subdivision 1 of Section 1196 of the same Code provides what the judgment roll shall contain in case of judgments entered on default. Under subdivision 2 of the same section it must contain: “In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court, or referee, all bills of exceptions taken arid filed, all orders, matters and proceedings deemed excepted to without bill of exceptions, and k copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment. If there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the summons, with proof of its service upon such defendant, must also1 be added to the other papers mentioned in this subdivision.” From these provisions it is apparent that the evidence heard at the trial is no part of the judgment roll so as to he included in the record on appeal. It can be made so only under the provisions of Sections 1150 to 1158 of the Code of Civil Procedure, touching the taking and preserving of bills of exceptions, or under Sections 1170 to 1176 of the same Code, providing the method of obtaining a new trial. In either case the bill or statement is necessary to present assignments of error upon the admission or exclusion of evidence, or the question of the insufficiency or want of evidence to sustain the verdict of decision. In each case the bill or statement (as themasc may be) must be settled by the judge or referee before whom the trial takes place. Without this authentication, it will he stricken out or disregarded, as fanning no part of the record on appeal. (Raymond v. Thexton, 7 Mont. 299, 17 Pac. 258; McLeod v. Dickenson, 11 Mont. 438, 28 Pac. 551; Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589; State v. Shepphard, 23 Mont. 323, 58 Pac. 868.) The provisions of the Code cited are substantially the same as those of the Compiled Statutes of 1887, and the rule as stated has been invariable in this state. The certificate' of the stenographer cannot perform the office of the certificate of the judge (State v. Shepphard supra) ; nor is there any provision of law by which counsel may stipulate that the bill of exceptions or statement of the case is correct, so as to make it a part of the record. This could be done under a provision of the old Code of Civil Procedure in case of a statement on appeal (Compiled Statutes of 1887, First Division, Sec. 436), but this provision is omitted from the present Code (Harding v. McLaughlin, 23 Mont. 334, 58 Pac. 865). Under the present Code, counsel may stipulate as to the correctness of the copies contained in the record on appeal; that is, they may substitute their stipulation for the certificate of the clerk, which would otherwise be required, that the transcript - contains correct copies of the papers in the custody .of the clerk. (Code of Civil Procedure, Sec. 1739.) But such stipulation may not be substituted for ■ the, certificate of the judge, where such certificate is required to authenticate any part of the record of the trial.

There is nothing in Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969, to support the view that the evidence in this case became a part of the judgment roll as an agreed statement of facts. In that case, as in this, there was no conflict in the evidence, and it was held that the ruling of the trial court thereon presented a question of law only, which could be reviewed on appeal from the judgment. It must not be overlooked, however, that the evidence was there made a part of the judgment roll by a bill of exceptions; though, from a careless reading of the opinion, one might conclude that this was not deemed necessary. Where there is no conflict in the evidence, there is presented a question of law, and the trial court acts upon it as upon an agreed statement of facts; but the correctness of its judgment thereon cannot be reviewed by this Court, unless the evidence is preserved and authenticated under the provisions-of the Code cited supra. The only exception to this rule is in cases where the parties agree upon the facts, and submit them to the court for a decision, under Section 1117 of the Code of Civil Procedure. The agreed statement, then, has the force of a special verdict or finding of fact, and becomes a part of the judgment roll, under Section 1196, supra.

While the stipulation of counsel, quoted above, would have the effect of a certificate of the clerk as to- the .correctness of the transcript of the papers on file in his office, it cannot have the force of-the certificate by the judge to preserve and authenticate the evidence for the purposes of an appeal.

It is therefore ordered that all that part of the transcript which purports to be a copy of the evidence submitted at the trial be stricken out.

Motion granted.


author: MR. JUSTICE MILBURN MR. JUSTICE MILBURN

text:
    MURRAY, Appellant, v. HALDORN, Respondent.
    (No. 1,277.)
    (Submitted March 1, 1901.
    Decided April 8, 1901.)

      Counterclaim — Replication—Appeal—-Assignment of Errors— Review.

    1. In a suit ón a note, defendant set up as a counterclaim the amount taxed by the court for his legal services on a mortgage foreclosure. Plaintiff’s replication, alleged that it had been agreed between them that whenever, on • a foreclosure sale, plaintiff purchased the property, defendant should receive one-half of the attorney’s fee as taxed by the court, and that the other half should go to the plaintiff; that plaintiff had purchased under the foreclosure in question; and that one-lTalf of the fee allowed h‘ad been credited on the note. Heldy that it was error to strike that part of plaintiff’s replication relative to the agreement, on the ground that it was against public policy, since if the contract was immoral, and had been executed, the plaintiff had a right to show the facts in defense of the counterclaim.
    2. Where, on appeal, the plaintiff contended that the evidence did not support the finding as to a sum due defendant, and the objection in the record was made as to a certain finding, which disclosed that the jury in that finding did not undertake in any way to determine the amount due defendant, the appellate court could not review the matter.

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

    Action by James A. Murray against George Haldorn. From a judgment in favor of defendant, plaintiff appeals.
    Reversed.

      Mr. Charles O'Donnell and Mr. E. S. Booth, for Appellant.

      Messrs. Forbis & Evans, for Respondent.
   MR. JUSTICE MILBURN

delivered tbe opinion of tbe Court.

Tbis -is an appeal from tbe judgment in favor of tbe defendant on bis' counterclaim and from tbe order denying the motion for a new trial.

Plaintiff sued tbe defendant on a promissory note made by tbe latter to order of tbe plaintiff for tbe sum of $5,133, ou which bad been paid $2,000. Defendant admits all tbe allegations of the complaint, and sets up 45 counterclaims, all in one count. The jury made certain findings, but rendered no general verdict for the defendant. The court entered judgment against the plaintiff for $5,486.30.

The appellant in his brief relies upon two assignments of error: “First, the court erred in sustaining defendant’s motion to strike out portions of the plaintiff’s replication; second, the court erred in overruling the defendant’s [plaintiff’s] two motions as set forth on page 214 of transcript.” Waiving the fact that these two assignments, as they appear, are not as perspicuous as they ought to be, we find by examination of the transcript that the first assignment refers to the court’s order striking out portions of the replication hereinafter referred to.

Defendant in his counterclaim alleges that “in March, 1894, the defendant performed services for the plaintiff at his request in the case of Murray v. Farlin, and was allowed by the court a fee of $1,500, which was a reasonable fee, none of which has been paid.” Plaintiff, referring thereto1 in his replication, admits “that the defendant performed services for plaintiff in the case of Murray v. Farlin, and that he was allowed by the court a fee of $1,500, but denies that plaintiff was to pay defendant said sum of $1,500 or any or greater sum than is hereinafter set forth. Plaintiff alleges the facts to he that the-said plaintiff and the said defendant, prior to< the time the suit of Murray v. Farlin was commenced, entered into an agreement wherein it was agreed between plaintiff and defendant that in all cases of foreclosure of mortgages wherein the defendant was employed by plaintiff, and wherein the said plaintiff, or the party interested in the property described in the decree in the cause, purchased the property at sheriff’s sale; the said defendant would only receive one-half of the attorney’s fee as taxed by the court, and that the other half of the sum so taxed should go to the plaintiff or party interested in the causé; that the property described in the complaint and decree in the ease of Murray v. Faiiin was purchased for the plaintiff in said cause, and in pursuance of said agreement there would be due the defendant the srim of $750, which is included in the sum indorsed on the note in plaintiff’s complaint, and noi other sum whatever.” The court on motion struck out all of said paragraph of the replication after the words, “a fee of $1,500,” leaving the paragraph to read: . “Plaintiff admits that the defendant performed services for plaintiff in the case of Murray v. Farlin, and that he was allowed by the court a fee of $1,500.”

Defendant in his counterclaim also alleged “that in April, 1895, the defendant performed services for the plaintiff, at his request, in the case of Murray v. Dickerman, which services were reasonably worth $500, which was allowed by the court, none of which has been paid;” and the plaintiff in reference thereto admits “that the defendant performed services for plaintiff in the case of Murray v. Dickerman, and that he was allowed by the court a fee of $500, but denies that plaintiff was to pay the defendant said sum of $500, or any other or greater sum than is hereinafter set forth. Plaintiff alleges the facts to be that the said plaintiff and the said defendant, prior to the time the suit of Murray v. Dickerman was commenced, entered into an agreement, as set forth in paragraph 32 of this answer, and that the same is made a part of this paragraph; that the property described in the complaint and decree in the case of Murray v. Dickerman was purchased for the plaintiff in said cause, and in pursuance of said agreement there would be due to the defendant the sum of $250, which is included in the sums indorsed on the note in plaintiff’s complaint in this cause, and no other sum whatever.” The court, in granting said motion to strike, struck out all of plaintiff’s replication, in relation to the said suit of Murray v. Dickerman, after the words, “hereinafter set forth.”

The action of the court in striking these parts of the replication, so complained of as error by the plaintiff, is defended by the respondent herein on the ground that the defense of the plaintiff to the counterclaim, as set up in the parts so stricken out, is “in .utter disregard of all ethics,” and is “immoral and against public policy,” and, being “in violation of all moral law and principle, cannot have its reward.” Without under: taking to pass upon the question whether or not the defense set up by the plaintiff to the said counterclaims is, immoral, it is manifest that the court erred in striking out these portions of the replication. If the alleged contract set up in the parts stricken out was void because immoral, then it was void as to all parties, including Mr. Haldorn, the defendant herein. If the contract was immoral, and had been executed, the plaintiff had a right in his replication, in defense of the countei’claim, sb to allege; the complaint and the answer tending to confirm the stricken parts of the replication in the statexnent that $150 plus $250 — $1,000—had been credited on said note before suit. If tlxe agreement was not immoral, he certainly had a right to set up the defense which he did. In any way that the matter may be considered, he had thei right toi tell the facts to the court and jury. To stx’ike out his defense was error*, and for this reason the judgment must be x’evex’sed.

Examination of the record discloses that this Court cannot, in justice, reverse the case, with an option to the defendant to remit the amount which, through the error of the court in granting the motion to strike the paxffs of the replication, has been erroneously included in the jxxdgment. We discover by such examination that the' defendant in his counterclaim demanded $1,000 for alleged services rendered plaintiff in “assisting him in procuring from the lessees of the Estella mine the royalty on the output thex*eof.” The testimony of the defendant in x’espeet of said demand for $1,000 is as follows: “The next claim is No. 10, where I allege that prior to August, 1892, the defendant, at the special instance and request of the plaintiff, 'performed sexwices for the plaintiff in assisting him in procuring from the lessees of the Estella mine the royalty on the output thex’eof, and for which I charged one thousand dollar’s. At that time Mr. Murray and I had become very intimate friends; too intimate, in fact. One Saturday night he was at my hoxxse, and he asked me if I would come down to his office the following day (Sunday), at 11 o’clock. He had leased the Estella mine, which he then owned, to five Cornish-men, and he said that he had done it without any royalty being put in the contract. I think it was a verbal lease or contract, and he said that he thought if it' was worked properly he could get royalty from it without any trouble. ' They were then shipping a great deal of very rich ore, and he told me what he wanted me to do. He wanted me to come down the next day about 11 o’clock to the side door of the bank, and he would have these Cornish boys in there, and I was to come in very hurriedly, and in an abrupt manner say, ‘Well, it has got to be settled today, because I won’t wait any longer.’ He didn’t tell me what the purpose was, but I surmised what it was, and I did it. I found the gentlemen all there. I don’t know wffiat was the result of the interview after I had gone in, but I know in. a short time after that Hr. Hurray and myself were going to Alaska together, and on the steamer “Queen” he showed me a bundle of checks that he said represented eighteen or twenty thousand dollars, and that that was the royalty that he had gotten from the-Cornishmen out of the way he worked it on that Sunday morning. I think that Hr. Daniels, of the Summit, was one of the parties. That is all I did, and I .am not a bit proud of it; but at the same time I did it, and I think I am entitled to some compensation for it. That was all I was to say; just to make that play for him that other parties wanted the property; and it was simply a bold ‘bluff,’ — a play to ‘bluff’ these men out of the royalty. I think that that kind of work should be pretty well paid for. I charged him one thousand dollars, but it remains a charge though. It never has been paid. It remains unpaid, the same as all of the other charges against him.” We regret that the exception taken to the action of the court and jury in respect of this $1,000 claim is not before us in such a way that we can make any decision thereon. The specification of error in respect thereof is merely that the testimony is insufficient to support the jury’s finding, giving as a reason therefor that the plaintiff had testified that the alleged services were of such a character that the defendant had not intended to charge for the same, and the further reason that plaintiff’s witness Hamilton had sworn that such services were only reasonably worth $50, the objection being made to the finding numbered I. Inspection of this finding, as shown in the transcript, discloses that the jury in that finding- did not undertake in any wise to fix the value of said alleged services. Therefore there is nothing before this Court, in proper form, in the way of an objection to the certain other finding of the jury adapted by the court in its judgment, to the effect that said alleged- services were worth $1,000.

(Submitted May 3, 1901. Decided May 13, 1901.)

Counsel for respondent having characterized the alleged contract between plaintiff and defendant as set up in the parts of the replication stricken out as in “violation of all moral law and principle,” we cannot refrain from suggesting that the district court, upon a retrial of this cause, take into consideration the question whether it, contemplating “all moral law and principle,” should permit the recovery of $1,000, or any other sum, for the performance of such an act of “bluff,” as shown in the testimony of the defendant, wherein he, at least, had the grace to say, “I am not a bit proud of it, but at the same time I did it;” his act being, as defendant testified, “simply a bold ‘bluff,’ — a play to ‘bluff’ these men out of the royalty.”

We do not decide the other matters suggested by the appellant, as they are not presented in the brief in proper form.

Reversed and remanded.

ON MOTION FOR RE-HEAEINO.

MR. JUSTICE MILBURN

delivered the opinion of the Court.

The respondent’s counsel prays for a. re-hearing and for ground of the prayer says that this Court in its opinion held that, regardless of the question of morals involved, the allegations of the replication, stricken out by the lower court, should be by it heard and determined. Counsel states that this ques^ tion was not raised in the briefs or argument upon final hearing, that the only question raised and argued was whether or not the alleged contract for compensation was against public policy, and that “the effect of the contract upon the right of the defendant to recover upon a quantum meruit * * * was not .discussed, and this matter has never been presented in a formal way to this Court.” Respondent’s counsel in his brief, speaking of the alleged error of the district court in striking out the certain parts of the replication, uses this language: “Strangely enough, and as if in the best of faith, the plaintiff in his replication admits that the fee was allowed by the court upon the foreclosure of the mortgages, but although the plaintiff has had the advantage of the allowance, he comes forth h> assert that the fee so allowed was in excess of the reasonable value of the services.” Counsel seems to be in error as to whether or not the question of quantum meruit was raised or considered in the briefs.

We did not overlook the difference between a contract i» do an immoral act and a contract to do a legal act, the agreement as to the consideration being void and leaving the creditor to recover on a quantum meruit.

The admission of the plaintiff in his replication as to the allowance by the court and the reasonable value of the services rendered was not made by the plaintiff, but was the result of the court’s action on motion to strike out the language of the replication. It is hardly permissible for a party to' move the court to strike out part of a sentence or paragraph and then charge the pleader with meaning to say what the part remaining in the pleading declares, whereas the remainder of the sentence or paragraph depends for its real meaning and intendment upon the part stricken out.

The effect of the striking out of the parts of the replication as to the $1,500 matter was to make the plaintiff confess the-cause of action in the sum of $1,500 on a quantum meruit. Practically the same remarks apply to the action of the court in striking out the parts of the replication referring to the other counterclaim for $500.

The effect of the pleading, as to the matters, before striking out was, it is true, to admit the services as having been rendered, but also to set up circumstances from which the .court and jury might determine that the agreement as to the compensation was immoral and that $750 and $250, respectively, had been actually paid therefor, or that the services were worth only $750 and $250, respectively, which sums had been severally paid.

The parts stricken out included, in effect, the declaration that $1,000 had been paid to the defendant in full for the said services, and that this was part of the $2,000 which defendant admitted had been paid on the note. This, certainly, plaintiff had the right to allege whether the counterclaim was on a quantum meruit or express contract. It was not intended that anything in the opinion should be construed to mean that, if the services were legally rendered, they should not be recompensed in a reasonable sum if the agreement to. pay a fixed compensation was void, but if the alleged contract to- pay a fixed sum was immoral and had been executed as claimed, the plaintiff had a right to so allege and prove.

The statement contained in the said opinion that the plaintiff had the right to tell the facts to the court and jury in any way that the matter of the said contract for professional services might be considered, is withdrawn, as meaning more than the Court intended to say.

The motion for re-hearing is denied.

Motion denied.


text:
    STATE ex rel. SACKETT, Relatrix, v. THOMAS, Defendant.
    (No. 1,669.)
    (Submitted April 1, 1901.
    Decided April 8, 1901.)

      Constitution — Local or Special Laws — Changing the Names of Counties — Mandamus.

      1. Constitution, Art. V, Sec. 26, prohibiting the legislature to pasá local or special laws changing the name of persons or “places” applies to changing the names of counties, notwithstanding Article VI, Sec. 4, and Article XVI, Secs. 1, 3, recognize the power of the legislature to create new counties and to change those already established.
    2. Under the Constitution the legislature has the power to create counties and give them names, or destroy them, but after they are created they may not be disturbed by special or local legislation, except incidenally in the exercise of the creative power, or in cases where a general law cannot be made applicable.
    3. The word “persons” used in the Constitution, Art. V, Sec. 26,. embraces all persons, whether natural or artificial.
    4. Under Code of Civil Procedure, Secs. 150, 152, requiring a district court to have a seal, and prescribing its form and the words to be inscribed on it; and Section. 1210, permitting the party in whose favor a judgment is given to have a writ of execution for its enforcement, on demand, at any time within six years after entry, which writ is required, by Section 1211, to be issued in the name of the state, sealed with the seal of the court, and subscribed by the clerk, etc., — a writ of mandate to compel the clerk to issue an execution with the seal, bearing the former name of a county, is the proper remedy, where the legislature, by a void act, has attempted to change the name of a county.
    Application- for writ of mandate by the state, on tbe relation. of Mrs. M. A. Sackett, against tbe clerk of tbe district court of tbe Third judicial district for Deer Lodge county.
    Writ granted.

      Mr. C. E. Sackett and Mr. W. H. Trippet, for Relatrix.

      Mr. James Donovan, Attorney General, for Defendant.
    Senate Bill No. 8d changes tbe name of Deer Lodge County to Daly County.

      The first proposition involves the interpretation of the word “places,” and the construction to be placed upon the clause of the constitution when considered in its application to Senate Bill No. 84.
    The rules of construction and interpretation of constitutions in statutes are well settled, and it is only necessary to apply them to the particular case under consideration.
    1. It is a cardinal rule in the interpretation of constitutions that words are presumed to have been employed in their natural and ordinary meaning. (Am. & Eng. Enc. Law, Yol. 6, p. 924; Miller v. Dunn, 72 Cal. 462; Sprague v. Norway, 31 Cal. 173; Matter of McGuire, 57 Cal. 605; Weill v. Canfield, 54 Cal. Ill; Oakland Paving Co<. v. Wilton, 69 Cal. 493.) Every word employed in the constitution is to be expounded in its plain, obvious, common sense meaning, unless the text furnishes some ground to control, qualify or enlarge it. (Story, Const. Sec. 451.) A constitution is not interpreted by technical rules of art which the law gives, to ascertain its meaning, but it is to be studied in the light of ordinary language, the circumstances attending its formation and the construction placed upon it, by the people whose bond it is. (Gronise v. Gronise, 54 Pa. St. 255.) “A special act of the assembly which changes the name of a poor district, is not within the prohibition of the constitution against the changing of names of persons or places.” (Gen. Dig. 1900, p. 4158, Sec. 15 (f).) The above is from a Pennsylvania case, reported in 5 Lackawanna Legal News, 332. Even where a word having a technical as well as a popular meaning is used in the constitution, the courts will generally accord to it its popular signification, unless the very nature o£ the subject indicates, or the text suggests, that it is used in its technical sense. (Am. & Eng. Enc. Law, Yol.', 6, p., 925, and .cases cited.) A constitution is not to be interpreted according to the words used in particular classes, but with a view to ascertain the sense in which the words were employed; and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers, and by the people wbo adopted it. (Manley v. State, 7 Md. 135; Bandley v. Isaac, 13 Md. 202.)
    2. “To arrive at the meaning of the constitution, as of any other writing, the whole of it must be examined. If there is apparent conflict it is the duty of the court to harmonize them, if it can be reasonably done, soi as to give effect to every portion of the instrument.” (Matter of Maguire, 57 Cal. 604, 607.) If words happen to be dubious, their meaning may be established by comparing them with the context, or by comparing them with other words and sentences in the same instrument. (Story, Const. Sec. 400.) “In addition to construing the independent technical and popular meanings of a word used in an act or constitution, we may loot to other sections of the same instrument for the sense in which the word is used, as an aid to determine whether it has been used in its popular sense in the particular provision under consideration.” (Miller v. Dunn, 72 Cal. 462; People v. Eddy, 43 Cal. 331.)
    3. Every presumption is in favor of the constitutionality of a legislative enactment, and the judicial department will be justified in pronouncing it unconstitutional only when it becomes a manifest usurpation of power. (Am. & Eng. Enc. Law, Vol. 6, p. —.) The power of the judiciary to declare a statute unconstitutional should never be exerted except where the conflict between it and the constitution is palpable and incapable of reconciliation. (Stockton, etc. B. B. Go. v. City of Stockton, 41 Cal. 147.) The unconstitutionality of a statute must be clear and manifest before a court should declare it, so-that where any reasonable doubt exists as to its constitutionality it should be upheld. (People v. Van Gaskin, 5 Mont. 352; People v. San Francisco, etc. By. Co., 35 Cal. 606; Myers v. English, 9 Cal. 341; Ex parte Newman, 9 Cal. 502; Hobart \. Butte County, 17 Cal. 23.) “Under the established rule of strict construction applicable to state constitutions, an act of the legislature should never be declared unconstitutional unless, there is a clear repugnance between the statute and the organic-law.” (S. P. By. Co. v. Orton, 32 Eed. 457.) In the case last above cited the court said: “If it is possible, therefore, that the city of Stockton may have a public interest in this railroad, then the legislative action is conclusive here that the city does in fact have such an interest.” (p. 172.) In the case of Booth v. Town of Woodbury, 32 Conn. B. 128, the following’ language is used by the court: “If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy * * * and the determination of the legislature is conclusive.” “The judiciary always look at acts of the legislature with great respect, and reconcile and sustain them if possible. * * * The presumption that such a body has sanctioned enactments in violation of the constitution is not to be lightly indulged.” (Stocldon, etc, By. Co. v. City of Sfocldon, 41 Cal. 160.)
    4. “The settled rule of the construction of state constitutions is that they are not special grants of powers to legislative bodies, but general grants of all legislative powers not actually prohibited or expressly excepted. It is equally well settled that the exception must be strictly construed. The construction is strict against those who stand on the exception and liberal in favor of the government itself.” (S. P. By. Co. v. Orton, 32 Fed. 457.) In the case.of the states the exercise of all the usually recognized powers of the legislature is valid unless actually prohibited or expressly excepted. (Smith v. Twelfth Dist. Judge, 17 Cal. 547; State v. Bogers, 13 Cal. 160; People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581.) “The federal constitution confers powers expressly enumerated, that of the slate contains a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the government itself.” (Sharpless v. Mayor of Philadelphia, 21 Pa. St. 160.) “Where no constitutional restriction exists, the corporate existence and powers of counties, cities and towns are subject to legislative control.” (Dillon, Mun. Oorp. Sec. 186.) The legislature has the power to abolish a county organization. (Dillon, Mun. Corp. Secs. 46, 65; State .v. Hamilton, 40 Kan. 323; People v. Hill, 7 Cal. 97; Cooley, Const. Lim. 228-9; Patterson v. Yuba Go., 13 Cal. 333.) The Constitution of the State of Montana expressly authorizes the creation of new counties, and the only limitation placed upon such power of the legislature is that the new county shall pay its ratable proportion of existing indebtedness. (Art. XVI, Sec. 3, Const.) “In the interpretation of a power all the ordinary means to execute it are to be deemed a part of the power itself.” (Story’s Const. Sec. 430.) “Wherever a general power to do a thing is given, every particular power necessary for doing it is included.” (Id. Sec. 434.)
    Webster’s International Dictionary gives nine definitions of the word “place,” of which the only pertinent one is the third, which reads as follows: “A position which is occupied and held; a dwelling, a mansion; a village, town or city; a fortified town or post; a stronghold; a region or country.” It will be noted that this definition is in fact a number of different definitions, grouped together because of similarity.
    The definitions given in the Standard and Century are very similar; the Standard giving 13 definitions and the Century 23. In none of these definitions does the word county occur, nor is there anything which justifies the application of the word to a county except under some such general and indefinite term as a locality or region, or a particular space marked by boundaries.
    The law dictionaries, Bouvier’s, Anderson’s and Black’s, give the definition of place as follows: “The word place is a very indefinite term. It is applied to any locality limited by boundaries, however large or however small; it may be used to designate a country, state, county, town or a very small portion of a town. The extent of the locality designated by it must generally be determined by the connection in which it is used.” This definition is taken verbatim from the opinion of the court in Law v. Fairfield, 46 Vermont 432, which was decided in 1874. The question involved in the case was the interpretation and construction of the word “place” occurring in a statute requiring notice in writing to be given “stating the time when and the place where such injury was received,” upon a public highway.
    There is also a reference in Anderson’s definition to the case of Glapp v. Burlington, 42 Yt. 579, in which-the court construed the word “place” occurring in a federal statute to apply to the state generally, and not to any particular part of the state. The phrase under consideration was as follows: “At the place where such bank is located.”
    In the Matter of Maguire, 57 Cal. 604, the court was called upon to construe the word “disqualify” as used in the’ constitution, and as affecting the constitutionality of a statute. It is significant that the court in that case quoted the definitions of the word as given by Webster and Worcester, and does not appear to have taken any other definition into consideration.
    If a broad meaning is to- be given to the word “places” it must take in all municipal corporations in the state, — townships, school districts, road districts, towns and cities, as well as judicial representative and senatorial districts. If this be true, then the legislature plainly violates the constitution every time it creates a new county, by giving it a new name; for thereby the name of every school district and every road.district in the new county is changed. Section 1750, Political Code, provides that each school district “shall be known as District No.......of..........County.” The name of the county being an integral part of the name of the district, a change of the county’s name by special act, being in effect a change of the name of the school districts, is prohibited, provided that the word “places” includes a school district. The same is true of road districts organized under the new road law.
    In fact, to' pursue the illustration further, the creation of a new county is in effect a change in the name of the county, since that part of the county which was formerly known as Deer Lodge is now known as Powell; for the same reasoning which would make the term “place” apply to a county, would make it apply to all parts of it. To paraphrase the definition given in the law dictionaries, “it may be nsed to designate a county, or a very small portion of a county.”
    While the construction and interpretation of the word “persons” as nsed in the clause under consideration is not directly involved here, it is proper to be considered, and may be of importance, as it is used in connection with the word “places,” and may throw some light upon the interpretation to be placed upon the latter.
    The word “person” in its broad and comprehensive significance includes both natural and artificial persons, and the courts of New York have always held that where the word “person” occurs in the statutes it includes corporations. (Field v. N. Y. Central By., 29 Barb. 176.)
    Notwithstanding such' construction of the word where it occurs in the statutes, the courts of New York have held that “the constitutional limitation upon the legislature to change the name of persons has no application to corporations.” (Moran v. Lyndeclcer, 27 Hun. 585.)
    It must be conceded, therefore, that the word “persons,” as used in the section under consideration, is used in its narrow and restricted sense, and includes only natural persons. By analogy, and following the rule laid down that reference may be had to the context in ascertaining the meaning or sense in which a word is used, must it not follow that the word “places” is used in the same narrow and restricted sense ? Is it reasonable to say that while the word “persons” is used in its restricted sense, the word “places” is used in its broad sense, when both are used in the same connection ? “The extent of the locality designated by it must generally be determined by the connection in which it is used.”
    And further, if the word “person's” is intended to apply to natural persons only, why may it not be argued that the word “places” refers to natural places, such as lakes, rivers, creeks, canyous, valleys, mountains, etc. Their1 names are given to them by the people in the first instance, and not by the legislature or the constitution; and it is right and proper that the people should prohibit the legislature from changing them by special act.
    But in the case of a county, its name, if it is newly created, is given to it by the legislature in the first instance, and there is no reasonable argument that can be advanced why the legislature should not be permitted to change by special act that which it created by special act. There is no argument 'which could be advanced against the advisability of entrusting to the legislature the changing of the name of the county, which could not with equal force be applied to- the power of the legislature to name a county in the first instance.
    The section in question being an exception to the general power of the legislature to pass special laws upon every subject, it must be strictly construed as against the relatrix in this case, who relies, and stands upon the exception, and liberally construed in favor of the constitutionality of the act.
    There being an express power given to the legislature to create new counties, the naming and changing of the names of such counties is an incident of the power to create, and therefore the power to change the name is included within the power to create.
    It will not be denied that if the change of names in the two' counties had been incorporated in the original bill dividing Deer Lodge county, it would be constitutional. And it is within the power of the legislature to repeal Senate Bill No. 3, by which Deer Lodge county was divided and Powell county created. This would leave Deer Lodge county as it was before the passage of Senate Bill No. 3, and the legislative could then pass a law dividing Deer Lodge county, naming one portion of it Daly county, thereby accomplishing by circumlocution that which it is contended is expressly prohibited by the section under consideration.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

By the first section of an Act of the Seventh Legislative Assembly, passed on March 1, and approved by the governor on March 8, 1901, it is declared “that county of the state of Montana now named and known as Deer Lodge county shall no longer be Deer Lodge county, but shall hereafter be the county of. Daly, and shall be named, designated and known as and shall constitute Daly county. The boundaries of said Daly county shall be the same as the boundaries of Deer Lodge county now. are, and the city of Anaconda shall be the county seat of said Daly county until changed according to law.” The following five sections of the Act contain provisions designed to continue the administration of county affairs without change, except in the name, and to preserve and protect the outstanding obligations of Deer Lodge county. By express provision in the seventh section thereof, the Act became operative at once.

On February 8, 1901, there was duly docketed in the office of the defendant, the clerk of the district court of the Third judicial district, at Anaconda, a deficiency judgment in favor of the relatrix for the sum of $1,119.68, and against Mary and Joseph MacCaffery, this amount remaining unpaid after sale by the sheriff of certain real estate under a decree of foreclosure made and entered by said court in favor of relatrix, and against .said Mary and Joseph MacCaffery, on January 1, 1900. This judgment being then unsatisfied, the relatrix, on March 23, 1901, applied to the defendant for execution thereon, but at the same time demanded that he issue the execution under the seal of the court theretofore used, under the provisions of law requiring a seal and prescribing its form, with the words “Deer Lodge County” inscribed thereon instead of the words “Daly Countyclaiming that the said Act of the legislative assembly is invalid and ineffectual to change the name of the county from “Deer Lodge” to “Daly,” and to authorize the corresponding change in the inscription upon the seal. The defendant agreed to issue the writ as demanded, but under the seal of the court for “Daly” instead of “Deer Lodge” county, and refused to authenticate it as relatrix demanded. The relatrix alleges that the defendants mentioned in said judgment are personally liable thereon, and that they own real estate situated in the city of Anaconda of great value, upon Avhich her judgment is a lien. Upon an affidavit filed in this Court on March 27, setting forth the foregoing facts and in addition thereto a sufficient reason why this Court should entertain jurisdiction in the first instance, an order was made directing notice to be given to the defendant to appear and show cause on April 1 why an alternative Avrit should not issue. The attorney general, appearing for the defendant, resisted the application, on the ground that the affidavit does not state facts sufficient to warrant the relief demanded. Thereupon, by agreement, the parties submitted to the Court the question whether the peremptory Avrit shall issue.

The position of counsel for relatrix is that the act changing the name of Deer Lodge county is void, because it is obnoxious to Section 26 of Article V of the State Constitution, which provides : “The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Changing the names of persons or places. * * * In all other cases where a general law can be made applicable, no special law shall be enacted.” Section 150 of the Code of Civil Procedure provides that the district court must have a seal, and Section 152 of the same Code prescribes its form and the words to be inscribed upon it, including, among others, the name of the proper county. Section 1210 of that Code permits the party in whose favor a judgment is given to have, upon demand, at any time within six years after entry thereof; a writ of execution for its enforcement. Section 1211 provides : “The writ of execution must be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the clerk,” etc. If, therefore, the position of counsel is correct, the Avrit must issue; for if it was not within the power of the legislature, by a special law, to change the name of the county of Deer Lodge, the act in question is void, and does not justify the defendant in refusing to comply with the demand of relatrix, and his refusal leaves her without any plain, speedy and adequate remedy in the ordinary course of law; for it is manifest that she is entitled to have such a writ as the law authorizes, to the end that the proceedings thereunder may not be open to1 question, or that she be put in peril of defeat at any stage thereof.

The questions presented and argued at the hearing are (1) whether the word “places,” used in the constitution, includes counties, thus bringing the law within the express prohibition against “changing the names of persons and places;” and (2) whether it is obnoxious to the general provision forbidding a special law in any case where a general law can be made applicable. The provision prohibiting special or local laws is found in the constitutions of many of the states in the Union, some of them nearly identical with that in our own, but, so far as we are aware, no court of final resort in any state has considered and defined the term “places” as used in the phrase in question. The word “place,” in popular usage, is a very indefinite term. It is used of an area or portion of land marked off by boundaries, real or imaginary, as a region, locality, site, spot; it is applied to a city, town or village; it is used of a building with adjoining grounds, or of a building or part of a building set apart for a particular purpose, as a theater or church; it includes a fortress or fortified post; it designates a room to abide in, or a seat in such a room, or in a coach or public place; and it is often used of a mere point, as, for instance, “the place of beginning,” upon a boundary line, or the point where two lines meet. In legal parlance, it is equally indefinite. Anderson defines it thus: “Any locality limited by boundaries, however large or small, as a country, a state, a county, a town, or a portion thereof. The extent of the locality is to be determined by the connection in which the word is used.” This definition is taken substantially, from Law v. Fairfield, 46 Vt. 425, where the word, as used in a statute requiring notice to be given to a town of the time and place where an injury was received upon a highway, was held to mean the particular point on the highway; the mere mention of a certain highway several miles in length not being sufficiently definite. In the same state, in construing the word as used in the Act of Congress of June 3, 1864, creating the national banking system and permitting shares in a national bank to be taxed “at the place where such bank is located,” the term was held to mean the city or town where the owner resided. (Clapp v. Burlington, 42 Vt. 579, 1 Am. Bepts. 355.) So the New Jersey Supreme Court, in construing the same statute, held the word “place” to mean the municipal district which, having the power, imposes the tax. (State v. Hart, 31 N. J. Law, 434.) Bouvier gives substantially the same definition as Mr. Anderson, citing Law v. Fairfield, supra. In the phrase “law of the place of the contract,” the word “place” is used of a state or country. So, also, in the expression “place of trial,” used in the Code of Civil Procedure and the Penal Code (Code of Civil Procedure, Secs. 615-619; Penal Code, Sec. 1970), the word primarily means county, and not the immediate place where the trial court sits. In this connection it is equivalent to neighborhood or place of a crime, or a cause of action, or the political division within which a jury must be gathered for the trial, and is synonymous with the word “venue.” In other parts of the constitution itself it is used some 18 times, with a great variety of applications. It is applied to a point in a boundary line, a cemetery, a church, a building where an election is held, a military reservation, a dwelling, a court of justice, the capital of the state, to cities, towns, villages, and railroad stations, an institution of learning, and in one instance to the whole state or congressional district. These enumerated instances sufficiently illustrate the indefinite meaning and varied application of the term, both in popular and legal usage. This indefinite meaning likewise demonstrates that the proper signification of the term as used in the constitution must be deduced from the context in which it is found, and the purpose had in view in putting into the organic law of the state an express prohibition of any special legislation with reference to the name by which a particular one of the class designated by it shall be known. If the mere matter of the name of a place was of so much import in the estimation of the framers of the constitution that they deemed it necessary to insert the prohibition therein, then that prohibition was evidently designed to forestall any evil which might befall at the hands of the legislature through hasty, inconsiderate or precipitate action. In our effort to discover a purpose, thus indicated but not clearly defined, we may refer to the other matters coming within the same prohibition. As to the matter of divorces, the express prohibition was clearly designed to take the power of granting them in particular instances from the lawmaking branch of the government, and to vest it in the judicial department, under uniform laws, to be administered equally for all applicants showing themselves entitled to relief, and thus destroy the possibility of scandal and injustice, often wrought through the medium of personal influence and favoritism. So-, also, in prohibiting special and local laws with reference to roads and highways, the locating or changing of county seats, and the regulating of county and township affairs, there is clearly evinced a purpose that all these matters should be left to the people of the particular locality, to' be managed, at their discretion, under general laws applicable to all parts of the state. Again, with reference to courts of justice, the rules of evidence in particular cases or inquiries and changes of venue, one object sought was to obtain independence of action and uniformity of administration of the law by the courts provided for by the constitution or established under general laws, so that “right and justice should be administered without sale, denial or delay.” (Constitution, Art. Ill, Sec. 6.) And so, continuing through the list, we find that in each particular enumerated the prohibition is founded upon a substantial, not' a sentimental, reason,’ and that in each case it'makes for the administration of justice under equal laws.

Turning, .now, to discover the purpose of the prohibition in question, w¿ may at once assume that the principal connection in which, names of places were deemed of sufficient importance to become a matter of legislative cognizance was with reference to the political divisions and municipalities of the state; for it cannot be admitted for a moment that the framers of the constitution, while considering matters of so much import as those to which we have just adverted, bethought themselves that it would be wise, for sentimental reasons, to prohibit the enactment of special laws changing the names of mountains, valleys and similar well known objects upon the face of nature, and omitted consideration of these governmental agencies altogether. - Evidently one purpose, at least, sought to be accomplished, was to preserve to the people of a particular locality the right to retain a name chosen by themeselves, or one for which an attachment had been formed by long association, and at the same time to serve a governmental purpose by avoiding the confusion which might arise from a frequent change of the names of the political subdivisions and municipalities of the state. Frequent change destroys local attachments, and the want of this feeling tends strongly to- weaken those sentiments of local pride which contribute so much to the upbuilding of a particular community. Again, it leads to confusion in the administration of local affairs, and adds materially to the expense and labor on the part of the people and those who serve the public — necessary to preserve the identity and continuity of local authority. ■ On a change of names of an incorporated city or town, for instance, there would necessarily be a corresponding change in its records, a substitution of one name for another in all of its obligátions and contracts, and a change in the designation of its officers and courts, all of which would lead to confusion and considerable expense. So-, also,' in the change of a name of a county, like changes would be necessary' in the particulars just mentioned with reference to cities and towns, and, furthermore, uncertainty and confusion would arise as to the prdpere record of titles to lands and 'the obligations of the muhicipálity, all -of which would impose 'labor' and expense. 'True, the incorporated" city ’or 'town ’ possesses very different powers, and is under different liabilities, from those of a county; but in the important respect that they are both intrusted under the constitution with the exclusive power of taxation for local purposes, and the management of local affairs without interference hy the legislature, they occupy relatively the same positions as governmental agencies. One is a voluntary organization by permission of the legislature, and the other is, or may be, the creature of the legislature; nevertheless, each, in the management of its local affairs, is, ordinarily, free and independent, except so far as it may be controlled by general laws operating upon all alike. The term “places,” as used in the constitution, unless it was intended to be applied only to objects upon the face of nature, must be applied to both of them alike; for we can discover no reason why it should include the former and exclude the latter. True, the constitution recognizes the power of the legislature to create new counties, to change those already established, and to alter their boundaries (Constitution, Art. VI, Sec. 4; Id. Art. XVI, Secs 1, 3), and this power has been heretofore exercised in many instances. It has been recognized and affirmed by this Court, as in Holliday v. Sweet Crass County, 19 Mont. 364, 48 Pac. 553, where a special Act creating the defendant county was upheld; and this power to create necessarily implies the power1 to destroy, so that, in the exercise of it, the legislature may abolish a county organization, and incorporate its territory within another county. It may also at the same time exercise any other power incidental to a complete exercise of the principal one; but this power does not necessarily carry with it the right to interfere hy special enactment in the internal affairs of the county, even though a majority of the people do not object. The whole spirit of the constitution is opposed to this species of interference, and, for the reasons already stated, it seems clear to us that the prohibition in question was designed to prevent just such interference as has been attempted in the present instance. The power to create counties and give them names, or to destroy them, is unquestioned; hut after they are created they may not be disturbed by special or local legislation, except incidentally, in the exercise of the creative power, or in cases where a general law cannot be made applicable.

In reaching this conclusion, we have not overlooked the familiar fundamental principle that the constitution of a state is not grant of legislative power, but a mere limitation upon it, and that the legislature possesses power to legislate upon all matters except in so far as it may be expressly forbidden by the constitution, or where the particular subject has been delegated to the federal government. We have also borne in mind the rule that a statute must be clearly and manifestly in contravention of the constitution, or the court will not declare it so. It is only by an application of these principles to the situation here presented that we have adopted the views stated.

We are strengthened in our conviction by the fact that the word “person,” used in the phrase under consideration in the constitution of the state, is properly construed to embrace all persons, whether natural or artificial. This view is taken by the Supreme Court of California in In re La Societe Francaise d’Epargnes et de Prevoyance Mutuelle, 123 Cal. 525, 56 Pac. 458, where it is held that the word applies to a banking corporation. So, also, the Supreme Court of the United States has declared that this term, as used in the fourteenth amendment to the Constitution of the United States, includes railroad corporations as well as natural persons. (Santa Clara County v. Southern Pac. R. Co., 118 U. S. 394, 6 Sup. Ct. 1132, 30 L. Ed. 118.) Reasoning by analogy, it is fair to conclude that the word “places” is here used in its less restricted meaning, and applies to counties, with their subdivisions, as well as to incorporated cities and towns; thus including all classes of municipalities, while not excluding, perhaps, well known natural objects.

The result reached precludes the necessity of considering the second question urged.

It is ordered that judgment be entered that the peremptory writ issue as prayed, and that the relatrix recover the costs of this application.

Writ granted.