author: DOMENGEAUX, Judge.

text:
    A.J. ROBINSON, Jr., Plaintiff-Appellant, v. NORTH AMERICAN ROYALTIES, INC., David C. Bintliff, and the Stone Oil Corporation, Defendants-Appellees.
    No. 84-102.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1985.
    Rehearing Denied March 8, 1985.

      Simon, Peragine, Smith & Redfearn, Robert L. Redfearn and Judy P. Martinez, New Orleans, for plaintiff-appellant.
    Gordon, Arata, McCollam & Stuart, Ballard E. Harris, Liskow & Lewis, Charles B. Griffis, Lafayette, for defendants-appel-lees.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

On March 13, 1978, Edna Petitjean Lac-our, N. Curtis Petitjean, W. Petitjean & Company, Irene M. Petitjean, Henrietta Bourgaux Petitjean, Martin Petitjean, II, Winson J. Petitjean, Jr., and Jeanne M. Petitjean, (“the Petitjeans”) granted an oil, gas, and mineral lease to the plaintiff, A.J. Robinson, Jr., covering approximately 579 acres in Acadia Parish. This lease will hereinafter be referred to as the Petitjean lease.

Subsequently, on March 30, 1978, the plaintiff “assigned” his interest in the Pet-itjean lease to North American Royalties, Inc. and David C. Bintliff (collectively “North American”) reserving an overriding royalty interest of an undivided /woth of %ths. One of the contract stipulations is an extension clause (commonly referred to as an anti-washout provision) which provides that the overriding royalty interest reserved by Robinson would also apply to any new mineral leases acquired by North American or its successors or assigns covering any of the 579 acres covered by the original Petitjean lease, if acquired within one year from the expiration of the Petitje-an lease. This “assignment” will hereinafter be referred to as the Robinson agreement.

By instrument dated August 25, 1980, pursuant to a farm out agreement dated August 10, 1978, North American Royalties, Inc., et al “assigned” to the Stone Oil Corporation 60% of its interest in the Pet-itjean lease only insofar as said lease covered land located within a production unit established by the Louisiana Office of Conservation and designated as the 13,850 foot RA SU A. This “assignment” contained a provision which states that Stone Oil accepted the “assignment” of the Petitjean lease “subject to such interest’s proportionate part of all overriding royalties, ... and ... agreements of record.” This “assignment” will hereinafter be referred to as the North American Agreement.

Due to North American’s decision not to pay delay rentals, the Petitjean lease expired on March 13,1983, insofar as it covered lands outside the 13,850 foot RA SU A conservation unit. The Petitjean lease has been maintained within the unit because of production in paying quantities. Robinson is being paid an overriding royalty for that production.

Shortly thereafter, on March 17, 1983, the Petitjean family granted an oil, gas, and mineral lease to Stone Oil (the Stone Oil lease) covering a portion of acreage previously covered by the Petitjean lease and lying outside of the 13,850 foot RA SU A unit.

The plaintiff, A.J. Robinson, Jr., after making amicable demand, filed suit against North American. Royalties, Inc., David C. Bintliff, and the Stone Oil Corporation, claiming that he is entitled to an assignment of a Viooth of %ths overriding royalty interest over the Stone Oil lease.

Stone Oil filed an “exception of no cause and/or right of action” which was sustained by the trial court. Plaintiff’s action was dismissed.

At this juncture we must point out that although the Robinson agreement and the North American agreement are designated as assignments they are in fact subleases. In each of those agreements the “assignor” retained an overriding royalty. In the situation where a lessee reserves an overriding royalty when making a purported assignment of the lease, the “assignment” is in legal effect a sublease. Pepper v. Pyramid Oil & Gas Corporation, 287 So.2d 620 (La.App. 3rd Cir.1974), and McDonald v. O’Meara, 139 So.2d 282 (La.App. 1st Cir.1962).

The plaintiff-appellant asserts three specifications of error on this appeal:

(1) That the district court erred in granting a judgment of dismissal on an “exception of no cause and/or right of action”.

(2) That the district court erred in holding that no cause of action exists in favor of Robinson.

(3) That the district court erred in holding that no right of action exists in favor of Robinson.

SPECIFICATION OF ERROR NO. 1:

Robinson contends that the district court should not have rendered a judgment on Stone Oil’s “exception of no cause and/or right of action” because there is no such exception under Louisiana law. Plaintiff argues that La.C.C.P. Art. 927, in setting forth the available peremptory exceptions, lists separately the exception of “no cause of action” and the exception of “no right of action” and therefore each deserves a separate consideration and an individual determination.

We agree that there is no such exception as an “exception of no cause and/or right of action”. Randall v. Jena Wire & Cable Company, 415 So.2d 564 (La.App. 3rd Cir.1982). We do have an exception of “no cause of action”, La.C. C.P. Art. 927(4) and an exception of “no right of action”, La.C.C.P. Art. 927(5) which are distinct exceptions subject to different rules. Although the exceptor in this case did not employ the proper terminology in styling his exception and although such loose pleading is not to be condoned or encouraged, for purposes of this appeal we shall treat Stone Oil’s pleading as an attempt to urge both of the described exceptions. See Randall, supra, and A. Copeland Enterprises, Inc. v. R. Jones Enterprises, Inc., 433 So.2d 1066 (La.App. 5th Cir.1982), writ denied, 435 So.2d 426 (La. 1983).

SPECIFICATION OF ERROR NO 2:

The appellant argues that the district court erred in holding that he did not have a cause of action.

The exception of no cause of action is a procedural device pleaded to raise the question of whether any remedy is afforded by law. Peloquin v. Calcasieu Parish Police Jury, 367 So.2d 1246 (La.App. 3rd Cir.1979).

“The purpose of the exception of no cause of action is to test the legal sufficiency of the pleadings. Well pleaded facts alleged in the petition are taken as true. If any reasonable construction of the alleged facts could lead to possible legal recovery, the exception must be overruled. Normally, evidence may not be considered for the purposes of sustaining an exception of no cause of action. The exception can be sustained only when the allegations, as stated in the petition, affirmatively establish that no relief can be granted under the law.”

Ford Motor Credit Company v. Soileau, 357 So.2d 563 (La.App. 3rd Cir.1978) [Citations omitted].

The basis of this controversy centers on the provision in the Robinson agreement which provides:

“It is further expressly agreed and understood that the overriding royalty interest herein reserved and retained by GRANTOR [Robinson] shall be applicable and extend to the renewal or extension of the hereinabove described oil, gas and mineral lease or to any new oil, gas and mineral lease obtained or acquired, directly or indirectly, by, for and on behalf of GRANTEE [North American Royalties, Inc., et al], its successors or assigns, covering and affecting any of the lands covered by the hereinabove described oil, gas and mineral lease within one (1) year after the expiration and termination of the said oil, gas and mineral lease.”

The Petitjeans granted an oil, gas and mineral lease to Stone Oil over property which was originally covered by the lease the Petitjeans granted to Mr. Robinson. The lease was acquired by Stone Oil within one year from the expiration of the original Petitjean lease.

The plaintiff argues that the above quoted provision contained in the Robinson agreement entitles him to an overriding royalty interest over the property covered by the Stone Oil lease. Robinson asserts that Stone Oil is a successor or assign of North American and as Stone Oil leased land which was originally contained in the Petitjean lease it is obligated to recognize the overriding royalty.

Stone Oil filed a peremptory exception of “no cause and/or right of action” contending that the holding in Berman v. Brown, 224 La. 619, 70 So.2d 433 (La.1953) precludes plaintiff’s recovery. The crux of Stone Oil’s argument is that there is no privity of contract between Stone Oil and Robinson and therefore as the original Pet-itjean lease has expired as to the lands not contained within the 13,850 foot RA SU A unit those lands outside the unit and covered by the Stone Oil lease are not subject to the extension provision in the Robinson agreement.

The district court granted the exception and dismissed the plaintiff’s case. In an oral opinion, which was transcribed, the district judge stated:

“The court finds that the Berman case is controlling in this matter and that Stone Oil Company did not expressly assume the obligations in the sublease of their sublessors; and further that the Article 128 of the Mineral Code does not, in my opinion, overrule Berman ...”

The exception of no cause of action is the proper procedural device for asserting that the law does not afford a remedy to the plaintiff because there is a lack of privity of contract. Louisiana Paving Company v. State, Department of Highways, 372 So.2d 245 (La.App. 1st Cir.1979).

Berman v. Brown, supra, and the instant case present us with the rare situation where the essential facts addressed in the prior jurisprudence (Berman) are “on all fours” with the facts involved in the case at hand.

In both Berman and in the present case, a lessee is demanding overriding royalty payments from a subsequent sublessee. In both cases the parties seeking the overriding royalty had an extension clause recorded in their favor. In both cases a sublease rather than an assignment is involved and in both cases the original lease on which the demand for overriding royalties is based has expired. Furthermore, in each case the sublessee has contracted a mineral lease with the original lessor which affects lands previously covered by the original lease and this new lease is the subject of the lawsuit. Also similar is that both cases involve a situation where the sublessees acquired an interest in the original lease “subject to” the lessee’s reservation.

In Berman, supra, our Supreme Court held that the sublessee once removed was not obligated to pay overriding royalty payments to the lessee-sublessor.

The court premised this conclusion on the jurisprudential rule “that there is no contractual obligation by and between a lessor and a subtenant.” Berman v. Brown, supra. The Supreme Court quoted from Taylor on Landlord and Tenant, 9th Edition, Section 16, to support its reasoning:

“[N]o action can be maintained by the lessor against the undertenant, upon any covenant contained in the lease, since there is neither privity of estate nor of contract between himself and the under-tenant.”

Relying on the above quoted rules of law the Berman court recognized that as there was no relationship, contractual or otherwise, between a lessor and a sublessee, it necessarily followed that there was no relationship between a sublessor and a subles-see once removed.

The High Court determined that since there existed no privity of contract by and between the lessee sublessor and a subsequent sublessee the extension clause was not binding upon that sublessee.

We are of the opinion that the major premise of Berman v. Brown has been legislatively overruled by the enactment of Article 128 of the Louisiana Mineral Code.

Article 128 of the Louisiana Mineral Code provides:

“To the extent of the interest acquired, an assignee or sublessee acquires the rights and powers of the lessee and becomes responsible directly to the original lessor for performance of the lessee’s obligations.”

We interpret Article 128 as the Legislature’s creation of a code imposed privity of contract between a lessor and a subles-see in the mineral rights area. This code imposed privity of contract overrules the major premise of Berman. Logic therefore dictates that if there is privity of contract between a lessor and a sublessee, there exists privity of contract between a lessee-sublessor and a sublessee once removed.

In support of our holding that Article 128 of the Mineral Code overrules Ber-man v. Brown, supra, we maintain that the above quoted language of Article 128 must be considered in connection with the official reporter’s comment to that article. Although not the law, the comments are supplied to assist the court in statutory interpretation. See Gunter v.- Plauche, 428 So.2d 1094 (La.App. 1st Cir.1983), reversed on other grounds, 439 So.2d 437 (La.1983).

The assertion that Article 128 of the Mineral Code overrules Berman presented this Court with a res nova situation. Because of that fact, we are compelled to look to the comment for insight as to the legislature’s intent in enacting Article 128. The comment to Article 128 of the Louisiana Mineral Code expressly states that the substance of that Article is “contrary to the theory of the jurisprudence evolved in [the] area” of subleases. The comment then notes Ber-man v. Brown as an example of Article 128’s divergence from the established jurisprudence.

However, as heretofore noted, the sublease which Stone Oil acquired from North American covered only the land located within the boundaries of the 13,850 foot RA SU A production unit. Stone Oil did not acquire a sublease on the acreage situated outside of the production unit. Article 128 of the Mineral Code indicates that a sublessee becomes responsible to the original lessor and by analogy to the original lessee only “[t]o the extent of the interest acquired” by the sublessee. As Stone Oil did not acquire an “interest” over the land outside of the geographical boundaries of the production unit when it acquired the sublease from North American, it cannot be said that Stone Oil assumed any obligations of the original lessee or his successors in this area.

We hold that there is no privity of contract between Robinson and Stone Oil as to the acreage covered by the Stone Oil lease and situated outside the geographical boundaries of the 13,850 foot RA SU A production unit. The Stone Oil lease is not burdened by the extension clause, and therefore, Mr. Robinson does not have a cause of action to assert against Stone Oil. It is our opinion that the trial court reached the right result but for the wrong reasons. SPECIFICATION OF ERROR NO. 3:

The appellant contends that the district court was in error for dismissing his case based upon an exception of no right of action.

Our Supreme Court has recently elucidated upon the purpose of the exception of no right of action. In Teachers’ Retirement System of Louisiana v. Louisiana State Employees’ Retirement System, 456 So.2d 594 (La.1984), the High Court stated:

“La.C.C.P. art. 681 provides that ‘[ejxcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.’ That article is the basis for the peremptory exception of no right of action. La.C.C.P. art. 681. Official Revision Comment (b).
The peremptory exception of no right of action raises, then, the question of whether the plaintiff has any interest in judicially enforcing the right asserted. Lambert [v. Donald G. Lambert Construction Co., 370 So.2d 1254 (La.1979) ], supra. The exception of no right of action is ‘a threshold device for terminating a suit brought by one without legal interest to assert it.’ Babineaux v. Per-nie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 at 334 (1972), quoting with approval Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967). See also Louisiana Law of Exceptions, 22 Loy.L.Rev. 90 (1975-76).
In Bielkiewicz, Judge Tate, then a judge of the Louisiana Court of Appeal, Third Circuit, explained the purpose of the exception of no right of action, later approved in Babineaux, 262 So.2d at 334.
‘The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted.
* * * * * *
In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for the purpose of deciding the exception) that a valid cause of action is pleaded by the petition. LeSage v. Union Producing Co., 249 La. 42, 184 So.2d 727 [ (1966) ]. (Emphasis in original).’ ”

Having reviewed the nature and purpose of the exception of no right of action, we hold that the trial court committed error insofar as it maintained an exception of no right of action and insofar as it dismissed plaintiff’s case on that basis. This error will not affect the outcome of this case because we find that the plaintiff had no cause of action, and it was proper for the trial court to dismiss the case on that basis. The plaintiff Robinson is claiming ownership of an overriding royalty interest on the lands covered by a mineral lease acquired by Stone Oil Company. Plaintiff is a person with the interest, and therefore the right, to assert the cause of action he claimed to have.

For the foregoing reasons we reverse the trial court’s judgment dismissing the plaintiff’s action insofar as it was based on sustaining the exception of no right of action; we affirm the trial court’s judgment dismissing plaintiff’s action based on the exception of no cause of action.

All costs, both at trial and on appeal are assessed against plaintiff-appellant.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Although the record does not contain a copy of the agreement whereby North American "assigned” a percentage of its interest to Stone Oil, both Robinson and Stone Oil refer to the "subject to” language in their briefs. We therefore conclude that the parties admit that the agreement exists and that the "subject to” language is contained therein.

      . In Berman the sublessee accepted the sublease "subject to” the appellants’ "royalty interest”. Here, Stone Oil accepted the sublease “subject to such interest’s proportionate part of all overriding royalties ... and ... agreements of record.”

      . Support for our holding can be found in Professor John N. McCollam’s article A Primer for the Practice of Mineral Law Under the New Louisiana Mineral Code, 50 Tul.L.Rev. 732. In that article, Professor McColIam advances the proposition that article 128 of the Mineral Code "could be the basis of a code-imposed privity of contract” resulting in the reversal of the holding in Berman v. Brown, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE, Appellant, v. MORRIS, Respondent.
    [No. 1281.]
    [Submitted. Nov. 21,1898.
    Decided Dec. 12, 1898.]

      Criminal Law — Right of State to Appeal.

    1. The right of the State to appeal in criminal cases does not exist unless conferred by the Constitution or the Legislature.,
    2. Penal Code, Section 2273, Subdivision 1, which confers on the state the right to appeal from a judgment for defendant on demurrer to the indictment or information, does not authorize an appeal by the state from such judgment on a demurrer to a complaint, under Constitution, Article 3, Section 8, providing that criminal offenses of which justices’ courts have jurisdiction shall be prosecuted by complaint, and that those of which district courts have exclusive original jurisdiction shall be prosecuted by information or indictment.

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

    F. W. Morris was prosecuted in a justice’s court for a misdemeanor, and demurred to the complaint. On appeal to the District Court, defendant’s demurrer was sustained, and from the judgment entered thereon the state appeals.
    Dismissed.

      C. D. Nolan, N. C. Stiff, I. C. Denny, A. I. Dunca/n, and S. G. Murray, for the State.

      T. C. Marshall, J. M. Fvans, and Chas. H. Hall, for Respondent.
   PER CURIAM.

This is an appeal by the State from a judgment of the District Court of Missoula County in favor of the defendant, F. W. Morris, entered upon the sustaining of his demurrer to a complaint charging, or attempting to charge, defendant with the commission of a misdemeanor.

The action was commenced in a justice’s court by the filing of a complaint accusing defendant of the offense of practicing medicine within the definition of Section 606 of the Political Code, without having first obtained from the State Board of Medical Examiners the certificate required by Section 602 of fhe same code. In that court defendant demurred to the complaint. The demurrer was overruled. He pleaded not guilty, .and was tried and convicted. Upon appeal to the District Court the demurrer which had been overruled in the Justice’s court was sustained, and the judgment was entered from which the ¡State prosecutes the present appeal.

The only question discussed in the briefs and oral argument is whether or not a person who follows the vocation of osteopathy, so called, is engaged in practicing medicine or surgery, within the meaning of Article XVI, Part III, Title I, Chapter III of the Political Code; but we are precluded from its consideration.

The appeal must be dismissed by this Court of its own motion, for want of jurisdiction, upon the specific ground that the statute does not authorize the taking of an appeal from such a judgment as that entered in the case at bar. The right of the State to appeal in criminal actions does not exist unless conferred by the Constitution or the Legislature, and then the right is restricted to such matters as are clearly within the express language of the enactment;' or, in other words, as was said, substantially,. by Mr. Justice Gray, for the court, in U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. 609, it is settled by the overwhelming weight of authority that the state may not appeal from a judgment in favor of a defendant in a criminal proceeding except under, and in accordance with, express statutes, whether the judgment was made upon a verdict of acquittal or upon the determination by the court of a question of law. To the same effect may be cited Territory v. Laun, 8 Mont. 322, 20 Pac. 652, and the list of cases in note 2, p. 146, 2 Ency. Pl. and Prac.

Section 2273 of the Penal Code confers upon the State the right to appeal in certain well-defined instances. The section reads: “An appeal may be taken by the State: 1. From a judgment for the defendant on a demurrer to the indictment or information. 2. From an order granting a new trial.

3. From an order arresting judgment. 4. From an order made after judgment, affecting the substantial rights of the State. 5. From an order of the court directing the jury to find for the defendant. ’ ’

Section 8 of Article III of the Constitution provides, in effect, that criminal offenses of which Justices’ courts have jurisdiction shall be prosecuted by complaint, and that all criminal actions of which District Courts have sole original jurisdiction shall be prosecuted by information or indictment; and the distinction between informations or indictments and complaints is carefully preserved throughout the Penal Code. A complaint is not synonymous with information or indictment, but it differs materially from either. An appeal may be taken by the State from a judgment for the defendant on a demurrer to the indictment or information. Such is the right conferred by subdivision- 1, Section 2273, which is the only provision of the section which has any relation whatsoever to the supposed right of appeal assumed by the State to exist in the case at bar. But the State is not given the right to appeal from a judgment rendered on demurrer to the complaint, and therefore such right does not exist. It follows, therefore, that no appeal by the State'lies from the judgment sustaining a demurrer to a criminal complaint.

The appeal is dismissed for want of jurisdiction.

Dismissed.

      Succeeded January 2,1899, by Hon. Theodore Brantly.


author: HUNT, J PIGOTT, J.

text:
    HINDS, Treasurer, Appellant, v. WILCOX, Executrix, Respondent.
    [No. 1252.]
    [Submited November 17,1898.
    Decided December 19, 1898.]

      Inheritance Tax Law — Construction.
    Inheritance Tax Law, Sec. 1 (Laws of Montana, 5th Sess. p. 83), provides that all property within the State passing by will, other than to a decedent’s father, mother, husband, wife, etc., shall be subject to a tax of $5 on every Sioo of its market value; that when the beneficial interest of any personal property passes to any father, mother, husband, wife, etc., the rate of tax shall be $1 on every $100 of its market value; and that in all other cases -the rate shall be $5 on every $100 of the market value of all property, provided that any estate of less than $500 valuation shall not be subject to-the tax. Held, that real estate devised by testator to his widow is npt subject to the tax.

      Appeal from District Court, Silver Bow County; JohnLAndsay, Judge.

    Action by Thomas R. Hinds, Treasurer, against Clara M. Wilcox, Executrix. There was a judgment for defendant, and plaintiff appeals.
    Affirmed.

      C. B. Nolan, Attorney General, for Appellant.

      W. W. Dixon, Thompson Campbell, %. Scallon and J. K. McDonald, for Respondent.
   HUNT, J

Suit to collect taxes alleged to be due under the inheritance tax law of the State. J. B. Wilcox died in December, 1896, leaving real property situate in Butte City. Clara M. Wiicox, widow of the deceased and executrix, refused to pay the tax, upon the ground that there was no personal property belonging to the estate of the deceased, and consequently no inheritance tax was due. The estate, after deducting the debts, is of a clear market value of less than $7,500. The District Court ruled that no tax could be collected under the law referred to. The State appeals.-

The' statute bearing upon this controversy was passed in 1897, and is entitled “An act to establish a tax on direct and collateral inheritances, bequests and devises, to provide for its collection and direct the disposition of its proceeds.” (Laws of Montana, .Fifth Sess. p. 83.)

Section 1 of the law reads as follows: “After the passage of this act, all property which shall pass by will or by the interstate- (intestate ?) laws of this State, from any person who may die, seized or possessed of the same, while a resident of this State, or if such decedent was not a resident of this State at the time of his death, which property, or any part thereof, shall be within this State, or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made in contemplation of the death of the grantor or bargainor, or intended to take effect in possession or enjoyment after such death to any person or persons, or to any body politic corporate, in trust or otherwise, or any property, which shall be in this State or the proceeds of all property ■outside of this State, which may come into this State, and which may be or should be distributed in this State to any such heirs, devisees or legatees, by reason whereof any person or corporation shall become beneficially entitled in possession or expectancy to any such property, or to the income thereof, other than to or for the use of his or her father, mother, husband, wife, lawful issue, brother, sister, the wife or widow of the son, or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the State of Montana, and any lineal descendant of sueh decedent born in lawful wedlock, shall be and is subject to.a tax of .five dollars on every hundred dollars of the market value of such property, and at a proportionate rate for any less amount, to be paid to the treasurer of the proper county hereinafter defined for the use of said county and State in the proportions hereafter stated; and all administrators, executors and trustees shall be liable for any and all such taxes until the same have been paid as hereinafter directed. When the beneficial interests to any personal property, or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son, or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the State of Montana, or to any person to whom the deceased, for not less than ten years prior to death, stood in mutually acknowledged relation of a parent, or to any lineal descendant born in lawful wedlock; in every such case the rate of tax shall be one dollar on every hundred dollars of the clear market value of such property, and at and after the same rate for every less amount, provided, that an estate which may be valued at a less sum than seventy-five hundred dollars shall not be subject to any such tax or duty. In all other cases the rate shall be five dollars on each and every hundred dollars of the clear market value of all property and at the same rate for any amount, provided, that an estate which may be valued at a less sum than five hundred dollars shall not be subject to any such duties or tax, provided further, that said tax shall be levied.and collected upon the increase of all property arising between the date of death and the date of the decree of distribution, and upon all estates which have been probated before, and shall be distributed after the passage and taking effect of this act. ’ ’

The contention of the Attorney General in behalf of the State is that the law has imposed a tax upon the privilege to take real property passing by inheritance or devise to the wife or others, designated by the Attorney General as “direct heirs,” when the estate is (valued at $500 or more. The respondent, on the other hand, maintains that where the estate exceeds $500 in value, and descends or is devised to father, mother, husband, wife, child, brother, sister, wife or widow of the son, or the husband of a daughter, or any adopted child or children, or to any person to whom deceased for not less than ten years prior to death stood in mutually acknowledged relation of a parent, or to any lineal descendant born in lawful wedlock, no tax whatever can be levied on the right to take real property so descending or devised.

Between these several contentions we have found no little difficulty in reaching a satisfactory result, inasmuch as the section quoted above, upon which a decision must rest, is uncertain in its application, while its ambiguities admit of several constructions.

To dissect the statute, its several parts should be first separated, in order to arrive at its inclusions as well as its exemptions. Proceeding in this manner, there is a part which we may conveniently designate as (a), providing as follows: “(a) After the passage of this act, all property which shall pass by will, * * * which property * * * shall be within this state, * * * other than to or for the use of the decedent’s father, mother, husband, wife, lawful issue, brother, sister, the wife or widow of the son, or the husband of the daughter, or any adopted child, and any lineal descendant of the decedent born in lawful wedlock, * * * shall be and is subject to a tax of five dollars on every hundred dollars of the market value of such property. ’ ’

Here we observe provision for the taxation of “all property” passing by the means specified, except that devolving upon the decedent’s father, mother, husband, wife, lawful issue, brother, sister, and others closely connected with the decedent in the line of descent. The'exemptions to property passing to the favored persons are extended far dpwn the line by the words ‘ ‘lawful issue, ’ ’ but are nevertheless especially made; and the property of such persons cannot be the basis for taxation at all, unless this paragraph of the law is modified by subsequent words or clauses, or unless the interests so passing are elsewhere enumerated as subject to taxation. The inclusions are, however, very comprehensive. Realty and personal property passing to strangers or to certain relations, as, for example, real or personal property passing to an uncle or aunt, great-uncle or great-aunt, grandfather or grandmother, great-grandparents, or others in the ancestral line, shall bear its burdens. Bearing in mind now that we have the explicit exceptions from the liability imposed upon ‘ £all property’ ’ passing as mentioned, let us proceed and ascertain what, if anything, is to be levied upon the interests of these excepted and favored heirs or legatees.

Resuming, then, the text of the law, we directly encounter a paragraph of the section which we shall call (b), providing as follows: ££(b) When the beneficial interests to any personal property or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son, or the husband of a daughter, or any child or children adopted, * * * or to any lineal descendant born in lawful wedlock; in every such case the rate of tax shall be one dollar on every hundred dollars of the clear market value of such property, * * * provided that an estate which may be valued at a less sum than seventy-five hundred dollars shall not be subject to any such tax or duty. ”

This paragraph (b) pertains exclusively to property passing to those excluded from the operation of the first paragraph, and is the only provision thus far encountered under which any of such favored persons are brought within the operation of the law at all. And, in subjecting the beneficial interests passing to these favored ones, the law lays a duty upon the clear market value of their personal property only, thus wholly excluding any tax upon any beneficial interests in realty passing to them. Furthermore, the' beneficial interests, even to personalty passing to these favored ones, shall not be taxed if of a clear market value of less than $7, 500. Thus, there is a provision by which all of the persons exempted in paragraph (a), even though closely related to decedent, are obliged to pay an inheritance tax, though a much lighter one, and upon '.fewer classes of property, than that which those not so related must pay; and such favored persons shall not be taxed •at all, unless the value of the estate they may take equals or •exceeds Sjj>7,500. The object of paragraph (b) was, evidently, to deal leniently with those who are generally regarded as having •a sort of moral right to take an estate of a near relative, and yet to require of even them, if they take any considerable ¡sum, some contribution for the privilege recognized or bestowed upon them by the law. So far as we have gone, too, real estate passing to such heirs is not to be taxed, because not mentioned in the paragraph dealing with property passing to ■these favored persons.

Moving on with the text, we come to a paragraph to be •designated (c), which is as follows: “(c) In all other eases the rate shall be five dollars on each and every hundred dollars of the clear market value of all property and at the same rate for any amount, provided, that an estate which may be valued at a less sum than five hundred dollars shall not be subject to any such duties or tax,” etc.

Taking up this paragraph (c), without considering the proviso for the present, we find it to be a kind of a drag-net whereby any species of property, real or personal, passing by any method by which one may take property from another at his death, and possibly.not contemplated in paragraph (a), to any person or persons other than those embraced in the exceptions of paragraph (a) and the inclusions of paragraph (b), is liable to the payment of tax at a specified rate of five dollars on each and every hundred dollars of the clear market value.

Paragraph (c), under discussion, in our opinion, is to be read in connection with paragraph (a). The first clause of (c) was designed to impose a tax wherever paragraph (a) did not impose it. There may be no instances to which it can apply, except, perhaps, where property passes by escheat; but, if in administering the law any shall arise, paragraph (c) was meant to include them and to fix the tax. The whole system of inheritance taxes was novel to the State when this law was enacted, and in abundant, or superabundant, caution, the Legislature, in its disposition to let no estates escape, unless especially excepted, provided by paragraph (c) for all other cases not already specifically enumerated in paragraph (a).

We can find nothing in paragraph (c), though, which warrants us in holding that the real property passing to the beneficiaries named in paragraph (b) is to be included in the tax. It seems to us that the legislature, by expressly including personalty only, carefully avoided taxing real property passing to those favored by the law, and we are not authorized to insert what they omitted.

It is unreasonable to say that this paragraph (c) meant to tax real estate passing to those mentioned in paragraph (b), yet to exempt personal property passing to the same persons, if under a value of §7,500. The palpable injustice of such a construction' is apparent. It would, as an example, require the wife of a decedent, who has left nothing except a home worth, say, §600, to pay a tax of §30, while the wife of a decedent who owned no real estate, but who left §7,199.99 in money in bank, would not have to pay a cent. In the one instance the wife would often have difficulty in borrowing the money without hardship and inconvenience, while in the other no tax whatever would be paid, although there would be a large sum of available money on hand wherewith it could be.

The proviso of paragraph (c) that an estate which may be valued at a less sum than §500 shall not be subject to a tax, when read in connection with paragraph (a), is a general exemption from the operation of the law of all small estates valued at less than §500, whether of real or personal property, and which would otherwise' be liable to taxation under the provisions of paragraph (a) and the first clause of paragraph (c). Paragraph (b) being complete in itself, it is in no way qualified or limited by paragraph (c).

These several results, as we have reached them, seem to be more in accord with the letter and spirit of the law than any others which in our deliberations we have considered; hence we adopt them as the proper construction of the law, respectfully observing, however, that section 1 of the law is a fitting subject for further legislation, by which its construction may be simplified. The order appealed from is affirmed.

Pemberton, C. J., concurs.

PIGOTT, J.

1 concur in the foregoing opinion, as well as in the result announced.

The judgment ought to be affirmed for .a reason not stated in the opinion. Testator, Wilcox, died in 1896, while the act imposing a tax upon the privilege of taking by succession or will was not passed until 1897. At the time of his decease, every sane person over 18 years of age might dispose of all his estate by will, to take effect at his death. The State thus granted to the testator the privilege of devising property, and to the beneficiaries named in the will the privilege of receiving it. This privilege was not incumbered or charged with the burden of a tax at the time it was exercised. Before testator’s death, the devisees had a mere privilege, which was revocable by law, but when the will took effect the mere pre-existing privilege was merged into a right. Then it was, if ever, that the right to take vested and became property. (Brenham v. Story, 39 Cal. 179; Black on Constitutional Law, 129; Cooley on Constitutional Limitations (6th Ed.) p. 139; Beach on Modern Equity Jurisprudence, Sec. 1015; Croswell on Executors and Administrators, Sec. 171; Westervelt v. Gregg, 12 N. Y. 202, 62 Amer. Dec. 160; Ervine’s Appeal, 16 Pa. St. 256, 55 Am. Dec. 499; Clarke v. McCreary, 12 Smedes & M. 317; Rock Hill College v. Jones, 47 Md. 1; Secs. 1794, 1851, Civil Code.) Vested rights must, of necessity, be protected from legislative interference, irrespective of constitutional checks and guards. (Andrews v. Russell, 7 Blackf. 474; Town v. Pace, 25 Grat. 1.) Section 1 of the Four teenth Amendment to the Federal Constitution, and Sections 3 and 27 of Article III of the Constitution of Montana, imply, if, indeed, they do not express, a. prohibition against the power of the Legislature to enact a law whose effect would be the impairment of a vested right. (Westervelt v. Gregg, supra; Jones v. Robbins, 8 Gray, 329; Bank v. Okely, 1 Wheat. 235; Cooley on Constitutional Limitations, 354; Osborn v. Nicholson., 13 Wall. 654; Farrington v. Tennessee, 95 U. S. 679; Dash v. Van Kleeck, 7 Johns. 477.) Taxes on successions and the privilege of taking under, wills are laid in diminution of a new capital, which now comes to the hands of persons on the death of the former owner. (Cooley on Taxation (2d Ed.) p. 30.) When the courts affirm the tax to be upon the privilege, they are speaking, not of successions in being or wills in effect before the act imposing the tax was passed, but of the revocable permission granted to succeed or take thereafter.

The power to tax includes the power to destroy. If the Legislature has power to levy a tax of 1 per cent, or 5 per cent, on a vested right, it has authority likewise to destroy the right by imposing a tax equal to the value of the property passing to the heirs or devisees. It is not a question of degree, but of power. The concession that the Legislative Assembly has power to subject to a tax the exercise of a vested and accrued right involves the further logical concession that it may, in the guise of taxation, impose a burden which will deprive the right of any value. Authority which permits a person to be deprived of his property by indirection is as much within the meaning and spirit of the constitutional limitation as where it attempts to do the same thing directly. (Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52; In re Handley’s Estate, 15 Utah, 212, 49 Pac. 829.)

The act, in terms, applies to all estates not distributed on March 4, 1897, and, it would seem, imposes the lien as of the day of the testator’s death. Hence lands and chattels owned by a testator who died a score of years ago, and whose devisees did not secure a formal order of distribution, are now burdened with the tax created in 1897, but taking effect as a lien as of the year 1877; and such is the necessary operation of this act, as interpreted in Gelsthorpe v. Furnell, 20 Mont. 299, 51 Pac. 267, even though the devisees have long ago conveyed the land with full covenants of warranty. Many other examples might be given of cases in which the act would effectually impair the rights vested prior to 1897 in devisees and heirs and their vendees.

The foregoing is a mere outline of the reasons which impel me to the conclusion that the act, as applied to estates remaining undistributed when it took effect, disturbs and lessens the vested rights of heirs, devisees and legatees, thereby depriving them of property without due process of law, in violation of constitutional prohibitions, federal and state.

I am of the opinion, also, that the act is repugnant co the Fourteenth Amendment to the National Constitution, in that it denies to persons within the jurisdiction of Montana the equal protection of the laws. The act exempts from taxation estates under $500 in value in certain cases, and under $7,500 in others. An estate valued at $7,499.99 is exempted, but one of greater value is taxed, not only upon the excess above $7,500, but also upon the $7,499.99. For example, A.’s estate nets $7,499.99 in personal property passing to his widow; this is wholly exempt. B.’s estate nets $7,500, and his widow is also the sole beneficiary; this entire amount is taxed. "The widow of B. pays $75 for the privilege of receiving $7,500, whereas the widow of A. receives but one cent less and pays nothing. Does the act deny to B.’s widow the protection it extends to A.’s! I think it does. In these United States, government is instituted for the equal protection and benefit of the people. Laws must likewise be for their equal protection and benefit. This principle finds expression in the first section of the Fourteenth Amendment te the Constitution of the United States, and its effect upon the powers of the states to impose taxes is considered in Santa Clara Co. v. Southern Pac. Ry. Co., 9 Sawy. 165, 18 Fed. 385; Railroad Tax Case, 8 Sawy. 238, 13 Fed. 722, and Gulf Railroad Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255. The Supreme Court of Ohio, in State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 30 L. R. A. 218, 41 N. E. 579, had occasion to consider the precise question presented by the act of 1897, and held it obnoxious to the objection which I have just indicated. For these reasons I believe that Gelsthorpe v. Furnell, supra, was wrongly decided, and avail myself of the-present opportunity to record my disapproval.


author: PER CURIAD.:

text:
    STATE, Appellant, v. AUCHARD, Respondent.
    [No, 1272.]
    [Submitted. Noy. 23, 1898.
    Decided Dec. 19, 1898.]

      Highways — Establishment — Prescription — Evidence — Statutes.

    1. Under Compiled Statutes 1887, Fifth Div., Sections 1809,1810, providing that, on petition presented to the county commissioners for a county road, they shall appoint viewers to mark out the road, and give parties in interest notice that, at a time fixed, the viewers shall meet at a designated point to attend to their duties, and that proof of such notice shall be made by affidavit accompanying the petition, it is necessary to jurisdiction that the affidavit show that notice of the place, as well as the time, of the meeting of the viewers, was given.
    2. Adverse use by the public for the period named in the statute of limitations will establish a highway by prescription, but the title will be confined to the very way traveled during the period, unless an attempt has been made by the proper authorities to erect a highway, when the extent of the title will be measured by the claim exhibited by the proceedings.
    3. A highway by prescription does not exist unless the proof shows that the general public has used the way as one common to all the public, without substantial interruption, for the time prescribed by the statute of limitations applicable to lands.
    4. Political Code 1895, Section 2600, providing that all highways laid out or erected by the public, or now traveled or used by it, are public highways, is a remedial statute, intended to cure irregularities, but not to supply jurisdiction, where none was acquired in the creation of such highways.
    5. Where a road has been traveled by the public generally as a highway, and is kept in • repair by the road authorities, a legal presumption arises that it is a public highway.
    6. Evidence that one person had traveled a road “off and on” for several years, and another had seen the road, and “had frequently passed through there,” for 18 or 19 years, is not sufficient proof that the road was open to the public generally for the period prescribed by the statute of limitations.

      Appeal from District Court, Lewis and Clarice County; Henry C. Smith, Judge.

    David Auchard was acquitted of the charge of obstructing a public highway, and the State appeals.
    Affirmed.

      P. P. Purcell, Cownty Attorney, and C. B. Nolan, Attorney General, for the State.

      S. A. Balliet, for Respondent.
   PER CURIAD.:

Defendant was tried upon an information drawn under Section 2726 of the Political Code, charging him with obstructing a public highway in January, 1898. At the conclusion of the evidence in behalf of the State, defendant moved that the jury be directed to find for defendant upon the ground that no legal highway had been shown to exist. The motion was, in effect, granted, and the defendant discharged. The State appeals. That the court peremptorily instructed the jury to acquit, instead of advising them to do so (Section 2096, Penal Code), is not assigned as error.

The questions presented upon this appeal may be disposed of in a few words. The State contends that a legal highway was proved to have been laid out and established by virtue of proceedings conducted in compliance with the provisions of Sections 1809-1822, Fifth Div., Compiled Statutes of 1887. The court below held that there had been an omission to observe the requirements of these statutes with respect to the giving of certain notices necessary to the jurisdiction of the Board of Comissioners. The order opening the road for travel was correct in form, but we agree with the learned judge who tried the case that, in the steps taken between the filing of the petition and the final order, there was a material departure from the mandatory provisions of section 1810, which requires notice of the place, as well as the time, where the viewers will meet to view and mark out the road, to be posted, and that proof thereof shall be made by affidavit. At the tame of the trial there was not on file an affidavit showing that notice of the place of meeting was given, nor was the proof which should have been made by affidavit supplied by the production of oral testimony or otherwise, if evidence other than an affidavit might properly be received. (See Carron v. Clark, 14 Mont 301, 36 Pac. 178.) The notice by the viewers thatthey will meet at a certain time and place is a sort of warning, in the nature of a summons, the office of which is to advise all persons interested of the matter in hand, to the end that they may appear before, and be heard by, the viewers.

It is further contended that the evidence made out a prima facie case of a highway by prescription. The law, doubtless, is that a highway may be established by prescription as well as by proceedings taken in conformity with legislative authority (Elliott on Roads and Streets, 133; 9 Am. and Eng. Ency. Law, 366); and that the adverse user by the public for the period prescribed by law as sufficient to bar an action for the recovery of the land so used will establish a title by prescription, which title must be confined to the very way claimed and traveled during the period, unless an attempt has been made to erect a highway by the proper authorities, under color of which the public had acted by using the way for the requisite period. In that event, it is clear the extent of the easement or title is to be measured by “the claim exhibited by the proceedings and by them intended to be established. This is m strict accordance with the elementary principle of the law of real property, which declares that, where there is color of. title, and possession of part is taken under the claim of title,, it will cover the whole, but that where there is no color of: title the right will not extend beyond the actual possession — - the pedis possessio. ’ ’ (Elliott on Roads and Streets, 136, and. cases there cited.) This doctrine seems to be recognized in. Chapter 2, Title 3, First Div., Compiled Statutes-of 1887, and. by Section 1391, Civil Code, and Chapter 2, Title 2, Section. 186, Code of Civil Procedure, 1895. A highway by prescription does not exist unless the proof establishes that the general, public has used the way, without substantial interruption, for the time fixed by the statutes of limitation applicable to lands. The road must be known and used as a highway “common to-all the people” (Elliott on Roads and Streets, 138, and cita tions); and Section 2600, Political Code, adopted in 1895, providing that ‘ ‘all highways and roads laid out or erected by the public, or now traveled or used by the public, or if laid. out or erected by others, dedicated or abandoned to the public,' or made such by the partition of real property, are public. highways, ’ ’ must, in so far as applicable here, be interpreted as a remedial statute, curing irregularities, but' not supplying ■ jurisdiction, where none was acquired, in the creation of the roads, and as recognizing the existence of highways by prescription when they had been used or traveled by the people» generally for the period named in the statutes of limitation. It is also doubtless true that if the road had been used and traveled by the public generally as a highway, and is treated and kept in repair as such by the local authorities whose duty it is to open and keep in repair public roads, proof of these facts ‘ ‘furnishes a legal presumption, liable to be rebutted, that such road is a public highway.” (Eyman v. People, 1 Gilman, 4; Board v. People, 116 Ill. 466, 6 N. E. 475; Hall v. State, 13 Tex. App. 269.) There was not evidence of the adverse use of the way obstructed by defendant sufficient to go to the jury. One witness testified that he had traveled the road “off and on” for several years; and another said he had seen the road, and “had frequently passed through there” for 18 or 19 years, and that the obstruction was in the “regular traveled road, ” or ‘ ‘where the road had been traveled. ’ ’ Manifestly this, of itself, is not proof that the road was open to the public generally, and was traveled by them during the period prescribed by the statute. Neither does the evidence show that the road had been kept in repair by the county, or that any money had been expended upon it.

Some suggestion is made that the road is a highway by dedication. Suffice it to say that the elements necessary to prove a dedication of the way in question were not proved. The order appealed from is affirmed.

Affirmed.


author: PEMBERTON, C. J.

text:
    STATE, Respondent, v. SHAFER, Appellant.
    [No. 1269.]
    [Submitted Nov. 29, 1898.
    Decided Dec. 19, 1898.]

      Homicide — Evidence— Character of Parties — Instructions.
    1. On a trial for murder, defendant can prove that his general reputation for peacefulness was good, by witnesses who knew defendant, and lived in the community in which he lived, although they never heard defendant’s reputation in that respect discussed.
    2. Error in excluding testimony tending to show good character is not cured by admitting the testimony of other witnesses to the same effect.

      3. On a trial for murder, where the defendant claims that the killing was done in self-defense, it is error to refuse to allow defendant to state what kind of a man the deceased was physically.
    4. Where there was evidence that deceased was the assaulting party, it was competent to prove that the general reputation of deceased for peace and quiet was had, under a plea of self-defense.
    5. It is error to allow a declaration made by deceased 30 minutes before the homicide that he (deceased) had had a difficulty with defendant, and that he (deceased) was not armed, and was afraid of defendant, to show that deceased was not armed at the time he was shot by defendant.
    6. Neither was it admissible as'a part of the res gestee.

    7. An instruction that “it is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and, if such is the case, the killing is murder in the first degree,” is erroneous as a definition of murder in the first degree, since it omits the words “malice aforethought.”
    8. Where the record shows many technical objections of the prosecuting attorney to competent evidence offered by defendant, and many technical rulings excluding such testimony, as well as admitting testimony of like character on the part of the state, and many instructions that approach closely the border line of prejudicial error, if they do not cross it, and the charge contains a confused and voluminous mass of not wholly harmonious declarations of the law, a new trial will be awarded, on the ground that defendant has not had a fair trial.

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

    Josiah Shafer was convicted of murder in the first degree, and appeals.
    Reversed.

      M. J. Cavanaugh, B. Noon, and Francis Brooks, for Appellant.

      C. B. Nolan, Qu,y W. Stapleton, and C. P. Connolly, for the State.
   PEMBERTON, C. J.

The defendant was convicted of murder in the first degree on the 14th day of November, 1897, in the District Court of Silver Bow county. On April 23, 1898, he was by the judgment of the court sentenced to be hanged. From the judgment, and order of the District Court refusing him a new trial, this appeal is prosecuted.

There is an immense record in the case, presenting the evidence and numerous assignments of error alleged to have been ■committed by the trial court in admitting and excluding testimony, and in the giving of instructions to the jury.

Several witnesses on the part of the defendant testified that they knew the defendant, and had known him in the community where he lived for a considerable time prior to the homicide, and that his general reputation for peace and quiet was good. They all, however, testified on cross-examination that they had never heard his reputation discussed at all. Because these witnesses stated that they had never heard the defendant’s reputation in this respect discussed, the court, on the motion of the prosecuting attorney, and against defendant’s objection, struck out all their testimony. We think it was competent for the defendant to prove good character by this negative testimony. Upon this subject it is said in Bice on Evidence, Yol. 3, Sec. 380: “The propriety of this rule, permitting negative evidence of good character, is gradually forcing itself upon the recognition of the courts, and there is a current and modern authority rapidly forming in support of it. * * * The authorities abundantly establish that the person testifying need not base his means of knowledge on .what is ‘generally said’ of the person whose character is in question, but may base his knowledge of the reputation of such person on evidence of the negative nature above noted.” See authorities cited in section 380, supra.

Counsel for the State say no foundation was laid for this negative evidence, by showing the witnesses would have likely heard any discussion that might be had concerning defendant’s reputation. But these witnesses stated they knew the defe d-ant, and, evidently, very intimately, and also knew people who were acquainted with defendant; and we think they were so well acquainted with him, and with people who knew him, that it may be reasonably inferred that they would have heard any discussion that defendant’s neighbors might have had concerning his reputation.

It seems also, from the record, that th.e court permitted witnesses on the part of the State to testify, over the objection of defendant, to the bad reputation of defendant and the good reputation of deceased, who showed no more qualification to testify than the witnesses offered by the defendant, whose evidence was excluded by the court. If it was proper to exclude the evidence of defendant’s witnesses under the circumstances disclosed' by the record, for the same reason the testimony of the State’s witnesses should likewise have been excluded.

It is also contended by the State that other witnesses gave like testimony, which was not stricken out, and that therefore, if the striking out of such testimony was error, it was not prejudicial. But defendant was entitled to have the jury consider all of his testimony. We cannot say that he was not prejudiced by striking out part of it on a material point, because like testimony had not been stricken out.

When the defendant was on the stand, he was asked what kind of a man the deceased was physically. This was objected to, and he was not permitted to answer the question. This was error.

Matt Lewis, a witness for defendant, testified that the reputation of deceased for peace and quiet was bad. This evidence, on motion of the prosecuting attorney, was stricken out. This was error. There was evidence tending to show that the deceased was the assaulting party at the time of the homicide, and it was competent to prove the general reputation of the deceased for peace and quiet under the plea of self-defense.

The court permitted witnesses to testify to declarations made by the deceased to them in the absence of the defendant, about thirty minutes before the homicide, that he (deceased) had had a difficulty with the defendant at Columbia Gardens that night; that he was not armed; that he was afraid of the defendant; that he wanted protection from defendant; that he wanted defendant arrested, etc. It seems that this evidence was admitted for the purpose of showing deceased was not armed at the time he was shot by defendant. But we.know of no theory upon which it was admissible. It was not a part of the res gestee. It was clearly hearsay, and it was just as clearly error to admit it. (People v. Irwin, 20 Pac. 56 (Cal.); People v. Carlton, 57 Cal. 83, and authorities cited.)

We are called upon to treat thé instructions given by the court to the jury. The task is appalling. Fifty-nine instructions were given, and nearly all ox them are attacked by innumerable assignments of error. It is out of the question to treat them seriatim. The Attorney General claims that the instructions cover all the questions of law applicable to the case, and says, “The only objection that ought to be urged in that respect is that they are too numerous.” We agree with counsel that the instructions ‘ ‘are too numerous. ’ ’ They are so much so as to be absolutely confusing, if they were free from defects, inconsistencies and contradictions.

Counsel for the defendant especially claim, and urge with much earnestness, that instruction No. 13 is fatally erroneous. The instruction reads as follows: “The unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation. It must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. .But there need be no appreciable space of time between the intention to kill and the act of killing. They may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer; and, if, such is the case, the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing.”

It will be seen that. this instruction omits ‘ ‘malice aforethought” from the definition of murder of the first degree. It is not contended that malice aforethought is not an essential element in the crime of murder in the first degree. But counsel for the State say the instructions must be considered and construed together as a whole, and, as in other instructions the court properly defined murder in the first degree, the de feet in the instruction under consideration is thereby cured. This would be correct if the instructions taken as a whole were harmonious and free from contradictions. In this instruction the court not only omits the words “malice aforethought” entirely, but says ‘ ‘it is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer; and, if such is the case, the killing is murder of the first degree.” We think this is a defective and erroneous definition of murder in the first degree, and not in harmony with other instructions given by the court defining this crime. It is unnecessary to say whether this error, standing alone, would be considered sufficient to authorize a reversal of the case. Nevertheless, we cannot but disapprove of the instruction. It is a dangerous instruction, and so well calculated to produce damage and prejudice, even when considered with 'all the other instructions, that it is difficult to say that it is not fatally erroneous.

It is contended by the counsel for defendant that the court, in its instructions, declared it to be the law that it was the duty of defendant to retreat, or use all reasonable means in his power to avert the necessity of killing, before he would be justified in killing his adversary. This question was fully treated in State v. Rolla (recently decided by this Court) 21 Mont. 582, 55 Pac. 523; and, as this case must be retried, reference is made to that case for the guidance of the court as to the law on this subject.

Counsel for defendant also complain that the instructions throughout limit the defendant’s right to slay deceased in self-defense to a case óf absolute or actual necessity, ignoring the right of defendant to act in case of apparent necessity. If the instructions are subject in fact to this criticism, the error may be corrected on a new trial.

The court instructed the jury, in effect, that if the defendant killed the deceased under circumstances that would not induce an ordinarily courageous man to believe himself in danger of losing his life or receiving great bodily harm at the hands of deceased, or that, at the time of the killing, the defendant had no reason to believe that the deceased intended anything more than to have a fair fight with the defendant, then the defendant could not claim to have acted in self-defense in killing deceased. Counsel claim that the expressions “an ordinarily courageous man” and “a fair fight” are unauthorized in the instruction, because the statute says a £ ‘reasonable man, ’ ’ instead of the kind of man described by the court, and that there is no such thing as a fair fight known to the law. It is to be deplored that, in these important trials, courts will not follow, as far as they can, the language of the statute. We are at a loss to determine what conclusion the jury would arrive at when they undertook to decide just what was meant by a fair fight. What kind of a fight would have been fair between the defendant and the deceased, the latter having been, as the evidence discloses, a very powerful man, and, as one witness says, ‘ ‘a big brute of a nigger, ’ ’ much the superior of the defendant physically ? Such expressions in instructions are undignified and meaningless, or may mean anything, according to the view a juryman might take of the matter.

We do not consider it necessary to treat the many assignments of error in this record one by one. We cannot do so. What we have said in discussing the particular assignments above may be easily applied to other assignments of error in the record.

The great trouble we experience, after looking carefully at the whole record in this case, is found in our inability to say that the defendant has had a fair trial. The law of the land guarantees to every man a fair trial. Looking over the record, we see so many technical objections of the prosecuting attorney to competent evidence offered by the defendant, and so many 'technical rulings of the court in excluding such testimony, as well as in admitting testimony of like character on the part of the State; we find so many instructions that approach so closely the border line of prejudicial error, if they do not in fact dross it; we see sucha confused and voluminous mass of not wholly harmonious declarations of law given to the jury — that we are constrained to conclude that the defendant has not been awarded what the law declares to be a fair trial. The action of the prosecuting attorney and the court in the trial of this case, especially in the introduction of the evidence, is not dissimilar from that disclosed in State v. O'Brien, 18 Mont. 1, 43 Pac. 1091, and 44 Pac. 399. In that case, commenting on the action and duty of the prosecuting attorney and court in such case, this Court said: “The record shows that almost every question asked the witnesses for the defendant was objected to by the counsel for the State. Many of these objections were wholly without merit, as they sought to exclude from the jury matters directly connected with the scene of the homicide, the conduct of the parties, and the homicide itself. This practice is to be censured, and we quote the following language of the Supreme Court of California (People v. Williams, 18 Cal. 195) as particularly applicable to this case: ■ ‘As no man ought to be convicted unless, on a full exposure of the merits of the case, he is really guilty, it would seem that little or nothing is to be gained by interposing technical objections to keep a knowledge of the whole case on its legal merits from the jury. Questions as to the admissibility of evidence frequently arise, and, in the hurry of a nisi- prius trial, the best judge may err, especially when suddenly called to pass upon them without the aid of books or argument. These constitute the usual grounds of reversal. Whenever there is any doubt of the question, or, rather, whenever the evidence proposed by the defense is not plainly inadmissible, it is better to let it go in, since, in nine cases out of ten, a single equivocal fact, of doubtful bearing upon the case, would have no effect upon the judgment of the jurors, who are usually disposed to pass, and do pass, upon the general merits. Not unfrequently the offer to make the proof and the exclusion of it have about the same effect on the minds of the jury — though they should not — as if the proof were introduced. If the course here suggested were pursued by the prosecuting attorneys, we are convinced that ” the number of convictions would not be less than at present, while the number of appeals, or, at least, the number of those successfully prosecuted, would be greatly diminished. ’ ’ ’

There is no serious contention here that the evidence does not support the verdict. The errors complained of are those of law. We regret exceedingly that, on account of such errors, these important trials,' costing so much of time, labor, and taxes, should end'in failure so often to accomplish perfect justice. But, nevertheless, we cannot escape or shirk the responsibility of securing, as far as we can, a fair trial to all persons charged with crime in this jurisdiction, let the costs and consequences be what they may. The judgment and order appealed from are reversed, and the cause remanded for a new trial.

Reversed and remanded.

Hunt and Pigott, JJ., concur.


author: HUNT, J

text:
    STATE ex rel. NOLAN, Attorney General, v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT, et al., Respondents.
    [No. 1351.]
    [Submitted January 14, 1899.
    Decided January 16, 1899.]

      Attorney Generad- — Right to Attend Grand Jury.

    1. Political Code, Art. 8, Section 460, requires tbe Attorney General to exercise a supervisory power over County Attorneys, and, when required by the public service or directed by the Governor, to assist them in the] discharge of such duties. Section 4450 requires the County Attorney, among other things, to attend and give advice to the grand jury. Held that, on the happening of the specified contingency, the Attorney General has the right to appear before the grand jury, and examine witnesses before it, m assisting a County Attorney.
    2. The right of the Attorney General to so attend is not affected by Penal Code, Sections 1788,1910, allowing only the County Attorney to be present before the grand jury, and invalidating indictments considered while any other outsider was present.
    Petition by C. B. Nolan, Attorney General of the State of Montana, for certiorari to the District Court of the First Judicial District, in and for the county of Lewis and Clarke, and Sidney H. Mclntire, Judge thereof.
    Writ awarded.
    Statement of the case by the Justice delivering the opinion.
    CERTIORARI — The Attorney General of the State, C. B. Nolan, prays for a writ of review of the action of the District Court of Lewis and Clarke County in denying him the right to appear before a grand jury, and assist the County Attorney of said county in conducting the examination. of witnesses before such grand jury. The petition discloses that Hon. S. H. Mclntire, a Judge of the District Court of the First Judicial District, duly impaneled a grand jury to inquire into all public offenses cognizable and triable in Lewis and Clarke County; that, in charging the grand jury, the Judge of the said District Court directed and ordered that no person, as legal adviser, should be consulted by the grand jury other than the County Attorney of Lewis and Clarke County, and that, in the examination of witnesses before the grand jury, no person other than the said County Attorney, as aforesaid, had the legal right and authority to appear before the grand jury. Petitioner avers that the grand jury was convened for the purpose of conducting an. investigation respecting bribery charges, made by certain members of the Sixth Legislative Assembly, consequent upon a senatorial election now pending before said legislative body, and that the Judge of the District Court expressly directed the attention of the grand jury to said bribery charges. It is further averred that the said Legislative Assembly, by resolution duly adopted, requésted and directed the Attorney General to assist the County Attorney of Lewis and Clarke County in the investigation of said bribery charges, and that, upon application to the said District Court for permission whereby the Attorney General might appear before said grand jury, the Judge of said District Court refused said application, and ordered and adjudged that the Attorney General had no authority to appear before the grand jury, or in any way aid or assist in the investigation of the charges being inquired into.
    The petitioner says that, under the provisions of law, as Attorney General he has the right and authority to appear before the grand jury, and to direct proceedings before said body; that his authority is superior to that vested in the County Attorney, and that the order of the court, made as aforesaid, is without authority and void..
    The writ prayed for is one commanding the District J udge to certify and return to the Supreme Court the records of the proceedings of said Judge respecting said order, to the end that the decision may be reviewed and corrected by this Court. The record certified to this Court- shows the impaneling and charging of the grand jury, and the action- of the Attorney General, together with the orders of the Court — all as substantially stated above.

      C. B. Nolan, Attorney General, in pro. per.

      O. McConnell, for Respondents.
   HUNT, J

The Attorney General of the State is required by the Constitution (Art. VII, Sec. 1) to perform such duties as are prescribed in the Constitution and laws of the State. Inasmuch, however, as there appear to be by the Constitution no powers or duties specifically delegated to that officer whereby he is clothed with supervisory powers over other or inferior legal officers of the State, or any subordinate government therein, or directing him to assist such other and inferior officers in the performance of their duties, we must turn to the laws,'there to ascertain what, if any, such duties are prescribed, and what are the extent and limitations of his official authority.

Enumeration of his duties is made by Article VIII, Secs. 460 et seq., Political Code. Among other requirements therein mentioned, he is to exercise a supervisory power over county attorneys in all matters pertaining to the duties of their offices, and from time to time to require of them reports as to the condition of public business intrusted to their charge.

A duty to exercise supervisory power clearly implies the possession of supervisory power. There is, therefore, in the Attorney General a right to oversee for direction, to inspect with an authority all matters pertaining to the duties of the county attorneys of the State, and to direct with superintending oversight the official conduct and acts of such officials; and it is his prescribed duty to exercise and perform these acts, and'to do whatever may be necessary and proper to render his power in these respects effective. Duty to exercise general supervisory power over county attorneys would not, however, necessarily carry with it a duty to actively assist a county attorney in the discharge of his duties, for supervision might be exerted without actual assistance. Thus, in the preparation of an important argument, the Attorney General might, under the power of supervision, communicate by letter with a county attorney, directing the pleadings to be relied on, or the line of argument to be pursued, and the general conduct of the trial, even though such course conflict with the county attorney’s wishes ; yet be absent throughout the whole proceedings so conducted under his supervision. In this single clause of the statute, therefore, we do not find a duty detailed to the Attorney General to personally actually assist a county attorney in the performance of the latter’s duties. Proceeding, evidently, with this view of what are the Attorney General’s supervisory powers over county attorneys, the Legislature stepped further, and, guided by the public interests, announced by another special clause of the statute cited, as one of the Attorney General’s duties, that he shall, “when required by the public service, or directed by the Governor, to assist the county attorney of any county in the discharge of his duties. ’ ’ Here we have a specific direction by which the Attorney General is to do more than to exercise those supervisory powers contemplated by previous requirements of the law — he is to assist the county attorney in the discharge of his duties when the public service requires it, or when the Governor directs him to give such assistance. This assistance is to be actual, and, by fair contemplation of the statute, should be by the presence and participation of the Attorney General, if his presence may be had. The supervisory power, heretofore discussed, always vests in' the Attorney General, and accompanies him wherever he may go in the discharge of his duties; but under subdivision 7, quoted, superadded to the duty of supervision is that of actual assistance to be rendered whenever the contingencies referred to in the section have arisen. Nor is there any limit' whatever to the assistance to be given — no point where it is to begin or to end, except the bound of the official duty of the county attorney. Just so long as the county attorney has a duty to discharge, and just so far as he may go in discharging it, so long is it the right and obligation of the Attorney General to actively assist him in the discharge of such a duty; and equally far in executing the duty shall he go when the public service requires it, or when directed to assist by the Governor.

The policy of the law is easily discerned. The Attorney General is the principal law officer of the State. His duties are general; his authority is co-extensive with public legal affairs of the whole community. His advice often affects the rights of all persons within the State, and, excepting judgments and orders of court, his opinions control public interests more largely than do the acts of any other official of the State. Responsibilities of so high a character are usually put upon a lawyer of ability, experience and character, and, presuming the Attorney General to be such, the statute has given him the significant, yet extensive, powers referred to. Again, exigent times occasionally arise in the affairs of a state, where local considerations render it impolitic to intrust a county attorney with the discharge of his duty unaided by learned counsel representing the supreme authority of the State. Circumstances sometimes demand that there shall not only be a supervisory action, but an assistance to an inferior official as well, to the end that justice may be more certainly attained. When considerations of this nature move the Attorney General, or, even when they do not move him, yet the Governor is moved by them, and directs him to exert his authority, he shall assist the county attorney, and must do so in the discharge of the duties which the county attorney is required by law to perform.

In the particular matter under consideration, the requirements of the public service have been expressed by the lawmakers themselves, in. the form of a resolution requesting and directing the Attorney General to assist the County Attorney in the investigation of bribery charges made by certain members of the Legislative Assembly, convened on Januáry 2, 1899, connected with the election of a Senator, of the United States, now pending before the Legislature of the State. True, these resolutions have not the strength of law, but they are entitled to that high respect due to the solemn declarations of the wishes of the representatives of the people who are to elect a senator, while they furnish ample ground upon which the Attorney General may put to use the authority of his office, predicating a statement thereon that the requirements of the public service make it. his duty to assist the County Attorney in the discharge of his duties.

From these observations concerning the power to supervise and assist where properly set in motion, we pass to the inquiry, what are the duties to be discharged by a county attorney ? He is a public prosecutor ; required to attend the District Court, institute proceedings before magistrates, attend before and give advice to the grand jury, draw all indictments and informations, advise county commissioners, and to perform various other duties prescribed by Sections 4450 et seq. of the Political Code. No duty, though, is laid down for him to do, in the performance of.which he can escape the supervisory powers of the Attorney General; nor is there any official act to be discharged by him in the performance of which he may not, where public interests require it, be assisted by that official expressly authorized and empowered to assist him. The statutes defining the duties of the county attorney do not curtail or restrict in any manner whatsoever the duties or powers of the Attorney General, or vest any authority in the county attorney exclusively where public service requires that the Attorney General assist him. The Attorney General may, in his assistance, do every act that the county attorney can perform, and, in his supervision, may even undo any that he has already done. The statutes prescribing the duties of each are in perfect harmony, and a complete system is established by which the State is secured local counsel in all cases ordinarily arising, with general counsel to supervise, and to be present and assist in matters of extraordinary moment.

It is suggested that the Attorney General cannot conduct examinations before the grand jury, because of Section 1910 of the Penal Code, which provides that an indictment must be set aside when a person is present during the session of the grand jury, and when the charge embraced in the indictment is under consideration, except as- provided in Section 1788. Section-1788 of the Penal Code is as follows:

“The grand jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the county attorney; but unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The county attorney of the county may .at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he thinks it necessary ; but no other person is permitted to be present during the sessions of the grand jury except the members and witnesses actually under examination, and no person must be permitted to be present during the expression of their opinions or giving their votes upon any matter before them. ’ ’

The objects of this statute are to preserve to the body alone clothed with authority of indicting for public offenses — the grand jury — a right to have witnesses interrogated by official counsel at its sessions, and to keep the proceedings of that body as secret as possible by excluding therefrom those not vested with official authority; but this provision is part of Chapter IY. of the Penal Code, pertaining to the powers and duties of grand juries, and not to those of the gounty attorney or the Attorney General, the scope of whose authority and duties is elsewhere specially provided for by the law, herein-before discussed in this opinion. There is no inconsistency between Section 1788 and the statutes controlling the duties of the Attorney General and of the county attorney; for, as ,we have seen, it being the right of the Attorney General to assist by doing whatever the county attorney may do, no statute regulating the procedure of grand juries, and designating those who may be present at their sessions, and who shall not be, should be construed to permit the county attorney only to be present, yet to exclude the Attorney General, the superior officer directed to assist him. The construction contended for would, logically, deny to the Attorney General the very right accorded him — to assist the county attorney in the discharge of his duties. - It would impose a sweeping limitation upon the language defining the duties of the Attorney General, and would qualify the extent of that express supervisory power over county attorneys which is unqualifiedly given b.y the source of that power — the law itself. We cannot adopt a construction of Section 1788 which will confine the power of the Attorney General within narrow limitations, which are neither expressed nor implied in the law prescribing the duties of the Attorney General or of the county attorney, and which we believe to be wholly against the letter as well as the spirit of the law.

Cases where strangers or unofficial counsel have been permitted to remain in a grand jury, room during the sessions of that body are inapplicable, for no such case appears by petitioner’s affidavit. Our decision rests upon the delegation of authority to the Attorney General to assist the county attorney, the public service requiring it, and upon the broad ground that, under the law, assistance means personal participation and help to the county attorney in the lawful discharge of his official duties, no matter what the tribunal or body may be wherein the duty lies, and no matter what the nature of the official duty may be. If the county attorney can act, the Attorney General can assist and do that same act. The Attorney General is, therefore, entitled to have the writ prayed for issue.

The court expresses its obligations to all counsel appearing, for the fair and impartial-manner in-which the several points involved have been presented.

Let. the writ issue.

Brantly, C. J., and Pigott, J., concur.