Becker v. Board of Commissioners

28 P. 1116, 11 Mont. 490, 1892 Mont. LEXIS 15

• Court: Montana Supreme Court
• Decided: January 25, 1892
• Status: Published

Opinions

De Witt, J.

The first ground of the demurrer which we will examine is this: It is contended by the county that the complaint does not allege facts showing that the county clerk of Yellowstone caused to be published in appellant’s daily newspaper the certified copy of the constitution. The allegation of the complaint upon this point, upon which appellant relies, is that “ the county clerk furnished the plaintiff with the said certified copy of the said proposed constitution for publication in the plaintiff’s newspaper.”

This complaint is an amended one. The plaintiff, therefore, once attempted to better his pleading. Courts are liberal in allowing amendments to pleadings; and appellant could doubtless have obtained leave to amend again, and could easily have stated in his complaint, in unequivocal language, that the county clerk caused the constitution to be published in his said daily newspaper. He did not do so. Of course, on demurrer, the allegations of the complaint are taken as true. The conduct of the appellant in adhering to his allegation as made, and not amending so as to state his cause of action clearly within the statute, when he could so readily have done so, if such allegation would have been true, gives the court the more reason to hold that we cannot aid the pleading by implication or forced construction. We therefore read the complaint as it is written. If the appellant were authorized to print the constitution in his said daily newspaper as a charge against the county of Yellowstone,, he was so authorized by the county clerk. The county clerk was a public officer. The appellant was charged with knowledge of the official and not personal character of him with whom he dealt; and he should have known whether the county clerk ordered him to publish this constitution, or caused it to be published in appellant’s daily newspaper, or whether the county clerk furnished it to him as a matter of general news, for his accommodation, or for publication in some other newspaper of his than his daily newspaper, or for any other purpose. (Lebcher v. Commissioners, 9 Mont. 320.)

It cannot be contended that this publication by the appellant would be a charge against the county if the county clerk did not cause it to be published, or order or request it, and if it was done voluntarily by the appellant, even if it were furnished by the clerk, knowing that it was to be published. Public officers constantly furnish to newspapers matters of public interest for publication because the newspapers, in their ambition for news and the service of the public, want them. But it cannot be said that publications so made are on the order or request of, or caused by such public officers. If it were the fact that the county clerk furnished this copy of the constitution to appellant under the precise circumstances last above suggested, the allegátions of the complaint would describe just such a transaction; and such transaction would not constitute a charge against the county under the law and the other facts alleged.

Again, assume for the moment that the county clerk did cause the copy of the constitution to be published in appellant’s daily newspaper — not that the complaint alleged it, but assume that it was a fact. Then the language, as it is found in this complaint, would not be untrue. It would be consistent with the fact that the clerk caused the publication. But, because the language of a pleading is not inconsistent with a state of facts, that is not alleging such state of facts. The complaint must allege the cause of action, and not simply set up matter which happens not to negative a cause of action. The cause of action must be found in the words of the complaint.

Again, even if it were considered that the allegation of the complaint should® be construed to the effect that the county clerk caused the publication to be made by appellant, the complaint does not state that it was to be made in appellant’s daily newspaper named in the complaint, or in what newspaper of appellant.

It was such a simple matter to allege these facts constituting a cause of action — the appellant had such abundant opportunity to allege them, if they were true — and as he refused to do so, apparently with deliberation, it would seem that the pleader considered that he had set out his alleged cause of action as fully as the facts warranted; and those facts, as disclosed by the complaint, we are of opinion, for the reasons above expressed, were not sufficient.

The demurrer was properly sustained and the judgment is affirmed.

Affirmed„

Blake, C. J., concurs.