MR. CHIEE JUSTICE BRANTLY,
after stating the case, delivered the opinion of the court.
Though many questions are argued in the briefs of counsel, the only one necessary to be decided arises upon the contention [115]*115of the appellant that the justice’s court had no jurisdiction to entertain the action, and that, inasmuch as the jurisdiction of the district court is appellate and not original, and therefore the same as tfiat of the justice’s court, the action should have been dismissed.
It does not appear that the jurisdiction of the justice was challenged before or during the trial, but in the district court the defendant interposed a motion to dismiss on the ground that justices of the peace have no jurisdiction of actions authorized by section 4389, supra, and that therefore the district court had none by virtue of the appeal. Whether or not the jurisdiction of the justice’s or district court was challenged is a matter of no moment. The question of jurisdiction may be raised at any time, and may be presented in this court for the first time in the case. (Code of Civil Proe., sec. 685.) If the justice’s court had no jurisdiction of the subject matter of the action, the district court had none. (Chadwick v. Chadwick) 6 Mont. 566, 13 Pac. 385; Shea v. Regan et al., 29 Mont. 308, 74 Pac. 737.)
Section 20, Article VIII, of the Constitution, declares: “Justices’ courts shall have such original jurisdiction within their respective counties as may be prescribed by law, except as in this constitution otherwise provided; provided, that they shall not have jurisdiction in any case where the debt, claim or value of the property involved exceeds the sum of $300.” The following section (21) prescribes other limitations as to the class of cases jurisdiction in which may not be conferred by the legislature. In pursuance of these provisions, the legislature has prescribed by law (Code of Civil Proe., sec. 66), though in general terms, the class of civil cases which these courts may try and determine. Section 66 provides: “The justices’ courts have civil jurisdiction: (1) In actions arising on contract for the recovery of money only if the sum claimed does not exceed $300. * * * (4) In actions for a fine, penalty, or forfeiture, not exceeding $300, given by the statute, or the ordinance of an incorporated city, or town, where no issue is raised by the answer involving the legality of any tax, impost, assessment, toll or municipal fine.”
[116]*116Within the limitations prescribed by the Constitution, the legislature has power to confer jurisdiction upon justices’ courts in any class of cases; but these courts, being thus constituted courts of special and limited jurisdiction, are without power to hear and determine any case when such power is not, specifically or by clear implication, conferred by the statute defining their powers.
Now, upon examination of section 66, supra, we find, that,; if these courts have the power to hear and determine cases authorized under section 4389 of the Political Code, such power must be derived from the provisions of one of the subdivisions quoted supra, for the other subdivisions refer to cases, undoubD edly of a different nature. The case at bar cannot fall under subdivision 4, for the very obvious reason that this provision grants authority to entertain actions for the recovery of fines, penalties or forfeitures given by statute or municipal ordinance, within the limitation of $300, but only when the right to recover such fine, penalty or forfeiture is the sole matter in controversy, and when the answer does.not question the legality of any tax, impost, assessment, toll, or municipal fine. The power to entertain the action must therefore be found, if at all, in subdivision 1, and in the exxiression “actions arising on contracts for the recovery of money only.”
Is this action one arising on contract? Section 2090 of the Civil Code defines contract to be an agreement to do or not to do a particular thing, and the following section declares that it is essential to the existence of a contract that there should be (1) capable parties, (2) their consent, (3) a lawful object, and (4) a sufficient cause or consideration. This is nothing more than the common-law definition of the term, and is manifestly intended to apply only to those obligations which.arise immediately out of dealings between the parties, and not to that sort of contract which arises remotely out of the compact of government. It is only in a remote sense, by a fiction of law, that the duty of a public officer to the individual citizen may be said to rest upon the obligation of a contract, or that the contract of principal and agent may be said to exist between them. The law imposes duties upon the public officer, and the citizen [117]*117does not occupy toward him the relation of principal, so that, by virtue of the fact that, when the citizen places process in the hands of an officer, he assumes responsibility for his acts, or must pay him for the performance of his duty any other compensation than that which the law provides. Oftentimes no compensation is provided for a particular duty, yet the duty required must nevertheless be performed,-and the officer may not lawfully demand compensation therefor.
The gist of this action is the recovery of damages for the nonperformance of official duty, and of the penalty imposed by the law for its nonperformance. It cannot be said, then, that the defendant owed such a special duty or obligation to the plaintiff as that, when the latter put process in his hands, there arose by implication an agreement on the part of the defendant that plaintiff’s judgment should be satisfied out of any funds derived from the sale of the property belonging to the defendants named therein, without regard to the judgment and discretion of the defendant as to the duties owed to other persons occupying relatively the same position toward him. In enacting the law, the legislature evidently had in view a contract in its ordinary or proper sense, and not an agreement resting upon a fiction of law. Inasmuch as the statute (section 66) grants powers under limitations prescribed by the Constitution — which are mandatory and prohibitory — it must, for this reason, be construed as not to grant others than those which come clearly within its terms, or which are necessarily implied thereby. This rule excludes the idea of the liability arising ex delicto, even though, by fiction of law, it might be said in some remote sense to be a liability arising ex contractu, and authorizing a suit for a specific sum of money.
The meaning of the term “contract,” here adopted, has been held by other courts to be obviously the correct one. (Merfield v. Burkett, 56 Ark. 592, 20 S. W. 523; Montgomery v. Poorman, 6 Watts, 384.) But, in the absence of such holdings, we should be constrained to limit its meaning to the extent indicated, without intending to infringe the rule that in some cases the officer may be held liable to action for money had and received, at the suit of the party aggrieved. In the absence of [118]*118such a provision as section 4389, the plaintiff would be compelled to resort to an action for a false return, or to some other form of action ex delicto.
Much was said in the argument of counsel upon the question whether this action could be maintained under the facts of this case in any event, and whether or not the plaintiff should have brought an action, for a false return.
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MR. CHIEE JUSTICE BRANTLY,
after stating the case, delivered the opinion of the court.
Though many questions are argued in the briefs of counsel, the only one necessary to be decided arises upon the contention [115]*115of the appellant that the justice’s court had no jurisdiction to entertain the action, and that, inasmuch as the jurisdiction of the district court is appellate and not original, and therefore the same as tfiat of the justice’s court, the action should have been dismissed.
It does not appear that the jurisdiction of the justice was challenged before or during the trial, but in the district court the defendant interposed a motion to dismiss on the ground that justices of the peace have no jurisdiction of actions authorized by section 4389, supra, and that therefore the district court had none by virtue of the appeal. Whether or not the jurisdiction of the justice’s or district court was challenged is a matter of no moment. The question of jurisdiction may be raised at any time, and may be presented in this court for the first time in the case. (Code of Civil Proe., sec. 685.) If the justice’s court had no jurisdiction of the subject matter of the action, the district court had none. (Chadwick v. Chadwick) 6 Mont. 566, 13 Pac. 385; Shea v. Regan et al., 29 Mont. 308, 74 Pac. 737.)
Section 20, Article VIII, of the Constitution, declares: “Justices’ courts shall have such original jurisdiction within their respective counties as may be prescribed by law, except as in this constitution otherwise provided; provided, that they shall not have jurisdiction in any case where the debt, claim or value of the property involved exceeds the sum of $300.” The following section (21) prescribes other limitations as to the class of cases jurisdiction in which may not be conferred by the legislature. In pursuance of these provisions, the legislature has prescribed by law (Code of Civil Proe., sec. 66), though in general terms, the class of civil cases which these courts may try and determine. Section 66 provides: “The justices’ courts have civil jurisdiction: (1) In actions arising on contract for the recovery of money only if the sum claimed does not exceed $300. * * * (4) In actions for a fine, penalty, or forfeiture, not exceeding $300, given by the statute, or the ordinance of an incorporated city, or town, where no issue is raised by the answer involving the legality of any tax, impost, assessment, toll or municipal fine.”
[116]*116Within the limitations prescribed by the Constitution, the legislature has power to confer jurisdiction upon justices’ courts in any class of cases; but these courts, being thus constituted courts of special and limited jurisdiction, are without power to hear and determine any case when such power is not, specifically or by clear implication, conferred by the statute defining their powers.
Now, upon examination of section 66, supra, we find, that,; if these courts have the power to hear and determine cases authorized under section 4389 of the Political Code, such power must be derived from the provisions of one of the subdivisions quoted supra, for the other subdivisions refer to cases, undoubD edly of a different nature. The case at bar cannot fall under subdivision 4, for the very obvious reason that this provision grants authority to entertain actions for the recovery of fines, penalties or forfeitures given by statute or municipal ordinance, within the limitation of $300, but only when the right to recover such fine, penalty or forfeiture is the sole matter in controversy, and when the answer does.not question the legality of any tax, impost, assessment, toll, or municipal fine. The power to entertain the action must therefore be found, if at all, in subdivision 1, and in the exxiression “actions arising on contracts for the recovery of money only.”
Is this action one arising on contract? Section 2090 of the Civil Code defines contract to be an agreement to do or not to do a particular thing, and the following section declares that it is essential to the existence of a contract that there should be (1) capable parties, (2) their consent, (3) a lawful object, and (4) a sufficient cause or consideration. This is nothing more than the common-law definition of the term, and is manifestly intended to apply only to those obligations which.arise immediately out of dealings between the parties, and not to that sort of contract which arises remotely out of the compact of government. It is only in a remote sense, by a fiction of law, that the duty of a public officer to the individual citizen may be said to rest upon the obligation of a contract, or that the contract of principal and agent may be said to exist between them. The law imposes duties upon the public officer, and the citizen [117]*117does not occupy toward him the relation of principal, so that, by virtue of the fact that, when the citizen places process in the hands of an officer, he assumes responsibility for his acts, or must pay him for the performance of his duty any other compensation than that which the law provides. Oftentimes no compensation is provided for a particular duty, yet the duty required must nevertheless be performed,-and the officer may not lawfully demand compensation therefor.
The gist of this action is the recovery of damages for the nonperformance of official duty, and of the penalty imposed by the law for its nonperformance. It cannot be said, then, that the defendant owed such a special duty or obligation to the plaintiff as that, when the latter put process in his hands, there arose by implication an agreement on the part of the defendant that plaintiff’s judgment should be satisfied out of any funds derived from the sale of the property belonging to the defendants named therein, without regard to the judgment and discretion of the defendant as to the duties owed to other persons occupying relatively the same position toward him. In enacting the law, the legislature evidently had in view a contract in its ordinary or proper sense, and not an agreement resting upon a fiction of law. Inasmuch as the statute (section 66) grants powers under limitations prescribed by the Constitution — which are mandatory and prohibitory — it must, for this reason, be construed as not to grant others than those which come clearly within its terms, or which are necessarily implied thereby. This rule excludes the idea of the liability arising ex delicto, even though, by fiction of law, it might be said in some remote sense to be a liability arising ex contractu, and authorizing a suit for a specific sum of money.
The meaning of the term “contract,” here adopted, has been held by other courts to be obviously the correct one. (Merfield v. Burkett, 56 Ark. 592, 20 S. W. 523; Montgomery v. Poorman, 6 Watts, 384.) But, in the absence of such holdings, we should be constrained to limit its meaning to the extent indicated, without intending to infringe the rule that in some cases the officer may be held liable to action for money had and received, at the suit of the party aggrieved. In the absence of [118]*118such a provision as section 4389, the plaintiff would be compelled to resort to an action for a false return, or to some other form of action ex delicto.
Much was said in the argument of counsel upon the question whether this action could be maintained under the facts of this case in any event, and whether or not the plaintiff should have brought an action, for a false return. Under the view we have taken of section 66, supra, it is not necessary to decide this question.
It will be noticed that under the prayer of the complaint the claim demanded in the two counts thereof is for the amount of the two judgments, $239, with twenty-five per cent penalty, and interest at the legal rate. The action having been brought under section 4389, the legal rate of interest is ten per cent per month. The amount of the judgment demanded, therefore, is in excess of $300; or, if the language of the prayer of the complaint be construed to demand not more than the ordinary legal rate of interest upon money loaned, which is eight per cent per annum, the amount of the judgment demanded is still in excess of $300. In either event, the claim is in excess of the statutory limit, and, though this phase of the case is only incidentally referred to in the briefs, the inquiry naturally arises whether or not, for this reason also, the action is not without the jurisdiction of the justice. In many states it is held, under statutory provisions similar to ours, that the jurisdiction of the justice is to be determined by the amount of the claim demanded, and that remittitur of the excess over the statutory limit after suit brought does not clothe the justice with jurisdiction to proceed with the trial of the case. This question it is not necessary to decide, inasmuch as the conclusion already reached determines the case. A very interesting discussion in this connection may be found, however, in the case of Plunket et al. v. Evans, 2 S. D. 434, 50 N. W. 961. (See, also, Nelson v. Ladd et al., 4 S. D. 1, 54 N. W. 809; Purcell v. Booth, 6 Dak. 17, 50 N. W. 196; Ball v. Biggam et al., 43 Kan. 327, 23 Pac. 565; Lovejoy v. Woolfolk, 105 Ga. 252, 31 S. E. 164; Bowden et al. v. Taylor, 81 Ga. 199, 6 S. E. 277; 2 Current Law, p. 653; Knight v. Taylor, 131 N. C. 84, 42 S. [119]*119E. 537; Warder, Bushnell & Glessner Co. v. Raymond, 7 S. D. 451, 64 N. W. 525; Kanouse v. Martin, 15 How. 198, 14 L. Ed. 660; Gordon v. Longest, 16 Pet. 97, 10 L. Ed. 900; Shealor v. Superior Court, 70 Cal. 564, 11 Pac. 653; Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Everett Piano Co. v. Bash, 31 Ind. App. 498, 68 N. E. 329.)
Tbe justice’s court not baying jurisdiction of tbe action, tbe result is tbat tbe district court bad none, and tbat tbe judgment and order must be reversed. It is accordingly so ordered, and tbe district court is directed to dismiss tbe action.
Reversed and remanded.
Me. Justice Milbuen and Me. Justice Holloway concur.