Sackett ex rel. Sackett v. Thomas

64 P. 503, 25 Mont. 226, 1901 Mont. LEXIS 32

Opinion

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

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

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

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

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

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

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

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

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

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

Writ granted.