Volume 50 — Montana Reports

Mandamus. Original application by the State, on the relation of Ruth Jones, against the District Court of the Twelfth Judicial District in and for Yalley County and Frank N. Utter, a judge thereof. Peremptory writ issued.

Lynch, Judge. Action by F. D. Williams, as receiver of the State Savings Bank of Butte, against E. T. Johnson. From a judgment for defendant, plaintiff appeals. In approaching the argument herein, we very frankly confess that the rule laid down in the case of Mercer v. Dyer, 15 Mont. 317, 39 Pac. 314, will have much to do with the decision of the court herein.

S. Ewing, Judge. Action by the State, on the relation of Theodore Klick, against J. G. Wittmer. From a judgment for defendant rendered after sustaining a general demurrer to the complaint, the relator appeals.

Ayres, Judge. Frank Yinn was convicted of tbe crime of rape, and appeals from the judgment and order denying Mm a new trial.

'Appeal from, District Court, Silver Bow County; John B. McClernan, Judge. Action by James H. Kinsman against L. H. Stanhope. From a judgment for defendant and an order denying new trial, plaintiff appeals. The appellant takes the position that the counterclaim must arise out of the transaction set forth in the complaint, or be connected with the subject of the action, and that the counterclaim here does not fall within either provision of section 6541, Bevised Codes.

E. Erickson, Judge. Action by tbe Stritzel-Spaberg Lumber Company against William Edwards and others. From a judgment for defendant Esau James, plaintiff appeals. Cause submitted on briefs of counsel. The lien claimed by plaintiff could, under section 7293, Revised Codes, extend only to such interest as Edwards might have had in the land. This right was the right to a deed upon the making of stipulated payments upon his part and to possession until default.

W. Pier-son, a Judge of the Thirteenth Judicial District, presiding. Aotion by Gallatin County against the United States Fidelity & Guaranty Company. From a judgment for plaintiff, defendant appeals.

Patterson, Judge. Action by Jane Tyler against George M. Tyler and another. From a decree for plaintiff, defendants appeal. Cause submitted on briefs of counsel. Where a deed is delivered as an escrow and afterward, and before the second delivery, the grantor becomes incapable of making a deed, the deed shall be considered as taking effect from the first delivery, in order to accomplish the intent of the grantor, which would otherwise be defeated by intervening incapacity.

L. Duncan, Judge. Action by Carrie Kobn and others against tbe city of Mis-soula and others. From a judgment for plaintiff, defendants appeal. Cause submitted on briefs of counsel.

Patterson, Judge. Action by Rudolph. F. Kersten against Charles B. Coleman. Judgment by default for plaintiff, and defendant appeals from it and an order refusing to set it aside. Cause submitted on briefs of counsel.

E. L.' Sutton, a member of tbe bar of Montana, was convicted of tbe crime of forgery, and ordered disbarred under tbe provisions of subdivision 1 of section 6393 and section 6410, Revised Codes.

<p>. Railroads — Personal Injuries — Death — Children — Turntable Doctrine — Boarding Moving Trains — Invitation — Fencing Tracks — Statutes—Complaint—Insufficiency.</p> <p>Bailroads — Children—Boarding Moving Trains — Fencing Tracks — Statutes —Complaint—Insufficiency.</p> <p>1. Complaint in an action for damages for the death of a child alleged to have been the result of the negligent failure of the defendant company to maintain a fence along its track, as it was its duty to do under section 4308, Bevised Codes, held insufficient to state a cause of aetion under such statute, the enactment of which was for the benefit of owners of livestock, and not to make railway companies liable for injuries to children.</p> <p>[As to violation of fencing statute or ordinance not intended for plaintiff’s benefit as actionable negligence, see note in Ann. Cas. 1912D, 1107.]</p> <p>Same — Turntable Doctrine — Complaint—Insufficiency.</p> <p>2. Complaint further held insufficient to state a cause of action under the turntable doctrine, where the only allegation touching the unusually alluring character of the thing by reason of which the ehild was impliedly invited upon defendant company’s track, was that a slowly moving train, in whieh two cars had been placed behind the caboose, thus made up and so moving, was attractive to children, etc.</p> <p>Same — Injuries on Tracks1 — Implied Invitation — Custom.</p> <p>3. A railway company whieh permits the use of it® tracks as a highway by school children must expect their presence and operate its trains accordingly; its implied invitation in this regard, however, does not carry with it a license to use them to board its freight trains or for •any other purpose.</p> <p>Same — Boarding Moving Trains — Implied' Invitation.</p> <p>4. Quaere: May an invitation by a railway company to children to board moving freight trains be implied from toleration of previous attempts so to do?</p>

Lynch, Judge. Action by Thomas Fadden against the Butte Miners’ Union No. 1 and others. Judgment for plaintiff, and from an order granting a new trial, he appeals.

M. Clements, Judge. Action by Sophia Eder against the Crown Butte Canal & Reservoir Company. Judgment for the plaintiff, and defendant appeals from it and an order denying a new trial.

W. Pierson, Judge. Action by the Suburban Homes Company against Austin North and wife. Prom a judgment for plaintiff, defendants appeal. Cause submitted on briefs of counsel. The complaint failed to allege a tender or offer to pay the defendants the moneys which they had paid on the contract and return to the defendants the interest paid by them, about $5,870, which was paid on deferred payments.

Original application by tlie State, at the relation of W. D. Smotberman, for writ of certiorari to annul an order of the District Court of the Twelfth Judicial District in and for the County of Blaine, Prank N. Utter, Judge.

'Appeal from District Court, Gallatin County; B. B. Law, Judge. Action by R. P. Wall, as administrator of the estate of R. J. Wall, deceased, against the Northern Pacific Railway Company. Judgment for plaintiff and defendant appeals from the judgment and an order denying it a new trial.

Original application by the State on the relation of Charles W. Smith, for writ of certiorari, to review an order of the District Court of the Fourteenth Judicial District in and for the County of Broadwater and John A. Matthews, Judge thereof; refusing a writ of mandate.

Lee McCullough, a Judge of the Fourth Judicial District, presiding. PROCEEDING by Andrew J. Davis and another for the probate of the will of Rachel E. Williams, deceased, contested by Dorothy Alice Williams, by her guardian, Sibyl Scott. Prom a judgment admitting the instrument to probate, and from an order denying a new trial, contestant appeals.

Lynch, Judge. Action by the Barnard Realty Company against the City of Butte and Daniel Shovlin, City Treasurer. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The county assessor did not follow the procedure outlined in section 2, Chapter 135, Laws of 1909.

ZT. Ewing, Judge. Action by Evan D. Jones against Bart Armstrong. From a judgment for plaintiff and an order denying defendant a new trial, the latter appeals. Cause submitted on briefs of counsel. The purchaser- may rescind a contract of sale and return the article when there is a breach of an express warranty, although there was no agreement to that effect and no fraud. (Bryant v. IsburgK, 13 Gray (Mass.), 607, 74 Am.

McClernan, Judge. . Action by Katie McLaughlin against R. M. Bardsen and others, partners as R. M. Bardsen & Co. From a judgment rendered on a nonsuit, plaintiff appeals. There are three questions involved in this appeal, either one of which, if decided in favor of the appellant’s contention, will entitle appellant to a new trial of this action: 1. Liability of defendants under the general law of negligence; 2. Liability under the state law of Montana; 3.

Tattan, Judge. Action by Tollie F. Wherry against Chas. E. Sprinkle and another. Judgment for plaintiff, who appeals from an order granting defendant a new trial.

Lee Mc-Culloch, Judge. ACTION by Alfred Beller against Gilbert Le Boeuf and others, partners under the firm name and style of Moser & Campbell. From an order setting aside a default judgment, plaintiff appeals.

L. Duncan, Judge. Action by Agnes M. Comerford, as admipistratrix of the estate of Thomas Comerford, deceased, against the James Kennedy Construction Company and another. From a judgment for the plaintiff and an order denying it a new trial, the defendant company appeals. Cause submitted on briefs of counsel. The jury in considering of their verdict evidently disregarded the testimony of the witnesses Gustafson and Murtz.

B. Winston, Dodge. Action by L. M. Busbee against the Gagnon Company. Judg-ment for the plaintiff, and defendant appeals from it and an order denying its motion for a new trial. Where delay has been caused by breach of contract, the party injured has a right to recover from the person committing the breach all extra cost and expense to which he has been put by reason of such breach of the contract.

<p> Appeal from District Court, Teton County; H. FI. Ewing, Judge. </p> <p>Aotion by Samuel Gruelle against the J. I. Case Threshing Machine Company. From an order granting a new trial, plaintiff appeals.</p>

B. Winston, Judge. Action by R. E. Jenderson against R. E. Hansen. Judgment for the defendant, and plaintiff appeals from it and an order overruling his motion for a new trial. One of the requisites, on the part of a purchaser, for breach of contract, before bringing an action is that he must be able to perform the conditions, and especially the concurrent conditions to be performed by him. (Sec. 4903, Rev. Codes; Porter v. Plymouth Gold Min. Co., 29 Mont. 360, 101 Am.

Action by the Ball Ranch Company against Martin Hen-drickson and another. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial. The gist and substance of this action as disclosed by the allegations of the complaint is the injury inflicted upon the property of the respondent by the alleged negligence of the appellants.

TJtter, Judge. Action by O. 0. Adams against A. 0. Stenehjem, as administrator of the estate of G. .0. Meltzer, deceased. From a judgment for defendant, plaintiff appeals. We submit that the expressions “that said certificate is duly authorized by law” and “that said certificate is in due form” are in effect the same, and do not convey different meanings.

Appeal' from District Court, Beaverhead Countyj Wm. A. Clark, Judge. Action by Carl M. Rood against William Y. Murray. Judgment for plaintiff, and defendant appeals from it and an order denying him a new trial. Rood knew that Murray was the agent of the state — the “superintendent,” as he alleges in his complaint — and he therefore stood in the same position as an officer of the state, iof which fact Rood had knowledge.

Certiorari by the State, on the relation of Thomas Dowen, against the District Court of the Twelfth Judicial District of the State of Montana, in and for the County of Blaine, and Prank N. Utter, a judge thereof.

Erickson, Judge. Action by Charles E. Johnson against the county of Lincoln and its treasurer. From a judgment for defendants, plaintiff appeals. Cause submitted on briefs of counsel. The case seems on all-fours with and to have been foreclosed by the circuit court for the northern district of Idaho in an opinion rendered by Judge Dietrich in the case of Gleanoater Timber Go. v. Shoshone County, 155 Fed. 612.

<p>Ceritorari by the State of Montana, on relation of the First Trust & Savings Bank of Billings, Montana, against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and George W. Pierson, a Judge thereof.</p>

C. Hurley, Judge of the Seventh Judicial District, presiding. Aotion by Harry C. Waite against C. E. Shoemaker & Co. Judgment for plaintiff, and defendant appeals from an order denying its motion for a new trial. Plaintiff relied upon the written contract, and was thereby precluded from charging misrepresentation.

Original application for a writ of prohibition by the State, on the relation of Lncy A. Marshall, M. M. Hughes and others, as the Montana State Board of Examiners for Nurses, against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone, and George W. Pierson, a Judge thereof.

<p>Contempt — J urisdiction — Procedure—Insufficient Order — Ha-beas Corpus.</p> <p>Direct Contempt — Punishment—Procedure.</p> <p>1. While the right to punish for a direct contempt is inherent in courts, the procedure provided is purely statutory, and the law must be followed.</p> <p>[As to courts and their tribunals authorized to punish for contempt, see note in 117 Am. St. Rep. 950.]</p> <p>Same — Sab eas Corpus — Pleadings—Presumptions.</p> <p>2. Though one under punishment for a direct contempt cannot, on habeas corpus, deny the facts stated in the order adjudging him guilty, no presumptions or intendments are to be indulged against him.</p> <p>[As to obtaining release on habeas corpus from judgments punishing for contempt, see notes in 22 Am. St. Rep. 422; 87 Am. St. Rep. 179.]</p> <p>Same — Insufficiency of Order.</p> <p>3. Held, that an order of the district court adjudging an attorney guilty of contempt committed in its immediate presence, which recited that the contemner “by his conduct, words and manner disturbed the orderly proceedings of this court, and by his insolent demeanor, angry words, is in contempt” etc., consisted of mere conclusions and was fatally defective because not in compliance with the provision of section 7311, Revised Codes, that such an order must recite the facts as occurring at the time of the alleged contempt.</p> <p>Same — Nature of Proceedings — Order must be Certified.</p> <p>4. Proceedings in contempt are in their nature criminal; hence the order adjudging one guilty and committing him to the custody of the sheriff until the fine imposed shall be paid must, under section 9377, Revised Codes, be certified; in the absence of such certification, such order was not any warrant for the detention of the complainant.</p> <p>[As to prosecutions for contempt as criminal .proceedings within rule as to jeopardy, see note in Ann. Cas. 1912B, 1008.]</p>

B., Winston, Judge. Aotion by Artemus Day against Bertba Kelly, From a judgment of nonsuit, plaintiff appeals. Appellant contends that under the issues as framed by the pleadings, the defendant admitted that she was negligent in the form and manner set out in plaintiff’s complaint. The first affirmative defense set out by the defendant in her answer is a plea of contributory negligence. In Montana the plea of contributory negligence is a plea in confession and avoidance.

W. Tat-tain,, Judge. Application by John D. Panchot against W. R. Leet, as treasurer of Chouteau county, for injunction to restrain the collection of a tax. From an order denying a temporary injunction, plaintiff appeals.

Original application in quo warranto by tbe State, on tbe relation of John E. Patterson, against Theodore Lentz, to determine title of respondent to the office of judge of tbe Fourth Judicial… Held: measured thereby. The holding of the Livesay Case has up to this time not been overruled, and stands as the law on the point in question. Moreover, as above stated, it has the support of considerable authority in other jurisdictions to which reference will be made.

<p>Habeas Corpus — Appeal—Kidnaping—Information—Sufficiency —Statutes—Rules of Interpretation.</p> <p>Habeas Corpus — Appeal.</p> <p>1. Availability of the remedy by appeal is uot a bar to relief by the writ of habeas corpus to one imprisoned for crime under an alleged void judgment.</p> <p>[As to right of person in custody under judgment to be discharged on habeas corpus, when judgment ceases to be operative, see note in Ann. Cas. 1913B, 878.]</p> <p>Criminal Law — Kidnaping—Information—Sufficiency.</p> <p>2. Section 8306-, Revised Codes, provides that every person who willfully seizes or inveigles another with intent to cause him to be secretly. confined within the state, or sent out of the state, etc., is guilty of kidnaping. Held, that an information which omitted the qualifying word “secretly” in charging the crime of kidnaping was nevertheless sufficient to support a conviction. ■</p> <p>Statutes — Rules of Interpretation.</p> <p>3. In the interpretation of statutes, resort should first be had to the ordinary rules of grammar.</p>

<p>Habeas Corpus — Kidnaping—Information— Sufficiency.</p>

<p>Interpleader — Equity—Jury Trial.</p> <p>1. A suit in interpleader is equitable in its nature, in which neither party is entitled to a jury trial as a matter of right; hence where a jury had been called, but disagreed, the court was within the rightful exercise of its authority in discharging them and deciding the controversy itself.</p> <p>[As to the right of interpleader, see note in 91 Am. St. Rep. 593.]</p>

<p> Appeal from District Court, Rosebud County; Geo. W. Pier-son, Judge. </p> <p>Action by C. M. Taintor against C. C. St. John. From a judgment for plaintiff and from orders annulling an order appointing a receiver, and denying a new trial, plaintiff appeals. Appeal from order annulling the appointment of the receiver dismissed. Order denying new trial affirmed.</p> <p>The court erred in vacating and annulling the order appointing a receiver. As the order appointing a receiver was an appealable order (sec. 7098, Rev. Codes), and no appeal was taken therefrom, the lower court was without jurisdiction to vacate and annul the same. (Sec. 7096, Rev. Codes, Whitloeck v. Montana Gent. By. Go., 21 Mont. 102, 52 Pac. 1098; Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.) The lower court undoubtedly had the right, upon a showing that there was no further necessity for a receiver, to vacate the order appointing him or order his discharge. Under such circumstances, the vacation of the order appointing a receiver is the same as an order of discharge. (Forrester & MacGinniss v. Boston & Mont. etc. Min. Go., 24 Mont. 148, 60 Pae. 1088, 61 Pac. 309; Pagett v. Brooks, 140 Ala. 257, 37 South. 263.)</p> <p>The order complained of not only discharged the receiver, but “vacated and annulled” the order appointing him, for the reason stated that such order “was improvidently and improperly made.” We do not question the order to the extent that it discharged the receiver, but we respectfully submit that the part of the order annulling the order appointing the receiver was made without jurisdiction, and is void. The discharge of the receiver or the vacation of the order appointing him, where the purpose is to effect a discharge, is very different from both vacating and annulling the order appointing a receiver. Where the order vacating the appointment operates merely as the discharge of a receiver, both the receiver and the party who secured his appointment are relieved from liability for the acts of the receiver, whereas, if the order is vacated in the sense of being annulled, tbe receiver and the party securing his appointment will be regarded as wrongdoers. (Thornton-Thomas Go. v. Bretherton, 32 Mont. 80, 80 Pac. 10; Forrester & MacGimyis v. Boston <& M. etc. Min. Go., supra.)</p> <p>Assuming, however, for the sake of argument, that the lower court had jurisdiction, not only to discharge the receiver but to annul the order appointing him, we submit the finding of the court that the order was improvidently and improperly made was wholly unwarranted. It is fundamental law that where there is jurisdiction of the parties and subject matter, the appointment of a receiver is within the discretion of the court or judge, and that the appointment will not be annulled by an appellate court unless there has been a clear abuse of discretion. (High on Receivers, 4th ed., p. 12; Beach on Receivers, sec. 118; Whitley v. Bradley, 13 Cal. App. 720, 110 Pac. 596; Heinze v. Butte <& B. M. Co., 126 Fed. 1, 61 C. C. A. 63.) It follows that Judge Pierson, even conceding that he was authorized to review the action of Judge Fox in making the appointment, should not have annulled the order unless the latter had been guilty of a clear abuse of discretion.</p> <p>The orders of October 11 and November 21, 1912, continuing the receivership were in effect a reappointment of the receiver. (Southwell v. Church, 51 Tex. Civ. App. 547, 111 S. W. 969.) The same reason existed for the appointment as justified the continuation of the receivership, or what was in effect the reappointment and the orders continuing the receivership are in direct conflict with the order subsequently made annulling the appointment. In view of the fact that the • receiver was continued in office and was required and commanded to gather and ship the balance of the cattle upon the application of the defendant, there was clearly an estoppel on the part of the defendant to afterward move to have the order appointing the receiver annulled. (34 Cyc. 162, and cases cited; McKinnon v. Wolfen-den, 78 Wis. 237, 47 N. W. 436; Dilley v. Jasper Lumber Go. (Tex. Civ. App.), 114 S. W. 878.)</p> <p>Where an order appointing a receiver is reversed, or it is otherwise determined that a receiver was appointed without cause, the party securing the appointment .is liable for the salary and expenses of the receiver in excess of any benefit to the other party. (Hickey v. Parrot Silver etc. Co., 32 Mont. 143, 108 Am. St. Rep. 510, 79 Pac. 698.) Where, however, there was just cause for the appointment of a receiver, the salary and other expenses of the receiver are a charge against the property. (High on Receivers, 4th ed., see. 809; Ferguson v. Dent, 46 Fed. 88; Clark v. Brown, 119 Fed. 130; Hembree v. Dawson, 18 Or. 474, 23 Pac. 264.)</p>

Proceedings in contempt against Wendell Bailey for practicing law within the state without a license. Respondent adjudged guilty. Cause submitted on briefs of counsel.

B. Law, Judge. Action by A. Doornbos against W. L. Thomas and others. Judgment for plaintiff, and defendants appeal from it and an order denying a new trial.

Action by Lambert Keffler against T. R. Wilds. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Cause submitted on briefs of counsel.

<p>Pleadings — Complaint — Ambiguity — Failure to Demur —■ Waiver.</p> <p>1. Failure to demur to a complaint for ambiguity operates as a waiver of such defect, under section 6539, Revised Codes.</p>

Lee McCul-loch, Judge. From an order modifying a decree of divorce in a suit by J. Theo. Brice against Ethel O. Brice, the plaintiff appeals. The rule governing a proceeding of this nature is said to be the same as governs in proceedings to modify a decree awarding alimony or maintenance money to the wife.

C. Hurley, Judge. ACTION by R. C. Morrison against Samuel II. Linn, Gertrude Coleman and another. Held: in commenting, upon certain instructions given relative to the question of adverse possession: “Their purport was that if the plaintiff’s title was found to be the paramount title and any of the defendants entered upon and took possession of the land without title 'or claim or color of title, that such occupancy was not adverse to…

Original application for writ of mandate, by the State, on the relation of Paris Gibson, against Samuel Y. Stewart and others, constituting the State Board of Land Commissioners, to compel the cancellation of a certificate of sale and consider relator’s petition to lease the land covered by it.

B. Leslie, Judge. Action by Vincent W. Mullery against tbe Great Northern Railway Company and others. Judgment for plaintiff. Defendants appeal from the judgment and from an order denying their motion for new trial.

Original application for writ of supervisory control by the State, on the relation of Joseph J. Carroll, as guardian of Mary Murphy, an incompetent person, against the District Court of the First Judicial District in and for the County of Lewis and Clark and J. M. Clements, a judge thereof.

Original application 'by the State, on the relation of M. S'. Darling, for writ of mandate running to the board of county commissioners of Teton County.

Original application for writ of certiorari by the State, on the relation of Lincoln Working and others, against the District Court of the First Judicial District in and for the County of Lewis and Clark and James M. Clements, 'as judge thereof.

Original application for writ of certiorari by the State, on the relation of Lincoln Working and others, against the District Court of the First Judicial District in and for the County of Lewis and Clark and James M. Clements, a judge thereof.

W. Pierson, Judge. Action by tbe Columbus State Bank against Guy D. Erb and others. Prom a judgment for plaintiff and an order denying them a new trial, certain of the defendants appeal. The authorities are agreed on the question as to the admissibility of a correct copy of a lost record which would have been admissible if not lost.

McClernan, Judge. Action by Sally A. Brundy against Benjamin H. Canby and others. Judgment for plaintiff, and defendants appeal from it and from an order denying a new trial. Consideration: It is alleged that plaintiff received no consideration for the contract, and as a corollary to that postulate, that there is nothing for her to do to place the parties in statu quo as a condition precedent for a cancellation or rescission of the contract.

PL. Ewing, Judge. Action by 'Jay H. Chenoweth against the Great Northern Railway Company and the Anaconda Copper Mining Company. From a judgment for plaintiff: and an order denying it a new trial, defendant railway company appeals.

C. Hurley, Judge. Action by the Milwaukee Land Company against Ira Ruesink and John Anderson. Judgment for plaintiff. From an order sustaining defendants’ motion for a new trial, plaintiff appeals. Defendants’ defense rests primarily upon the determination of the one question as to whether or not there was in fact any such contract as was pleaded by him in his answer, that a specific performance thereof could be decreed.

Original application for writ of supervisory control to annul an order of the District Court of Lewis and Clark County, and J. M. Clements, a judge thereof, setting a cause for hearing..

Original application for writ of supervisory control to review an order of the District Court of Lewis and Clark County, and J. M. Clements, a judge thereof, setting the day of hearing of a cause.

Ayers, Judge. Action by tbe A. H. Averill Machinery Company against J. P. Bain. Judgment for defendant, and plaintiff appeals from it and an order denying a new trial.

M. Clements, Judge. Action by Lars M. Nelson against the Northern Pacific Railway Company and J. T. Sheedy. From a judgment of nonsuit, and from an order denying him a new trial, plaintiff appeals.

B. Winston, Judge. Action by Ella F. Lyon against tbe Chicago, Milwaukee & St. Paul Railway Company and others. From a judgment for defendants, plaintiff appeals. Appellant contends that by defendants’ removing some of the natural ground which served as a bank and leaving the portion which they did to serve as an embankment, and this portion going out, a case was presented to which the doctrine of res ipsa loquitur applied.

Lee McCul-loch,, Judge. Action by James E. and Julia Smith against the Northern Pacific Bailway Company. Judgment for plaintiffs and defendant appeals. The grant was one in praesenti, and took effect at, and the title thereby conveyed relates back to, the time of its approval, and the rights which it conferred upon the grantee, its successors and assigns, are subject to no conditions except those expressed in the grant. (Wilkinson v. Northern Pac.

<p> Appeal from District Court, Missoula County; B. Lee McCullough, Judge. </p> <p>Action by A. M. Stevens against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p> Appeal from District Court, Silver Bow County; Roy E. Ayers, Judge of the Tenth Judicial District, presiding. </p> <p>Action by Julius Steiman against The Murray Hospital, a corporation. Judgment for plaintiff. Defendant appeals from an order granting a new trial.</p>

EL. Ewing, Judge. Action by Prank Lemmer against the “Tribune” and John A. Curry. Prom a judgment of dismissal, plaintiff appeals. In interpreting an alleged libelous publication the court will construe it in its ordinary and popular sense, and will read it exactly as in a newspaper out of court. The vice of a libel consists in the injury it inflicts upon the character, the feelings and the business of the person concerning whom it is published.

<p>Corporations — Contracts — How Enforced — Directors — Powers and Duties — Stockholders■—Bight to Sue.</p> <p>Corporations — Contracts—How Enforced.</p> <p>1. Like the agreement to take stock in a corporation to be formed, so one to the effect that the cost of constructing an irrigation project and the expense of maintaining it should be distributed among the stockholders in proportion to the number of shares held by each, is not a contract between the shareholders enforceable by one or more of them against the others, but one enforceable only by the corporation.</p> <p>[As to when corporation must carry out contracts of promoters or members, see note in 13 Am. St. Rep. 28.]</p> <p>Same — Directors—Duties not Delegable.</p> <p>2. Though it is competent for the directors of a corporation to conduct its business through duly authorized agents, they cannot abdicate their duties nor permit others to act in their stead for the corporation or the stockholders.</p> <p>[As to actions by corporation on behalf of stockholders, see note in 97 Am. St. Rep. 29.]</p> <p>Same- — Stockholders cannot Sue, Until When.</p> <p>3. Stockholders cannot sue on behalf of the corporation until they have applied to the officers and directors for relief and have met with a refusal, or it is apparent that application to them for relief would be useless.</p>

<p>Telegraphs and Telephones — Cities and Towns — Placing Wires Underground — Ordinances—Constitution—Police Power.</p> <p>Telegraphs and Telephones — Cities and Towns — Placing Wires Underground — Constitution.</p> <p>1. Held, that a city ordinance requiring wires used for the transmission of electricity for telegraph and telephone purposes, among others, to be plaeed underground in the congested business district, and providing punishment for disobedience, was a valid exercise of the police power, and that the contention that section 14, Article XV of the state Constitution, lodged the authority to regulate the telegraph and telephone business exclusively in the legislature, had no merit.</p> <p>[As to poles and wires of telegraph and telephone companies in streets and highways and across private property, see note in 28 Am. St. Hep. 229.]</p> <p>State Constitution — Nature of Instrument.</p> <p>2. Speaking generally, the state Constitution is a limitation and not a grant of powers.</p> <p>Telegraphs and Telephones — Regulation—Cities and Towns — Powers.</p> <p>3. By subdivisions 8 and 43, section 3259, Revised Codes, cities and towns are given the power to regulate the use of streets by the erection of telegraph or telephone poles, the stringing of wires thereon, eta. By section 4400 certain rights of telephone, telegraph and other companies are defined, the section concluding: “Nothing herein shall be so construed as to restrict the powers of city or town councils.” Held, that by this latter provision the legislature meant to preserve to cities and towns the police powers granted in the subdivisions above.</p>

District Court, Blaine County; Prank N. Utter, Judge. Relator’s remedy is not by certiorari. Certiorari at the relation of J. N. Akin to review a judgment of F. N. Williams, Justice of the Peace of Chinook Township, in an action by the Empire Cattle Company against relator. From a judgment annulling that of the justice of the peace, he appeals. Cause submitted on briefs of Counsel. Clark v. Great Northern By.

Original application by tlie State at the relation of the Pilot Butte Mining Company for writ of mandate to compel the District Court of Silver Bow County and Jeremiah J. Lynch, a judge thereof, to settle a bill of exceptions.

<p> Appeal from District Court, Broadivater County. </p>

<p> Appeal from District Court, Flathead County; J. E. Erickson, Judge. </p>

<p>Original application for writ of mandate.</p>

<p>Original application for writ of certiorari to the District Court of Lewis and Clark County, and J. M. Clements, a Judge thereof.</p>