Volume 53 — Montana Reports

<p>Specific Performance — Cities and Towns — Municipal Waterworks Contract — Renewal Agreement — Estoppel.</p> <p>Contracts — Agreement to Enter into — Not Enforceable.</p> <p>1. An agreement to enter into an agreement upon terms to be afterward settled between the parties cannot, as a general rule, be enforced.</p> <p>[As to reference by contracting parties to future contract in working as negativing existence of present contract, see note in Ann. Cas. 1912B, 130.]</p> <p>Same — Terms—Rates and Prices — When not Specifically Enforceable.</p> <p>2. Where a contract leaves the matter of rates or prices uncertain, it cannot be specifically enforced unless they can ¡be made certain by means provided in the contract itself.</p> <p>On validity and' effect of stipulation in contract to renew on terms to be agreed upon, see note in 32 Ir. R. A. (n. s.) 201.</p> <p>Same — Specific Performance — Municipal Waterworks Contract — Renewal Agreement.</p> <p>3. Held, under tlie above rules, that a contract between a city and. a water company under the terms of whieh tbe city bound itself to either purchase the company’s plant at the end of twenty years, or renew the contract for twenty years longer “upon such terms as are mutually agreed upon at that time,” was not specifically enforceable, inasmuch as courts cannot compel parties to agree or make an agreement for them.</p> <p>Same.</p> <p>4. Since the contract supra, sought to be specifically enforced was the contract originally in contemplation of the parties, at which time the Public Service Commission, with power to fix water rates, had not been created, the contention that, in view of such power, the clause calling for a renewal of the eontraet amounts to an agreement to renew at such rates as the commission may prescribe, and is therefore enforceable under paragraph 2, supra, held without merit.</p> <p>Same — Specific Performance — Renewal Agreement — Estoppel.</p> <p>5. Where the renewal of a twenty year water contract between a city and a water company became the subject of controversy immediately after its expiration, the company was not in position to assert estoppel because misled into making costly expenditures on the plant by the conduct of the city. ■ ■</p>

<p>Farm, Loan Act — Constitution—Statutory Construction — Enabling Act — School Funds — Investment—Duty of State Land Board — Implied Powers — Counties—Loaning Credit.</p> <p>Statutes — Initiative—Enactment—Legislature—Constitution.</p> <p>1. Statutes enacted by the people directly under the initiative are of equal dignity with those passed by the legislative assembly and approved by the governor; in the enactment of the former the provisions of the staté Constitution can no more be transgressed .than in that of the latter.</p> <p>[As to construction of initiative or referendum provisions in Constitution, statute or municipal charter, see note in Ann. Oas. 1916B, 375.]</p> <p>Same — Legislative Power — Constitution.</p> <p>2. The state legislature possesses plenary legislative power, except as limited by the Constitution of the United States, the treaties made and statutes enacted pursuant thereof, and by the Constitution of the state.</p> <p>Earm Loan Act — Validity—'Constitution—Enabling Act.</p> <p>3. The Earm Loan Act (Laws 1915, p. 486), so far as it provides (secs. 1, 2, 5) a method of procedure under whieh the state board of land commissioners may invest common school and other specified state funds in first mortgages on good, improved farm lands in the state, and for foreclosure thereof in case of default in the payment of interest thereon, held proof against attack on constitutional ground, and not to conflict with the Enabling Act.</p> <p>Same — State Eunds — Investment—Power of Legislature.</p> <p>4. Since the Constitution makes no reference to the investment ofi the reform sehool, deaf and dumb asylum and eapitol building funds, the legislature could prescribe such regulations as it saw fit touching that subject.</p> <p>Same. •</p> <p>5. Under its power referred to in paragraph 4 above, that conferred by section 12, Article XI, of the Constitution with relation to funds belonging to the higher educational institutions, which is to be exercised under sueh regulations “as may be prescribed by law,” and that contained in section 3, of the same Article, as to the permanent public sehool funds to be invested “under the restrictions to be provided by law,” the legislature could in the Farm Loan Act, properly exclude “county, city’and town bonds, as well as warrants and school district bonds not constituting the only outstanding issue, from the list of. securities available for the investment of such funds.</p> <p>Statutes — Power of Legislature — Constitutional Limitations.</p> <p>6. The authority of the legislature, otherwise plenary, will not be held cireumseribed by implication; but one who seeks to limit it must be able to point out the particular provisions of the Constitution which contains the limitation in clear terms.</p> <p>Farm Loan Act — Investment of State Funds — Duty of State Board of Land Commissioners.</p> <p>7. Held, that the state board of land commissioners must, in the investment of the funds mentioned in the Farm Loan Act, after having given preference to the public securities enumerated, employ the residue in the other securities named, including first mortgages upon good, improved farm land in the state.</p> <p>Same — State Board of Land Commissioners — Implied Powers.</p> <p>8. Failure of the Farm Loan Aet to provide the working details of the plan held valid (see paragraph 3 above), is not sufficient to declare- it invalid, since whatever authority is necessary in the state land board to execute the 'commands of the Act is, in the absence of specific direction, conferred by implication, matters of detail — such as the fixing of the rate of interest, etc. — being left to the wide discretion of the board for control by appropriate rules or regulations.</p> <p>Statutes — Validity—How Determined.</p> <p>9. The validity of an Act called in question is to be determined, not only by what is certain to be done, but by what may be done, under it.</p> <p>Farm Loan Act — Invalid Provisions — Counties—Loaning Credit.</p> <p>10. Held, that that portion of the Farm Loan Act which seeks to commit to the several counties exclusive authority to loan the funds mentioned therein on farm mortgage security, each county being constituted a statutory guarantor of loans made, any loss to be repaid out of its common revenues, is repugnant to constitutional provisions (Const., Art. XI, secs. 3, 12; Art. XII, sec. 11; Art. XIII, secs. 1, 5), and that since these provisions apparently formed an inducement to the legislature to provide this method of making farm loans, the plan is inoperative.</p> <p>Statutory Construction — Kule.</p> <p>11. In construing a statute, the court must, if possible, ascertain and carry into effeet the intention of the legislature, which must be gathered from the terms of the statute when considered in the light of surrounding circumstances.</p> <p>Same — Farm Loan Act — What Part Enforceable.</p> <p>12. Under the rule that if, after disregarding the unconstitutional portion of an Act, the remainder is complete in itself and capable of being executed in accordance with the apparent legislative intent, it will be sustained, held that the Farm Loan Aet, so far as declared ■ valid (see paragraph 3 above), is complete and independent of that part of the Aet rejected (see paragraph 10 above), and therefore enforceable.</p>

W. Fierson, a Judge of the Thirteenth District, presiding. In the Matter of tbe estate of W. B. Dolenty, deceased. Petition by Con Mannix and others asking that Isabel Dolenty, executrix, be required to present an account and make report. From an order of the district court overruling objections and .approving the account filed by the executrix, petitioners appeal.

Miller Smith, Judge. Action by Joseph Horsky against Samuel McKennan and another. From an order granting new trial, defendants appeal. The provisions of section 4549, Revised Codes, could not be avoided or circumvented by the mere recital in the deed of re-conveyance of the payment of debts and the performance of the trust under the deed of assignment. (See Briggs v. Palmer, 20 Barb. (N. Y.) 392; Bussell v. Bussell, 36 N. Y. 581, 93 Am. Dec. 540; Cruger v. Jones, 18 Barb.

<p> Appeal from District Court, Silver Bow County; J. J. Lynch,, Judge. </p> <p>Action by Mose Robitaille, as administrator of the estate of Frank Robitaille, against J. W. Boulet. From a judgment for defendant and an order denying a new trial, plaintiff appeals.</p> <p>“The continued adverse possession of lands by the vendor after his formal conveyance of the legal title is a fact in conflict with the legal effect of his deed, and is presumptive evidence that he still retains an interest in the premises.” (Pell v. McElroy, 36 Cal. 268; Peugh v. Davis, 96 U. S. 332, 338, 24 L. Ed. 775, 777; Groff y. State Bank, 50 Minn. 234, 36 Am. St. Rep. 640, 52 N. W. 651.)</p> <p>The intention of the parties in the transaction is an important element in determining whether or not the deed was a mortgage. (27 Cyc. 1007; Cobb v. Day, 106 Mo. 278, 17 S. W. 323; Miller v. Ausenig, 2 Wash. Ter. 22, 3 Pac. Ill; Peugh v. Davis, supra.)</p> <p>Evidence that a party did not pay taxes on land to which he has a deed is admissible as tending to rebut his claim of ownership, and to show that the deed was given as a mortgage. (Stevens v. Hvlin, 53 Mich. 93, 18 N. W. 569; O’Toole v. Omlie, 8 N. D. 444, 79 N. W. 849; 27 Cyc. 1015, 1016, and note.)</p> <p>In a case such as this, it is competent to show that the deceased was in financial straits at the time he made the deed. (Bussell v. Southard, 12 How. (53 U. S.) 139, 13 L. Ed. 927; Morris v. Nixon, 1 How. (42 U. S.) 118, 11 L. Ed. 69.)</p> <p>As to the law in relation to declaring a deed absolute on its face a mortgage, see Peugh v. Davis; O’Toole v. Omlie; Miller v. Ausenig, supra; Lee v. Evans, 8 Cal. 424; Pierce v. Robinson, 13 Cal. 116, 129; Husheon v. Husheon, 71 Cal. 407, 12 Pae. 410; Byrne v. Hudson, 127 Cal. 254, 59 Pac. 597; 2 Washburn on Real Property, p. 42.</p> <p>Before a court will find a deed absolute on its face to be a mortgage, the proof must be clear, unequivocal and convincing. (27 Cyc. 1024 (4) ; Jasper v. Hazen, 4 N. D. 1, 23 L. R. A. 58, 58 N. W. 454; Armor v. Spalding, 14 Colo. 302, 23 Pac. 789.) And in Devore v. Woodruff, 1 N. D. 143, 45 N. W. 701, it was held that even where there was a separate agreement to reeonvey on the payment of a specified sum, this was not conclusive proof that an absolute deed was intended as a mortgage. In Larson v. Dutiel, 14 S. D. 476, 85 N. W. 1006, it was held that where a deed was given to mortgaged premises in satisfaction of promissory notes, which notes were not returned to the grantor, this was an absolute conveyance.</p> <p>In Sullivan v. Woods, 5 Ariz. 196, 50 Pac. 113, it was held that a mere preponderance of the evidence was not sufficient to show a deed absolute on its face to be a mortgage.</p> <p>The first case in which this question was raised in this state was in the case of Gassert v. Bogk, in which it was held that a deed and contemporaneous agreement to reconvey did not constitute a mortgage unless the deed is shown to have been given as security for the performance of some act or obligation or for the payment of a debt. (Gassert v. Bogk, 7 Mont. 585, 1 L. R. A. 240, 19 Pac. 281.) This proposition next received consideration in the ease of Kleinschmidt v. Kleinschmidt, 9 Mont. 477, 484, 24 Pac. 266, where it was held that a deed absolute with a bond to reconvey was not a mortgage unless the evidence showed that it was intended as such. More recently this proposition was considered in the case of Murray v. Butte-Monitor Tunnel Min. Go., 41 Mont. 449, 110 Pae. 497, 112 Pac. 1132. In this case all the authorities are reviewed upon this subject, and while it was there decided that the sale was only intended as a pledge, the facts were not at all similar to the tacts in the case at bar. The facts in the case at bar are identical with those in the case of Morrison v. Jones, 31 Mont. 154, 77 Pac. 507. In that case the court held that the deed was not a mortgage, even though there was an agreement executed wherein the grantor was given permission to repurchase the property, upon making certain payments.</p>

<p> Appeal from District Court, BeaverKead County; Wm. A. Clark, Judge. </p> <p>Proceedings before tbe Board of Commissioners of Beaver-head County by C. C. Barnett for allowance of a claim for the care of the county poor. From an order of the board allowing the claim, John G-. Albers, as a taxpayer, appealed to the district court. There was judgment that the claim had been allowed and warrant issued without authority of law, and that the county was entitled to recover from Barnett and Ms sureties, Leonard Eliel and O. M. Best, the amount specified in the warrant, and from an order denying the motion of the defendants for new trial, they appeal.</p> <p>It was the absolute duty of the county to provide for the care and maintenance of the indigent sick or otherwise dependent poor of the county. (Rev. Codes, secs. 2050 et seq., 2894, 3199. Seagraves v. City of Alton, 13 111. 366.)</p> <p>When a contract is entered into between a public corporation and a private individual, even though such contract be void for want of authority in the public corporation, to execute the same, yet, if the contract is not immoral, inequitable or unjust, and the contract is performed in whole or in part by one of the parties and the other party receives benefits by reason of such performance over and above any equivalent rendered in return, the party receiving such benefits will be required to place the other party in statu quo, by accounting therefor. (Brown v. City of Atchison, 39 Kan. 37, 7 Am. St. Rep. 515, 17 Pae. 465; Morse v. Board of Commrs. of Granite County, 19 Mont. 450, 48 Pac. 745; Moss v. Sugar Ridge Tp. (Ind. App.), 67 N. E. 460; Shoemaker v. Buffalo Steam Roller Co., 83 Misc. Rep. 162,144 N. Y. Supp. 721; Contra Costa Water Co. v. Breed, 139 Cal. 432, 73 Pac. 189; Village of Pillager v. Hewett, 98 Minn. 265, 107 N. W. 815; Livingston v. School District, 11 S. D. 150, 76 N. W. 301.)</p> <p>The most that can be said is that in letting the contract there was an imperfect or defective attempt to comply with the law, upon the part of the board of county commissioners. The bidder cannot be required at his peril to examine minutely every step taken for technical flaws in the proceedings. Nor does the law make it his duty to do more than to see that the board with whom he is contracting is proceeding within its powers. (Wentink v. Board of Chosen Freeholders, 66 N. J. L. 65, 48 Atl. 609; Bigelow v. City of Perth Amboy, 25 N. J. L. 297; Knapp v. 'City of Hoboken, 38 N. J. L. 371; Tapp an v. Long Branch etc. Imp. Comm., 59 N. J. L. 371, 35 Atl. 1070; Moore v. Mayor etc. of New York, 73 N. Y. 238, 29 Am. Rep. 134.)</p> <p>Under the circumstances of this case the appellants should not be held remediless. (Keith v. Ctiy of Duquoin, 89 111. App. 36; Schipper v. City of Aurora, 121 Ind. 154, 6 L. R. A. 318, 22 N. E. 878; Rogers v. City of Omaha, 76 Neb. 187, 107 N. W. 214; Lincoln Land Co. v. Village of Grant, 57 Neb. 70, 77 N. W. 349; Pittsburgh, C. & St. L. B. Co. v. Keokuk etc. Bridge Co., 131 TJ. S. 371, 33 L. Ed. 157, 9 Sup. Ct. Rep. 770; Paul v. City of Kenosha, 22 Wis. 266, 94 Am. Dee. 598; Chapman v. Douglas County, 107 U. S. 348, 27 L. Ed. 378, 2 Sup. Ct. Rep. 62; City of Parkersburg v. Brown, 106 U. S. 487, 27 L. Ed. 238,</p> <p>1 Sup. Ct. Rep. 442; North Biver Electric Light etc. Co. v. City of New York, 48 App. Div. 14, 62 N. Y. Supp. 726; Village of Harvey v. Wilson, 78 111. App. 544; Boyd v. Black School Tp., 123 Ind. 1, 23 N. E. 862.)</p> <p>At the common law no duty devolved upon the county, or a similar political subdivision of the state, for the care of the poor. (Miller v. Somerset, 14 Mass. 396; Cooledge v. Mahaska County, 24 Iowa, 211; Wood v. Boone County, 153 Iowa, 92, Ann. Cas. 1913D, 1070, 39 L. R. A. (n. s.) 168, 133 N. W. 377; Lander County v. Humboldt County, 21 Neb. 415, 32 Pac. 849; 30 Cyc. 1067.) Counties owe no other duties to the poor and incur no other liabilities for their support than are imposed by the statute, and before a county may be made liable for the care of such dependent poor, the case must fall strictly within the provisions of the statute (Lebcher v. Board of Commrs., 9 Mont. 315, 23 Pac. 713), and the liability must have been created pursuant to and in the manner prescribed by the statute. (Lander County v. Humboldt County, supra; Patrick v. Baldwin, 109 Wis. 342, 53 L. R. A. 613, 85 N. W. 274; Hamlin County v. Clark County, 1 S. D. 131, 45 N. W. 329; Board of Commrs. of Sweetwater County v. Board of Commrs. of Carbon County, 6 Wyo. 254, 44 Pac. 66; St. Luke’s Hospital Assn. v. Grand Forks County, 8 N. D. 241, 77 N. W. 598; Board of Commrs. v. Phye, 27 Colo. 107, 59 Pac. 55; Hamilton County v. Meyers, 23 Neb. 718, 37 N. W. 623; Washoe County v. Eureka County, 25 Nev. 356, 60 Pac. 376; Mansfield v. Sac County, 60 Iowa, 11, 14 N. W. 73.)</p> <p>This contract was not merely defective or imperfect, but was absolutely void. If a body politic in the nature of a municipal corporation enters into a contract, “that the law does not empower them to enter into, there is no authority for such a contract; nothing for it to stand on, and it falls of its own. weight. It is void.” (Lebcher v. Board of Commrs., supra; Missoula St. B. Co. v. City of Missoula, Ml Mont. 85, 130 Pae. 771.) If the contract was void, the plaintiff could not recover thereon. The contract as such amounts to nothing and cannot avail the appellants herein. (Lebcher v. Board of Commrs., supra; State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pae. 1092; Independent Bub. Co. v. Lewis and Clark County, 30 Mont. 83, 75 Pae. 860; State ex rel. Stuewe v. Hindson, 44 Mont. 429, 120 Pae. 485; Hersey v. Neilson, Ml Mont. 132, Ann. Cas. 1914C, 963, 131 Pae. 30.)</p> <p>The board of county commissioners may not allow a reasonable compensation on the basis of an implied promise. (Sears .v. Galatin County, 20 Mont. 462, 40 L. R. A. 405, 52 Pac. 204; Wade v. Lewis and Clark County, 24 Mont. 335, 61 Pac. 879; State ex rel. Lambert v. Coad, Independent' Bub. Co. v. Lewis and Clarke County, supra.) The case of Missoula St. B. Co. v. City of Missoula, Ml Mont. 85, 130 Pac. 771, seems determinative of this question.</p> <p>Implied promises requiring a public corporation to restore benefits received by it or to pay compensation therefor have never been created in cases involving anything other than money or other property. To cases of that character there are many exceptions. The doctrine has no application to cases where only services are rendered. The claim in this case is for the reasonable services rendered. (Argenti v. San Francisco, 16 Cal. 255; Hampton v. Board of Commrs., 4 Idaho, 646, 43 Pac. 324; Wake-field v. Brophy, 67 Misc. Rep. 298, 122 N. T. Supp. 632.; McDonald v. Mayor etc. of New York, 68 N. T. 23, 23 Am. Rep. 144; Edison Electric Co. v. Pasadena, 178 Fed. 425,102 C. C. A. 401.)</p> <p>That no implied liability arises where the contract, though within the scope of the statute is violative of mandatory provisions thereof, is well settled. (1 Elliott on Contracts, sec. 606; Fountain v. Sacramento, 1 Cal. App. 461, 82 Pac. 637; Richardson v. Grant County, 27 Fed. 495; Pech-Williamson Heating etc. Co. v. Steen School Tp., 30 Ind. App.-637, 66 N. E. 909; Harrison County v. Ogden, 133 Iowa, 9, 110 N. W. 32; Lovejoy v. Inhabitants of Foxcroft, 91 Me. 367, 40 Atl. 141; Detroit v. Michigan Paving Co., 36 Mich. 335; Rumsey Mfg. Co. v. Town of Schell City, 21 Mo. App. 175; New Jersey Car etc. Co. v. Jersey City, 14 N. J. L. 544, 46 Atl. 649; Wellston v. Morgan, 65 Ohio St. 219, 62 N. E. 127; O’Rourke v. Philadelphia, 211 Pa. 79, 60 Atl. 499; McGillivray v. Joint School District, 112 Wis. 354, 88 Am. St. Rep. 969, 58 L. R. A. 100, 88 N. W. 310.)</p>

<p>Common Carriers — Livestock—Transportation—Interstate Commerce — Bills of Lading — Waiver—Appeal and Error — Theory of Case — Federal Question — General Verdict — Conclusiveness.</p> <p>Interstate Commerce — Bills of Lading — Waiver.</p> <p>1. A carrier engaged in interstate commerce cannot, under the Interstate Commerce Act, waive compliance with the requirement in a bill of lading making it incumbent on the shipper of cattle, as a condition precedent to his right to recover damages for injury to them while in transit, to give notice in writing of his claim before they are removed from the place of destination or mingled with other stock.</p> <p>Appeal and Error — Theory of Case — Federal Question.</p> <p>2. The rule of practice that parties cannot on appeal ehange the theory on which the cause was tried in the lower court must give way where the theory entertained by court and parties on the trial of the cause had to do with a federal question theretofore adversely decided by the supreme court of the United States.</p> <p>[As to jurisdiction of action for damages for violation of Interstate Commerce Act, see note in Ann. Cas. 1912A, 613.]</p> <p>Same — General Verdict — Conclusiveness.</p> <p>3. Where an action against a r.ailroad for injury to cattle while in transit was based on three different items of damage, and it is impossible to determine from the record what particular items were considered by the jury in returning a verdict in a lump sum, the supreme court cannot direet judgment awarding damages for any one of the items, and thus substitute its findings for those of the jury.</p>

<p>Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge.</p> <p>Action by James Rea and William Rea, !Jr., copartners doing business as Rea Bros., against tbe Alfalfa Products Company, a corporation, and another. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal.</p>

<p> Appeal from District Court, Cutter County; Daniel L. O’Sern, Judge. </p> <p>W. J. Bradshaw was convicted of the crime of resisting an officer while the latter was in discharge of his duties, and, from the judgment and order denying new trial, he appeals.</p>

<p>Criminal Law — Horse-races — Betting — Telegraphs—Transmission of Information — Evidence—Insufficiency—Circumstantial Evidence — Trial—Exceptions.</p> <p>Criminal Law — Circumstantial Evidence — Quantum of Proof.</p> <p>1. Where a conviction is sought upon circumstantial evidence alone, the circumstances proved must not only be consistent with each other and with the hypothesis of defendant’s guilt, but inconsistent with any rational hypothesis other than defendant’s guilt.</p> <p>[As to circumstantial evidence, see notes in 62 Am. Dec. 179; 97 Am. St. Rep. 771.]</p> <p>Same — Conviction—Conjecture Insufficient Basis.</p> <p>2. A conviction cannot be founded upon conjecture, however shrewd, nor upon probabilities, however strong.</p> <p>The question as to whether chain theory applies where the evidence is wholly circumstantial is discussed in a note in 41 L. R. A. (n. s.) 719.</p> <p>Same — Horse-races — Betting — Evidence — Insufficiency — Telegraphs —Transmission of Information.</p> <p>3. Evidence held insufficient to justify conviction of a telegraph company for transmitting information for the purpose of having a bet or wager made upon a horse-race in violation of Chapter 55, Laws of 1915.</p> <p>Same — Trial—Exceptions—Duty of Court.</p> <p>4. An exception to an adverse ruling by the district court is a matter of right — not one of grace or discretion on the part of the court — and when taken, the court stenographer must enter it.</p> <p>Same — Horse-raees—Betting—Transmitting Information — Precautionary Instruction.</p> <p>5. Since the offense denounced by Chapter 55, Laws of 1915, consists in transmitting information concerning a horse-race for the purpose of having bets or wagers made, an’instruction should be given in a prosecution for such an offense that it is not wrongful to transmit such information if bets or wagers are not to be made.</p>

<p> Appeal from. District Court, Custer County; Daniel L. O’Hem, Judge. </p> <p>Certiorari by the State on the relation of R. T. Furnish, Robert Yokley and Charles Daly, as Commissioners of the County of Custer, Montana, against Henry Mullendore, John Oliver, and Thos. Wear, Commissioners, T. S. Carlow, Secretary, and F. C. Bunn, Clerk and Recorder for Fallon County, Montana. Judgment for relators and defendants appeal.</p>

Matthews, Judge. Gust Gaimos was convicted of statutory rape; he appeals from the judgment of conviction and an order refusing him a new trial.

<p> 'Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge. </p> <p>Action by tbe Postal Telegraph-Cable Company, of Montana, a corporation, against Joseph P. Nolan and others. From an order denying application for injunction pendente lite, discharging an order to show cause, and dissolving a temporary restraining order, plaintiff appeals.</p> <p>Admitting, for the sake of this argument, that appellant committed a wrong in going upon the Jessie Placer and erecting its line thereon without the consent of respondents, it is our contention that instead of taking the law into their own hands, as was done in his case, respondents could and should have commenced an action for damages against appellant.</p> <p>At the outset we desire to urge upon the court this proposition: That in the construction of its line, appellant had the right to construct it at such points as it deemed best for its interest. In the ease of Postal Telegraph-Cable Co. v. Oregon etc. B. Co., 23 Utah, 474, 90 Am. St: Rep. 705, 65 Pac. 735, it was held that a telegraph company has the right to determine when and where its line shall be built. In St. Louis etc. B. Co. v. Batesville <& W. Tel. Co., 80 Ark. 499, 97 S. W. 660, 661, it was held, under circumstances similar to the circumstances in the case at bar, that the defendant was without authority to remove the line so constructed but was limited to an action for damages. •(Bannse v. Northern Pac. B. Co., 205 Fed. 328; Union Pac. B. Co. v. Greeley, 189 Fed. 1, 110 C. C. A. 571; Donohue v. El Paso etc. B. Co., 214 U. S. 499, 53 L. Ed. 1060, 29 Sup. Ct. Rep. 698; New England Tel. Co. v. Essex, 206 Fed. 926.) A case almost an all-fours with the case at bar, and particularly in the application of the principle for which we are contending, namely, that while eminent domain proceedings are pending, an injunction should issue to restrain the destruction of the appellant’s line, and which ease announces such doctrine as the law, is Louisville & N. B. Co. v. Western Union Tel. Co., 207 Fed. 1, 124 C. C. A. 573. “Where a company is in possession of property in actual use for public purposes, and its title is disputed, and a suit in ejectment has been begun to oust it from possession, a court of equity will entertain a bill to enjoin the ejectment suit and settle the rights of the parties.” (4 Cook on Corporations, 7th ed., 3885; South & North Alabama B. Co. v. Alabama G. S. B. Co., 102 Ala. 236, 14 South. 747; Paterson etc. B. Co. v. Kamlah, 47 N. J. Eq. 331, 21 Atl. 954; Foltz v. St. Louis etc. B. Co., 60 Fed. 316, 8 C. C. A. 635.) “In some eases, the ejectment has been enjoined for a specified time to enable the complainant in the bill to condemn.” {Id.; Winslow v. Baltimore etc. B. Co., 188 U. S. 646, 47 L. Ed. 635, 23 Sup. Ct. Rep. 443.)</p> <p>The leading case cited by appellant, to the effect that the respondents are relegated exclusively to an action for damages, is the case of Gwmsey v. Northern California Power Co., 160 Cal. 699, 36 L. R. A. (n. s.) 185, 117 Pac. 906. We find ip it, however, that the power company prevailed because of the plaintiff’s “inaction”; that “plaintiff stood by without asserting a right which he might have invoked”; that he “acquiesced in the entrance” of the power company on his land. The ease of New England Tel. Co. v. Essex, 206 Fed. 926, is based upon the proposition of estoppel, and for the purpose of this case we may admit the reasoning of that ease, merely contenting ourselves with the statement that there is no estoppel here nor acquiescence by the respondents. And so, likewise, every ease cited by appellant has in it the element of inaction, acquiescence, failure to speak and standing by on the part of the owner of the land.</p> <p>“A corporation in charge of a public use may not condemn whatever it may find it convenient and advisable to acquire on the sole ground that it may save expense or add to the profits of the business.” (Northern Pac. B. Co. v. McAdow, 44 Mont. 547, 121 Pae. 473.)</p> <p>The order of the lower court should be affirmed, because the appellant failed to prove that the portion of the Pioneer occupied by it in 1905 and subsequently was public domain of the United States in 1905. The patent to the Pioneer does not contain any express exception in favor of a telegraph company. The exception is, that the premises hereby conveyed shall be held subject to any vested or accrued water rights for mining, agricultural, manufacturing or other purpose. Prima facie the Pioneer patent is a grant of all. The nature of the estate obtained by compliance with a location under the mining law has the effect of a grant by the United States of the right of personal and exclusive possession of the lands located, and the patent relates back to the date of location. (Lindley on Mines, 3d ed., sec. 539.) A mining estate is held to be property of the highest character. (Belk v. Meagher, 104 U. S. 279, 284, 26 L. Ed. 735, 737.) This court has always treated a valid location as one that can be made only upon a portion of the public domain then open to location; that the location of a valid mining claim gives the locator the exclusive right to the possession of all of the surface. (Street v. Delta Min. Co., 42 Mont. 371, 112 Pac. 701.) Property thus located becomes a portion of the public domain only by an actual abandonment of the claim by the locator. (Belk v. Meagher, supra; Lavagnino v. TJhlig, 198 TI. S. 443, 49 Lk Ed. 1119, 25 Sup. Ct. Rep. 716.) This is the effect of the decision in Helena Cold & Iron Co. v. Baggaley, 34 Mont. 464, 87 Pac. 455.</p>

N. Utter, Judge. Mandamus by the State on the relation of Andrew Fadness against P. J. Eie, F. A. Weinrieh and J. C. Timmons, Commissioners of Sheridan County, Montana. From a judgment for defendants on demurrer and motion to quash, relator appeals. As against a general demurrer and motion to quash, the facts alleged in the affidavit for the writ of mandate will, for the purposes of an appeal from an order dismissing the proceedings, be taken as true. (State ex rel.

Patterson, Judge. On applicability to private railroad of statute abrogating or modifying the fellow-servant rule as to railroads, see notes in 15 L. R. A. (n. s.) 479; 45 L. R. A. (n. S.) 841. Action by Joe Regan against the Montana Logging Company. Judgment for defendant on demurrer to the complaint, and plaintiff appeals. A logging railroad comes within the purview and meaning of Chapter 29, Laws of 1911. (O’Bear v. Manchester Limber Go., 6 Ala.

L. Crum, Judge. Action by the State of Montana, on the relation of E. B. Carter, against Fred Kail. Judgment for defendant and relator appeals. A state in imposing license fees may intend both regulation and revenue. (Cooley on Taxation, 3d ed., p. 1136.) It is not necessary that a license system should be employed only as a police supervision or regulation. (Northwestern Mut. Life Ins. Co. v. Lewis & Clark County, 28 Mont. 484, 98 Am.

Miller Smith, Judge. Action by Ira T. Wight and Chas. E. Pew against Isabel Dolenty, executrix of W. B. Dolenty, deceased. Judgment for plaintiffs and defendant appeals. The only question presented is whether, under the facts of the case, she can be held individually liable for the value of said services.

M. Clements, Judge. Action by W. D. Ferrat against James M. Adamson, as Constable of Helena Township, Lewis and Clark County, State of Montana, and another. Judgment for plaintiff and defendants appeal. The language of section 6131, Revised Codes, is sufficiently comprehensive to embrace property such as that involved here. The term “goods” is of very extensive meaning, and is generally understood and held to mean personal estate as contradistinguished from realty.

the Second Judicial District; J. M. Clements, a judge of the First District, presiding. Action by the Empire Theatre Company, a corporation, against Harry Cloke, Silver Bow Trades and Labor Council, and others. From a judgment of dismissal, plaintiff appeals-.

W. Pierson, Judge. Action by James A. Walsb against Omar and Maggie Hoskins, and the Montana Coal & Iron Company. From a judgment for the answering defendant corporation and an order denying his motion for new trial, plaintiff appeals.

Proceeding by the State, on the relation of M. S. Cohen, against the District Court of the Fifth Judicial District in and for the County of Jefferson, and Honorable Joseph C. Smith, a Judge thereof, to review and annul an order of the court while sitting in probate.

Miller Smith, Judge. Henry Collins was convicted of grand larceny and appeals from the judgment of conviction and an order denying him a new trial. “It is a reversible error for the court to deny a party the right of peremptory challenges in any ease where it is a right either by the common law or by statute, or to deny the full number to which a party is entitled either in civil or criminal eases.” (24 Cyc. 336; Todd v. State, 85 Ala. 339, 5 South. 278; People v. O’Neil, 61…

<p> Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p> <p>Action by Joseph McClintock against the City of Great Falls and others. Judgment for defendants, and plaintiff appeals.</p>

Certiorari by the State, on the relation of the Board of Railroad Commissioners, against the District Court of the First Judicial District in and for the County of Lewis and Clark, and R. Lee Word, a Judge thereof, to review an order of said ’ court.

Certiorari — Cleric of District Court — Powers — Judgment — Entry and Rendition — Equity Cases — Mortgages — Foreclosure. Original application by the state on the relation of Evert Reser for writ of certiorari running to the District Court, in and for Blaine County, in the Twelfth Judicial District, and John 'A. Matthews, Judge of the Fourteenth District, presiding.

Taltan, Judge. In the Matter of the estate of Simon Pepin, deceased. Petition of Exor A. Pepin against Elizabeth Meyer and others for revocation of probate of will was dismissed, and he appeals. The petition states facts sufficient to constitute a cause of action and shows that petitioner is a party interested. In order that petitioner may be interested, it is, of course, sufficient if he shows that in the absence of a valid will he would be entitled to share in the estate.

Tattan, Judge. In the Matter of the estate of Simon Pepin, deceased. Petition of Adolph A. Pepin against Elizabeth Meyer and others for revocation of probate of will was dismissed, and he appeals.

W. Pierson, Judge. Action by Margaret E. Reynolds against Frank N. Jones and wife. From an order granting a new trial, plaintiff appeals. Negligence must be shown; it will not be presumed. (Reino v. Montana Min. Land Dev. Go., 38 Mont. 291, 99 Pac. 853.) And plaintiff, suing for a personal injury negligently inflicted, has the burden of proving defendants’ negligence. (Byrnes v. Butte Brewing Go., 44 Mont. 328, Ann.

Law, Judge of the Ninth District, presiding. Action by E. W. Fusselman against tbe Yellowstone Valley Land & Irrigation Company. From an adverse judgment and an order denying a new trial, plaintiff appeals. As to the attractiveness of the place for children, so as to require the company to exercise reasonable precautions against children of tender years falling into the canal: At the outset, we admit that on this proposition the cases seem to be absolutely in conflict.

Law, Judge. Action by William Sorenson against the Northern Pacific Bailway Company. From a judgment for plaintiff, and an order denying it a new trial, defendant appeals. The Federal Employers’ Act abolishes the defense of the assumption of risk only when the violation by the carrier of a federal statute enacted for the safety of employees contributed to the death or injury of an employee.

. Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge. Action by Antonia Dier against W. H. Mueller. 'Judgment for defendant and plaintiff appeals. Upon-this appeal there is but one question involved, namely: What is the liability of a landlord to a tenant, or a member of the family of a tenant, where said tenant, or a member of his family, is injured as a result of the defective condition of the premises leased?

'J. E. Reed was found guilty of a violation of the Donlan Act (Laws 1911, Chap. 1). From the judgment of conviction and from an order denying Mm a new trial, he appeals. The defendant was convicted of an attempt. Ordinarily interstate commerce begins when the subject thereof is on board the train destined for interstate traffic. (State v. Missouri Pac.

<p>Original quo warranto proceeding by the State, on relation of S. C. Ford, Attorney General, against William Cutts.</p>

Patterson, Judge. Action by Peter Scheffer against the Chicago, Milwaukee & Puget Sound Eailway Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Counsel for appellant states in Ms brief, “the gates of course constitute a part of such fences,” which counsel for respondent admits.

J. Lynch, Judge. Action by Robert W. Stevens against the Henningsen Produce Company. Judgment for defendant, and plaintiff appeals from it and an order denying his motion for a new trial. The court’s action in sustaining the objection to the question whether it was customary to move the elevator at any time without a signal was error.

W. Pierson, Judge. Suit by Julia B. Petit against Naomi Sinclier. From a judgment for plaintiff and an order denying defendant’s motion for new trial, defendant appeals.

<p> 'Appeal from District Court, Cascade County; J. B. Leslie, Judge. </p> <p>'Action by B. -L. Rhoades against J. O. Ness. From an order granting defendant a new trial, plaintiff appeals.</p>

. Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge. Action by tbe Hanson Sheep Company against the Farmers & Traders’ State Bank. From a judgment for defendant and an order denying its motion for new trial, plaintiff appeals. The appropriation by defendant bank of the deposit of plaintiff corporation to the payment of the individual note of A. S. Hanson was a fraudulent appropriation.

Original proceedings in quo warranto by tbe State on the relation of Edward W. Dunne against Carrie G. Smith, to determine title to the office of county assessor of Yellowstone County.

Original application for writ of mandate by tbe State on tbe relation of W. W. Payne, directed to tbe District Court of tbe Fifth Judicial District, in and for tbe County of Madison, and Jos. C. Smith, a Judge thereof.

Mandamus by the State, on the relation of John Woodward and others, against the District Court of the Fifth Judicial District, in and for the County of Madison, and Honorable Wm. A. Clark, a Judge thereof.

Lee Word, Judge. Action by Frank J. Edwards to enjoin the county of Lewis and Clark from issuing certain refunding bonds. Judgment for defendant. Plaintiff appealed. Counties are merely political subdivisions of the state, and are purely auxiliaries of the state.

Original action in quo warranto by the State of Montana, on the relation of William D. Fenner, against William Keating. The following questions are involved in this case: 1. Is the machine vote a vote by ballot as contemplated by the Constitution? 2. Does the machine register the intention of the voter? 3. Does the voter know that the machine registers his vote as intended? 4.

<p>Quo warranto proceeding by the State on the relation of William D. Tracy against John K. O’Rourke.</p>

Lee McCulloch, Judge. B. S'. Wiley was convicted of grand larceny, and appeals from the judgment and an order denying him new trial.

<p>Elections — Ballots—Stub—Official Stamp — Mistake of Election Officials — Effect.</p> <p>Elections — Ballots—Official Stamp on Stub — Removal—Effeet.</p> <p>1. Where ballots had been delivered to electors by the judges of election with the official stamp apparently in the place in which the law (Rev. Codes, sec. 551) requires it to be, although in reality it was on the stub instead of on the ballot proper, the act of the judges in removing the stamp with the stub — thus leaving the ballot without the stamp — did not render the ballots void.</p> <p>[As to effect on election of irregular canvass of returns, see note in Ann. Cas. 1916A, 710.]</p> <p>Same — Ballots—Erroneous Aet of Election Officials — Effect.</p> <p>2. The strict rule that an elector who negligently receives an unstamped ballot will not be°heard to eomplain that his ballot remains uncounted because void does not obtain where a stub is provided for at the head of the ballot separated from it by a perforation requiring minute scrutiny to determine its presence, to be removed when the ballot is cast, where fraud is not present, and where the error by reason of whieh it is sought to disfranchise him was that of the election officials in placing the stamp upon the stub instead of on the ballot itself.</p> <p>Same — Ballots—Electors must Exercise Ordinary Care.</p> <p>3. An elector is chargeable with no more than ordinary care, in casting his ballot, to ascertain that the official stamp is placed thereon in the position in which the law apparently requires it to be, and to so fold it as to have the stamped inscription in view. ■</p>

Lee Word, Judge. Action by the Montana Ranches Company against Thomas J. Dolan and wife. Held: “Where a vendee in possession under a contract of sale is insolvent, and has committed waste, and threatens to cut down and remove timber, the court may appoint a receiver to take possession of the land, in a suit for the purchase money.” The principle of these cases is applicable .to the case at bar.

Clarh County; B. Lee Word, Judge. Election Contest by Martin Doty against Prank L. Reece. Prom a judgment dismissing the contest and awarding- contestee an attorney’s fee, contestant appeals. The statute in question is violative of section 1 of the Fourteenth Amendment of the Constitution of the United States, in that it denies to litigants in other classes of cases, as well as the penalized litigant in election contest eases, the equal protection of the law.

<p>Cities and Towns — Special Improvement Districts — Protests— Bight to Withdraw.</p> <p>1. A property owner in a city who has signed a protest against the creation of a speeihl improvement district may, within the time allowed for presenting such protest, withdraw therefrom and thus defeat the protest.</p> <p>[As to remedies of taxpayers for illegal corporate acts, see note in 2 Am. St. Eep. 92.]</p>

Appeals from District Court, Sweet Grass County; Albert P. ■ Stark, Judge. Action by tbe National Bank of Gallatin Yalley against Ernest Ingle and others. From a judgment denying plaintiff any relief as against defendant Parham, and from an order refusing a new trial, plaintiff appeals.

<p>Criminal Law — Murder—Attempt—Information—Insufficiency —Witnesses—Competency—Husband and Wife.</p> <p>Attempt to Commit Murder — Insufficient Information.</p> <p>1. Information held insufficient to support a judgment of conviction under a charge of attempt to commit murder, in that it failed to allege some overt act which in the ordinary and likely course of events would result in the commission of the crime charged, and went no further than to show preparation to commit it.</p> <p>Same — Witnesses-—Competency—Husband and Wife.</p> <p>2. Under amended section 9483, Revised Codes (Laws 1915, Chap. Ill), a wife was competent to testify in a prosecution against her husband for attempted murder.</p>

<p> Appeal from First Judicial District Court, Lewis and Clark County; John A. Matthews, Judge of the Fourteenth District,presiding. </p> <p>Action by Henry M. Parchen against William A. Chessman. Judgment for defendant and plaintiff appeals.</p> <p>If there is but the unsupported oath of one of the parties to an instrument on one side and the opposing contradictory oath of the other party, together with the words of the instrument on the other side, such unsupported oath is not sufficient to justify reformation, and the evidence should not be submitted to the jury. (Jackson v. Payne, 114 Pa. St. 67, 6 Atl. 340.) The uncorroborated testimony of a single witness has also been held insufficient (In re Butch, 201 Pa. St. 305, 50 Atl. 943) ^especially where the writing is corroborated by defendant’s testimony and that of one witness. (Jackson v. Payne, 114 Pa. St. 67, 6 Atl. 340.) The failure of a complainant to call as a witness a disinterested person who was present and took part in the original negotiations weighs against his claim when the testimony is conflicting. (Pope v. Hoopes, 84 Fed. 927.) “The general rule is that to warrant the reformation of an instrument the evidence must be clear, convincing, and satisfactory. ’ ’ “Some courts go still further and hold that the proof must be beyond a reasonable doubt.” (34 Cyc. 984, and notes 33, 34; United States v. Munroe, 5 Mason, 572, Fed. Cas. No. 15,835.) “Where the proof is confused, conflicting and contradictory, relief will not be granted.” (34 Cyc. 983, and note 42.)</p> <p>The defendant, in order to prove his case, was required to prove, not only that there was a mistake in the drawing up of the note, but also to prove, by clear, convincing and satisfactory evidence, that it was a mutual mistake. (34 Cyc. 988.) “In all eases it is necessary to make clear the mutuality of the mistake, as reformation is not the remedy for mistakes not partidpated in by both parties.” (34 Cyc. 919, notes 95, 96.) A party will not be given relief against a mistake induced by his own negligence, as where he has failed to avail himself of means of knowledge of the facts. (16 Cyc. 69, notes 11, 12.)</p> <p>To warrant a reformation, in this state a preponderance of the testimony is sufficient. (Gchlert v. Quinn, 35 Mont. 451, 119 Am. St. Rep. 864, 90 Pae. 168; Beid v. Hennessy Mere. Co., 45 Mont. 383, 123 Pac. 397.) In other states it is held that in suits to reform instruments the decision should be controlled by a preponderance of .the evidence. (Fitch v. Vatter, 143 Mich. 568, 107 N. W. 106; Panhandle Lumber Co. v. Bancour, 24 Idaho, 603, 135 Pae. 558; Conaway v. Gore, 24 Kan. 389.)</p> <p>The contract made in 1896 referred to the note provided for therein as a “renewal note.” The note was to be in renewal of the note of 1894, which did not contain any waiver of the statute of limitations. The contract made in 1897, provided for “a new note,” which both parties, according to their testimony, interpreted and understood to mean a renewal note. In the case of Kedey v. Petty, 153 Ind. 179, 54 N. E. 798, the court said: “ ‘Renewed’ or ‘renewal,’ as applied to promissory notes, in commercial and legal parlance means something more than the substitution of another obligation for the old one. It means to re-establish a particular contract for another period of time. It means ‘to restore to its former conditions an obligation on which the time of payment has been extended’ (Eng. Diet. 686); ‘imparting continued or new force and effect’ (And. Law Diet. 878); ‘to make again’ (2 Bouv. Law Diet. 876; Daggett v. Daggett, 124 Mass. 149, 151).” (See, also, Lowry Nat. Bank v. Fickett, 122 Ga. 489, 50 S. E. 396; Koehler v. Hussey, 22 Ky. Law Rep. 317, 57 S. W. 241; Hay v. Star Fire Ins. Co., 77 N. T. 235, 33 Am. Rep. 607.)</p> <p>In 34 Cyc. 975, in note No. 53, we find the following: “Where mutual mistake was alleged, but the proof showed mistake of one party and fraud of the other, plaintiff was held to be entitled to relief.” (McCormick Harvesting Mach. Co. v. Woulph, 11 S. D. 252, 76 N. W. 939; James v. Gutter, 54 Wis. 172, 10 N. W. 147; see, also, Holt v. Holt, 120 Cal. 67, 52 Pac. 119.)</p>

'Appeal from District Court, Cascade County; E. E. Ewing, Judge. Action to enforce a materialman’s lien by the Crane & Ordway Company, a corporation, against Nick Baatz and others. From a judgment for defendants, plaintiff appeals. The rule in Montana is that the mechanic’s lien law shall be liberally construed. (Black v. Appolonio, 1 Mont. 342; Smith v. Sherman Min. Co., 12 Mont. 524, 31 Pae. 72; Missoula Merc.

W. Pierson, Judge. Action by Charles H. Loud and others, copartners in business under the firm name and style of Loud, Collins, Campbell, Wood & Leavitt against Albert S. Hanson and others. Judgment for defendant Farmers & Traders’ State Bank, and plaintiffs appeal.

Original application for writ of prohibition on the relation of Charles L. Myersick against the District Court of the Fifteenth Judicial District in and-for Musselshell County and others.

District Court, Madison County; W. A. Clark, Judge. William W. Meek was convicted of manslaughter, and from the judgment and order denying his motion for new trial he appeals.

Matthews, Judge. William D. Brodock was convicted of larceny, and appeals from the judgment and an order denying Mm a new trial.

Utter, Judge. Action by tbe Continental Oil Company against J. W. Jame-son. From an order discharging a writ of attachment, plaintiff appeals. If the failure of the notary to attach his signature and seal to the affidavit, which was sworn to before him, was a defect, the court should have permitted the same to be amended.

B. Leslie, Judge. AcTiON by E. R. Savage against B. F. Boyce. Defendant appeals from a judgment for plaintiff, and from an order denying his motion for new trial.

Ayers, Judge. Action by Charles M. and Leonie Huffine against A. Lincoln, judgment for plaintiffs, and defendant appeals from the judgment and an order denying a new trial.

B. Poindexter, Judge. Action by Mary E. Elling and others against Benjamin J. Fine. From a judgment for plaintiffs and an order denying new trial, defendant appeals. The defense of laches is not available to the plaintiffs under sections 5728 and 6454, Revised Codes, and the following decisions: Grogan v. Valley Trading Co., 30 Mont. 229, 76 Pac. 211; Hannah v. Vensel, 19 Idaho, 796, 116 Pac. 115; McPherson v. Haywcu'd, 81 Me. 329, 17 Atl. 164; Jones on Mortgages, sec. 330.

<p>Justices of the Peace — Service of Summons — Residence of Defendant — Jurisdiction—W aiver.</p> <p>Justices of the Peace — Service of Summons — Residence of Defendant.</p> <p>1. Held, under section 6986, Revised Codes, that in the absence of a showing that defendant in an action in a justice of the peace court of L. & C. county could not be found and served with summons in B. county, where the action against him accrued and the county of his residence, service of summons in L. & O. county was void, and did not confer jurisdiction upon the justice to try the cause.</p> <p>[As to effect of irregularity or error in summons issued by justice of the peace, see note in Ann, Cas, 1914A, 1085.]</p> <p>Same — Want of Jurisdiction — Waiver.</p> <p>2. Defendant, in an action in a justice of the peace court, did not waive objection to want of jurisdiction over his person, by presenting an answer containing a counterclaim, where he insisted at every stage of the proceedings that the justice did not have jurisdiction.</p>

M. Clements, Judge. Action by Andrew J. Haley against Matilda Hollenback. Judgment for plaintiff and defendant appeals from it and from an order denying her a new trial. Held: that such a contract partaking of maintenance was void as against public policy.” (Getchell v. Welday, 4 Ohio Dec. 65.)

Original proceeding in quo warranto by the State on the relation of S. C. Ford, Attorney General, against T. F. Schofield and others. An investigation of the decisions fails to disclose any judicial opposition to the doctrine that, in the absence of express constitutional restrictions, counties may be created, divided and even abrogated at tbe sole will and pleasure of the legislature.

<p>Original proceeding in quo warranto by the State against I. S. MeQuitty et al.</p>

Utter, Judge. Divorce Suit by Margaret A. Kane against Richard H. Kane. From an order denying a petition to modify the decree, defendant appeals. It is elementary that the action of the court, in cases of this nature, should be for the best interests of the child. (State bx rel. Giroux v. Giroux, 19 Mont. 149, 47 Pac. 798; Pearce v. Pearce, 30 Mont. 269, 76 Pae. 289; State ex rel. Nipp v. District Ct., 46 Mont. 425, Ann.

M. Clements, Judge. Action by the B. F. Goodrich Rubber Company against the Helena Motor Car Company and others. From a judgment for plaintiff, defendant Herman A. Freyler appeals. Can a director of a corporation resign in the usual way, or are the provisions of section 3852 of the Revised Codes exclusive?

W. Pierson, Judge. Action by B. G-. Broekway against H. B. Blair. ’Judgment for plaintiff and defendant appeals from it and from an order denying him a new trial. Unquestionably the parties in the contract in question intended to say, and did say, that unless the plaintiff made the sale he was not entitled to a commission.

A. Clark, Judge. Election Contest by Fred W. Sommers against Merton S. Gould.

A. Thompson, Judge. Suit to cancel mortgage and notes by A. J. Buhler and another against W. J. Loftus and others. Decree for plaintiffs and defendants Loftus appeal. As applicable not only to the question of the insufficiency of the amended complaint but to the case on its merits, it may be stated as a general principle that courts of equity are slow to grant relief in cases of this character. (Oppenheimer v. Clunie, 142 Cal. 313, 75 Pac. 899; Bretthauer v. Foley, 15 Cal.

Ayers, Judge. B. J. Wood was convicted of practicing osteopathy without a license, and, from the judgment and from an order denying his motion for new trial, he appeals.

'Appeal from District Court, Gallatin County, in the Ninth Judicial District; R. Lee Word, a Judge of the First District presiding. Proceedings by the State, on the accusation of M. Langohr and others, against Nelson Story, Jr. From an adverse judgment, defendant appeals.

B. Leslie, Judge. Action by Leonie E. Barker and another against Daniel Condon and others. From a judgment in favor of plaintiffs and an order denying defendants a new' trial, the latter appeal. Statement of the Case bv the Judge Delivering the Opinion. This action was brought to recover the value of ore taken by defendants from a vein alleged to apex in the Ripple lode mining claim, owned by plaintiffs.

Original application for writ of quo warranto by the State, on the relation of Daniel Boyle, against J. H. Hall. The chairmanship of the board of railroad commissioners is a publie office and the occupant thereof a public officer. An offiee is created by law. (Mechem on Public Officers, 1st ed., 5.) It involves a continuing public duty. (Id. 6, 7.) It involves performance of public duty. (Id. 7.) Formality of designation is not essential.

W. Pierson, Judge. Action by tbe Canyon Creek Elevator & Milling Company against W. A. Allison. Judgment for plaintiff, and defendant appeals from it and an order overruling Ms motion for a new trial.

<p> Appeal from District Court, Powell Countyj Geo. B. Winston, Judge. </p>