21 Mont. 482 | Mont. | 1898
— This is an appeal from an order refusing an application for an injunction to restrain- the county clerk of Ravalli county from so preparing the official ballot for the election of November 8, 1898, as to include therein the question of the removal of the county seat from Stevensville to Hamilton. The complaint was attacked by demurrer. The demurrer was sustained, and the injunction refused. The case was submitted on yesterday, and to preserve the rights of the parties immediate decision is necessary.
1. The defendant assails the complaint upon the ground that it does not show that the plaintiff is a person whose interests are distinguishable from those of the mass of the residents of Ravalli county, and that, therefore, he has no standing as the real party in interest. But the allegations of the complaint in respect of the interest of the plaintiff are similar to those made by the applicant for the writ of certiorari in State ex rel. Amos Buck v. Board of Commissioners of Ravalli Co. (decided by this court Oct. 10, 1898) ante p. 469, 54 Pac. 939. We are of the opinion that the principle there announced is applicable here. For the reasons there given, we hold the complaint sufficient in that regard.
3. One of the grounds of demurrer is that the complaint fails to state facts sufficient to constitute a cause of action. The averments of the complaint as to the making of the order
The charge that the persons making the supposed order were not commissioners de jure is directly made, and, while it must be conceded that the acts of de facto officers are valid, and that persons holding over after their terms, and publicly continuing to exercise the duties and functions of their former positions, are officers de facto, we think the allegations of the complaint, reasonably interpreted, are to the effect that Watts, Lucas and Williams were mere usurpers. The facts stated fairly import that the order was made by men who were neither dejure nor defacto commissioners, and hence that the order was not the act of the board of commissioners, in which alone is lodged the power attempted to be exercised by Watts and his two associates. If it be proved that they were not commissioners de facto or de jure at the time, the order is, of course, void.
4. The defendant complains of the action of the court in permitting plaintiff to amend the title of the action by substituting “James T. Fitzgerald, as county clerk and recorder,” for “James T. Fitzgerald.” Objections made and exceptions taken in the court below by the respondent may not properly be assigned as errors here. Furthermore, the transcript does not sustain the assertion of the defendant, since it fails to disclose the title of the cause prior to the amendment.
The order appealed from is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Let remittitur issue forthwith.
Reversed and remanded.