164 P. 542 | Mont. | 1917
delivered the opinion of the court.
At the last general election, the appellant and the respondent were rival candidates for the office of clerk of the district court in and for Lewis and Clark county. Upon the final canvass the respondent was declared elected, and the appellant brought this proceeding to contest the result so declared. He failed to sustain his contest, and the court in its judgment, dismissing the same, awarded to the respondent $200 as attorney’s fees. The purpose of this appeal is to raise the question whether such award was warranted, and the appellant’s claim is that it was
To support the first two of these specifications, counsel rely upon Mills v. Olsen, 43 Mont. 129, 115 Pac. 33, and a number of eases from other jurisdictions referred to in that decision and cited in the brief of appellant here. In Mills v. Olsen, the constitutionality of section 7166, Revised Codes, authorizing an award of attorney’s fees to the successful claimant under a mechanic’s lien, was challenged; but this court, without express discussion or decision of the question, contented itself with approval of the reasoning of the authorities referred to. Typical of these authorities, and in fact the controlling case, is Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 41 L. Ed. 666, 17 Sup. Ct. Rep. 255, wherein a Texas statute authorizing the successful claimant of certain causes of action against railroad companies, to recover attorneys’ fees, was annulled as a denial of the equal protection of the laws. The grounds of this decision are thus interestingly stated: “It is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The Act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorneys’ fees of the successful plaintiff; if it terminates in their favor, they recover
The appeal to section 26, Article Y, of the state Constitution, is also without merit. The provision there is: “The legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Granting to any corporation, association or individual the right to lay down railroad tracks, or any special or exclusive privilege, immunity or franchise whatever.” The Act before us does not grant or attempt to grant to any particular corporation, association or individual any special or exclusive privilege or immunity; it is a general law applicable alike to all persons within a class, and the provision invoked has nothing to do with it. Doubt no longer exists touching the right of the state through its legislature to classify, so long as such classification rests upon some difference which bears a reasonable and just relation to the matter in respect to which the classification is proposed (Gulf etc. Ry. Co. v. Ellis, supra; Hill v. Rae, 52 Mont. 378,
Nor does section 6 of Article III of the state Constitution-afford any objection to the award in question. In Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, a similar criticism was leveled at the statute allowing attorneys’ fees to claimants under mechanics’ liens; but it was held to be unavailing. True, the later case of Mills v. Olsen — accepting it as decisive — overturned a similar statute, but the reasoning invoked had to do with the guaranty of the equal protection of the laws. As a decision against the application of section 6, Article III, Wort-man v. Kleinschmidt is still in effect.
The argument against the statute as delegating to the courts the power to say when attorneys’ fees may and when they may not be allowed in election contests, falls to the ground in view of the conclusion above announced that the discretion of the court goes only to the amount which shall be allowed in each instance.
The judgment is affirmed.
'Affirmed.
Rehearing denied April 23, 1917.