Spratt v. Helena Power Transmission Co.

HONORABLE LEW. L. CALLAWAY,

Judge of the Fifth Judicial District, sitting in place of Mr. Justice Smith, delivered the opinion of the court.

The questions presented upon the three appeals are resolved into these: (1) Can the respondent acquire appellants’ property as for a public use? (2) Is House Bill 249, Laws of 1907, page 38, Chapter 23, a constitutional enactment? (3) Because of flooding appellants ’ lands before the condemnation proceeding was begun, is respondent deprived of the right to condemn them, and herein, are appellants deprived of their property without due process of law? We shall consider them in the order mentioned.

1. It is suggested by appellants that upon the former appeal the court, by way of obiter, held that the use for which respondent sought to condemn the property was a public one. We do not regard Judge Loud’s masterful discussion of the subject, nor the holding of this court thereon, as obiter in any sense. The question was directly placed in issue by the pleadings, the litigants introduced evidence in the lower court upon the precise point, and that court decided the use for which respondent sought to condemn the land to be a public use. In this forum the eminent counsel for the contending parties spent their energies upon this weighty question. This court, having to do with a constitutional problem of wide import, proceeded to its-solution with caution and deliberation. It held that the use for which the condemnation was sought was a public use. The precise question was properly presented, fully argued, and ably considered in the opinion. The decision on this phase of the case was as much a part of the judgment of the court as was that upon the question of the right of the respondent to exercise the power of eminent domain. (Railroad Co. v. Schutte, 103 U. S. 118, 26 L. Ed. 327; Union Pacific Co. v. Mason City Co., 199 U. S. 160, 26 Sup. Ct. 19, 50 L. Ed. 134.) The judgment is controlling upon all questions properly within the issues, which the opinion shows the court deliberately considered. (Brown v. Chicago & N. W. R. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 586.)

It is again earnestly insisted by appellants that the right of eminent domain must be denied respondent, because “public and private use cannot be intermingled in the same enterprise. ’ ’ As before noted, the parties to this action and the land sought to be condemned are the same as in the former appeal; the evidence introduced by the respective parties is, in effect, the same; and this record, like the other one, does not disclose a taking for private use. And while we do not feel called upon to express an opinion upon the question appellants seek to present, for the reason that the record does not disclose a taking for private use, it may not be inapt to say that it is erroneous to assume that, because the use may bring about private profit, for that reason it cannot be a public use. The fact that the respondent expects to receive a private benefit from its enterprise certainly does not change the character of the use. Very little would be accomplished in this toiling world if the doers of deeds did not expect to reap reward. This the Constitution makers conceived; they were not dreamers, but farseeing, practical men; they were among the staunchest and ablest citizens of the state to be, realizing the potentialities in store, and anxious for the highest development of the natural resources of the state. As they said in their “Address to the People,” they were in convention “to participate in laying deep and broad the foundation of this great commonwealth.”

The language of section 15, Article III, of the Constitution, in the light of our history and natural conditions, in a region where the conservation and use of its waters is all-important, to its development and progress, is a mandate from the sovereign people to the courts: “The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use and the right of way over the lands-of others, for all ditches, drains, flumes, canals and aqueducts, necessarily used in connection therewith, as well as the sites for reservoirs necessary for collecting and storing the same, shall be held to be a public use.” The words “sale” and “rental,”' are especially significant. We think the foregoing section of the Constitution is self-executing (Davis v. Burke, 179 U. S. 399, 21 Sup. Ct. 210, 45 L. Ed. 249), and should receive a broad construction. “A Constitution is not to be interpreted on narrow or technical principles, but liberally and on broad and general lines, in order that it may accomplish the objects of its-establishment and carry out the great principles of government. ’r (Black on Interpretation of Laws, see. 7.) Supplementing the constitutional provision is the legislative enactment discussed in the court’s opinion in the former appeal.

Following the former decisions of this court, therefore, and reaffirming that upon the former appeal, we think the lower court was right in holding that the taking of the lands of appellants was and is for a public use.

2. Upon the former appeal it was decided that the respondent, being a foreign corporation, had not the right to acquire land by the exercise of the power of eminent domain. Immediately House Bill 249 was passed by both legislative bodies and approved by the Governor. It reads as follows:

“An Act to authorize and empower Foreign Corporations to exercise the Bight of Eminent Domain in Montana.

“Be it enacted by the Legislative Assembly of the state of Montana:

“Section 1. Any corporation, organized under the laws of any state of the United States, or the laws of the United States, and authorized to engage in business in this state, and engaged in business in this state, may acquire real property as provided in the Code of Civil Procedure, Title VII, Part III, to the same extent, for the same purposes, and in the same manner, as corporations organized under the laws of this state.

‘ ‘ Section 2. This Act shall take effect and be in force from and after its passage and approval.”

There existed prior to that enactment section 526 of the Civil Code, which reads: “No corporation shall acquire or hold any more real property than may be reasonably necessary for the transaction of its business, or the construction of its works, except as otherwise specially provided. A corporation may acquire real property as provided in the Code of Civil Procedure, Title VII, Part III.” ' Only domestic corporations are meant by this section. (Helena Power Transmission Co. v. Spratt, supra.) That the legislature in enacting House Bill 249’ intended to give the foreign corporations therein named the same right to exercise the power of eminent domain as domestic, corporations enjoy is not doubted by anybody. But it is insisted by appellants that this enactment is void because it contravenes the express provisions of section 25 of Article V of the. Constitution, which prescribes: “No law shall be revised or amended or the provisions thereof extended by references to its. title only, but so much thereof as is revised, amended or extended shall be re-enacted and published at length.”

The question is res integra in this state, and is of far-reaching-moment. If appellants’ point is well taken, many of the most important laws enacted since the adoption of the Codes are void. Vet, if the statute is void, it will be our duty to pronounce it so, even though the result be disastrous. For this reason, then, in addition to the desire to reach a right conclusion in the case at bar, we have proceeded with concern. At the outset we are guided by the rule so well stated by Mr. Justice Holloway in In re O’Brien, 29 Mont. 530, 75 Pac. 196: “Every reasonable intendment is to be resolved in favor of theeonstitutionality of the law, and, before this court can pronounce a solemn enactment of the legislative assembly invalid,. such, invalidity must be made manifest beyond a reasonable doubt. (State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 44 Pac. 516, 32 L. R. A. 635; State v. Clancy, 20 Mont. 498, 52 Pac. 267; State v. McKinney, 29 Mont. 375, 74 Pac. 1095.)”

Tbe purpose of the Constitution framers in adopting section 25 of Article Y was to avoid certain formerly well-known legislative evils. Acts were passed amending existing statutes by substituting one word for another, or phrase for another, or by inserting or eliminating a sentence or part of a sentence, without reference to the amended statute except by title. Thus vicious and unjust legislation was enacted by covert means, its real purpose being unforeseen. (Campbell v. Board of Pharmacy, 45 N. J. L. 241; Edwards v. Denver & R. G. R. Co., 13 Colo. 59, 21 Pac. 1011.) “An opportunity was afforded for incautious and fraudulent legislation, and endless confusion was introduced into the law. Legislators were often deceived, and the public imposed upon by such modes of legislation.” (Warren v. Crosby, 24 Or. 558, 34 Pac. 661.) The provisions of existing statutes were made to extend to a new class of persons or subject by a like simple reference, as is illustrated in Denver Circle R. R. Co. v. Nestor, 10 Colo. 403, 15 Pac. 714, where the court said, after giving examples of the abuses perpetrated: “By the foregoing and similar legislation, no laws on the subject matter of the titles employed were either enacted or published. It is merely the extension, by reference to titles, of laws enacted for certain localities to other localities. In such cases these acts, as published, were incomplete and unintelligible. ’ ’ ' This section was not intended to embarrass the legislature in the discharge of its law-making functions, but, on the contrary, it was intended only as a means to secure a fair and intelligent exercise thereof. (Evernham v. Hulit, 45 N. J. L. 53.) So, if the real purpose and meaning of the Act be apparent on its face, and if the legislators and others be given true direction to the subject and purpose of the proposed enactment, the constitutional mandate is satisfied. “The Constitution does not make the obviously impracticable requirement that every Act shall recite other Acts that its operation may incidentally affect, either by way of repeal, modification, extension or supply,” as the supreme court of Pennsylvania put it in Searight’s Estate (Stuart’s Appeal), 163 Pa. St. 210, 29 Atl. 800, the same language being quoted in In re Greenfield Avenue, 191 Pa. St. 290, 43 Atl. 225. Section 6 of Article III of the Constitution of Pennsylvania of 1873 reads as follows: “No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” Alabama, Arkansas, and Colorado have the same' provision as Pennsylvania.

New York’s section 17 of Article III declares that no Act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said Act, or which shall enact that any existing law, or any part thereof, shall be applicable except by inserting it in such Act. Considering this provision in People ex rel. Commissioners v. Banks, 67 N. Y. 568, the court of appeals said: “It is not necessary, in order to avoid a conflict with this Article of the Constitution, to re-enact general laws whenever it is necessary to resort to them to carry into effect a special statute. Such cases are not within the letter or spirit of the Constitution, or the mischief intended to be remedied. By such a reference the general statute is not incorporated into or made a part of the special statute. The right is given, the duty declared, or burden imposed by the special statute, but the enforcement of the right or duty, and the final imposition of the burden are directed to be in the form, and by the procedure given by the other' and general laws of the state. Reference is made to such laws, not to affect oí* qualify the substance of the legislation or vary the terms of the Act, but merely for the formal execution of the law.”

That court had occasion again to consider the provision in People ex rel. Everson v. Lorillard, 135 N. Y. 285, 31 N. E. 1011. In that case the litigation arose over an attempt of the .city of New York to acquire certain lands by the right of eminent domain under a statute passed for that purpose. The difficulty suggested with respect to the statute was that, while it authorized the city to acquire lands, it did not in extenso prescribe the procedure under which they were to be obtained, and for that purpose referred to another statute. In the course of its very able opinion the court said: “A constitutional provision intended to operate as a restraint upon the legislature, with respect to the language and forms of expression to be used in framing Acts of legislation, is not to be construed as to embrace cases not fairly within its general purpose or policy, or the evils which it was intended to correct, though they may be within its letter.” And it said if such references may not be made, hundreds of the statutes of that state must be declared void. “To hold that all these Acts are void, as in conflict with this provision of the Constitution would be to disturb titles, promote litigation, and inflict widespread injury. . The worst evils that the framers of the provision could have had in view would be multiplied a hundred-fold by such a construction. A constitutional provision, like a statute, should not be so construed as to work a public mischief, unless the language used is of such explicit and unequivocal import as to leave no other course open to the court, and when the intent of the lawmakers is ascertained that must prevail over the letter of the law. (Smith v. People, 47 N. Y. 330; People ex rel. Jackson v. Potter, 47 N. Y. 375; People ex rel. Killeen v. Angle, 109 N. Y. 564, 17 N. E. 413.) * * * When a statute in itself and by its own language grants some power, confers some right, imposes some duty, or creates some burden or obligation, it is not in conflict with this constitutional provision because it refers to some other existing statute, general or local, for the purpose of pointing out the procedure, or some administrative detail, necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation. In this case the main object of the statute was to confer power upon the city to acquire land for a certain purpose, and that power is expressed in appropriate language, but the procedure, by means of which the lands were to be condemned, and the administrative acts on the part of the city authorities, necessary in order to procure the money for the payment of the awards, are designated by reference to another statute. ” (In re Union Ferry Co., 98 N. Y. 139; People ex rel. New York El. Lines v. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820; In re Buffalo Traction Co., 49 N. Y. Supp. 1052, 25 App. Div. 447; Id., 155 N. Y. 700, 50 N. E. 1115; Choate v. City of Buffalo, 57 N. Y. Supp. 383, 39 App. Div. 379; De Camp v. Hibernia Underground R. R. Co., 47 N. J. L. 43.)

The supreme court of Alabama has frequently had under consideration its constitutional provision, which is like ours, except as above stated. In Ex parte Pollard, 40 Ala. 77, it is said: “It was never intended by the Constitution that every law which would affect some previous statute of variant provisions on the same subject should set out the statute or statutes so affected at full length. If this were so, it would be impossible to legislate. The constitutional provision reaches those cases where the Act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original are usually unintelligible. If a law is in itself complete and intelligible, and original in form, it does not fall within the meaning and spirit of the Constitution.” (People v. Mahaney, 13 Mich. 481; State v. Rogers, 107 Ala. 444, 19 South. 909, 32 L. R. A. 520; Birmingham Union Ry. Co. v. Elyton Land Co., 114 Ala. 70, 21 South. 314; Cobb v. Vary, 120 Ala. 263, 24 South. 442; Beeson v. Shaw, 148 Ala. 544, 42 South. 611.)

In Birmingham Union Ry. Co. v. Elyton Land Co., supra, the Act considered was in this language: ‘ ‘ Street railroad companies organized and incorporated under the laws of Alabama, may acquire by gift, purchase or condemnation, real estate in this state for the right of way of street railroads, a strip, tract, or parcel of land, not exceeding thirty feet in width, for the right of way for said street railroads, and said street railroad companies shall have the right to condemn and" take possession of said land, on payment to the owner thereof, a just compensation, in the same manner as now provided by law for taking private property for railroads and other public uses, in Article 2, Chapter 17, Title 2, Part 3, of the Code.” The court decided that the Act was'not in conflict with the constitutional provision, and refused to follow the Bay Shell Road Case (Bay Shell Road v. O’Donnell, 87 Ala. 376, 6 South. 119), cited by appellant. It did follow State v. Rogers, supra, in which the court approved as constitutional an Act relieving the judge of probate from official connection with the board of review of a certain county, and devolving the duties upon another officer, although the Act did not set out the original Act affected nor republish it in any way. The court there said: “All the purposes of the present Act could doubtless have been accomplished by an Act strictly and in form amendatory — by setting out the existing statutes, amending and re-enacting them — but it is obvious the amendatory Act would have been cumbersome, and not more intelligible than is the present Act. Whether an amendatory Act, or an original Act should be employed, was matter of legislative judgment and discretion, which the courts cannot control.”

The supreme court of Arkansas, in Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, says: ‘ ‘ The second section adopts the method of procedure provided for like cases where counties are concerned without re-enacting the governing provisions. We are not, however, prepared to assert that when a new right is conferred or cause of action given, the provision of the Constitution quoted requires the whole law governing the remedy to be re-enacted in -order to enable the courts to effect its enforcement. And we see no reason for refusing to apply the same rule-to special proceedings like this. To prevent that kind of legislation could not have been within the mischief the provision was intended to remedy. It could not have been the intention of the framers of the Constitution to put unreasonable restraints upon the power of legislation, and thus unnecessarily embarrass the legislature in its work. (Montgomery Assn. v. Robinson, 69 Ala. 415; Home Ins. Co. v. Tax Dist., 4 Lea (Tenn.), 644.)” (Scales v. State, 47 Ark. 476, 58 Am. Rep. 768, 1 S. W. 769; State v. Hunter, 69 Ark. 548, 64 S. W. 885; Porter v. Waterman, 77 Ark. 383, 91 S. W. 754; St. Louis & S. F. R. Co. v. Southwestern T. T. Co., 121 Fed. 276, 58 C. C. A. 198.)

In Denver Circle Co. v. Nestor, supra, the Act considered by the court provided that in all civil cases, both at law and in equity, the superior courts within the towns and cities for which they were created should have concurrent jurisdiction with the district court, and that the proceedings, practice and pleadings therein should be the same as in the latter court, and the court decided it not to be in contravention to the constitutional provision. (And see Long v. Sullivan, 21 Colo. 109, 40 Pac. 359; Mill v. Brown, 31 Utah, 473, 20 Am. St. Rep. 935, 88 Pac. 609; Geer v. Board of Commissioners of Ouray Co., 97 Fed. 435, 38 C. C. A. 250.)

In Geer v. Board of Commissioners, supra, the circuit court of appeals, .speaking through Judge Sanborn, says: “The supreme court of Colorado holds that it was not the purpose or effect of this constitutional provision to require a re-enactment or republication of the provisions of the general laws of the state when reference is made to them in later statutes for a definition of rights, or for a specification of the lawful method of procedure under the subsequent laws.”

The authorities cited by appellants and respondent construing constitutional provisions somewhat similar to our own do not differ materially in principle; some adopt a stricter rule than do others. After a careful examination of all of these, taking into consideration the purpose of the Constitution framers and the evils they sought to avoid, we think the broader rule most consistent with the constitutional intent and most reasonable in its application.

A statute of this state cannot in terms be amended, revised, or extended by reference to its title only, but that a subsequent statute cannot be enacted affecting the provisions of a prior one, without re-enacting and publishing the prior one at length, does not follow. (David v. Portland Water Committee, 14 Or. 98, 12 Pac. 174; People v. Mahaney, 13 Mich. 481; King v. Pony Gold Min. Co., 24 Mont. 470, 62 Pac. 783.)

While it is difficult to state a rule which will apply to every case, it is believed that it may be said safely that, if the Act under consideration in the particular case is original in form, if by its own language it “grants some power, confers some right, or creates some burden or obligation, it is not in conflict with the constitutional provision,” although it may refer to some other existing statute “for the purpose of pointing out the procedure, or some administrative detail necessary for the execution of the power, the enforcement of the right, the proper performance of the duty, or the discharge of the burden or obligation.”

To what extent does House Bill 249 conform to the foregoing rule? The bill is original in form. By its title, which is an indispensable part of the Act (State v. Mitchell, 17 Mont. 67, 42 Pac. 100), it gave to the legislators and others interested direct notice of its purpose and intent. The body of the Act is consistent with the title, and from these it is perfectly clear that by this Act the legislature intended to confer upon the foreign corporations named the right to exercise the power of eminent domain. It is therefore not within the evil intended to be prohibited by the constitutional provision. Does it by its own language grant some power or confer some right? It says that any of the corporations designated “may acquire real property” — how?—-“as provided in the Code of Civil Procedure, Title VII, Part III,” which is the chapter on eminent domain. It refers to that chapter for the purpose of pointing out the procedure, for the administrative details necessary for the ex■ecution of the power, and the enforcement of the right. The use of the words “as provided in the Code of Civil Procedure, Title VII, Part III,1 ’ as they appear in this statute, is equivalent to saying, by the exercise of the power of eminent domain. Indeed, the whole purpose of the Act is to designate the foreign corporations therein named as agents of the state for the exercise of that power.

. As was held in Helena Power Transmission Co. v. Spratt, supra, Title VII, Part III, of the Code of Civil Procedure, defines eminent domain, prescribes the purpose- for which it may be exercised, and the estate which may be thereby acquired, together with the practice and procedure to be followed, but nowhere declares by whom such right can or shall be exercised. By section 526, supra, domestic- corporations may exercise it— the language is that “a corporation may acquire real property as provided in the Code of Civil Procedure, Title VII, Part III.” By House Bill 249, which was introduced and enacted immediately following the decision of this court that foreign corporations could not exercise the power of eminent domain, it was intended to put the foreign corporations named on the same footing as were domestic corporations in that respect. It seems apparent that the concluding words of section 1 of House Bill 249, “to the same extent, for the same purposes, and in the same manner, as corporations organized under the laws of this state, ’ ’ while intended to place domestic and foreign corporations designated upon an equality in the exercise of the right, were also intended ■as words of limitation, to the end that foreign corporations shall have no greater privileges than domestic ones.

It cannot be said that this is a model piece of legislation. The reference to the eminent domain Act by title only opens the Act to the charge that it touches upon the letter of the constitutional mandate. Yet, upon an analysis of the whole Act, taking into ■consideration its purpose and intent, it does reasonably appear that the legislature conferred upon certain foreign corporations the right to exercise the power of eminent domain — in other words, it designated them as agents of the state for that purpose. Anyhow, its invalidity is not made manifest beyond a reasonable doubt, and we would not be justified in declaring it void. (In re O’Brien, supra, and eases cited.)

Another objection lodged against House Bill 249 is that it ■ violates section 26 of Article Y of the Constitution. The reason stated is that it is a special law applicable to certain foreign corporations only, is therefore not uniform in its operation, and thus denies to other foreign corporations doing business in this state the equal protection of the laws. In answer to this contention it is enough to say that even if the objection were tenable — which we do not concede — appellants, who do not belong to the class discriminated against, may not avail themselves of it. (8 Cyc. 791; Brown v. Ohio Valley Ry. Co., 79 Fed. 176; Clark v. Kansas City, 176 U. S. 114, 20 Sup. Ct. 284, 44 L. Ed. 392; New York ex rel. Hatch v. Reardon, 204 U. S. 152, 27 Sup. Ct. 188, 51 L. Ed. 415; The Winnebago, 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836.)

Appellants also allege that the Act in question violates that part of section 11, Article XY, of the state Constitution, which reads: # # And no company or corporation formed under the laws of any other country, state or territory, shall have,, or be allowed to exercise, or enjoy within this state any greater rights or privileges than those possessed or enjoyed by corporations of the same similar character created under the laws of the state.” The argument upon this point is ingenious. It is said that when any foreign corporation has complied with the-laws of this state relative thereto, it is allowed to do all business, here which it is entitled to do under the laws of the state-in which it was incorporated, and that this right to do business having been given upon a valid consideration, a contract ensues between this state and the foreign corporation which cannot afterward be violated by this state. And appellants say that the respondent subsequently may divert the property taken for a public use to an exclusively private use, as it is permitted, to do under its articles of incorporation; the state can control a domestic corporation which does the like, but how can it prevent this act of perversion on the part of the respondent without violating the contract ? The question thus presented is premature, but may be answered in the words of the supreme court of Washington in State ex rel. Harris v. Olympia Light & Power Co., 46 Wash. 511, 90 Pac. 656: “While the exercise of this right of eminent domain must be guarded jealously, so that the private property of one person may not be taken for the private use of another, after all is said and done, the power to prevent property taken for a public use from being subsequently diverted to a private use must rest rather in the supervisory control of the state than in caution in permitting the exercise of the power. ’ ’ And, we add, we believe this state has full power-to exercise the necessary control.

As to appellants’ suggestions that because of this “contract”' the state may not pass subsequent laws looking to the control of this respondent, a foreign corporation, which laws it may pass as to domestic corporations engaged in the same business, and thus the respondent will be permitted to do acts which the domestic • corporations may not do, it is sufficient to say that under our Constitution the legislature may subject the.respondent to the same liabilities, restrictions and duties as-, hereafter may be imposed upon domestic corporations of like-character. (Criswell v. Montana Central Ry. Co., 18 Mont. 167, 44 Pac. 525, 33 L. R. A. 554; Lewis v. Northern Pac. Ry. Co., 36 Mont. 207, 92 Pac. 469; American Smelting & Refining Co. v. Colorado ex rel. Lindsley, 204 U. S. 103, 27 Sup. Ct. 198, 51 L. Ed. 393.) When a foreign corporation enters the-state of Montana for the purpose of conducting business here, it does so only upon submitting itself to our laws, and it must recognize and obey the prohibitory force of the section of the-Constitution last above set forth. While no greater burden may be put upon the respondent than is placed upon domestic corporations of similar character, yet it cannot occupy any higher ground than they do. (Lewis v. Northern Pac. Ry. Co., supra.) Therefore it cannot be said that foreign corporations, may be allowed to transact any business or do any act within the state of Montana which domestic corporations of a like character may not do.

8. Upon the hearing of the condemnation proceeding in the lower court appellants objected to the appointment of commissioners for the reason, among others, that as the land had been flooded they would be deprived of the right of .having it examined by the commissioners. "What, then, was the duty of the court when this objection was made? Plaintiff’s complaint stated a cause of action, and all proceedings up to that time were conformable to the statute. Upon the evidence adduced the court rightly determined that the use for which the property was sought to be appropriated was a public one, and that the quantity of land sought was necessary. Having determined this, and being satisfied that the public interests required the taking of such lands, had the court any alternative, under subdivision 4 of section 2220 of the Code of Civil Procedure, but to appoint the commissioners? This statute says: “If the court or judge is satisfied that the public interests require the taking of such lands, it or he must make an order appointing three competent persons, resident in said county, commissioners to ascertain and determine the amount to be paid by the plaintiff to each owner or other person interested in such property, as damages, by reason of the appropriation of such property, and specify the time and place of the first meeting of such commissioners, and fixing their compensation.”

It was conceded that the land was flooded at the time the court made its order appointing the commissioners, but whether the water could be withdrawn by respondent at the instance of the commissioners, or upon the order of the court at their request, so that they might examine it, the court was not advised by any evidence. .While it is true that it was shown in the injunction proceeding that it was impossible to withdraw the water without a total destruction of the dam, that was long after the court made its order in the condemnation proceeding. Just before the court made its order appointing the commissioners in the condemnation proceeding, the appellant Augustus N. Spratt moved the court for an order staying the further prosecution of that action until the final hearing and determination of the- injunction proceeding, in which an application had been made for an injunction to restrain the respondent from further prosecuting the condemnation proceeding until the final hearing and determination of the injunction proceeding. A copy of the complaint and of the notice and application for an injunction were attached to the motion as exhibits. It was stipulated by the attorneys for the respective parties that the injunction proceeding was then pending, and that the notice and the application for an injunction had been served.

It now becomes necessary to consider the injunction proceeding. The gist of that action was that the appellant Spratt was the owner of certain land which the respondent was attempting to acquire by the exercise of the right of eminent domain; that the land had theretofore been taken possession of by the respondent, and was then flooded without the consent or permission of the appellant, and without any legal right or authority whatsoever to do so; that respondent had made application for an order appointing commissioners to assess the damages resulting from the taking, appropriation and flooding of the "land,'but had placed it in such condition and situation as to make its examination by the commissioners impossible; that the land was valuable for both agricultural and mining purposes, and that in order to ascertain its value, and particularly that for mining purposes, it would be necessary for the commissioners to make a personal examination of it; that to permit the respondent to take the land and permanently flood the same without first removing the water therefrom, would deprive the appellant of his said property without due process of law, and deny to him the equal protection of the' laws, in violation of the Constitution of the United States; and that what would be just compensation to be paid the appellant for the taking of the lands could not be determined without first removing the water therefrom. The plaintiff prayed that a writ of injunction issue directed to the defendant and its officers, requiring and commanding them to remove the water from the land, and that in the meantime, and until judgment ibe rendered upon the complaint, the respondent be enjoined and restrained from further prosecuting the condemnation proceeding. This complaint was filed on April 22d, and on that day the appellant Spratt served upon the respondent a notice that on the twenty-ninth day of April he would move the court for an order directing the issuance of a writ of injunction, requiring and commanding the respondent to desist and refrain from further prosecuting the condemnation proceeding until the final hearing and determination of the injunction proceeding, and respondent was notified that “said motion and application will be based upon the complaint herein, and oral testimony to be introduced in support of the allegations thereof.”

Under this state of facts the court in the condemnation proceeding did not err in denying the motion for an order stay-' ing the further prosecution of that action. The court, Judge Clements presiding, was asked to stay the further prosecution of the condemnation proceeding until the same court, Judge Bach presiding, could pass upon the question of issuing an injunction restraining the prosecution of the condemnation proceeding. This Judge Bach could not do; such action would have been’in direct conflict with section M63 of the Civil Code, which provides: “An injunction cannot be granted: 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings.” It is not even suggested that restraint was necessary to prevent a multiplicity of proceedings. From the foregoing it also appears, without further comment, that the court was right in denying the application for the injunction.

Having denied the motion for a stay of proceedings in the condemnation proceeding, the court was then confronted with the question as to whether it was permissible for it to appoint the commissioners in the face of the fact that the respondent was a trespasser when the condemnation proceeding was begun, and we think the court resolved it correctly. It may be well to remember that the respondent was not a willful trespasser. It took possession of the lands sought to be condemned under an order of the district court of Lewis and Clark county, which was valid until it was reversed, and that after respondent had paid into court the just compensation determined by the commissioners in the first proceeding. Because of the reversal of that order by this court the respondent became a trespasser. We hold that it does not necessarily follow that because one is a trespasser he may not invoke the power of eminent domain. It is the general rule that he may invoke that power even though he be a trespasser. He is not deprived of his right to condemn because he has committed a trespass or is wrongfully in possession of the land sought to be condemned. (Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757; Jacksonville, Tampa & Key West Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 535; Samish River Boom Co. v. Union Boom Co., 32 Wash. 586, 73 Pac. 670; 2 Lewis on Eminent Domain, sec. 507.) And that this rule of action was contemplated by our legislature, note its declaration in section 2229 of the Code of Civil Procedure, which provides in part: “At any time after the report and assessment of damages of the commissioners has been made and filed in the court, and either before or after appeal from such assessment or from any other order or judgment in the proceedings, the court or any judge thereof at chambers, upon application of the plaintiff, shall have power to make an order that upon payment into court for the defendant entitled thereto of the amount of damages assessed, either by the commissioners, or by the jury, as the case may be, the plaintiff be authorized, if already in possession of the property of such defendant sought to be appropriated, to continue in such possession.” Appellants had a legal remedy for all damages done them by respondent because of the trespass.

We have no doubt that the court followed its manifest duty in appointing the commissioners; we think it had no alternative upon the facts before it. We are inclined to the belief that the court would have been compelled to appoint the commissioners under the statute in any event, thus allowing the objection that the commissioners could not examine the land to be raised by the commissioners themselves, or later by any party to the action who should be dissatisfied with the award. However, conceding appellants’ argument, that a court should not appoint commissioners to do that which it is impossible to do, still the court was right, for the record in the condemnation proceeding does not bear out the contention that it was apparent to the court that the commissioners could not examine, the lands in controversy. The court was passing upon the evidence before it at that time, and it could not assume without evidence that the water could not and would not be withdrawn at the commissioners’ request. It is the commissioners’ duty to examine the lands sought to be condemned, hear the allegations and evidence of. all parties interested, and ascertain and assess the damages done to the persons whose lands are sought to be appropriated. (Code Civ. Proc., sec. 2221.)

Suppose, now, in a given case, that the commissioners could not or did not examine the lands. Then they did not do all the statute requires. Or suppose that they were bribed or otherwise improperly influenced by the adverse party, or were prevented by acts of the adverse party from doing their duty. Is there no remedy for their malfeasance or nonfeasance? In our opinion the injured party has two remedies: he may appeal to the district court, as provided in section 2224 of the Code of Civil Procedure, or he may move to set aside-the report of the commissioners. (Code Civ. Proc., see. 2231; Pueblo & Arkansas Valley R. R. Co. v. Rudd, 5 Colo. 270; and, generally, note discussion by Hawley, J., in Douglass v. Byrnes, 63 Fed. 16.) "Whether appellants invoked or attempted to invoke either of these remedies we do not know. Upon the coming in of the report, if the appellants had made it appear to the court that the commissioners had not examined, or could not examine, the lands by reason of the act of the respondent in flooding it, it would .then have been incumbent upon the court to set aside the report; and also to dismiss the proceeding, unless the respondent at once offered to place the land in such condition that the commissioners could examine it, and proceeded promptly in compliance with the offer.

Under the conditions apparent in the records before us, appellants may not say that their property is not taken by due process of law. In Chauvin v. Valiton, 8 Mont. 451, 20 Pac. 658, 3 L. R. A. 194, Chief Justice McConnell quotes the following from the opinion of the supreme court of the United States in Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616: “That whenever by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state, or •of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceedings in regard to the property as are appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections.” (State v. Brett, 16 Mont. 360, 40 Pac. 873; McMillan v. City of Butte, 30 Mont. 220, 76 Pac. 203; Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718, 41 L. Ed. 1165.)

Nor do we think the court erred in permitting respondent “to continue in possession of the property sought to be condemned, and to use and possess the same during the pendency of, and until the final conclusion of, the litigation, and [directing] that all actions and proceedings against the respondent on account of said order be stayed until such time.” The power to do this is specifically given the court by section 2229 of the Code of Civil Procedure, after the report and assessment of the commissioners has been made and filed in the court, and after the amount of damages assessed by the commissioners or jury has been paid into court for the owner of the property.

The records do not show that the court was guilty of an abuse of judicial discretion in making the order.

It follows that the several orders appealed from should be affirmed.

Affirmed.

Mb. Chief Justice Bbantly and Mb. Justice Holloway concur.

Case Details

Case Name: Spratt v. Helena Power Transmission Co.

Court Name: Montana Supreme Court

Date Published: Mar 23, 1908

Citation: 94 P. 631

Docket Number: No. 2,461; Nos. 2,462, 2,471

Court Abbreviation: Mont.