30 Mont. 529 | Mont. | 1904
delivered the opinion of the court.
On November 10, 1903, the governor of Montana issued his proclamation convening the Eighth legislative assembly in extraordinary session at the capital of the state on December 1, 1903. The purposes for which this assembly was convened are indicated in the preamble to the proclamation. After reciting the fact that a large number of iietitions had been addressed to him, ashing that the legislature be convened in extra session, the governor continues:
“Whereas, they (certain petitioners) further represent the desirability of general legislation by which the bias and prejudice of district judges be made a disqualification of such judges to try any case that (may come before them or either of them, as well as legislation making suitable provision for the trial of such case or cases in such event: * * * Now, therefore, I, J. E. Toole, governor of the state of Montana, * * * do hereby and by virtue of the power and authority in me vested by the Constitution, "convene the Eighth legislative assembly in extraordinary session, at Helena, Montana, the capital of said state, at 12 o’clock m., on December 1, A. Dl 1903, for the purpose of considering the legislation hereinbefore referred to and taking such action thereon as it may deem wise or expedient.”
Thereafter an action was pending, ready for trial, in department No. 2 of the district court of the Second judicial district of Montana, which action is entitled “Anaconda Copper Mining Company, Plaintiff, versus Montana■ Ore Purchasing Company and Others, Defendants,” and numbered 8,833 of the files and records of that court. This cause was set for trial for the 10th day of February, 1904. On February 5, 1904, the plaintiff, through its secretary and agent, made and filed an affidavit in
The two Acts above referred to are companion measures. The amendment to Section 615 is intended to carry into, effect the provisions of Section 180 as amended. Numerous objeotions are lodged against the constitutionality of these Acts. However, no. particular infirmity is pointed out respecting the Act amending Section 615. If the Act amending Section 180 is valid, it is quite clear that no constitutional objection can be urged against the other.
It must be borne in mind that the governor is not a part of the lawmaking body. When convened in regular session, the
The utmost extent of the governor’s authority, so far as constructive legislative work is concerned, is to recommend such imeasures as he shall deem expedient (Section 10, Article VII, Constitution) ; but there is not any legal or moral obligation resting upon the members of the legislative assembly to follow such recommendations, if they deem them unwise or the measures indorsed inexpedient. When the exigencies of the times require it, the legislature may be called in extraordinary session by the governor to consider particular subjects of legislation. Those subjects must be enumerated in the proclamation or in the governor’s ¡message'to the assembly, and the power of the legislature is limited to enacting laws affecting those subjects only. (Section 11, Art. VII, above.) In other words, the governor may submit the subjects with reference to' which legislation is desired, but the lawmaking body then has absolute power to construct such laws respecting those subjects as it shall see fit (imless restrained by constitutional inhibition), or to disregard the subjects altogether and not enact any measures respecting them.
The governor has the same authority at a special session of the legislature that he has at a regular session — to recommend any particular measures which he may deem expedient; but such recommendation does not ¡measure or limit the legislative authority. That authority is only limited by the scope of the subjects submitted for consideration, and any recommendation respecting a particular measure would not be binding upon the legislative assembly.
In order to determine whether a particular measure is germane to the subjects stated in the governor’s proclamation, it is incumbent upon us to examine the proclamation as a whole (Chicago, B. & Q. R. R. Co. v. Wolfe, 61 Neb. 502, 86 N. W. 441), giving to the language used its ordinary meaning.
We are therefore of the opinion that the Act amending Section 180 above is within the purview of the governor’s call, and, as the amendment to Section 615 is obviously intended to carry
It is elementary that the legislature cannot impose any additional conditions to those enumerated above as a prerequisite to any man’s holding the office of district, judge who might he elected or appointed to that office, and neither do we think that any effort in that direction was made by the enactment of the amendment to Section 180 above.
The qualifications enumerated in Section 16, Article YIH, above, have to do with the eligibility 'of a man to hold the office, but it does not follow that, because a district, judge possesses these qualifications, lie shall have a right, by virtue of his office, or otherwise, to try every cause which may be commenced in or transferred to his district. To say'that he has such right is to say that he may try a cause to which he is a, party plaintiff or defendant, and that his, opposing litigant is helpless to prevent it. No such contention can be urged successfully.
The Constitution attempts to prescribe the qualifications without which a man ought not to hold the office of district judge. This Act does, not attempt to add to or take from those
So that this Act, and Section 615 as amended, not only do not contravene the provisions of Section 12, Article VIII, above, but are subject to a construction in harmony with them. This is the conclusion reached by the Supreme Court of Florida with reference to a somewhat similar statute against which was lodged the same objection now under consideration. (Thebaut v. Canova, 11 Fla. 143.)
The particular objection made here is that the filing of the affidavit operates ipso facto to deprive the judge against whom it is aimed of authority to- proceed with the trial of the cause, and that no provision is made at all for determining,judicially whether, as a fact, the judge is actually biased or prejudiced, or, in other words, that this Act attempts to determine the question of bias and prejudice in advance, or permits the litigant to do so, whereas that can only be done by a judicial investigation and determination. But this proceeding to disqualify a judge is analogous to a proceeding for change of venue, and no one has yet denied the right of «the legislature to provide for a change of venue upon such terms as it may propose. The authority to enact such statutes is not derived from the Constitution, but is inherent in the legislature, subject only to the constitutional provision that such laws shall not be local or special. In the absence of any constitutional inhibition, we know of no reason why the legislature might not provide for a change of venue merely upon demand of either party, withoirt assigning any reason whatever. (4 Ency. PI. and Pr. 431.) The mere fact that no provision is made for a judicial determination of
As a matter of fact, it is not the bias or prejudice of the judge which disqualifies him, but the mere imputation of such bias and prejudice, and that leaves nothing to be judicially determined.
In considering this same objection to a similar statute, this court in Godbe v. McCormick, 1 Mont. 105, said: “So far as the [first] question is concerned, we do not regard the Act of the legislature as affecting the jurisdiction of the district court. It lays down a rule of procedure, in certain cases, for the observance of the courts in the exercise of their jurisdiction, of the same character as the laws regulating continuance, appeals, new trials, and the entire subject of remedies and of practice.”
In this connection it is also said that the Act amending Section 615 seeks to take frotm the district court its discretion with reference to granting a change of venue and to impose a mere ministerial duty upon a judicial body. But it is not every question arising in court that is entitled to a judicial determination, or with reference to which judicial discretion need be exercised. In Godbe v. McCormick, above, the court said: “The mere fact that a law requires the performance by a court of a particular act upon a given state of fact is not a sufficient test by which to determine its invalidity, and in many instances the legiselature may'deprive the court of discretion in the exercise of its jurisdiction.” To the same effect is the decision in Smith v. Judge of the Twelfth District, 17 Cal. 557, where it is said: “It is true that the court, having a discretion as to a particular matter, cannot, so long as it retains that discretion, be controlled in the exercise of it. But the whole error is in forgetting that the court has the discretion only by virtue of the law giving it, and that the same law can take away that discretion as to all matters of remedy, and leave to the court a simple ministerial duty.” This doctrine is emphasized by numerous examples in our own practice, as well as elsewhere. A party to an action may amend his pleading once as a matter of
Particular stress is laid upon its crudeness and inaccuracy. As amended, Section 180 now reads: “Section 180. Any justice, judge or justice of the peace must nót sit or act as such in any action or proceeding * * * (4) when either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge. * * *” Of course, it was quite gratuitous for the legislature to say that a justice of the supreme court or a justice of the peace should, not act as such in any ease in the district court, if that is what the Act means: But we are of the opinion that, crude as the measure is, there is yet enough expressed to enable its terlms to be carried into execution and to render it intelligible. We must assume that the word “jtfldge,” in the first sentence.above, refers to district judge; and, if then we disregard the reference to the justices of this court and to justices of the peace, the measure is susceptible of intelligible construction. And while it may appear that we are approaching dangerously near legislation, when we give the interpretation indicated, still we think we have not trespassed on legislative functions in so doing, and prefer to give this construction to the measure in order that the legislative will may be carried out.
Whatever may be the infirmities of the Act, it is not open to the particular objection that it permits the disqualifying affi
Neither is the Act open to the objection that it permits a party, by filing a disqualifying' affidavit, to prevent further action in the case in the event the district judge disqualified cannot or will not secure another judge to try it; for Section 615, as amended, may be taken advantage of by either party, and, if the plaintiff files the disqualifying affidavit, there is no reason why the defendant may not at once apply for a change of venue on the ground that the judge has been disqualified, and, if another judge does not appear within thirty days after such motion is made, the venue must be changed, and the cause then proceed.
It may be that the anomalous situation is presented of a party applying for a change of venue who does not want it, except as
Finally, it is contended that the necessary effect of the operations of this law will be to prevent the trial of cases, altogether, or that such delay and inconvenience will result as will be tantamount to a denial of justice.
Whether either of these results will follow can only be determined from experience in the actual operations of the law itself. We cannot say that such would necessarily be the case, even if in every cause each side would avail itself of the utmost authority provided by the Act and disqualify successively five judges.
We are not aware that a like- statutory provision has ever1 been the subject of construction by the courts of other states. Counsel have been unable to find any such decisions, and doubtless there are none. This dearth of decisions upon the question may be1 accounted for by the fact that, of the eleven states which have somewhat similar statutes, in ten of them only one change of judge is permitted, and in the other (Iowa) only two. The reasonableness of the measures adopted in those states has doubtless prevented any contests over them.
The possibility that one party even may disqualify five judges, and that successive changes of venue may he granted until the cause is removed for trial to a distant part of the state from the residence of the parties, and that a long time may elapse before a trial can be had at all, only illustrates, an extreme case, where a great wrong would be perpetrated, and one’s sense of justice is outraged by the infinite abuse of legal rights which may possibly follow the acknowledgment of the validity of such a measure; and yet this, also^ is an argument which might with propriety be addressed to the legislative hody, but not to a court, for we cannot hold legislation for naught merely because it is unwise, or under it great wrongs may be perpetuated, or even because the measure itself is vicious. The. Act
After a consideration of the various objections urged against these measures, we are not prepared to say that their unconstitutionality is established beyond a reasonable doubt; and this is the criterion now recognized in this jurisdiction by which the invalidity of a solemn legislative declaration is to be determined. (In re O’Brien, 29 Mont. 530, 75 Pac. 196, and cases cited.) It is ordered that the peremptory writ issue as prayed for.
Writ granted.