State Ex Rel. Morgan v. State Board of Examiners

this has: tbe vast number of exhibits and voluminous record to sustain. BOTTOMLT, ANGSTMAN,. CASTLES,

MR. JUSTICES ADAIR, concur. MORGAN, Re D. MONTANA, STATE JOHN ex OF rel. EXAMINERS, al., et v. THE BOARD OF STATE lator, CO., and A and MORRISON- & B CONSTRUCTION Respondents. MAIERLE, Inc., 9786. No. February February 14, 25, 1957.

Submitted 1957. Decided April 3, 1957. As Amended 309 Pac. Floyd Small, Mr. Helena, O. for relator.

Mr. H. Anderson, Atty. Gen., Crowley, Forrest Mr. William F. Atty. Asst. Gen., respondent for Board of Examiners. State Skedd, Messrs. Mufich, Harris & Helena, respondent for A & B Construction Co. Toomey

Messrs. Hughes, Helena, respondent for Morrison- & Maierle, Inc. Small,

Mr. Crowley Mr. Lloyd and Mr. argued J. Skedd orally.

MR. JUSTICE ANGSTMAN:

Plaintiff, taxpayer County, a resident and Lewis of and Clark brought originally this in this alleges, action court. He in the first in substance, though cause of action that even Bryant in Examiners, Mont., (2d) 340, v. Board of Pac. chapter 1955, "invalid,” yet declared Laws of defendant February 2, 1957, pass Board did on resolution to issue bonds authority chapter $25,000 under the of 278 in the sum pay capitol for the state driveway landscap- construction of the ing; that unless restrained the defendant Board will issue the expend proceeds purpose bonds and for stated resolution. action, plaintiff alleges acting

As second cause of that under chapter 7, Laws of defendant Board issued and sold bonds $300,000 in purpose the sum of for the of repairing the state capitol building; acting chapter that under Laws of $100,000 issued and sold bonds in-the sum purpose repairing capitol state that- building; acting chapter under Laws of defendant Board issued and sold bonds $100,000 sum reconstructing renovating the state capitol building including voting roll call machines in the house bond representative chambers; that from the above-mentioned expended $495,599.04

issues has incurred defendant Board $194,012.04 for the further indebtedness in the sum of eapitol; repairing, renovating the state reconstructing and that all of the aforesaid are under above-men- bond issues capital building payable tioned statutes made from the land grant fund. complaint alleges expenditures that all have above Enabling

been made in 17 of the violation sections that, in interpreted Examiners, Act as v. Board of years, funds to reim- future taxes must be increased and raised capital grant alleged upon burse the informa- land fund. It is money Legislature approriate tion and that the from belief will general capital grant land fund if this fund to reimburse the required that reimbursement is law. determines Original jurisdiction proposition grounded speedy necessary the end questions determination of the session, may legislative assembly, action now sought necessary, particularly as adjournment, before if $194,012.04. regards the item of declaratory judgment only chapter

Plaintiff that not seeks entirety, 278, 1955, but Laws be declared null and void its 1955, 7, 2, meet chapter 1953, chapter that Laws of Laws of fate; expended under of these with the same all sums illegally expended acts be from determined to have been capital grant land fund that the amounts are now due and general owing repaid to that fund should be from fund. quash each filed a motion to the order have

Defendants Morrison- defendant Board and defendant and the show cause hearing Defendants on the Inc., filed a demurrer. Maierle, motions and demurrers. on the to stand elected challenge sufficiency and demurrers The motions complaint. argument on behalf of urged at oral question first

The opinion Bryant majority was that Board defendant 340, 512, (2d) Board was Examiners, 130 Mont. 305 Pac. up- is unsound and should If that contention be overruled. J>e questions disappear.

held the other it We are so far as holds asked to overrule the decision repairing capital grant may that the land fund not be used for buildings already the installation of roll constructed and for voting brought call machines because case law was not pertinent to the in an applied attention of the court if will result which opposite conclusion. university grant

This court has from land held income Enabling support which the for provides Act shall be used public institutions, and maintenance schools and could be buildings. used for the erection ex rel. Blume v. State State Education, (2d) 515; Board of 97 Mont. 34 Pac. State ex Education, rel. Wilson v. 102 Mont. State Board of (2d) Wyoming Pac. 1079. has held to the same effect. Bond, Wyo. See Arnold v. 34 Pac. 28. money pledged

If the support maintenance of may institutions buildings, be used to erect then is at least persuasive true, viz., money that the converse be pledged should for the buildings may erection of used repairing the build- ings supporting or for maintaining the institutions.

But, however, may be, Enabling sufficiently Act is permit capital

broad to grant use of the land fund for the repairing already buildings constructed. Enabling liberally Act must be construed with the view accomplishing object sought to be attained. R.C.M. 12-202; State ex rel. Potts, Bookstore v. 141 Wash. 113, 250 Pac.

In the Potts case the court said: Congress expressed

“To arrive at the intent of as it is Enabling Act, present conditions then should be called to government quan- mind. At that time the federal owned vast territory thinly tities of land in the which was settled. The re- developed, industries sources thereof had not been had not been limited, established, transportation property was values Congress, was, undoubtedly, purpose low. It tbe were makirjg grant give to the state that should come new buildings at the state Enabling under the Act land public for capital buildings to constructed and sufficient to enable such be general as an taxation equipped institution without resort to gen- made part expense. of that If resort should be necessary $600,000 purpose raising eral taxation for the furnishings the furniture the administrative Congress legislative building, thing would be done which sought provision no act relative to to avoid. There is erected, but, buildings be acquiring land which the could buildings manifestly, necessary would be incident. alone, furnishings, land would be without furniture and furnishings purpose useless for intended. The furniture and imme- legislative building have an of the administrative and lands bearing upon diate and direct for which the ’’ granted. were case, 141 too, It that in the Potts should be noted the court say re page 113, page Wash. at 1094 had this to Pac. garding public buildings” as used in sec “erecting the words ” “ Act, buildings’ as Enabling public tion 12 of the ‘for used in section 17:

tt# # # to the mean- discussion as There has been much but ‘erect’ used section of the word ing and limitations different mean- Congress did not intend a it seems to us that buildings’ that public from words ‘erect ing when it used the Using the public buildings’. 17 ‘for in section said when ‘erect’ in section omitting the word buildings’ and ‘public words 100,000 granted therein that acres provided 17, Congress ‘For granted. purpose’ that to that before in addition should be of section Congress had construed words indicates buildings’. 17, wit, ‘public same as those of to mean the 17, apparently to the referred in section purpose’, ‘That found not to ‘erect buildings’ in that section and as used ‘public words Again, in section 17 it in section 12. buildings’ as used public shall used ex- granted lands therein provided

193 public is, elusively mentioned, purposes for the therein Legis- buildings, disposed in manner as and shall be such ” may provide. lature the state upon the place interpretation There are strict cases which a contemplate the word “erect” and which hold that it does not repair They in the building already of a are listed erected. Bryant majority opinion case. part public authority

Those cases had do on the to with cases payable officers to issue bonds from tax levies and such they it is proper strictly to statutes and to hold construe the implied authority. do not confer case, distinguishing

The that case from the case Potts Harrington Hopkins, 1, 231, 263, v. 288 latter Mo. S.W. which majority opinion case is also on in relied ease, pointed out this difference in the two eases.

It does not seem Congress reasonable that ever intended that capital grant only income from the had to used land the erection buildings of new when an old could be re one paired expense, repaired at less and which when will serve the purpose effectually building intended as as a new and that the result holding many of the courts. See Brown v. Gra ham, 254; 58 Dist., 13, Tex. Cotter Joint 164 v. School Wis. 80; 158 Ry. N.W. Port Richards, Huron & N.W. 90 Co. v. 577, 51 680; Mich. N.W. Harrell v. Board of Commissioners County, Wilson 206 225, N.C. 173 S.E. 614. authority building In words the to erect a for other designated implied authority it keep confers to erected by repairing it. synonymous.

The words “erect” and “construct” are State Barber, 809; 139 190 rel. Davis v. Fla. So. ex ex State Gordon, 929; 233 Mo. City v. S.W. rel. Chillicothe Co., 199 Butz v. Bros. Const. Mo. 97 S.W. 895. Murch authority building executive, to erect or construct judicial purposes implied authority confers legislative, to repair building proper in a state of so as keep to serve the purpose intended.

The authority object power an confers main construct tain it or it keep Fowler, repairing constructed it. In re 60; N.Y. Smith, First National Bank v. of Eutaw Ala. 38; 117 So. Town Pelham B. Woolsey, D.C., v. F. 418; F. County Bell Lightfoot, 381; Tex. 138 S.W. Board of County County Commissioners of v. Mc Bernalillo Culloh, 52 N.M. 210, 195 Pac.

As to the roll voting machine, call part is authorized

of the equipment building. In the case, supra, Potts capital it was held that land grant fund could be used for furnishings furniture and building used for legislative purposes. administrative and We go need not that far here. The voting roll call machine con stitutes a fixture and as part building. such as a See Board County County Commissioners of Bernalillo v. Mc Culloh, supra; Hudgins v. Mooresville Dist., Consol. School 1, 312 Mo. 769, S.W. and Hendricks School District No. v. 1, 44 Wyoming 204, 10 (2d) Pac. 970. majority opinion, Bryant Examiners, in v. Board of

supra, capital far as it grant so holds that land funds may repair, not be used to renovate or reconstruct an old build ing, and far may so as that such funds not be used holds install voting a roll machine in representa call the house of tives, hereby expressly overruled.

We are unmindful not of the doctrine of stare decis is.

Howeveras this court has the rule is not inflexible said “previous should not decisions be followed to the extent that may perpetuated.” Quoting C.J.S., Courts, error be from 21 193, 322, 323; pages Lacklen, section ex rel. v. State Burns 130 Mont. 284 Pac. 998.

Here, intervening rights grown up no have as a result of the just recently case. It was decided and a di vided court. The case has future to do with official action and in legal questions freely such cases we will re-examine more ordinary an acquiesced general public than in case period years. Valley County Thomas, over a v. Mont. (2d) 345; Products Co. v. Great 97 Pac. Montana Horse (2d) 919. Railway 91 Mont. 7 Pac. Co., Northern 1927), Limitations, (8th “In 1 ed. Cooley, Constitutional * * question in- page notes, it is stated: when a volving important public rights, extending through private occasion, all coming time, passed single has been on a just which decision have been ac- can no sense be said to quiesced in, only duty, it is right, but the properly upon, questions when in- called to re-examine volved, again subject judicial scrutiny’.” them to Common- Lawrence, Margiotti wealth rel. ex 326 Pa. 193 A. subject dissenting opinion

The discussion hi on the jurisdiction declaratory judgment of this proceed- ing complaint overlooks the vital fact that an in- also seeks junction, subject given matter over which court has been original jurisdiction expressly by VIII of Article may Montana pro- Constitution. What rule ceeding seeking declaratory only relief need not be considered in this case. quash

The motions to and the demurrers are sustained and the proceeding dismissed.

MR. HARRISON, CHIEF JUSTICE and MR. JUSTICE CASTLES, concur.

MR. JUSTICE ADAIR: (dissenting). taxpayer, plaintiff, Morgan,

The John D. a commenced this by highest appellate court, in filing, suit direct this state’s seeking declaratory judgment, complaint under the Uniform Declaratory Judgments Act, 1947, R.C.M. sections 93-8901 declaring proposed through 93-9816, bond issue to be invalid enjoin by and sale seeking to issuance thereof the State others, Board of of Montana and at a time when Examiners enjoined already by final such issuance and sale was 7, Bryant of this rendered December 1956. v. Board of court Examiners, (2d) 130 Mont. No. Pac. 340.

The complaint purports separate set forth causes to two of purported action. Neither nor facts suffi- count cause states against any cient to constitute a cause the six of action of de- complaint fendants named in the entitle the sufficient to plaintiff any any Morgan against to whatever relief jurisdiction defendants or sufficient to invoke the of grant any parties litigant to relief to of than to other jurisdiction herein to accept, to assume or exercise decline proceeding here commenced. original of this order dismissal of Exam- against suit the State Board This is the second Hugo Aronson, Governor Montana, J. iners of the State Enabling others, involving the construction of the the State and Capital take, pledge and use right Act and the thereunder to than for the purposes Buildings Land Grant Fund for other Act, Enabling sections 12 and purpose stated in its and re-enactment prior such Act amendment read Congress 348, approved of H.R. passage in the 85th February 26, 5. 1957, 71 Stat. President by this decided appeal, suit an No. The first was 130 Mont. Examiners, Board of 1956. See December Pac. Congress States 1889, the United In Act. Enabling Act, Enabling approved February as the a law known passed Montana, Washington, 22, 1889, 25 which enabled Stat. upon enter Dakota, and South Dakota to the Union ac- North provided with the terms and conditions complying cepting and lav:. such federal provided Enabling Act the ad- Section 12 of Union, said into the United States mission each of states grant each, fifty unappropriated would sections of the lands therein, erecting public buildings “for the at the legislative, states for capital judicial pur- said executive and ’’ poses. Act, In Enabling granted section 17 of the Montana was one fifty grant hundred thousand acres land addition 12, supra, public made buildings capital “for state.” [the] I,No. Ordinance No. of Ordinance 1. In section “Seventh” ac Montana, this state part which is a Constitution States from the United cepted grants of land several “upon Act Enabling in the the State of Montana mentioned 1, R. volume See provided.” terms and therein conditions page at 294. C.M. ‘‘ ‘‘ ’’ That provides: I, supra, Section Sixth of Ordinance No. without shall be irrevocable ordinance this article said State people consent of the United States and page 294. Montana.” See volume R.C.M. United States accept

Thus did the from the State of Montana Enabling grants 12 and 17 of the of lands made in sections which provided Act therein terms and conditions being- incapable of terms conditions are unalterable the United recalled or revoked without the mutual consent of people States and Montana. of the State of money rev- Grant Fund. Capital Buildings Land rental, or other lease, sale from the enue received the state Enabling Act granted the lands so disposition use or capital” buildings at the erecting- public “for the judicial purposes constitute legislative, executive state. Buildings Land Grant Fund Capital are the Legis- Thirty-fourth 1955. In 1955 the Chapter 278 Laws of entitled, “An Act Act Assembly passed Montana an ative Exam- Sale the State Board of Provide for the Issue and Reconstructing and Ren- Purpose of iners of for the Bonds Including Roll Capitol Building Call ovating State [sic] Chambers; Representatives in the House of Voting Machines Paid; From Bonds Shall be Designating the Funds Which Said Building Capitol Reconstruction Providing for a State [sic] Enumerating Fund; Sinking Interest and and Renovation Carry- Examiners in the State Board of Powers and Duties of ’’Act. ing the Provisions of This Out Assembly Thirty-fourth received the Montana’s Act of This Hugo Aronson on March Governor J. approval chapter became 278, pages Montana Session Laws of It purports to authorize the State Board of Examiners of the State of Montana to issue and sell bonds in an amount not to $750,000, proceeds exceed “the of which solely are to be used for purpose reconstructing of and renovating the state capitol building including voting- roll call machines in the representatives house of Helena, chambers at Montana.” See Chapter 278, section of Montana Session of 1955. Laws chapter

Section 7 278, supra, of part, pro- Laws of vides : principal

“The by and interest of the bonds authorized payable act shall be out following of the fund and from only: All the income capitol received from the building [sic] grant, land be, shall hereby and the same perpetually dedi- appropriated cated and payment principal and * * *” interest of the provided bonds by this act. Board’s April 26, 1956, Resolution. On the State Board of Examiners Montana, of the State of purporting to act under provisions chapter 1955, supra, passed, Laws of adopted approved and a resolution authorizing and directing the issuance of $650,000. bonds in the amount of resolu- The quite lengthy. tion is It is entitled: Authorizing Directing “Resolution and the Issuance of State Capitol Bonds, Building Prescribing Form, Their Terms [sic] Delivery, Awarding Sale, and Manner of Execution and Their Specifying Appropriating the Funds to Be Used for Their Payment Making Covenants in Behalf of the State the Administration Funds.” Montana as to of Such signed by Hugo Aronson, Governor, resolution is J. State, Arnold, Secretary Olsen, S. C. H. Arnold Attor- ney General, Bryant, now, and attested G. L. then duly appointed State executive clerk said Board of Exam- iners..

Validity Thereupon prospective purchasers Bonds. resolution, in- the bonds to be issued as directed the above Minnesota, Minneapolis, Inc., of Company, Kalman & eluding proceedings resolution and above submitted the Board’s examining who, after legal thereto their counsel incident Act, 25 Enabling provisions of light same in the about to be validity the bonds so 676, questioned Stat. thereof purchase approval issued and withheld their purchasers strong prospective pending of how clarification Buildings Grant Capital Land count on the of the bonds could security. Fund as are be issued valid, the bonds purpose

To be for which set forth in limitations provisions must come within supra, the United Enabling Act, 12 of the wherein here involved granted Montana the lands States to the State of capital buildings at the erecting public “for judicial purposes.” legislative, of said states for executive and vol. Emphasis supplied. Enabling Act, sections pages R.C.M. 65 and 67. for raised counsel Bryant questions Case. The validity of bonds, as to

prospective purchasers of Exam- Board of the State issue, proposed were communicated aforesaid G. L. 4, 1956, the on June iners and thereafter Wertz, Esq., Wesley W. attorney, through his plaintiff, Examiners of the State against “The Board of commenced suit Mon- State of Montana; Aronson, of the Hugo Governor Mon- State of Secretary of the Arnold, of State tana; S. C. Mon- State of Attorney Olsen, H. General tana; Arnold constituting all member of and being a tana; each ex officio Kalman & Montana; the State of Board of Examiners of by that Corporation, Defendants” Minnesota Company, Inc., a County, and Clark of Lewis in the district court day filing court, complaint wherein in that No. 25691 Montana, in cause enjoin the issuance and sought Bryant, plaintiff, G. L. chapter Laws provisions under the sale of the bonds the defendant Board of resolution of above and the declaratory Montana, wherein a State of Examiners judgment was sought adjudge that would proposed bond issue to be invalid.

In the meantime the defendant Board of Examiners author- ized engineers, various electricians, artisans and workmen to lay out and construct a driveway new and do extensive land- scaping outside and at the front of supply the statehouse and to and install representatives in the house of chamber a new roll voting electric call paid machine all special to be for from a fund to be known Capitol as the Building “State Re- [sic] construction and Renovation Interest and Sinking Fund” all of which construction proceeded and work thereafter to com- pletion.

In complaint his plaintiff, Bryant, L. alleged G. he is an elector and resident of the State of Montana and taxpayer paying taxes property on the state.

At the outset appears the action to have been a most “friend- ly brought by suit” the executive clerk of the State Board of Examiners against said public Board and the officers consti- tuting Board, said to-wit, Governor, Secretary of State Const, Attorney General. Montana, VII, See art. section 20. by motion, challenge

There was no demurrer or otherwise sufficiency plaintiff’s to the complaint, immediately but filing thereof in the office clerk of the district defendants, by all the above-named through their counsel, Olsen, Attorney Arnold H. General, and Robert L. Word, Special Attorney Assistant General, appeared in the filing joint then and action there answer to which the plaintiff immediately reply whereupon filed a judge, the district hearing any receiving any evidence, without witnesses or made findings fact, filed request written denied plaintiff Bryant injunction an and rendered Thereupon day the and on the plaintiff defendants. same the Bryant appeal served and filed his notice of judg- from the against him. ment so entered Thus on one and day, the same 4, 1956, the G. L. commenced, June suit was heard, supreme court. appealed to the decided district and days Bryant, L. later, to-wit, Two G. the on June plaintiff in in this appellant the district court and the of the transcript appeal filed on in of the clerk his the office supreme court. application respective-

June on of counsel for the parties, printed requiring the rule of this court briefs was- granted appellant waived and leave to both and the was the respondents typewritten briefs, whereupon to file on that day appellant’s typewritten appeal brief and the re- on spondents’ typewritten filed, together answer brief with were stipulation by written respective counsel for executed parties waiving argument appeal oral submitting- the entire matter for day decision on the briefs that filed.

In considering transcript on appeal and briefs so submitted, its own motion and notwithstanding the stipulation submitting appeal on the filed, briefs argument thereafter called for oral appeal on the on certain pertinent questions points law mentioned briefs 27, 1956, filed on June the court such heard oral arguments presented by respective parties counsel for all the litigant, whereupon appeal again was submitted for decision.

Independent study appeal thereafter made members of this court revealed certain decisions from other jurisdictions appeared point, which to be but which had not been cited parties. counsel for Thereupon, consulting after first convenience of counsel all parties, the court made and respective caused to be delivered to counsel, following order, written viz: that this be

“It Is Ordered cause set for further oral argu- o’clock, a.m., Friday, on 16, 1956, ment for ten November with particular as to whether purpose attention the announced challenged here stated Section Chap- the bond issue 1 of ter Montana Session Laws for which, Act, Enabling 17 of the under the income sections from may lawfully Capital Building Land Grant used, 202 Legislative

as to purchase whether Act authorizes the per insurance and the payment for more than four cent (4%) County Gaudalupe interest. See: Board of Com’rs of v. 43 v. State, (2d) 515; King 94 Pac. ex rel. State N.M. Lothrop, Hop 55 (2d) 355; Harrington 36 Nev. Pac. kins, 263; Mo. No. 288 231 S.W. District Jewett v. School 25, Wyo. 277, 546.” 283-286, Pac. set, appeal and for day again

Thereafter on the was argued court, second orally supreme time before which time filed appellant’s respondents’ each counsel and counsel supplemental memoranda of authorities.

Appeal rendered 7, 1956, On Decided. December judgment reversing judgment its of the dis- decision and plain- trict with for directions to enter injunctive tiff, appropriate Bryant, G. L. and to award him expressed opinion in such relief not inconsistent with the views Mr. opinion was written The of the court decision. Bot- Adair and Mr. Justice Justice Davis with Chief Justice Angstman a dis- tomly concurring Mr. wrote therein. Justice sign either the senting Mr. Justice Anderson did opinion. opinion nor he record majority opinion dissenting or the did appeal. disposition of the his views on the action, imme- respondents, dissatisfied with this court’s re- diately ways achieving a different sought and means legislative every political and sult, the decision with fighting their resource at command. XY Bule of this Rehearing. Under

Motion for n dissatisfied ren- days after decision ten parties have petition their or motion for file serve and which dered days had ten after respondents such rule rehearing. Under petition, and file their to serve 1956, in which December respondents’ 17, 1956, application on but on December n counsel, filing twenty days for time extended this court rehearing Decem- for and on motion petition respondents’ filed. was petition served 1956, such ber meantime, Montana’s Act. In the Enabling Amend Bill to Representatives in Congress the United States were con- tacted and a bill was drafted for introduction the House Representatives “A entitled: bill to amend approved February 22, (25 676), relating Act Stat. Dakota, the admission into the Union North of the States of Dakota, South Washington, by providing Montana and public granted use of lands to the States therein construction, reconstruction, renovating, repair, furnishings, equipment permanent improvement, or other public buildings the capital at Emphasis of said States.” supplied. 3,

Rehearing January 1957, Denied. On respondents’ peti- tion rehearing for signed was denied on by order Associate Justices Davis Bottomly and Chief Justice Adair. On the date, same remittitur issued and was forwarded to the clerk of the district court for Lewis County and Clark filing for entry. Attached to such remittitur a copy was opinion court’s and judgment, copy and a of the dissenting opinion of Angstman Mr. Justice appeal. on the At no time has the remittitur so issued out of this court ever been recalled.

When this court’s remittitur and obeyed mandate were judgment the trial in conformity entered to such remittitur the judgment and mandate was the supreme questions actually which did arise on the trial hearing the trial court and those which could presented, rights have been as well as the of the parties in the subject suit, matter of finally were they determined and judicata. Kimpton became res Co., v. Jubilee Placer Min. 22 Perkins, 107, page 109, Mont. 55 918; at Pac. Woodward v. 997; 119 11, (2d) Mont. 171 Pac. Dolenty State ex rel. v. Dis Court, 42 page 173, trict Mont. 111 731; Pac. State Dolenty Reece, ex rel. v. 43 Mont. 292, 115 681;, Pac. Lasby Burgess, Mont. 18 Pac.

Congress Receives Bill to Amend Law. On January 1957, whereupon respondents’ this court denied motion for rehearing, Congressman Lee Metcalf introduced in the House bill Representatives 348, being H.R. Congress, of the 85th 676, by Act, amend Enabling Stat. enlarging

changing wording thereof, thereby adding to and purposes used. The granted may for the lands be which Act, approved provides Enabling bill that section February read as follows: is amended to into the “That the admission of each of said States fifty Union, Act, provisions of this accordance with the States, unappropriated within such public sections of lands provided in legal to be selected subdivisions as and located said granted to Act, be, hereby, section 10 of this shall and are for buildings capital for of said States public States at the including judicial purposes, con- legislative, executive, and renovation, furnishings, equip- struction, reconstruction, repair, build- any permanent improvement such ment, and other buildings, necessary such ings acquisition cmd land interest on bonds issued payment principal and the purposes. the above February 22, take effect as of 2. This act shall “Section Emphasis supplied. 1889.” by the Con- Enabling Act a federal statute enacted amend such and to en- United States. To statute

gress of the granted lands purpose for which the large and extend the may Congress requires the action therein used Montana.” people “the of said State of the consent of also Sixth, Vol. R.C.M. No. section See Ordinance 294. page they possess and that the courts only powers judicial

It is belonging exercising powers properly the from prohibited are government. Constitution of department legislative to the IV, section Montana, art. instru- a statute or the construction of says: “In law simply ascertain and declare judge office

ment, the therein, in- not to contained in substance in terms or what inserted; has been omitted, to omit what been has what sert *” * * 93-401-15. 1947, R.C.M. times from commencement At all Changes Personnel. suit court, 4, 1956, of G. L. on June in the district appeal on suit on including the determination of respondents’ motion for 1956, and denial December January 3, remittitur handing on rehearing and down "ílugh Horace Adair Associate Justices 1957, Chief Justice H. Anderson and Albert Bottomly, S. R. Y. Forrest Davis. constituting court, Angstman supreme H. were members Murray supreme and the Frank the clerk of the was Governor, Arnold, respondents, Hugo Aronson, S. Secre- J. C. General, tary State, Olsen, Attorney con- and Arnold H. respondent stituted State Board Examiners.

On Monday January 1957, supreme the first experienced changes State Board of Examiners various in personnel, election general occasioned the results of the 6, 1956, H. whereat, November Associate Justice Forrest General; Attorney Anderson was elected Associate Justice Angstman Albert Hugh H. Justice Adair were and Chief Murray Justices, elected Associate of the Court Frank Clerk Secretary Hugo was Aronson elected of State and Governor J. was to office. re-elected Davis, the January Justice Horace S.

On Associate Bryant appeal, G. opinion L. author the court’s on and that appointed had been completed term for which he he day time was succeeded from the at which retired as- qualified there for and Adair who then and Chief Justice day, On the same sumed of Associate Justice. the office appointment Governor Harrison, T. on James Honorable Aronson, qualified for and assumed the office of Hugo J. Forrest H. Anderson Justice; Associate Justice Chief Attorney Gen- day the office of qualified for and assumed Murray qualified and assumed the office of eral; Frank and, Aron- State, appointment on the of Governor Secretary qualified for and assumed Wesley son, Honorable Castles vacancy therein occa- Justice to fill the of Associate the office sioned the retirement from the court of Mr. Justice Ander- son.

Thus at all times January 7, 1957, since Hugo Governor J. Aronson, Secretary of State Prank Murray Attorney and Gen- H. eral Forrest Anderson have constituted the Board of Exam- iners of the of Montana, State while Chief Justice Harrison and Associate Wesley Justices Castles, Bottomly, R. V. Albert Angstman Hugh H. and R. Adair Supreme have constituted the Court State of Montana.

Record Supreme United States Court. On Janu- Certified ary 30, 1957, respondents, the State Examiners, Board of Hugo Aronson, J. Governor of State, al., by et through attorneys, Ralph their Anderson, J. Esq., Stanley P. Sor- enson, Esq., filed in praecipe this court a for the certification Supreme Clerk Court of the United States of the Bryant appeal documents said G. L. No. Mont. (2d) 340, Pac. so decided this court. February 1, 1957, On clerk of this as directed praecipe, prepared said and certified to the clerk of the Supreme Court of the United designated States the documents L. transcript the G. case, supra.

Board’s Resolution. February 2, On 1957, the State passed Board Examiners a resolution that issue bonds $25,000 amount of paying indebted- already ness incurred for Capitol construction of “the Drive- way landscaping” paid to be from capital buildings grant pursuant chapter 278, land fund Laws of 1955. Morgan On February 5, 1957, The Case. John D. Morgan, plaintiff, through Floyd attorney, Small, his O. Esq., filed di- this, supreme court, complaint rect in against the “State Hugo Board of Examiners and J. Aronson, Frank Murray Forrest H. Anderson as thereof; members and A. and B. Company, Montana corporation; Construction and Morrison- Maierle, Inc., corporation, Montana Defendants.”

Complaint. complaint consists of type- some seventeen pages separate and sets forth purported written two causes of second contains sixteen action, the first whereof twenty-six separately paragraphs. numbered action, plaintiff, John first of the purported

In his cause alleged: Morgan, alia, D. inter above complains the defendants named

“I. The Plaintiff of the alleges he a of United of that citizen and for cause action and Montana, duly qualified and and State of a States Clark,. State County the of Lewis and registered elector within taxpayer upon and real Montana, of and a free-holder and brings this action as such personal property; that Plaintiff taxpayers all who on and other taxpayer behalf of himself join prosecution in said action. desire to him the of chapter 278 of the pursuant provisions “XI. That to the of issue 1955, of State did bonds Laws the Board of Examiners in ($100,000.00), the sum of hundred thousand one dollars act; in that expend proceeds purposes did the set out the illegally expended question and if the same arises as were the to legislative assembly pass appropria- the should an whether impose levy replace Capi- tion tax to in a said amount the tal Land Fund. Grant 1956, upon That in the case entitled

“XII. December al’, Board of Examiners et Bryant rel. vs. State ‘State ex by 1955 declared chapter 278 of the Laws of was the said Montana be in violation of the State of to Supreme Court of particularly in of sections Enabling Act, and violation Supreme Act, and the Court declared 12 and 17 of that null, 1955 the Laws of to be void of chapter said 278 of consequences that effect; owing far-reaching that to the no of by court, plaintiff alleges it was divided and since decision that State Board of upon and belief defendant information question again considered, be al, et said should Examiners sustained, chapter m the be the end funds chapter grant fund, bonds issued under capital land from already may repair buildvngs constructed and used buildings. [Emphasis supplied.] to install fixtures n spite Supreme

“XIII. That in Court’s declaration December of rel. vs. the ease ‘State ex State Board of Examiners, al’, defendant, et State Board of Examiners, day on February, the 2nd did make pass expend resolution to fur- issue further bonds and chapter ther monies authority said Twenty-five Laws of sum thousand dollars ($25,000). A copy of the said resolution attached to this complaint and is this made hereof. part reference [Em- phasis supplied.] will, defendant,

“XIV. That Examiners State Board of expend unless restrained issue the bonds and proceeds pursuant received from these its resolution bonds in paragraph passed mentioned XIII which resolution was purported authority act, under the legislative an invalid to-wit, Chapter expenditure Laws which illegal will invalid; will, be and and that the State of Montana at time, levy some future be forced to and assess taxes to raise replace funds improperly the amount so disbursed ex- and pended. plaintiff plain,

“XV. That the speedy adequate has and no remedy law, irrecoverably at and be greatly damaged will and injured defendants, Examiners, and if the State Board of un- lawfully expend proceeds issue and bonds the as hereinbefore ’’ alleged. purported

In plaintiff his action, second cause of Mor- the gan, inter alia, alleged: 7, 1956,

“XVII. That December in the case upon entitled Bryant vs. Board of Examiners et al’, ‘State ex rel. State the Supreme Court of Montana declared that no monies realized grant capital capital grant from the from the land or land fund expended repairing, reconstructing renovating or could be capitol Helena, Montana. the at state Stopreme spite That, “XVIII. in the Court’s declaration of in 7, 1956, the case “State ex rel. December of vs. of

209 Board al’, State Board of et the State Examiners defendant of day 1957, make and February, Examiners did on 2nd of pass expend a resolution to issue bonds and further further authority 278 Laws Chapter monies the said of of $25,000.00, 1955 in the sum that such issuance of of of expenditure violation bonds monies tvoiold in be of of Enabling 7 1 Act No. the Con- and Section Ordinance of of * * * stitution Montana. of

“XIX. $495,599.04 That expended all of under authority Chapter Chapter of 7 of the Laws of of Chapter Laws 278 of the of has been Laws unlawfully expended Enabling violation Act and Section of No. 1 Ordinance of the Constitution of Montana. any “XX. That expended the capital monies from land grant fund for the paying present outstanding $194,012.04 indebtedness authority incurred under Chapter Chapter the Laws of or of the Laws of 1955, Chapter the Laws expended would Enabling violation of the Act and of 7 of Section Ordinance No. 1 of the Constitution of Montana.

“XXI. expenditure That $495,599.04 unlawfully has depleted capital grant fund, plaintiff land in- and the formed and alleges believes and therefore on information and depletion will, belief that years, require future taxes be increased, and funds raised to meet this deficiency, buildings capital. erect expenditure

“XXII. That of funds from the capital grant pay present outstanding fund to land indebtedness $194,012.04 unlawfully deplete capital will further land fund, plaintiff believes, grant informed and there- alleges oh information and belief that such fore further un- depletion will, years, future require that lawful taxes be increased, deficiency meet this and funds raised to and erect buildings capital, equipment at the and to install therein. plaintiff believes,

“XXIII. That the and informed and alleges belief, on information and that there is at therefore 210

present time, general fund, money sufficient available for legislative appropriation, capital to reimburse the land grant indebtedness, pay outstanding fund and to the present all an plaintiff’s without increase taxes. plaintiff believes,

“XXIV. That the is informed and and alleges believe, legisla- that therefore on information and ture for the appropriate money general will so from fund capital grant pay- of and reimbursement land fund for the it indebtedness, ment outstanding of if is the of this payment required by court that reimbursement law. and Chapter passed “XXV. That of 1955 has 278, Laws been invalid, validity upon by this that Court and found but 2 Chapter Chapter of 7 of the Laws of 1953 and the Laws of Court; plain- and that of 1955 has not been examined taxpayer Chapter tiff’s as a is affected said 278 of status 1955, Chapter Chapter Laws of the Laws of and 1955; and believes plaintiff Laws of informed that alleges on information belief defend- therefore validity Chapter ant that the 278 should be Board believes is- Chapter that sustained, reconsidered and the bond upheld.” supplied. Emphasis sue thereunder should be plain- complaint, to his prayer In Prayer for Belief. relief grant that this him as follows: prays taxpayer tiff injunction perpetually enjoining grant an (1) it That bonds, Examiners, issuing from Board of defendants, State authority doing any official under the acts expending funds or (2) it order the defend- 1955; that Laws chapter why they per- so cause should be and show appear ants to declaratory judgment issue its enjoined; (3) that it petually of 1955 other chapter of the Laws statutes declaring Enabling Act violative of the effect and null, no void Montana; (4) that declare no fur- and the Constitution expended chapter funds to under be issued or ther bonds all 1955; (5) this court declare that sums Laws 278, Laws of 1955 and the chapter to date under expended expended; illegally have been designated statutes other buildings land owing capital sums are and to such now due the paid general from fund of the grant fund and should state; all (6) present “declare that out- and that this court standing may capital grant paid indebtedness not be from fund, but from paid general must be fund the State of Montana.”

February 7th, herein directing an order was made and filed p.m. that an that 2:00 requiring order to show issue cause February, day defendants, on the 14th all the named suit, appear there before this court show cause and why Examiners, perpetually “the State not be Board of should enjoined restrained and from issuing purported bonds authority chapter the Laws of 1955.” Justices Bot- tomly Adair, and being opinion that this an appel- jurisdiction late court was without that herein and the com- plaint of plaintiff, Morgan, wholly John D. failed to state facts sufficient to constitute a cause of action or to entitle plaintiff any herein, protested to relief whatever the issu- ance order cause. to show Challenged.

Jurisdiction February 14th, response to the to order show at the therein, cause and time all fixed the de- appeared fendants by through before the court their re- spective whereupon counsel, and at the outset of the hearing, Bottomly objected Justices Adair questioned to and acceptance jurisdiction by or exercise this court other than complaint to dismiss the proceeding, stating is their opinion:

“That fails complaint to state facts sufficient to con- action, plaintiff or to entitle relief; stitute cause of complaint jurisdiction appellate that does invoke the original jurisdiction invoke only, this court but seeks to its necessary not in a or matter either proper that manner or its complete appellate jurisdiction; exercise this not authorized Constitution Montana jurisdiction original or accept entertain proceeding that this is prohibited the Constitution of Mon- VIII particularly tana and sections and 3 of article and sec- thereof, accepting, entertaining tion 29 III from of article exercising jurisdiction original proceeding. in this action and apparent questions It is further and law here at- finally tempted to be and recanvassed have been reviewed fully settled, adjudicated by this court determined and Appeal Bryant, Appellant, No. L. v. The entitled ‘G. Montana, al., Respond- et Board of Examiners of the State of 340, 7, ents’, 512, (2d) 130 305 Mont. Pac. decided December opinion 1956. For are that this court these reasons we accept jurisdiction than should decline to herein other to order issuance oppose the cause dismissed. We therefore of the herein on Febru- order to show cause filed the Chief Justice ary 7, 1957, jurisdiction by further this court or the exercise of ’’ than other to dismiss the cause. appellate invoking appeal not an Morgan case is

The Morgan suit has never jurisdiction supreme court. of the original proceeding here It an been in the district court. original juris- only have district courts of which commenced VIII, 2, 3 and 11. Art. sections under our Constitution. diction Subject applied Matter. Jurisdiction Jurisdiction power hear and determine that controversy is the particular 374, 94 World, of the Mont. controversy. Reed Woodmen v. 22 Pac. 819. anything which is not author- power

A no to do court has by law. ized jurisdiction in case: essential to the things

Three are subject cognizance of the matter must have First, the court second, proper parties must be before action; plead- proper be invoked third, the action must court; and Co., 386, 389, 120 Mont. Merc. ings. Haggerty v. Sherburne (2d) 186 Pac to hear and subject power matter is the

Jurisdiction of proceedings which the general class to cases determine plaintiff Morgan instant suit the belong. In the question Declaratory judgment under the Uniform declaratory seeks a

213 through 93-8916. 93-8901 1947, sections Act, E.C.M. Judgments original general, are courts of Montana The district courts 11; 273, 482, note page C.J.S., Courts, 21 section jurisdiction. Const, Es- 11; In re Stevenson’s Montana, VIII, art. section 86 Vogel, 566; Thelen v. 289 Pac. tate, 87 Mont. Pierse, 56 Mont. 753; v. 33, 39, 40, 281 Pac. Crawford Mont. been have such district courts That

376, 377, 185 Pac. 315. hear and them to jurisdiction that enables invested with beyond judgments is declaratory proper actions for determine Bank, 10 Nat. Murrell Growers’ Compare v. Stock question. 89-2401 of 831, construing section Cir., (2d) 827, F. 74 3-5801, W.R.S. (now 1931 Wyoming Statutes section Revised 93-8901, supra. 1945) with R.C.M. section identical supreme court of Mon jurisdiction of the The source of the VIII Con of article tana found sections 26 Mont. Bordeaux, stitution Montana. Bordeaux v.

535, 69 Pac. 103. constitution, this court

“Except provided as otherwise only.” jurisdiction ex rel. Scharnikow appellate has State L.R.A. 958. 493, 494, Hogan, 379, 381, Mont. 62 Pac. VIII of the Con- Neither nor 3 of article section accept supreme court to any power upon confers stitution original proceeding original jurisdiction this and exercise of declaratory judgment and grant or the here commenced to by sought plaintiff Morgan. the relief 26, page Co., Mont. Mining Pilot Butte

In Willis v. from approval quoted with this court 34, 190 Pac. 512, as follows: 207, 72 Pac. Weston, 28 Mont. In re “ is Supreme Court power all vested ‘The source of the in it must be found state, of the the Constitution * * * issue, hear, power The to jurisdiction.’ measure enumerated above marks original writs the six determine opin this original jurisdiction court.” the limit of the readily be “It will case, supra, continues: Willis ion in the authority to without legislature the was therefore, seen, as the ‘anew’ try cause jurisdiction to to this court .grant though the originally us, and, matter was before the extent 22(d) Compensation attempts Act to confer jurisdiction, such it is unconstitutional.” weight authority It is the appellate undoubted that an court, jurisdiction exercising review, the will not entertain an original application declaratory judgment for a in ab- the controlling sence of a provision constitutional or valid statu- tory contrary enactment. Here there is neither. On the the provides statute “A that, action, in a or order civil except may expressly code, when made final be reviewed * * * prescribed 93-8023, sections 93-8001 to not otherwise.” R.C.M. section 93-8001. This statute mandatory prohibitory. is both In 26 C.J.S., Declaratory Judgments, sections pages through that, “declaratory judgment it is said jurisdictional, create, statutes are not grant, and do not or supply jurisdiction. Furthermore, jurisdiction since in a de- claratory judgment action cannot be conferred on a court stipulation parties, consent declaratory judgment the may only action jurisdictional maintained if exist the there required ordinary actions, are and a court conditions which jurisdiction its may sponte question sua the own over raise subject declaratory an matter. To sustain action re- power grant relief, lief, court must have the such jurisdiction parties, subject must matter have jurisdictional controversy must be within limits of may grant declaratory relief if ex- and a court jurisdiction subject controversy clusive over the matter in some tribunal other than which vested 251, 252, 253, brought.” pages remedy in eases adequate and by affording flexible a more not confer jurisdiction already statutes do where exists. Such courts, not extend any jurisdiction and do additional on jurisdiction existing jurisdiction, enlarge or or alter subject matter. Statutes parties of the courts as to or as declaratory judgments not providing rendition do for the jurisdiction, change, modify requirements of repeal, or basic a declara- jurisdiction render and in order that a court have jurisdiction tory judgment subject matter, such over Act, Judgment independent Declaratory must exist only in declaratory judgment may be rendered cases jurisdiction the court were which would be within the Declaratory sought. affirmative relief statutes were in- intended to broaden the of the courts so not functions clude issues which could courts be determined ordinary actions, juris- and such do not extend the statutes political purely diction courts over matters which are subject equity jurisdiction on court of matter confer over previously possessed.” which court had not Section pages 256, 257, 258, 55-68.

questions Pennsylvania Compare Refining ease. Sadler v. Co., D.C., Supp. 31 F.

In 1 Judgments (2d ed.), Anderson’s Declaratory Actions for pages section 223-225, at 17 preme shall court all and in equity, extend to eases at law sub- ject however, to regulations may such limitations and as pre- be by scribed law” supreme and that shall court have the power in its discretion to issue and hear well certain known common law writs original “and such other and remedial writs may as be necessary proper the complete to exercise of its appellate jurisdictionArticle VIII, 3. section “appellate jurisdiction,” term used in 2 once section in 3 twice used of article VIII of our Constitution same meaning appearing has the as the same term in section Kentucky concerning 110 of the of Constitution which the Kentucky Appeals Constitutionality Court in Re of House Ky. 222, 437, (2d) 692, 693, Bill 262 90 103 No. S.W. A.L.R. page said: 110 of is “Section the Constitution as follows: ‘The court jurisdiction appeals appellate only, shall have which shall state, with under regu- be co-extensive such restrictions and repugnant may lations not to this Constitution, as from time by prescribed to be shall power time law. Said court have to may it necessary give general issue such writs as con- jurisdictions.’ trol that, of inferior It will be seen with the exceptions power writs, certain issue a matter not

218 involved, ‘appellate jurisdiction

here Appeals the Court of has only.’ The word is ‘appellate’ used contradistinction jurisdiction jurisdiction ‘original.’ Original word conferred upon ‘Appellate or inherent in a first instance. court * * * jurisdiction superior means the review judgment, order, an inferior court.’ the final or decree of Co., Ex ‘It 82. is the essen- parte Batesville, etc., R. 39 Ark. jurisdiction, tiol and cor- appellate criterion of revises does, proceedings already rects the in a cause instituted Madison, Cranch, 137, Marbury 1 create cause.’ v. Atchison, etc., 2 60; L. Ed. Auditor v. [of State] R, Rep. early Co., 6 Kan. Am. In the ease of Smith juris- Ky. (Hardin) 305, ‘Appellate said: Carr, implies an inferior tribunal diction, termini, ex vi a resort from judg- justice, superior, revising to a for the believed, is the sense Thus, ments the inferior tribunal. it is by legal expressions have at been which the all times used they This must sense in used writers. be the which are they been Constitution in this sense have understood subject who, legislature; in their several acts appeals error, invariably speak them, and writs of the inferior revising judgments means of and decrees of ministerial courts; correcting not as the means of the acts of the question of those The latest case on the officers courts’. Snyder’s Committee, Ky. 338, Stuber v. S.W. ‘ juris- “Appellate jurisdiction” where we said: means already retry something that has been diction to and determine in some other tribunal’. tried advisory is no sense a review opinions rendition

“As the below, it in a court that has been tried rehearing of a cause or 8, conferring power Bill House No. necessarily follows that advisory opinion, with an conflicts judges to render on the Atchison, Auditor v. 110 the Constitution. [of state] etc., Co., supra.” R. Feb- hearing Cause. At the held to Show

Hearing on Order cause, and the de- to show each all of the order ruary 14th on

219 interposed timely proper challenges fendants to the suf- and ficiency complaint to of the facts set forth in count of the each state a entitling Morgan, plaintiff taxpayer, cause of action any Matthews, to 120 relief whatever herein. See v. Chovanak (2d) Pock, 418, Mont. 188 Pac. 51 155 582; Barth v. Mont. 282; Pac. ex at Cook, page State rel. Brooks v. 84 Mont. 958; Riley Court, Pac. State ex rel. v. District Mont. pages 582, 583, (2d) 115; Thompson at 64 Pac. Co-Op.,

Tobacco 450, 451, Root pages Mont. at Pac. (2d) 811; Mining Highway Comm., Monarch Co. v. State Mont. 65, pages 72, 270 Pac. defendants,

The Board Hugo State of Examiners and J. Aronson, Frank Murray by Forrest Anderson, and H. their counsel, William F. Crowley, Esq., presented argued and a mo- tion quash to this court’s order to grounds show cause on the plaintiff’s complaint, upon which order to show based, cause is does not state facts sufficient to constitute a cause of action or to entitle plaintiff sought relief relief whatever and in addition thereto the defendant Board and its members their presented said counsel orally argued separate general purported demurrers to each cause of action complaint. set forth in the defendant, Morrison-Maierle, Inc., by

The counsel, its Ed- Toomey, Esq., Hughes, mond G. Michael Esq., likewise presented argued quash both a motion to the order to general show purported cause and demurrer to each cause pleaded complaint, of action all made and upon based grounds like are quash stated the motions to de- defendants, murrers of the the State Board of Examiners and its members. A B defendant, & Construction Company, counsel, its

Skedd, Mufich, presented Harris and argued separate quash motion to this court’s order to show cause “and further to dismiss * * * grounds complaint * * * proceeding complaint herein * * * ^{[*] [*] [*]} wholly fails to state facts plaintiff sufficient to entitle the said

220 any relief whatsoever injunctive prayed for, relief * * * Company A B against & Construction the defendant * * * >* # complaint all; any manner or at that the defendant wholly fails sufficient to show to state facts illegally, or threatens Company A & B has acted Construction so act.” Small, Esq., orally argued counsel, Floyd Plaintiff’s O. motions against the allowance of the defendants’ aforesaid arguments, respective demurrers and at the conclusion all court, an- litigant, open representing party counsel each his stand said nounced that each had elected to and does did not pleadings filed, presented argued so and that each in which to either require and does not nor desire time plead amend or further herein. to the

Thereupon proceeding the cause and was submitted upon: (a) plaintiff’s court for its decision and The complaint, (b) quash the order to- defendants’ motions to cause, (c) separate to the- show the defendants’ demurrers (d) arguments pre- complaint, and the briefs filed and the oral litigant. parties sented for each of the counsel questions. questions The for decision were: original jurisdiction of this have supreme 1. Does the declaratory relief here commenced? proceeding facts sufficient to constitute complaint state 2. Does the plaintiff favor of the declaratory relief in cause of action against the defendants? Morgan and complaint practice in our under purpose of a The Law. The at that of a declaration common is no different than the Codes for relief. it is state a claim law; in each case jurisdiction particular civil case aquire A trial court can complaint filing which must contain only by of a written 1 constituting a cause of action. Bancroft’s Code statement Bank & Trust 161, page Compare 278. Union Pleading, section 791. 42, 45, 68 Mont. Pac. Himmelbauer, Co. v. right party institute a which a has to

A action cause of Co., Ry. Dillon v. Great Northern judicial proceeding. page 496, Clark, Mont. at 44 Mont. 960; 100 Pac. Cohen v. page 156, 775; Ry. at 119 Pac. v. Mc Butte Electric Co. Intyre, pages 24, 25, Mont. Pac. plaintiff

“A merely allege existing must not a cause action someone, favor of it but must in favor of show exists him, and that capacity accrued to him in the in which he sues.” 71 C.J.S., Pleading, 187; page Radosevich Engle, v. 111 504, (2d) Mont. page 512, 299, at 111 Pac. 303.

In Moshannon Nat. Bank Iron Co., v. Mountain Ranch 45 Wyo. 265, 18 (2d) 623, (2d) 834, 835, Pac. 21 page Pac. at the court said:

"It is enough plaintiff not that a alleges a cause of action existing in favor of one; some he must show that it exists in favor of himself. 49 not, C.J. 140. If it does all points other issues wholly are immaterial, so far as he is concerned.” Also see Uhlig Diefendorf, 676, 53 Idaho 801, Pac. at page 805.

As was said this court Pierse, Crawford v. 56 Mont. 371, page at 377, 185 315, Pac. at page 318:

"However clear and concise the be, statement may of facts if it does not a upon disclose case grant which the may * * * redress, jurisdiction does not attach. The court can- particular redress a wrong unless constituting the facts the wrong are made manifest it in complaint, to a written ’’ provided by the statute. complaint

"When a does not state facts sufficient to con- stitute a action, cause of jurisdiction court does not have render a judgment upon it. When the judgment upon roll its jurisdiction face shows the court was without to render the particular judgment, pronouncement its judg- not in fact a ment.” O’Keeffe, Hodson v. 322, Mont. at page 325, 722, Pac. early

In case Territory ex rel. Virginia Blake v. Road Co., 1874, page Mont. at Mr. Chief Justice Wade speaking for supreme court, said:

"The jurisdiction lower courts have not judgment to render equally action, of a and it would absence cause for If there is judgment.

erroneous this court to affirm such a upon its judgment plaintiff, complaint a shows for the and the action, appellate face no cause of court will reverse upon A judgment. judgment cannot be rendered default appeal complaint, rendered, upon bad and if it was so here, reversed, as well as it would be the reason every stage complaint support must proceeding, judgment. complaint good judg- A bad will not sustain action ment, question and the not there is a cause of whether or here, court, alleged can be raised for the first time in this every judgment as in fail if the foundation other must materially which stands defective.” page 12, 1 Pac. Bond, In Parker v. 5 Mont. at appellate speaking through Mr. page court, again Wade, Chief Justice said: objection complaint

“The not state facts suf- does waived, (section ficient to constitute a cause of action is never 86, Code); cases, judgment, affirming and in all before court, having it, ought, on its own roll before motion, complaint supports findings if the ascertain court, any other, in judgment; fact and the for not in this or judgment.” complaint support good can a bad general challenges sufficiency plaintiff’s “A demurrer the pleading action, ques to state cause of and raises no other Practice, Pleading tion.” Bancroft’ s Code Ten Year Supplement, page 182 at 101. section sustained, complaint complaint is the a demurrer to

When Stadelman, 178 Or. v. is, effect, in Seufert overturned. existing pleading. destroyed as an 936, 938, and (2d) 167 Pac. App. Development Corp., Cal. & Gas Ogier Pacific Oil 574, 577, entered (2d) (2d) 496, 500, 282 Pac. time, that Hender- pleadings up judgment on the is a thereon 456, 459, alleged 300, 147 So. the facts Morton, 109 Fla. son v. can be intro- case, in the no evidence complaint are not any issue of fact be complaint nor can support in duced C.J.S., Pleading, 266, page Montana Constitution extend to such ‘cases at law and in judicial of the state sover-

equity’ cogmizance as are within the ‘controversies’ eignty. By Article ‘cases’ and sections 11. determine, real contro- judicial power within the is meant ques- moot opinion versies and not abstract differences granted has such tions. Neither federal nor state Constitution * * * power. law, not “Appellant’s complaint against in truth is * * * against equalization. There is no con- the board of troversy him equalization. between and the board of only interest a by appellant

“The interest shown is his as citizen, elector, taxpayer and resident of Lewis and Clark citizens, electors, county. is same interest that This the other taxpayers, county matter, and residents of the have is permitted it is not such interest to invoke the exercise of as judicial power determining legisla- an Act whether * ** is ture violative Constitution. brought “Nor does that under the the fact the action here Act, Declaratory Judgments Chapter Revised Uniform change judicial of Montana rule. It is still Codes only power sought invoked, power extends to be and that questions. ‘controversies’, to actual ‘eases’ and not to abstract States, 55 L. Ed. Muskrat v. United U.S. 31 S. Ct. 246; County, 328, 243 Holt v. Custer 75 Mont. Pac. Declaratory Judgments, section writer,

“A Anderson on text declaratory judgment is not different says: ‘The rule obtaining regard generally, to actions with actions from plaintiff to maintain necessity personal right of a * * * having a party rule is that general the action. maintain public generally has cannot only interest as the such * * * declaratory judgment action’. ‘‘ Chapter may tested constitutionality Here, too, complaint appellant party proper in a case. The by proper judgment case, and the order and present such does not dismissing sustaining the demurrer and the district court affirmed.” and is was correct action (cid:127) supra, his first cause of XII, purported paragraph In action, Morgan boldly that on its determina- plaintiff the avers case, Bryant appeal in the tion of the on December chapter (2d) 340, 130 Mont. 305 Pac. this court declared Enabling 17 the laws be of sections and of of to violative “owing that null, Act therefore and of no effect but void far-reaching consequences decision and since to the of that * * * Board was defendant State divided [the] again con- question of Examiners think that the should be * * *” sidered, Chapter the sustained to end that 278 be upon plaintiff Morgan, Thus information and belief does the stranger Bryant place an utter case, to the before this court thinking adversary, wishful of his the defendant Board of Examiners, reconsider, rehear, this court should further review then its judgment Bryant reverse decision and in the case, long wherein it judgment had since reversed the of district court with plain- directions to enter for the Bryant tiff injunctive and to him appropriate award relief. thinking This of the indulged subsequent Board was to the handing down of the appeal, remittitur and at a time when Mr. Davis, opinion Justice of the author court’s on appeal such had retired appoint- from the bench and after the ment to this court privi- of two new members had not who been leged any arguments any hear of the parties of on appeal Bryant case, in the they participated nor had in the consideration of the cause either on merits or its on defendants’ petition rehearing therein. dangerous procedure precedent a most

Such establishes which to have mischievous and unfortunate results. bound by this denying As was said court in motion for a rehear- Rankin, ing pages 397, in Gas Products Co. v. Mont. 993, 1000, 294: 398, 207 Pac. A.L.R. slightest suppose not reason opinion

“There is that the participated the members this court one of of who in the original changed rehearing be if a decision would should granted reargument original and a were allowed. And if reversed, language of this court should be in the decision supreme Woodbury Minnesota, court of v. Dor- the case man, 274) follow, (Gil. Minn. 341 : ‘This result would from a part conviction of the members the court determined, which the originally case was heard and decision was nor of reasons erroneous, from consideration arguments considered, solely not before but advanced change from the composition Every the court’. citizen having definitely established, desirous of laws our majority upon any legal proposition decision of the of this court coming state, before it is the and should not be sub- law the ject change upon change personnel the court. Eights persons property if and of would never be secure thoughtful such the case. given were The matter has been by every court, earnest consideration this member of and it is opinion orderly that in proper admin- justice interpretation istration of law, the motion rehearing should, under the circumstances and conditions of particular case, this upon only by be the members of the acted * * * participating in original decision. they matter has been considered the conditions “The particular principles relation this case. The existed with underlying controlling involved and the court’s proposition long been and well established courts conclusion have entirely jurisdictions, and, the cases cited are not other while case, presented in this the fundamental similar to the conditions rehear- principles governing the attitude of courts towards supreme same. The court of the ings rearguments are the early Aspden, in case of Brown v. How. United States opinion by Taney, in Justice con- 25, 311, 14 L. Ed. an Chief court, announced the rule for that court in the entire curred as follows: “ this, that reargument the rule of the court no will ‘But judgment unless some mem- any after is entered be heard case judgment in the afterwards of the court who concurred ber opinion, argu- a further of his and desires doubts the correctness subject’.” Citing number of cases. ment on the 1954, 267 S.W. Caruthersville, Mo. City of In Cantrell v. 648, it said:

646, page at declaratory judgment for a that an action stated may “It veiled subterfuge for, for the be used as cannot is con- former which a relitigating question a as to ’’ Citing authorities. clusive. 1007, 1008, holds Turner, 341, 111 Va. 68 S.E. Miller v. hearing and on original Appeals on Supreme

where the Court reopened. controversy, it cannot be adjudicates a rehearing 1954, 195 Bazile, County v. Sup’rs In of Hanover Board of said: (2d) 566, page the court Va. at S.E. finally fully has matter been pointed above,

“As out subject this order on adjudicated by this court’s man- altered, modified, enlarged or diminished cannot be judgment proceeding or other- degree declaratory ner or ’’ Citing wise. cases. Authority, City Housing Sup. York In Greenbaum v. New 317, 318, denying (2d) 315, pages at 147 N.Y.S. dismissing complaint for a declara- temporary injunction and tory judgment, the court said: ade-

“Declaratory judgment substitute for other and cannot jural already or to review relations quate remedies available * * * adjudicated. jurisdiction here “It be futile to assume declara- would practical tion is neither nor sensible.” App. 150, 73 S.E. Lawrence,

In 87 Ga. Lawrence (2d) 231, page court said: State, Ga. L. Judgment Declaratory Act of

“The in- .110-1101, seq., et is not Supp., section Ann. page 137, Code interpret judicial aside, modify, or de- to be used to set tended subject jurisdiction having of courts judgments or crees declaration of to obtain a but is to be used parties, matter and ’’ adjudicated. Citing numerous cases. already rights not Bank, Nat. 205 Ga. & Citizens Southern Bingham In v. said: page the court (2d) 228, at

53 S.E. * * * nullify Judgments does not Declaratory Act “The statutes of limitations and principles law, established so petitioner to authorize a previous judgments to brush aside court, same and seek rights they his determination of as if adjudicated.” had Compare never been Jur., 16 Am. Declara- tory Judgments, 23, page section 295.

In City Cantrell v. Caruthersville, supra, it is said: “In the interest of the State there litiga should be an end tion arising subject out the same matter, it is in to the terest of litigant the individual that he should be vexed twice for the same cause. grounds These are the dual for the doctrine of judicata, res 50 C.J.S., Judgments, section ” * * * pages 11-13;

The second from the last section of Uniform Declaratory Judgments state, Act of this 93-8915, R.C.M. reads: !‘ interpreted This act shall be so and construed as to effectuate general its purpose to make uniform the law of those states it, which enact harmonize, possible, as far as with federal laws and regulations subject on the declaratory judgments and decrees.”

In Memolo, 1949, Clark v. App. (2d) U.S. D.C. 174 F. 978, 981, it is said: Declaratory Judgment

“The designed provide Act was remedy controversy in a opportunity case while there still peaceable judicial primary settlement. It was the rights of the act to have declaration of not theretofore deter- mined, and rights not to adjudi- determine whether theretofore * * * properly adjudicated. cated been have Unless so re- litigation.” stricted there would be no end to that kind of To Hurley Lindsay, Cir., 1953, same effect see 207 F. page Co., In Fork & 247, 255, 258, re Sanford Tool 160 U.S. 291, 293, 414, 416, 417, 40 L. S. Ct. Ed. it is said: by “When a case has been appeal, once decided this court on court, and remanded to circuit whatever was before this disposed decree, its finally is considered as settled. The circuit court is bound the decree as the law of to the ease, carry according must it into execution any other vary it, mandate. court for That cannot or examine relief; or execution; any than other or further give or any it, apparent error, review matter decided upon even appeal; it, on or intermeddle further than to settle so much with as has [Citing been remanded. the circuit court mis- If cases]. give takes or court, and does misconstrues the decree of this not full mandate, may controlled, effect its be either to action upon (if by a appeal involving amount) new sufficient * * * writ or mandamus to execute the mandate of this court.

“It remembered, however, question, must be that no con- once by sidered and decided can be re-examined at subsequent stage of the same case.”

To Kimpton like effect see Co., supra, v. Jubilee Placer Min. 107, 109, 114, Mont. 55 Pac. wherein this court quoted adopted approval with the rule announced in Stewart v. Salamon, 97 U.S. 24 L. Ed. 1044, follows: “ appeal ‘An will not be entertained this court from a decree in entered the circuit court or other inferior in exact accordance with our upon previous mandate appeal. decree, Such a entered, when in is our decree, effect and the appeal be would from appeal ourselves to If ourselves. such an however, is taken, will, upon application we appellee, and, entered, mandate, examine decree if it to the conforms case, dismiss with If not, costs. it does the case be re- will manded, appropriate with for the directions correction of applies error. in- The same rule to writs of error. This not is any remedy parties may tended to interfere with have appeal mandamus. This an from a upon decree entered our complaint form, mandate. No is made as to its and it seems to respects according all to our directions. The effort of the appellant open below, was to to obtain case leave file pleadings, introducing new new This defenses. he could parties rights subject-matter do. The in the of the suit finally original appeal, were determined and all circuit remained for the do was to enter a decree If, carry it effect. instructions, accordance with our into entry, progress decree, after of the execution of the its de- party aggrieved, may appeal either he from the final behalf; bring re- appeal up an will cree but such only subsequent proceedings examination mandate’.” XII XIY In paragraphs Misconduct and Disobedience. purported action, plaintiff Morgan of his first cause of the avers: “That, spite Supreme of Decem- the Court’s declaration of * * * 7, 1956, Bryant of

ber in the case v. State Board of * * * * * * * * * Examiners the Board defendant day February, pass on the 2d of make a resolution did expend to issue further bonds and monies the further ” * * * authority 1955 Chapter of the said the of of Laws by this “will, and that the defendant Board unless restrained expend these proceeds issue bonds and the received from * * * authority the purported bonds under of an invalid ”* * * legislative act, Chapter to-wit of the Laws of words, spite” In other the “in this charge court’s judgment against Bryant case, rendered it in the Board re- the obey fused to this court’s will to do mandate and continue so again unless and further restrained. give is not another and order remedy

The thing Board. The injunction against of another issuance compliance with this court’s require obedience to and to do is already against case order made judgment and and members. Examiners its defendant State Board of necessary power and it when has it should use This court judgments and mandates. needed to enforce its lawful n law, not of men. man above government is a No Ours obey king Here great must he or small. law. Each layman do, judge peasant, as as well as the can well do, wrong. at times does says: Separation of Montana Powers. Constitution this are into powers government of the state divided “The ju- legislative, executive, and departments: The distinct three charged with persons dicial, person or and no collection depart- one these properly belonging to powers exercise either belonging to poivers properly ments shall exercise expressly others, directed except as in this constitution Const, IY, sec- art. permitted.” Emphasis supplied. Mont. tion 1. to amend section

Congress being Acts. H.R. the bill passed Congress, 85th Enabling Act so introduced February 21, and February 18th, passed the House the Senate by February 26, approved on the President. was majority Supreme February 25th, opinion, Acts. Court case, Mr. ANGSTMAN and the instant written Justice HAR- concurred in Mr. Justice and Chief Justice CASTLES RISON, was rendered and handed as the decision of down right ADAIR court. Justices BOTTOMLY and reserved the thereafter file their dissent in the cause.

Legislative Assembly February 27th, Acts. there was intro- Thirty-Fifth Representatives Leg duced in House of Assembly by Representatives islative of the State of Montana Mahoney, Juedeman, being Barret and Bill a bill House an accepting act 12 En- the amendment to section abling provided 348, by supra, Act as H.R. enacted the so Congress. 85th Bill passed Rep- House the State House of 1st, passed Senate, resentatives March 5th and the State March approved by on March 9th was This is Governor Aronson. act Chapter now 209 of the Montana Session Laws of 1957. original proceeding Must Denied. In this for a be

Belief may lawfully grant declaratory judgment supreme court not any Morgan. plaintiff to the relief whatever

Why Morgan entitled to relief: no jurisdiction subject supreme First. court has no over the The matter of his suit. question first which must determined a court jurisdiction.

every question is the Van case Endresse v. 533, A Vleet, 118 Mont. 719. court Pac. is bound authority. C.J.S., Courts, of the limits of its to take notice 114, p. Where, here, section a is without note court jurisdiction except irregular any it is to make order in the cause C.J.S., Judgments, 19, pages 45, to dismiss the suit. section 46, note 14. that it is When once the court determines without jurisdiction it enter order proceed should no further than to an dismissing questions proceed- suit. All issues in other or ing proceeding They become immaterial. fall. The ends. C.J.S., Judgments,

The law is in 49 as stated pages 45, 48, 39-41; 49, 50, question. determine that pass upon and diction to jurisdiction pleading rule on the the court the Third. Had sustaining quash defendants’ motions to would void directed, against the motions were order to show cause which Morgan’s sustaining and the of defendants’ demurrers to com- plaint wipe plead, without leave to further would overturn and complaint leaving nothing upon out such which court could grant any other relief. upon Fourth. The Constitution which confers district ‘‘ jurisdiction original

courts the hear and all determine cases equity” phrase at law which includes suits declara tory (art. judgments VIII, 11), original section withholds such jurisdiction supreme (Art. from VIII, court.- sections 3). Necessity.

Jurisdiction on majority opinion’s Grounded The challenge jurisdiction answer to the supreme of the of the jurisdiction original to exercise proceeding in the instant is its that, “Original jurisdiction declaration grounded upon the proposition speedy determination questions is neces- sary legislative to the end assembly, action now in session, may sought adjournment, before necessary, if ’’ particularly regards $194,012.04. the item of

Jurisdiction supreme court herein rests no such uncertain, “proposition” unstable and variable as that of ne- cessity. It has been necessity oft said that knows law, except no conquer. Jurisdiction “always however directly emanates immediately law; from power it is nobody which on whom the lam has not conferred it can exercise.” 50 C.J.S., Jurisdiction, page 1090,

220, 222, 223, (2d) 770, 133 Pac. similar declarations were made why necessary accept original as to it was for court to there jurisdiction declaratory judg- in particular those actions for ments in supreme both of which suits were direct court. filed the Appellate jurisdiction necessarily controversy implies that the being brought has in some to been inferior tribunal before the always supreme An from appeal court review. therefore higher tribunal, an Carey neither the inferior to and since Bottomly case nor the was in an inferior court before case ever being presented argued supreme court, and in it is both in- the appellate correct idle to the there ac- and declare court “necessary jurisdiction proper to the cepted original and jurisdiction.” complete appellate Mont. exercise its [115 majority opening paragraphs the Pac. See 231]. in opinion opinion Carey case and of the court’s Bottomly case.

By supreme court itself declarations would the constitute such Omega, end, the first and Alpha beginning and and authority power its question right, and last, on declaratory suits original jurisdiction in accept exercise and therein judgments. attempts Because of the made to exercise exclusively upon the powers district jurisdiction and conferred supreme court, rulings, hold- from the courts and withheld right authority the court and ings observations of on and original jurisdiction accept exercise court to and appellate Bottomly Meagher County, in v. MeFatridge, supra, Carey Morgan v. Board supra, in the instant case of State sections 3 and are unsound as violative of Examiners, Constitution. article VIII of Montana’s complaint suit in fitted and commenced his Morgan Had his invoking' County, Lewis and Clark court of the district pre- jurisdiction, judge district there original would the court’s authority requisite jurisdiction, power and siding have the supreme and overrule the court’s consider, review, reverse de- Bryant ? case cision in jurisdiction district conferred court original

If the judge to so district empower the fail to the Constitution judgment and final destroy decision this court’s disregard power for the Bryant case, the additional whence comes in the exer- change personnel in its court, upon a supreme only, disregard, jurisdiction” “original its so-called cise rendered this court such final condemn and overrule timely appeal in the case? proper on or an- jurisdiction, Original whether exercised one thing. same proceeding, an one original means other supreme authority by the jurisdiction when exercised That by the power test when exercised higher is of no than district court. Previously case, tax- Adjudicated. In the instant the

Matters against Morgan substantially for the relief payer prays same Montana, the of defendants, the the Board of Examiners of State members, already declared, and its as had been decreed and taxpayer Bryant against and defendant ordered for the the Bryant Board and its members in the case. With the denial of petition rehearing and the issuance said defendants’ for and handing remittitur, judgment the this down of court’s final Bryant in the case became the law of the case res order judicata. This exhausted all the defendants’ remedies in this under statutes of the Constitution and this state under this practice rules and well-established court. members, defendant Board and its on behalf

Counsel quash defendants’ to prextet arguing motion under Morgan’s demurrers and defendants’ to to show cause order solely upon grounds complaint that the all complaint, based action,- state a cause allege sufficient to could fails to facts suit, questions relitigate Morgan’s issues properly not against and decided the conten- already determined were members, Board and its this court’s the defendant tions of Bryant in the case. and order judgment final Board, Governor, defendant True, on behalf counsel Secretary State, arguments on oral Attorney General be- supreme rehear, court, urged rehash, fore reverse and overrule its Bryant case, decision but the law permits no practice such procedure. or

This suit for a declaratory judgment may not be used for the purpose of relitigating the issues against decided the contentions of the defendants, the State Board of Examiners and mem- its bers in the case.

In 26 C.J.S., Declaratory Judgments, 23, 26, 27, 30, sections at pages 93, 98, 99, 101, 105-109, it is said:

“An for declaratory action a judgment may not be utilized purpose retrying adjudicated. previously matters * * * An declaratory action for a judgment cannot be used subterfuge as a for, of, or for the relitigating veiled ** questions as to judgment which a former is conclusive 23, pages 93-94, justiciable controversy must be of a nature. ratory relief the ® * * justiciable, controversy In order to be must be as * * *” jurisdiction within the of the court. to a matter pages 99, 101, 61 and 69. notes Section controversy, support pro- to be sufficient “A order to declaratory judgment, legal must rela- ceeding touch * * * having adverse interests. The in- parties tions of must parties adverse be direct substantial. A terests of the involving the assertion opinion, of ad- difference mere interests, support an action not sufficient to for a verse 106, 107, notes 29, pages Section declaratory judgment.” 13. subject for a declara- proper moot “A that is is not question tory judgment. authorize the courts judgment statutes do not

“Declaratory 108, 109, notes 30, pages advisory opinions.” Section give subject jurisdiction had over Where as here the court no except cause matter, irregular to make order was Judgments, proceeding. C.J.S., the entire to dismiss 13 to 16. Had court acknowl- a, pages notes action Section 17-27. declaratory authorizing judgments extend Again: “Statutes grant relief in otherwise power of the courts to cases within only jurisdiction, change such statutes the method of their but jurisdiction by exercising existing providing pro- an additional jurisdiction courts, utilizing existing cedure

Notes

notes first Montana’s Uniform The sentence first section of Declaratory Act, Judgments 93-8901, pro- R.C.M. section respective jurisdictions vides: within their “Courts of record power status, legal rights, shall have to declare and other rela- tions whether or not further relief is or be claimed.” could Emphasis supplied. jurisdictions” in respective their section “within phrase The jurisdic- general original 93-8901, supra, has reference to prior state long courts of this that existed in district tion Declaratory Judg- Montana’s Uniform enactment of to the differing their territorial limits of Act. Within the ments rights, power to declare jurisdictions, district courts have legal relations under aforesaid Act. and other status 93-8901, Act, is a cau- opening sentence of the trial reminding courts their first tionary admonition jurisdiction deciding exists other duty to be sure that before

notes and it is said: may “While it is true that sporadic cases be encountered essayed occasionally, wherein it is to enunciate the rule that declaratory judgment increased, enlarged, statute or extended jurisdiction yet of the court, weight it is the undoubted authority, reasons, sustained unassailable that the declara- tory judgment statutes do not have or increasing the effect jurisdiction enlarging the courts. may regarded “It declaratory be well settled as that only statute not does juris- not confer or extend already diction an over area not covered, but that it cannot indirectly give used to relief granted which not be could directly; it in enlarges jurisdiction no sense of the court.” 93-8901, supra, Section speaks of “courts of record.” Section 93-101 enumerates the courts justice various in this state provides section 93-102 that the courts enumerated in the. first 93-101, three subdivisions of the section “and only those courts, namely: are courts of record” 1. The court of im- peachment, 2. supreme court, and 3. the district courts. senate, sitting impeachment, a court While the as and the organized supreme court, sitting body an created as review, 93-102, court of are 93-101 both sections denom- record, yet quite inated it is as courts obvious neither impeachment supreme nor the court has been granted authority power accept original and exercise jurisdiction original in proceedings declaratory suits judgments. proceedings their beginning they Such and actions have are in one of the to be commenced some various district courts Constitution, VIII, of the state which the article section says original jurisdiction in in “shall have all cases law and * * * equity special and for all such pro- actions and provided ceedings as are not otherwise for.” 217 appellate jurisdiction. A lias If its original either jurisdiction questions to a on confined determination appeal, authority question has in no to determine the an originally Leahy, Ky. 44, Rogers action in it. instituted v. (2d) 93, 95, 1267; C.J.S., see 6 S.W. A.L.R. also Appellate, pages 71, 72, notes 8-22. jurisdiction Appellate that an necessarily implies issue has been passed upon formulated and inferior tribunal. some Lawless, Fine Tenn. S.W. 124. framers Constitution, creating of Montana’s the su- preme conferring powers carefully court and upon it, provided supreme court, except provided as otherwise itself, Constitution appellate only” “shall have jurisdiction VIII, art. 2; “appellate jurisdiction that the of the su-

notes raised thereon. 71 17, 18 and 19. 522-529, In Matthews, supra, Chovanak v. Mont. court, through Mr. Justice 582, 583, speaking 188 Pac. Gibson, said: appears only question argued “It that the district decided, only question by and the that court whether was appellant capacity action, had legal bring other words, whether, forth, any legal right under the facts set appellant by any was denied to him or threatened action of respondents constituting equalization. the state board question it is Act, Chapter 142, “But whether said is con- appellant stitutional or not asks to determined. He have by seeks this Declaratory action under the Uniform Judgments Act, Chapter 90, seq., section 9835.1 et Revised Codes of Mon- May tana 1935. question the court decide that in this action? “* * * Unless the action now before us is a real contro versy legal, personal wherein some right appellant is denied by or imperiled Chapter 142, enforcement of so rule long uniformly so followed that the constitutionality aof statute must not ‘except be determined in an proceed action or ing in person behalf of a special, peculiar whose personal rights are affected is thereby’, applicable here. Schieffelin v. Kom fort, 212 N.Y. 106 N.E. 1915D, L.R.A. by judicial “It only power reason of the fact that it is possess, that the they permitted courts are decide opinion mere differences citizens, between or between citizens state, state, or the administrative officials of the as to validity Particularly statute, statutes. true where a regularly making enacted government, law branch of the is attacked the citizen as being provision violation of some provisions Constitution. “* * * judicial power vested in district courts Supreme Montana, by and the provisions Court

notes viz: jurisdiction “A judgment having a is a rendered no nullity, mere will and for be so held and treated whenever sought it is to whatever be used or relied on as valid * * * judgment. judgment juris- “A it has court cannot render a valid unless subject litigation diction over the matter of the the cause of or " * * A judgment wholly action. void in cases where subject jurisdiction par- matter is from the withheld jurisdiction placed ticular or is within the exclusive * * * another court. agreement parties give “Since or consent of the cannot right adjudicate any the court the to on cause action of sub- ject any cognizance, matter which the law has from its withheld judgment notwithstanding rendered in such a case is void such * * * agreement. consent subject jurisdiction parties and the “In addition validity judgment matter, necessary to it is judg- jurisdiction question which its have should jurisdiction judgment render a decide, and ment assumes to judgment remedy or relief which under- particular jurisdiction, the court does have such grant. takes to Where is void.” complaint fails to state facts sufficient to Morgan’s Second. or to him of action his favor entitle cause constitute supreme court, juris- However, lacked the relief whatever.

notes and 20. may supreme lawfully The juris- create and declare It diction in itself. cannot extend its constitutional powers by judicial C.J.S., Courts, fiat. Silage See note 91. may by its bootstraps. It not thus lift itself own original jurisdiction must been have conferred the State Constitution, it does not exist. otherwise Sporadic Carey McFatridge, Cases. In v. 115 Mont. 278, 280, (2d) 229, 142 Pac. known as the Rocking “Old Chair Whiskey Bottomly Meagher Case” and County, 114 Mont.

notes ‘‘In order to be support proceeding for, sufficient a or of, declaratory relief, award must controversy actual, real, genuine, fide, bona merely fictitious or colorable. A controversy necessary declaratory relief does not exist person where the with merely the adverse interest declines to A speak. act or controversy by taking is not position created * * * and then challenging government dispute it. agreement jurisdic- confer parties cannot consent “The declaratory tion court to render ab- on the justiciable controversy.” 26, pages of an actual Section sence 51-60. 98, 99, notes support proceeding for, of, award “In or the decla- order

subd. notes then been no jurisdiction there would have edged its lack of pleadings or the contentions point examining further into the judgment given any ruling or parties for the reason that nullity. having jurisdiction is a mere no or made a court holdings statements, declarations, rulings and The and overrule this majority opinion purporting to invalidate 7, 1956, judgment pronounced December court’s decision and wholly judg- and void. That are ineffective case stand the final of this court. ment continues to no more au- supreme our Constitution the court has Under jurisdiction determine, in the first thority, power or to hear and declaratory judgments than it has instance, original suits for title, original quiet for divorce suits to or hear and determine marriage mortgage. foreclosure of a or annulment of jurisdiction subject court, having supreme no authority Morgan’s suit, only power had matter majority attempted That which proceeding. such dismiss wholly dismissing complaint and the suit was and beyond null, or effect. and of no lawful force void MR. JUSTICE BOTTOMLY: with, in, foregoing am in full accord and concur dis- I Justice Adair. senting opinion of Mr.

Case Details

Case Name: State Ex Rel. Morgan v. State Board of Examiners

Court Name: Montana Supreme Court

Date Published: Apr 3, 1957

Citation: 309 P.2d 336

Docket Number: 9786

Court Abbreviation: Mont.