State ex rel. Murphy v. Judge of Second Judicial District Court

| Mont. | Jan 15, 1891

De Witt, J.

Much has been brought into this case in the argument that is not pertinent to the hearing. The application is for a writ of certiorari. The general principles of law applicable to the invocation of this writ are the same throughout all the courts. But any doubts as to the province of the writ in this court, and any minor differences in the views of courts upon the writ generally, are fully set at rest by the explicit provisions of the statute of this State. Under that statute we have only to inquire whether the application is properly before us, and if so, whether the district judge exceeded his jurisdiction.

Many interesting points are discussed by counsel, to which we will not advert, but will only offer a construction of section 95, which seems to us as clear as it is conclusive. The public administrator, when acting solely as such, is perhaps a public officer. His powers and duties are defined, and the estates of which he shall take charge are described. (Comp. Stats. § 821, p. 863; § 333, p. 357.) When there is a delay in appointing an administrator, the district judge, for the temporary protection of the estate, may do one of two things (§ 95): (1) He may direct the public administrator to take charge of the estate, or (2) if he does not so direct he must appoint a special administrator. There seems to be no ambiguity in this provision. A discretion is given to the district judge to adopt one of two courses.

In the' case at bar the judge exercised this discretion, and exercised it by not directing the public administrator to take charge of the estate. The judge took the other alternative of the statute, and proceeded to the appointment of a special administrator. He thereby did something wholly inconsistent with directing the public administrator to take charge of the estate, and thereby as well passed upon and decided the question of directing the public administrator to take charge, and decides it adversely to such taking charge by the public administrator. This was an act of judicial discretion, of which no abuse is shown, and of which the public administrator cannot complain.

Having passed and settled this matter, and proceeding to the other alternative allowed the judge, under section 95, viz., the appointment of a special administrator, which the judge could do without notice to any one, and out of term time (§ 96), the judge finds that section 97 provides that preference must be given in such appointment to the persons entitled to general administratorship, in the order named in section 55. In that order, the public administrator appears as eighth. But the law has already provided in the other alternative in section 95 that the public administrator, as to temporary care of the estate, stands ahead of all classes of persons named in section 55, if the judge chooses to put the estate into his hands. A special provision is thus made for putting the public administrator in charge, a special provision which takes him out of the general classes of administrators. If it is the judgment of the judge that the public administrator should take the estate, the judge may so direct, to the exclusion of all claimants to special letters. Now, when the judge passes the public administrator, and practically says, I will not appoint him, as I may, and determine to proceed under the other alternative of section '95, and appoint a special administrator, then, in making his selection from the classes of persons named in section 55, must he again adjudicate upon the claims of the public administrator, a question which he has already decided under an ampler provision of the law allowing him to give to him the estate; must- he again say whether or not he will give him charge of the estate, when he has already settled the matter in the exercise of his discretion, and said he would not do so? We think not. The judge had the amplest and largest powers to direct the estate into the hands of the public administrator, to the exclusion of every one. He did not exercise that power. It cannot be said that the judge having deliberately ignored the public administrator, when he had full power to recognize him, he must again consider his claim, when proceeding under the other alternative of the statute. This would be equivalent to holding that the judge may, if he chooses, make the public administrator the temporary custodian of the estate; but if he does not do so, as he may, then, in appointing a special administrator, he must, under certain conditions, do the very thing which the other provision of the law says he may do, and which in his discretion he has decided not to do. We cannot agree to any such construction of the statute. It would be a strain upon language approaching the point of fracture. The correct view of sections 96, 97, and 55 is, that the public administrator is not in the list of candidates for special administratorship, for the reason that his claims for temporary custodianship of the estate are provided for in another separate portion of the section, by which he is placed first in choice, if the judge desires him to take charge.

Our interpretation of these laws is, that when there is delay in the appointment of an administrator, the judge may direct the public administrator to take charge of the estate. If he does not do so, which he need not, then the public administrator is disposed of in the premises, and the judge must go on to appoint a special administrator from the classes of persons named in section 55 other than the public administrator. Now the public administrator invokes the writ of certiorari on the ground that the district judge exceeded his jurisdiction.

Under our construction of the statutes, we are of the opinion that the district judge, as far as the relator is concerned in the proceedings, did not exceed his jurisdiction; and the writ is therefore dismissed.

Blake, C. J., and Harwood, J., concur.