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(202 P.)

clerk of the court to the same effect; that) (1) To provide for the division of the state about the hour of 5 o'clock (5) p. m., or into districts; (2) to provide for district shortly after that time, affiant took the said judges and to fix their term of office; and (3), opinion and the said memorandum to the of- by way of exception, to fix the term of office fice of the clerk of court, but, finding the office of those first elected, so that they would hold locked and the clerk gone, concluded it would until the general election in 1892, and until be just as well to hand it to the clerk the their successors should be elected and qualified. following day, January 1, 1921; that on the But for the exception, those first elected would following day and on the 2d day of January, also have held for the term of four years. The 1921, affiant did not find the clerk of court at purpose of it was to so adjust the term of his office, and he then handed the same to the those first elected that thereafter the election clerk of court shortly after the office of the would fall regularly upon presidential years, clerk of court had opened on the morning of and be uniform throughout the state.' It was the 3d day of January, 1921." also held that the clause, 'and until their sucthe exception, and does not modify the clause cessors are elected and qualified,' is a part of definitely fixing the term of the judges to be subsequently elected. The result is that, upon the expiration of the four-year term, the office of district judge becomes vacant by operation of law."

On February 10, 1921, upon the record thus made, the court, presided over by Hon. Rudolph Von Tobel, elected to take the place of Hon. Jack Briscoe, and annulled the purported order. The defendants appeal from the order thus made.

A provision of the Constitution of California reading, "The terms of such officers [district judges] shall commence on the first Monday of January next following their election," was given a like interpretation by the Supreme Court of that state, in People ex rel. Bledsoe v. Campbell, 138 Cal. 11, 70 Pac. 918, Merced Bank v. Rosenthal, 99 Cal. 39, 31 Pac. 849, 33 Pac. 732, Broder v. Conklin, 98 Cal. 360, 33 Pac. 211, and Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60. The first case is cited with approval in both the Foster and the Lentz Cases, and all of them are in complete accord upon the proposition. The two cases last cited hold emphatically that an act performed by a person whose term of office as district judge has expired is void and should be set aside.

We shall treat the proceeding as one to correct and purge the record by amendment of the order of Judge Briscoe refusing plaintiff a new trial. Was the direction to the clerk to enter the order the personal act of Judge Briscoe after he had lost judicial power by the lapse of his term as judge, or was it the judicial pronouncement of the court? On the 15th day of February, 1917, there was but one district judge of the Tenth judicial district. On that day an act passed by the Legislative Assembly authorized the Governor to appoint an additional judge for that district "to hold his office until the first Monday of January, 1919, or until his successor is duly elected and qualified." Laws 1917, c. 35. Pursuant thereto, on March 2d of that year, the Governor appointed Hon. H. L. De Kalb to fill the office thus created. He resigned May 18, 1918. On November 5, 1918, Hon. Jack Briscoe was elected to serve until the next general election. On Novem-elected was definitely fixed, and as definitely ber 9, 1918, he was appointed by the Governor to serve until the term for which he was elected commenced.

In State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932, the relator was appointed an additional judge for the Fourth judicial district under the act approved February 11, 1913. He claimed, among other things, that inasmuch as the commission is sued to him stated that he was to hold the office until the first Monday in January, 1917, he was entitled to hold until that date, regardless of the fact that a general election, at which he was defeated for election by Hon. Theo. Lentz, had intervened between the two dates mentioned. The provisions of the Constitution and the law upon the subject are there given critical and exhaustive analysis by Chief Justice Brantly in behalf of this court. He proceeds:

"Section 12 of article 8 [of the Constitution] was considered in connection with other provisions of the Constitution, in State ex rel. Jones v. Foster, cited above [39 Mont. 583, 104 Pac. 860]. It was there said: 'In adopting it, the convention had three purposes in view:

[1, 2] From these authorities it is clear that the term for which Judge Briscoe was

limited to the last minute of the day next preceding the first Monday in January following the general election at which his successor was elected. This is so because the law will not tolerate the thought that the tenure of office can begin or end at a time other than that fixed by the authority creating the office, or in any manner other than that so provided. When the duration of the term is specified in the statute, and an officer is elected to serve out the term, his power and authority thereupon ipso facto cease, unless he is authorized by some specific provision of organic law to hold over. See People v. Tieman, 30 Barb. 193; Badger v. United States, 93 U. S. 599, 23 L. Ed. 991; Mechem on Public Officers, § 396, and cases cited.

[3] Where the latter words are omitted, there is no right by which the incumbent can hold over the next general election, because the law favors the requirement that all officers, whenever possible, shall be elected by the people. State ex rel. Patterson v. Lentz, supra. This is evinced by the care exercised by all legislative bodies to guard against lapses, where holding over is not

deemed necessary or desirable for the public good. "Hence the provisions fixing the terms of judicial officers must be held to be exclusive, with the result that vacancies occur by operation of law upon the expiration of the terms designated." State ex rel. Jones v. Foster, supra; State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94. [4] If the language employed were of doubtful meaning, that interpretation which limits the term to the shortest time should be adopted. Mechem on Public Offices and Officers, 390; Wright v. Adams, 45 Tex. 134; Smith v. Bryan, 100 Va. 199, 40 S. E. 652.

limited in section 1 of the same article 7 to four years, "beginning on the first Monday in January next succeeding" the general election following. While that section does not affect judicial officers, the language does serve to make all the other elective officers of the state begin their official duties at the same instant. So that, the words employed in section 6 of Ordinance No. 2, that "the terms of officers so elected shall begin when the state is admitted into the Union, and shall end on the first Monday in January, 1893," affect neither the intent nor object apparent throughout the Constitution and the ordinances to bring to a close the terms of

ceding the first Monday in January following the election in presidential years. This construction makes complete harmony in the matter of the beginning and ending of the terms of all the state officers, without in the least shading the meaning of any of the language contained in either enactment.

A careful reading of the entire Constitu- | district judges at 12 o'clock midnight pretion reveals the remarkable fact that the declaration found in section 12 of article 8, prescribing that "the terms of district judges shall be four years," is all that is said in that instrument upon the subject. To reach a conclusion which satisfies the judicial mind and responds directly to the will of the convention, the Constitution and the ordinances attached to the former must be carefully examined for words best fitted to furnish the needed light. The provisions of section 7 of the same article, fixing the terms of the members of this court, present an analogy of some service in solving the problem. It reads:

"The term of office of the justices of the Supreme Court, except in this Constitution otherwise provided, shall be six years."

Then, in the next section, which provides the time to choose those first to be elected, will be found these words:

[5-8] The statute providing for an additional district judge in the Tenth judicial district, and declaring that the appointee of the Governor shall hold "until the first Monday in January, 1919" is entitled to respectful consideration by the courts. N. P. Ry. Co. v. Mjolde, 48 Mont. 287, 137 Pac. 386; State ex rel. Patterson v. Lentz, supra. And unless the time fixed by statute is so plainly at odds with that prescribed in the Constitution as to be wholly inconsistent with it, it is the duty of the court to give it such a construction as will enable it to have effect. Or to go a little farther, when the conflict between the act and the Constitution is not

clear, the implication must always be that no excess of authority has been intended by the Legislature, and that the seeming differences can be reconciled. The court will not go beyond the face of the law to seek for

"At [the] first election the Chief Justice shall be elected to hold his office until the general election in the year one thousand eight hundred and ninety-two (1892), and one of the associate justices to hold office until the general election in the year one thousand eight hundred and ninety-four (1894); and the oth-grounds for holding it unconstitutional. Cooer associate justice to hold his office until the general election in the year one thousand eight hundred and ninety-six (1896), and each shall hold until his successor is elected and quali

fied."

It will be noted that in each of the instances above, the word "until" is used with the evident purpose of limiting each term to a definite period of time; and, bearing in mind the exigencies always to be apprehended from defective election machinery, and public inconvenience attending vacancies in public office, there was added the following: "And each shall hold until his successor is elected and qualified." In section 9 of the same article, too, we find the same exactness of expression in fixing the term of the clerk of this court, and the point in time and circumstance to which he should hold office. As further evidence plainly visible, the terms for which all state officers, except judicial officers, shall hold are

ley's Const. Lim. p. 225; Stevenson v. Colgan, 91 Cal. 619, 27 Pac. 1089, 14 L. R. A. 459, 25 Am. St. Rep. 230. Thus, it seems, if we are at liberty to rely with any degree of confidence upon legislative intent, the consideration is by no means all upon the side of the appellant. The word "until" is a restrictive word, and is of limitation, in its ordinary and usual sense; and this is the meaning which should now be ascribed to it. "Its office is to fix some point of time or some event upon the arrival or occurrence of which what precedes will cease to exist." State ex rel. Rowe v. Kehoe, 49 Mont. 588, 144 Pac. 162.

[9-12] Counsel for appellant earnestly insist that the affidavits should not be considered for the reason that the minutes of the court furnish the only competent evidence respecting the regularity and validity of the order appealed from. With this we cannot agree, for reasons which we will now proceed

(202 P.)

of an order identical with the one-before us. The last cited case involved the validity In reaching a conclusion fatal to its validity, the court made use of the following remarks:

"Courts have sustained the acts of de facto officers only as a matter of necessity, to avoid serious damage to those not at fault; but the subject would result in far greater injury than encouragement of a careless practice on this

benefit. Rather is it better that it be understood that the acts and orders of those without the legal right to exercise official trust pass the ordeal of the closest scrutiny, and be ratified only so far as justified by public policy and necessity."

to give. In the first place, it was competent | Jewett v. McConnell, 112 Ark. 291, 165 S. W. for the court to correct the minutes to speak 954; U. S. v. Alexander (D. C.) 46 Fed. 728. the truth; and it was competent for it to consider the affidavits disclosing the actual facts. Second, upon appeals to this court the presumption must always be indulged that the action of the district court proceeded, not only according to law, but that it was done in the regular mode. Section 7962 of the Revised Codes provides that all pre sumptions, other than those expressly made conclusive by statute, are satisfactory if uncontradicted; that they are denominated disputable presumptions which may be controverted by evidence. By subdivision 15 it is presumed "that official duty has been regularly performed, and 16 that a court or judge, acting as such, whether in this state, or any other state or county, was acting in the lawful exercise of his jurisdiction." If we are to ascribe any force at all to these statutory presumptions, we may assume that Judge Von Tobel knew, both personally and judicially, when he took office on the morning of January 3, 1921, that no entry denying the new trial was then in the minutes of department No. 2 of the court, and that he had a right to base his ruling upon information so acquired. In this situation, therefore, we may not assume that the district court

For these reasons, the order appealed from is affirmed.

BRANTLY, C. J., and REYNOLDS, HOLLOWAY, and GALEN, JJ., concur in the result.

(61 Mont. 408)

AMERICAN SAV. BANK & TRUST CO. v.
CHAPMAN. (No. 4435.)

relied solely upon the affidavits in making (Supreme Court of Montana. Nov. 28, 1921.) the order in question. Ming v. Truett, 1 Mont. 322.

The affidavits are proof conclusive that the direction to the clerk was the personal act of Hon. Jack Briscoe because the lapse of his term of office had divested him of all judicial authority. Dalton v. Loughlin, 4 Abb. N. C. (N. Y.) 187; Connolly v. Ashworth, supra; Broder v. Conklin, supra.

[13] Taking another step, counsel insist that the order to the clerk was the act of a judge de facto, and the absence of a showing upon the record that Judge Von Tobel was actually present and performing the duties of judge of the court at 9:15 on the morning of January 3, 1921, is enough to render the act valid and unimpeachable. The fault in this argument lies in the fact that it ignores the usual presumption that Judge Von Tobel rightfully assumed that there could be no judge de facto while he was a judge de jure.

1. Pleading 121 (2)-Denial of sufficient knowledge to form belief as to truth of allegations in complaint is sufficient to put plaintiff on proof of corporate capacity.

Where a complaint alleged that plaintiff was a corporation, an answer denying sufficient information or knowledge to form a belief as to the truth of the allegations set forth in the complaint is sufficient to put plaintiff on proof of its corporate capacity.

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In absence of a showing of the faith and credit given a certified copy of the public In Throop on Public Officers and Offices, record of articles of incorporation and a cer§ 641, the law is stated thus:

tificate of incorporation in their own state a court can give no effect to such evidence.

Commissioners' Opinion.

Appeal from District Court, Beaverhead County; William A. Clark, Judge.

"If the officer de jure is in possession-if he
is officer de jure and also officer de facto-no
other person can be an officer de facto with
respect to that office; nor can two persons be
officers de facto at the same time. There can-
not be two incumbents at once; if one is in,
the other is not." Hamline v. Kassafer, 15
Action by the American Savings Bank &
Or. 458, 15 Pac. 778, 3 Am. St. Rep. 176; Trust Company against Clara Chapman.
McCahon V. Commissioners, 8 Kan. 442; From a judgment for defendant, and an
Boardman v. Halliday, 10 Paige (N. Y.) 223; order denying its motion for a new trial,
Morgan v. Quackenbush, 22 Barb. (N. Y.) 80; plaintiff appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
202 P.-25

Norris, Hurd & Collins, of Dillon, for ap- of the articles of incorporation of the plainpellant.

T. E. Gilbert, of Dillon, for respondent.

POORMAN, C. c. This is an appeal by plaintiff from a judgment rendered in favor of the defendant by the court sitting without a jury, and also from an order of the court denying plaintiff's motion for a new trial. It is alleged in paragraph I of the complaint that the plaintiff is a corporation duly organized, created, and existing under and by virtue of the laws of the state of Washington. It is then alleged that a certain promissory note, executed by defendant, and payable to herself, was duly indorsed and delivered to W. S. Summers, and by him delivered to the plaintiff prior to the time the same became due, that the plaintiff is the owner thereof, and that the same has not been paid.

tiff company. The copy of the articles of incorporation, so certified under the seal of the state of Washington, were then introduced in evidence. Plaintiff also introduced in evidence as his Exhibit 3 the original certificate of incorporation by the secretary of state of the state of Washington, which was afterwards withdrawn and a certified copy substituted therefor. This was all of the evidence.

The court thereupon ordered judgment entered in favor of the defendant for her costs. The appellant claims that the court erred in holding that defendant's answer raised an issue as to plaintiff's corporate capacity, and committed further error in holding that the evidence introduced by plaintiff was insufficient to entitle plaintiff to judgment, and that the evidence was insufficient to sustain a judgment for the defendant.

[1] It has been many times decided by this court that a general denial does not raise the question of the corporate capacity of plaintiff (Minneapolis Threshing Machine Co. v. Stanford Merc. Co., 59 Mont. 359, 197 Pac. 993), but it has also been decided that a denial in the form contained in the answer

The defendant in her answer "denies that she has, and alleges that she has not, sufficient information or knowledge to form a belief as to the truth of the allegations set forth in paragraph I of plaintiff's complaint." Defendant further admits signing the instrument alleged in the complaint as a "promissory note," and that she indorsed herein is "sufficient to put plaintiff upon the same. The answer contains some other denials, and also alleges affirmatively that proof of the fact that it was and is a cordefendant did not receive any consideration poration" (Mil. Gold Extract. Co. v. Gordon, whatever for or on account of the making, 37 Mont. 209, 215, 95 Pac. 995). executing, or delivery of the instrument set forth in plaintiff's complaint, and designated "promissory note," and that the plaintiff, if it ever took said note, took the same with knowledge thereof. The reply of plaintiff denies the affirmative allegations of the answer.

[2, 3] The courts of this state do not take judicial notice of the statutory laws of another state, and it does not appear in this case, either by the pleadings or by the evidence, that a certified copy of a public record

would be admitted or received in evidence by the courts of the state of Washington. Such records, if admitted in evidence, can only be given such faith and credit as would be given to them in the state of Washington, and since there was not any effort made to show what the laws of Washington are respecting the use of certified copies of public records, the district court could not give any effect whatever to such evidence. This question was fully considered and discussed by this court, and determined adversely to the contention of the appellant, in Milwaukee Gold Extraction Company v. Gordon, supra. We recommend that the judgment and order appealed from be affirmed.

At the trial of the case plaintiff's witness testified to the indorsement and delivery of the note to the plaintiff prior to maturity, and that the plaintiff did not have any knowledge "of any defect in the title to the note" and that the same had not been paid. Plaintiff further introduced in evidence, without objection, a certificate from the secretary of state of the state of Washington to the effect that he was the legal custodian of the records of corporations in that state, and further stating that he is the secretary of state of the state of Washington and the custodian of the seal of said state; that the articles of incorporation of the plaintiff company were duly and regularly filed in his PER CURIAM. For the reasons given in office and that the copy annexed to this latter the foregoing opinion, the judgment and orcertificate was a full, true, and correct copyder appealed from are affirmed.

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Under Act Cong. June 29, 1906, enacted under the power of Congress given by Const. U. S. art. 1, § 8, to prescribe rules for naturalization, which confers authority to naturalize aliens upon state courts, and Const. Mont. art. 8, 11, giving the state's consent for the courts to accept and act on that power, the authority to naturalize is a judicial power, and not a political power.

2. Aliens 60-Courts cannot exceed statutory authority as to naturalization.

P. F. Leonard, of Miles City, for relator. Ronald Higgins, of Missoula, for respondents.

POORMAN, C. O. Original application for certiorari. At the hearing on relator's petition for admission as a citizen of the United States, the district court, after finding "that petitioner will not bear arms in defense of the United States," made and entered the following judgment:

"Said petition is hereby denied with prejudice, and (petitioner is) forever debarred from citizenship and declaration held invalid."

The claim made by the relator is that the district court exceeded its jurisdiction in including in the judgment the phrase "forever debarred from citizenship." A writ of reNaturalization is a statutory proceeding, and the court cannot go beyond the statute. view was issued by this court commanding the district court to certify and send to this 3. Aliens 62 - Naturalization may be re- court a transcript of the record and proceedfused for declaration of unwillingness to sup-ings had at the hearing on relator's petition port government.

It is within the discretion of the court to refuse to admit to citizenship an alien who affirms he will not support the government by bearing arms in its defense.

4. Aliens 68-Court cannot forever debar applicant from citizenship.

The court has not authority in naturalization proceedings to include in its judgment a provision forever debarring applicant from citizenship, since it is authorized to act only upon the application then pending, and, even if the naturalization law does not permit a subsequent application, the court has no authority to prevent Congress from enacting a law which will permit such application.

to become a citizen. The respondents appeared and moved to quash the writ so issued upon the grounds that this court has no jurisdiction of the subject-matter; that a district court sitting as a naturalization court acts through courtesy and assumes the same status as a federal court in naturalization matters; that the admission of an alien to citizenship is a political, not a judicial, act; that no right of relator has been violated; that the petition does not state facts sufficient to entitle the relator to any relief.

[1] The objections made by respondents in their motion to quash all have reference to the jurisdiction of this court. Congress alone has power to establish rules for natur

5. Aliens 68-Judgments not appealable. No appeal lies from judgments in naturali-alization (article 1, § 8, U. S. Const.), but the zation proceedings.

6. Aliens 68-Lies to correct naturalization judgment in excess of authority.

Where a judgment in naturalization proceedings from which no appeal lies contained a provision forever debarring the applicant from citizenship, which was in excess of the court's jurisdiction, certiorari will lie to review the judgment and strike therefrom the unauthorized clause.

7. Certiorari 4, 5(1), 28(1)-Lies to correct excess of jurisdiction for which there is no other remedy.

Certiorari will not lie unless it appears that jurisdiction has been exceeded, that there is no right of appeal, and that there is no other plain, speedy and adequate remedy.

Commissioner's Opinion.

Congress has from the very beginning conferred authority upon state courts to hear and finally determine applications for citizenship. The present law is contained in the act of June 29, 1906 (34 Stat. at Large, 596). As early as 1792 the United States Supreme Court said:

"State courts possess concurrent authority with federal courts to naturalize aliens, but such authority of the state court cannot be exercised so as to contravene the acts of Congress." Collet v. Collet, 2 Dall. (U. S.) 294, 1 L. Ed. 387.

See 2 Cyc. 111; Holmgren v. U. S., 217 U. S. 509, 516, 30 Sup. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778; 6 Fed. Ann. Stat. 938.

"The power to naturalize an alien is a judicial power; consequently proceedings for naturalization are judicial proceedings to be exercised by the courts." 2 Cyc. 113.

Original application for certiorari by the State, on the relation of Emanuel Weisz, against the District Court of the Sixteenth Judicial District of Montana for the County of Garfield and the Judges thereof. Judg-power is conferred on the state courts by the ment modified.

The power is tendered by Congress. The consent of the state to accept and act on that

state Constitution. Section 11, art. 8, State

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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