Butte & B. Consol. Min. Co. v. Montana Ore-Purchasing Co.
| Decision Date | 11 February 1901 |
| Citation | 63 P. 825,25 Mont. 41 |
| Parties | BUTTE & B. CONSOL. MIN. CO. v. MONTANA ORE-PURCHASING CO. et al. |
| Court | Montana Supreme Court |
On rehearing. Reversed.
For former opinion, see 60 P. 1039.
Forbis & Evans, Wm. H. De Witt, Ransom Cooper, and T. J. Walsh, for appellant.
MoHatton & Cotter, Clayberg & Corbett, Robt, B. Smith, and Chas. R Leonard, for respondents.
The former opinion in this case is reported in 24 Mont.--, 60 P 1039. Being inclined to the view that, if the provisos of house bill No. 1 of the Session Laws of 1899 (Laws 1899, p 134, hereinafter referred to) are applicable to co-tenancies created prior to the passage of that bill, the injunction was probably too broad in its terms, we granted a rehearing, and the cause has been again argued. The facts upon which the original decision was based are stated in the former opinion. The following facts are pertinent to the question which we shall consider upon the rehearing:
The plaintiff and the defendants Heinze are, and since 1893 have been, tenants in common of the Snohomish and Tramway lode mining claims. The defendant administrator and the defendant Larkin, as heir, assert that the equitable title to the undivided interests of which the plaintiff is the legal owner is in the heir, but this is controverted by the plaintiff. The defendant Montana Ore-Purchasing Company owns the Rarus lode mining claim, and this defendant and the defendants Heinze had entered the Snohomish and Tramway from the Rarus through underground workings of the latter, had mined large quantities of valuable ore from the veins of the common property, had hoisted and removed the same through the Rarus shaft, and had appropriated it to their own use, all without the consent of the plaintiff. These acts they threatened to continue doing. In its former decision this court reversed the order of the district court refusing to grant an injunction pendente lite, the effect of which was, in the particular case, a direction to the court below to issue the injunction as prayed, restraining the defendants from entering upon and mining the common property at any place. If the defendants, who are co-owners with the plaintiff in the Snohomish and Tramway, should sink a shaft or make an opening on either one of these claims, and mine and extract ore therefrom, a question different from that determined in the former decision would necessarily arise. The constitutionality of section 592 of the Code of Civil Procedure, as amended by the act of February 28, 1899, commonly known as "House Bill No. 1," would be involved. If it be constitutional when applied to the co-tenancy between the plaintiff and the Heinzes, and the defendants in mining and removing the ore through openings on the Snohomish or Tramway should bring themselves within the provisos of the act, the injunction would be too broad. We think the court is therefore in duty bound to determine whether the act, if intended to be applicable to co-tenancies existing at the time of its passage, is, as to such co-tenancies, repugnant to the constitution. The plaintiff argues that the act attempts to deprive co-tenants whose estate existed when the act of 1899 became operative of their property without due process of law, disturbs their vested rights, and is a law impairing the obligations of contracts.
We are satisfied that the provisos of house bill No. 1 of the Laws of 1899 were intended to apply as well to co-tenants whose estates were in existence when the law was passed as to those whose estates have been or may be created after its passage. Does the amendment made by the act of 1899 to section 592 of the Code of Civil Procedure disturb or impair the vested rights of co-tenants whose estates were in existence at the time the amendment became operative? If it does, it is repugnant to those parts of sections 3 and 27 of article 3 of the constitution of the state declaring that all persons have the natural, essential, and inalienable right of acquiring, possessing, and protecting property, and ordaining that no person shall be deprived of property without due process of law. If it does, it is repugnant also to the "due process of law" clause of the fourteenth amendment to the federal constitution.
In 1845 the general assembly of Illinois passed the following statute, entitled "An act concerning joint rights and obligations" (Rev. St. Ill. 1845, p. 299):
Section 2 received an interpretation in Benjamin v. Stremple, 13 Ill. 466, and Boyle v. Levings, 28 Ill. 314, decided in 1851 and 1862, respectively. These three sections were adopted by Montana. At the first session of the legislative assembly of the territory of Montana an act entitled "An act concerning joint rights and obligations," approved February 8, 1865, was passed (Bannack's St. p. 454). It is as follows:
Thereafter the provisions of the act of 1865 were included in an act entitled "An act revising, enacting, and codifying the general and permanent laws of Montana territory," the act of 1865 constituting chapter 36 of the compilation of 1871-72, the subject of the chapter being designated as "Joint Rights." In the subsequent compilation of 1887 the provisions of the act of 1865 were re-enacted without change, appearing as chapter 77 of the General Laws, and found at page 1006 of [63 P. 827] the Compiled Statutes of 1887, the chapter being entitled "Joint Rights." Until the adoption of the Code of Civil Procedure of 1895, the act of 1865 remained in force as originally passed. For more than 30 years, therefore, the act of 1865 constituted the only legislation of this territory and state touching the subjects affected by it. What, then, was the purpose and what the effect of these enactments, which were among the earliest legislative steps taken by the territorial government, and which remained for so long a time unchanged?
By its title the act declares that the subject sought to be affected by its provisions is "Joint Rights and Obligations," and, as the third section of the law treats specifically of "Joint Obligations," it should seem clear that, if the title of the act may be treated as any evidence of its meaning, sections 1 and 2 were designed to treat of "Joint Rights." It is hardly needful to observe that, if the provisions of the enacting portion of the statute actually depart from the purpose indicated by the title, they would not, under the organic act as it then was, be restricted by it; but if sections 1 and 2 render the meaning ambiguous, or leave the legislative intent doubtful, the avowed purpose of the legislation, as the purpose is declared in the title, would prove, at the least of benefit in the effort to ascertain the design of that branch of the government whose purposes, when ascertained, must be respected and announced by the judiciary. We find that by the first section of the act itself the legislative assembly plainly intended to destroy the right of survivorship which constituted the distinguishing feature of the species of tenure known as "joint tenancy," and the provisions and unmistakable purpose of the act are thus far consistent with its title; for, manifestly, such a substantial modification of the rights of joint tenants deals exclusively with "joint rights" and accounts, at least in part, for that portion of the title declares that the act is one concerning "joint rights." We cannot agree with the courts which hold that the legislature has power to convert existing joint tenancies into tenancies in common. The right of survivorship--the indispensable ingredient and characteristic of the estate, and not a mere expectancy or possibility, as, for example, is the inchoate right of dower--accrues as a vested right when and as soon as the joint tenancy is created, and the legislature is without authority to devest or...
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