Carlson v. City of Helena

• Decision Date: 12 April 1909
• Citation: 101 P. 163,38 Mont. 581
• Parties: CARLSON v. CITY OF HELENA.
• Court: Montana Supreme Court

101 P. 163

38 Mont. 581

CARLSON v. CITY OF HELENA.

Supreme Court of Montana

April 12, 1909

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Action by Oscar Carlson against the City of Helena. Judgment for plaintiff, and defendant appealed. Motion to dismiss denied.

Appeal from judgment overruling a demurrer to the complaint in an action by a taxpayer to enjoin a city from issuing bonds for installing a water system will not be dismissed because the action is collusive or merely colorable; it not appearing that plaintiff did not bring the action, as he testified without any agreement or understanding with any one else to have a long existing controversy over issuance of bonds for such purpose finally settled, though the inference is clear that he would prefer to have the bond declared legal, and though, without his knowledge, his counsel was assisted by counsel for defendant in preparing the complaint.

Edward Horsky and T. J. Walsh, for appellant.

C. W Wiley, for respondent.

Gunn & Rasch, amici curiae.

Walsh & Newman, for certain taxpayers.

BRANTLY C.J.

This action was brought by the plaintiff to enjoin the city of Helena from issuing bonds to the amount of $670,000 to provide funds to enable it to procure a water supply and install a system of mains, pipes, etc., for its distribution and to extend its sewer system. Various reasons are alleged why the proposed bonds will be invalid. The district court overruled a general demurrer to the complaint, and, the defendant having declined to plead further, rendered and caused to be entered a judgment enjoining it and its officers from proceeding further in the premises. Thereupon defendant appealed.

When the record was filed in this court, counsel for the defendant filed a motion in writing asking that the cause be advanced upon the calendar for a speedy hearing and determination, to the end that, if the bonds be adjudged to be lawful, the defendant and its officers may proceed with the sale of them, notice of which, it is alleged, has already been given, fixing May 1st as the date of sale. On the day this motion was filed Messrs. Gunn & Rasch, members of the bar, asked leave to appear as amici curiae, and submit a motion to dismiss the appeal on the ground that the action is "sham and fictitious and colorably and collusively instituted between the said plaintiff and respondent, Oscar Carlson, and the said defendant and appellant, the city of Helena, without intention of determining in good faith any dispute or litigating any question, or ever having any adversary trial, but simply for the purpose of obtaining the judgment and decision of the courts upon a feigned issue, in order to affect and control the determination of another case of great importance now pending in the United States courts, in which the said city of Helena is defendant and the Helena Waterworks Company, a corporation organized and existing under and by virtue of the laws of the state of New Jersey, is complainant, and which involves large amounts of money and very important and serious questions as to the right and authority of said appellant, the said city of Helena, to incur any indebtedness and issue any bonds of the said city of Helena for the purpose of procuring a water supply and constructing a water system for said city; that the said plaintiff and respondent and the said defendant and appellant in said above-entitled cause were in instituting said action, and they are by said appeal seeking to secure such a final judgment to be entered in said cause as might result to the advantage of the said defendant and appellant with reference to the validity of the said bonds of the said city of Helena to the amount of $600,000, proposed to be issued and sold by it for the procurement of a water supply and the construction of a water plant and water system mentioned in said complaint, and adversely to the interest of the said Helena Waterworks Company and other parties who are property owners and taxpayers in said city, and who had no knowledge of this action, and no opportunity to be heard, and have any interest they might have in the subject-matter of said action properly determined." This motion was accompanied by an affidavit alleging facts furnishing sufficient ground to justify the court in making inquiry touching the charges made. The motion and affidavit were ordered filed, and counsel in the case were required to appear on the 27th day of March, 1909, and make a presentation of the facts. On the day of the hearing additional affidavits were filed, both by the movants and counsel in the case; Messrs. Walsh & Newman, members of the bar, being also allowed, upon application for leave of court to do so, to appear in aid of the movants and as representatives of taxpayers other than the waterworks company. The original files in this action and also in the action pending in the Circuit Court of the United States were also submitted. Counsel for the city and for the plaintiff were examined orally, as was also the plaintiff himself.

Were we to conclude that the charges laid in the motion are supported by the evidence, we should feel constrained not only to dismiss the appeal, but also to proceed against both clients and counsel for contempt. "It is the office of courts of justice to decide the rights of persons and property when the persons interested cannot adjust them by agreement between themselves, and to do this upon the full hearing of both parties. And any attempt by a mere colorable dispute to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real or substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court." Lord v Veazie, 8 How. 251, 12 L.Ed. 1067. And this view has frequently been announced by the courts. Gardner v. Goodyear Dental Vulcanite Co., 131 U.S. ciii, 21 L.Ed. 141; Hatfield v. King, 184 U.S. 163, 22 S.Ct. 477, 46 L.Ed. 481; Fesler v. Brayton, 145 Ind. 71, 44 N.E. 37, 32 L. R. A. 578; Haley v. Eureka County Bank, 21 Nev. 127, 26 P. 64, 12 L. R. A. 805; Ward v. Alsup, 100 Tenn. 619, 46 S.W. 573; McAdam v. People ex rel. Joslyn, 179 Ill. 316, 53 N.E. 1102; Cleveland v. Chamberlain, 1 Black. 419, 17 L.Ed. 93; Van Horn v. Kittitas County (C. C.) 112 F. 1; Connoly v. Cunningham, 2 Wash. Ter. 242, 5 P. 473; State ex rel. Hahn v. City of Westport, 135 Mo. 120, 36 S.W. 663; Berks County v. Jones, 21 Pa. 413; Mecker v. Straat, 38 Mo.App. 239. This court has in several cases held that even when, pending an appeal, the parties settle their controversies, and the fact is made to appear, the appeal will be dismissed; for under such circumstances there is no controversy left to be determined. State ex rel. Begeman v. Napton, 10 Mont. 369, 25 P. 1045; Snell v. Welch, 28 Mont. 482, 72 P. 988; In re Black's Estate, 32 Mont. 51, 79 P. 554; State ex rel. Brass v. Horn, 36 Mont. 418, 93 P. 351. Two classes of cases fall within the rule, viz., moot cases, or those in which there is no real controversy, or in which, though there has been a real controversy, it has been adjusted; collusive cases which fall within the definition: "In law a deceitful agreement or compact between two or more persons for the one party to bring an action against the other for some evil purpose as to defraud a third person of his right; a secret understanding between two parties who plead or proceed fraudulently against each other to the prejudice of a third person; a secret arrangement between two or more persons, whose interests are apparently conflicting, to make use of the forms and proceedings of law in order to defraud a third person, or to obtain that which justice would not give them by deceiving a court or its officers." 7 Cyc. 398. To the first class may be assigned those cited from the decisions of this court supra; while Lord v. Veazie and Haley v. Eureka County Bank, supra, are types of the second class. One of the first class may be brought within the definition of the second class and become collusive, when, after the parties have adjusted their rights, one of them by agreement becomes dominus litis, by assuming to pay the expenses of the litigation and counsel fees in order to have the case conducted to a final hearing and judgment to effect some ulterior purpose. Gardner v. Goodyear Dental...