Doty v. Reece

• Decision Date: 27 March 1917
• Docket Number: 3988.
• Citation: Doty v. Reece, 53 Mont. 404, 164 P. 542 (Mont. 1917)
• Parties: DOTY v. REECE.
• Court: Montana Supreme Court

164 P. 542

53 Mont. 404

DOTY v. REECE.

No. 3988.

Supreme Court of Montana

March 27, 1917

Appeal from First Judicial District Court, Lewis and Clark County R. Lee Wood, Judge.

Election contest by Martin Doty against Frank L. Reece. From a judgment dismissing the contest and awarding contestee an attorney's fee, contestant appeals. Affirmed.

C. A Spaulding and J. R. Wine, Jr., both of Helena, for appellant.

Wight & Pew, of Helena, for respondent.

SANNER J.

At the last general election, the appellant and the respondent were rival candidates for the office of clerk of the district court in and for Lewis and Clark county. Upon the final canvass the respondent was declared elected, and the appellant brought this proceeding to contest the result so declared. He failed to sustain his contest, and the court in its judgment, dismissing the same, awarded to the respondent $200 as attorney's fees. The purpose of this appeal is to raise the question whether such award was warranted, and the appellant's claim is that it was not, because: (a) There is no statute authorizing it; (b) if there is any such statute, the same is unconstitutional; (c) the award was made as against appellant's sureties without giving them a day in court.

(a) This proceeding was brought under what is commonly called the Corrupt Practices Act, passed by the people at the general election of 1912 (Session Laws 1913, p. 593 et seq.), which provides, among other things, for contesting elections. Section 48 of this enactment is, in part, as follows:

"Any petition contesting the right of any person to a nomination or election shall set forth the name of every person whose election is contested, and the grounds of the contest. * * * Before any proceeding thereon the petitioner shall give bond to the state in such sum as the court may order, * * * conditioned to pay all costs, disbursements and attorney's fees that may be awarded against him if he shall not prevail. If the petitioner prevails, he may recover his costs, disbursements and reasonable attorney's fees against the contestee. But costs, disbursements and attorney's fees, in all such cases, shall be in the discretion of the court, and in case judgment is rendered against the petitioner it shall also be rendered against the sureties on the bond. * * *"

Section 49 also provides:

"* * * If more than one petition is pending, or the election of more than one person is contested, the court may, in its discretion, order the cases to be heard together, and may apportion the costs, disbursements and attorney's fees between them. * * *"

We think the clear implication of these provisions is that the prevailing party, whether a petitioner or respondent, shall be entitled to attorney's fees in addition to his other costs and disbursements, the amount to be awarded in that behalf to stand upon the sound discretion of the court. The language employed is not precise, but the greater part of it would have to be ignored to justify any other conclusion.

(b) This being their effect, can these provisions be upheld? Appellant insists they cannot for these reasons: They subject the unsuccessful party in an election contest to a penalty not visited upon other unsuccessful litigants, and therefore deny to him the equal protection of the laws guaranteed by section 1 of the Fourteenth Amendment to the federal Constitution; they grant to the successful party in an election contest a special privilege not enjoyed by successful litigants in other cases, contrary to section 26, art. 5, of the state Constitution; they are violative of section 6, art. 3, of the state Constitution, which provides that the courts of this state shall be open to every person and that justice shall be administered without sale, denial, or delay; and they constitute an attempt to delegate legislative power and authority to the courts.

To support the first two of these specifications, counsel rely upon Mills v. Olsen, 43 Mont. 129, 115 P. 33, and a number of cases from other jurisdictions referred to in that decision and cited in the brief of appellant here. In Mills v. Olsen, the constitutionality of section 7166, Revised Codes, authorizing an award of attorney's fees to the successful claimant under a mechanic's lien, was challenged; but this court, without express discussion or decision of the question, contended itself with approval of the reasoning of the authorities referred to. Typical of these authorities, and in fact the controlling case, is Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666, wherein a Texas statute authorizing the successful claimant of certain causes of action against railroad companies, to recover attorneys' fees, was annulled as a denial of the equal protection of the laws. The grounds of this decision are thus interestingly stated:

"It is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are

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