Durocher v. Myers
| Decision Date | 27 February 1929 |
| Docket Number | 6389. |
| Citation | 274 P. 1062,84 Mont. 225 |
| Parties | DUROCHER v. MYERS. |
| Court | Montana Supreme Court |
Rehearing Denied March 6, 1929.
Appeal from District Court, Phillips County; O. F. Goddard, Judge.
Action by E. L. Durocher against Jake Myers. Judgment for defendant and plaintiff appeals. Reversed and remanded for new trial.
Victor R. Griggs, of Havre, and Fred C. Gabriel, of Malta, for appellant.
Tressler & Kirton, of Malta, and Hurd, Hall & McCabe, of Great Falls, for respondent.
Appeal from a judgment entered on directed verdict in an action for conversion. Plaintiff sought to recover the value of 30 head of horses and 15 colts, seized and sold by the defendant while acting as foreman of a duly created roundup district in Phillips county. Issue being joined, the cause was tried by the court and jury, and by stipulation, admissions, and uncontradicted testimony the questions for determination were narrowed to the time of day when the sale was held and the value of the horses. On these questions the plaintiff and one other testified that the sale was held prior to 8 a. m. The plaintiff was permitted to fix a value on his horses, and then called one Lars Rasmussen, who, after preliminary interrogation, which will later appear, was asked to state the value of the horses, to which question defendant objected on the ground that no proper foundation had been laid. The objection was sustained.
At the opening of defendant's case, plaintiff objected to the introduction of any testimony in defense, on the ground that the act under which defendant presumed to act is unconstitutional. The objection was overruled, and defendant made his defense and rested; his counsel then moved the court to instruct the jury to return a verdict for the defendant, which motion was granted, and, on return of the directed verdict, judgment was entered thereon. Plaintiff has appealed from the judgment, and assigns error upon (1) the exclusion of Rasmussen's testimony as to the value of the horses; (2) the admission of testimony on the part of the defendant; and (3) the taking of the case from the jury.
1. Plaintiff's witness, Rasmussen, testified that he was a farmer and had had experience in " raising, handling, and dealing in horses," thus bringing himself within the rule announced in Klind v. Valley County Bank of Hinsdale, 69 Mont. 386, 222 P. 439. However, " dealing in" means buying and selling for the purpose of gain (Saunders v. Russell, 78 Tenn. 293; Bates v. Bank, 2 Ala. 451), and includes the idea of a market for the property, or that there is a present opportunity to dispose of it. In the Klind Case the property involved consisted of cattle for which there may have been no local market created, but which had a recognized market price somewhere. Here the witness testified, before being asked to express his opinion as to the value of the horses, that he knew of no market for that kind of horses, in the vicinity or elsewhere, " that I know of." His testimony that he had dealt in horses, therefore, had reference to a time in the past when conditions differed from those existing at the time of the alleged conversion of these horses.
The measure of damages is " the value of the property at the time of its conversion" (section 8689, Rev. Codes 1921), which usually means the market value (James v. Speer, 69 Mont. 100, 220 P. 535); but property may have a value, notwithstanding there is no market for it, and it will not do to say that, because not bought and sold in the market, valuable property may be taken or destroyed and the owner receive nothing therefor (Union Pacific Ry. Co. v. Williams, 3 Colo.App. 526, 34 P. 731). However, if there is no market anywhere, as well as no local market established, the value of the property should be established by laying a foundation for proof on some recognized theory or measure of value. " The value of nonmarketable property may be shown by evidence of its cost, manner of use, general condition and quality * * * and by other facts which would naturally affect the minds of parties desiring to buy or sell" (13 Ency. of Evidence, 524); a dog may be shown to have a market value, or to have some special or peculiar value to its owner, to be ascertained by reference to its usefulness and services. Horwitz's Jones' Commentaries on Evidence, 864. Having shown in advance that there was known to the witness no market for horses such as are the subject-matter of the action " anywhere," foundation should have been laid for proof of value, other than market value, and, in the absence of such a foundation, no error was committed in refusing to permit the witness to place a fanciful value on the horses.
2. On objection to the introduction of defendant's testimony, plaintiff asserted that the act providing for the creation of roundup districts is violative of many provisions of our Constitution, but on appeal only those matters herein discussed are presented. The act under which the roundup district in question was created (chapter 29, Laws of 1927) has in view the ridding of our public ranges of abandoned horses, by the gathering thereof within created districts, their advertisement for sale, and sale at public auction; an " abandoned horse" being described as any animal of the genus equus of the age of one year or over which is unbranded, or, if branded, which has escaped taxation for the year preceding its impounding, including foals running with dams.
Plaintiff's mares were branded, but escaped taxation for the year 1926, and were not listed for taxation for the year 1927, when, in May or June, 1927, they were taken up by defendant's roundup crew. Thus it appears that the horses were impounded, under the provisions of the act, as " abandoned" before the law was enacted. Plaintiff, therefore, asserts that the act is retroactive and unconstitutional, in that it violates section 11 of article 3 of our Constitution, which provides that " no ex post facto law, nor law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed. * * *"
There is no prohibition in our Constitution against retrospective legislation, other than that contained in this section ( Bullard v. Smith, 28 Mont 387 72 P. 761, except section 13, article XV, which has no application here), and therein the prohibition against the passage of ex post facto laws has no application, as the term relates to crimes, and not to civil proceedings, which affect private rights retroactively (Kentucky Union Co. v Kentucky, 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137; Bankers' Trust Co. v. Blodgett, 260 U.S. 647, 43 S.Ct. 233, 67 L.Ed 439). The Legislature was therefore free, so far as constitutional provisions are concerned, to pass any retroactive laws which do not violate the obligations of contracts or interfere with any vested rights. Bullard v. Smith, above; Falligan v. School District, 54 Mont. 177, 169 P. 803. The act under consideration does not command, by its context, that it be given a retroactive effect, and is not violative of any constitutional provision.
Plaintiff, however, contends that, in order to affect his rights, the statute must be given retroactive effect, and therefore a taking under this act is no defense to this action. While the plaintiff had a vested right in the subject-matter of this action, he had no right to so use his property as to injure others, and had no vested right to the enjoyment of that property without the payment of taxes thereon. The act in question was passed in the exercise of the police power of the state. Jorgenson v. Story, 78 Mont. 477, 254 P. 427. It declares any abandoned horses running at large on the range to be a public nuisance and a public menace, and condemns all such animals, but subject to the right of the owner of any such animal to reclaim it as in the act provided. The act, therefore, in providing for the sale of such animals, but provided additional means of enforcing the pre-existing obligation of owners of property not to maintain the same as a public nuisance.
Again, the law requires every owner of property to list it for taxation and to pay the taxes thereon as his contribution to the expenses of government. The act under consideration provides for ample notice of the taking up of such animals and of their proposed sale, and accords the owner thereof ample opportunity to purge his animals of the charge of being " abandoned" by the payment of the taxes and charges thereon, and proof of ownership, prior to sale. Sections 6, 7, and 8, c. 29, Laws of 1927. It provides for the halting of the sale, pending proof of ownership. The plaintiff had notice and knowledge of the taking up of his horses and of their proposed sale, and every opportunity to save them from the sale, and their loss, if they have been lost to him, is due, not to the retroactive effect of the law, but to his failure to perform a duty imposed upon him by law; that is, the listing of the horses for taxation and the payment of the just impost upon them. Laws which have a retroactive effect are clearly valid, where they merely add to the means of enforcing existing obligations and are just and reasonable; this has always been the rule. 1 Kent's Commentaries, 456.
Clearly this law is just and reasonable; it does not, of itself, deprive the plaintiff of his property right in his horses, and it afforded him ample time and opportunity to protect his rights, if he saw fit to do so. His property was held subject to the police power of the state and of the taxing power thereof, and the act but enforces obligations theretofore existing (Colvill v. Fox, 51 Mont. 72, 149 P. 496, L.R.A. 1915F, 894), and is not objectionable because it furnishes a...
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