Holt v. Custer Cnty.

• Decision Date: 23 February 1926
• Docket Number: No. 5864.,5864.
• Citation: 75 Mont. 328
• Parties: HOLT v. CUSTER COUNTY et al.
• Court: Montana Supreme Court

75 Mont. 328

HOLT

v.CUSTER COUNTY et al.

No. 5864.

Supreme Court of Montana.

Feb. 3, 1926.

Rehearing Denied Feb. 23, 1926.

Appeal from District Court, Custer County; S. D. McKinnon, Judge.

Action by W. E. Holt against Custer County and others. From a judgment for defendants, plaintiff appeals. Affirmed.

H. E. Herrick, of Miles City, for appellant.

L. A. Foot, Atty. Gen., and Rudolph Nelstead, Co. Atty., of Miles City, for respondents.

GALEN, J.

This action was instituted by the plaintiff as a citizen, resident, and qualified elector of Custer county to secure an injunction restraining the defendants from the threatened issuance and sale of bonds against the county of Custer to the amount of $50,000, intended to be used for the construction of a steel bridge across the Powder river, which river is now well known in western rhyme and song. After issue joined, the case was submitted to the court upon an agreed statement of facts. The court found in favor of the defendants, and judgment was entered accordingly. The appeal is from the judgment.

The regularity of the election held authorizing the issuance of the bonds and the constitutionality of the statute providing for the submission of the question to the people are by the plaintiff attacked. However, since the allegations of the complaint and the statements contained in the agreed facts do not show a right of action vested in the plaintiff on any theory, this court is not in position to consider the questions argued and presented on the appeal. In his complaint he alleges that he “is now, and has been for several years last past, a citizen and resident and duly qualified and registered elector of Custer county,” and in the agreed statement of facts his right of action is again predicated on a similar recital. It does not appear that he is either a taxpayer, or that he was wrongfully, or otherwise, denied a right to vote at the election. Consequently he is in no position to complain. It does not devolve upon this court to determine the constitutionality of the law or decide the merits of the questions involved, where the complainant does not show that he has been, or is likely to be, injured. The constitutionality of a statute can never be called in question by a person whose interests have not been, or are not about to be, prejudicially affected by its operation. State ex rel. Holliday v. O'Leary, 115 P. 204, 43 Mont. 157;Potter v. Furnish, 128 P. 542, 46 Mont. 391;Barth v. Pock, 155 P. 282, 51 Mont. 418;Pohl v. Chi., Mil. & St. P. Ry. Co., 160 P. 515, 52 Mont. 572.

To maintain an action the plaintiff must show that he has a right to be enforced or a wrong to be prevented or redressed. Section 8997, R. C. 1921. One possessing a right may enforce it by...