In re Woodside-Florence Irr. Dist.

• Decision Date: 06 May 1948
• Docket Number: 8727.
• Parties: In re WOODSIDE-FLORENCE IRR. DIST.
• Court: Montana Supreme Court

194 P.2d 241

121 Mont. 346

In re WOODSIDE-FLORENCE IRR. DIST.

No. 8727.

Supreme Court of Montana

May 6, 1948

Rehearing Denied May 25, 1948.

Appeal from Fourth Judicial District Court, Ravalli County; Albert Besancon, Judge.

Proceeding in the matter of the organization of Woodside-Florence Irrigation District wherein objections to establishing the district were filed. From an order establishing district objectors appeal.

Decision in accordance with opinion.

On Petition for Rehearing.

W. T. Boone and Edward T. Dussault, both of Missoula, and O'Hara, Madeen & MacDonald, of Hamilton for appellants.

Pope & Smith, of Missoula, Koch & Brownlee, of Hamilton, and C.J Dousman, of Helena, for respondent.

ADAIR Chief Justice.

This is an appeal from an order made by the Honorable Albert Besancon, a judge of the district court of the fourth judicial district of the state of Montana in and for the county of Ravalli, establishing the Woodside-Florence Irrigation District wherein are included appellants' lands.

The irrigation district includes approximately 15,000 acres of land in the Bitterroot valley lying to the west of the Bitterroot river. The estimated cost of the project is $1,444,000.00.

The proceedings were commenced by filing in said district court a petition signed by numerous petitioners alleged to represent more than 60% in number of the holders of title or evidence of title to the particularly described lands proposed to be included in the irrigation district.

June 14, 1946, Judge Besancon made an order setting the petition for hearing for July 31, 1946, and directing the clerk to cause notice thereof to be given as provided in section 7169, Revised Codes of Montana 1935.

June 15, 1946, the clerk filed in the proceeding his certificate, with the newspaper copy of petition attached, showing that he had given notice as ordered by the court.

Disqualification Effected. July 25, 1946, James E. Wimett, one of the signers of the petition, swore to, subscribed and filed in said proceedings with the clerk of the court an affidavit disqualifying Judge Besancon wherein the affiant deposed: 'That he is one of the petitioners in the above entitled matter and makes and files this affidavit because he has reason to believe, and does believe he cannot have a fair and impartial hearing before the Honorable Albert Besancon, Judge of the above styled District Court, by reason of the bias and prejudice of the said judge.'

Disqualification Disregarded. The bill of exceptions herein recites that, 'the matter came on regularly to be heard * * * at 10 o'clock, A.M. on Tuesday, August 6, 1946, before the Hon. Albert Besancon, Judge Presiding, sitting without a jury, upon the petition of the proponents of the District, and the various objections filed thereto.'

The petitioners were represented by Walter Pope, Esq., of Missoula, Montana, and associates. The objectors were represented by Robert O'Hara, Esq., of Hamilton, Montana, and associates.

Thirty-eight named land owners opposing the creation of the district represented by Attorney O'Hara and associates appeared in the proceeding and interposed a motion to dismiss the petition for the creation of the district.

On August 6, 1946, Judge Besancon, disregarding his disqualification and assuming to sit and act in the proceeding, took his place on the bench and called the cause for trial whereupon at the commencement therof the following proceedings were had in open court:

'Mr. O'Hara: At this time we desire to make an objection and we now object to the Hon. Albert Besancon presiding in this proceeding, for the reason that he has been disqualified by an affidavit of prejudice filed by J. E. Wimett, one of the proponents of the formation of this district. We are making this objection on behalf of those parties, clients of ours, whose names are set forth in the motion to dismiss the proceedings heretofore filed in this case. I want to say that our position is this: That you have been legally disqualified, and we do not think that you are entitled to sit in the case. We do not feel that you are prejudiced, but we are standing on the record as it has been made by the proponents of the district. Our investigation of the matter has completely convinced us that the proper affidavit was filed, and that you have no jurisdiction to try the case.

'Mr. Pope: In that connection, in line with the statement heretofore made informally on behalf of the petitioners, the record may show that, on behalf of the petitioner by whom the affidavit was filed, we move that we be permitted to withdraw the affidavit. In that connection, I am speaking on behalf of the petitioners generally, and on behalf of James Wimett, whom I also represent along with the other petitioners. We ask leave to withdraw the affidavit filed on July 25th.

'Mr. O' Hara: Does that include a request that the maker of the affidavit be prosecuted for perjury?

'The Court: I note from the record that the motion to dismiss was filed here on the 30th of July. The objections you make now are on behalf of the parties named in that motion. I recall that on the 31st this matter of the affidavit of prejudice was carefully considered by the Court and the attorneys. Mr. O' Hara was present all of that time.

'Mr. O'Hara: At no time in the proceeding have I consented to anything.

'The Court: I say you were present. At that meeting on the 31st, it was tentatively agreed that the petitioners would withdraw the affidavit of prejudice filed by Mr.

Wimett. So at this time the affidavit filed by J. E. Wimett is withdrawn by the petitioners, and considered withdrawn by the Court, and is out of the way in this case. As to the objections to the withdrawal, those objections are over-ruled, and the case may now proceed.

'Mr. O' Hara: Let the record show that we except to the ruling of the Court.

'The Court: The matters before us now are the petition, the motion to dismiss the petition, and the various petitions to withdraw lands from the district. It seems the matter now for hearing would be this motion to dismiss the petition.

'Whereupon, the court heard argument by all counsel as to the law on the question of the motion to dismiss the petition, filed on behalf of the objectors herein; and at 12 o'clock Noon, Court recessed until 1:30 o'clock, P.M., at which time the following further proceedings were had:

'The Court: The motion to dismiss this petition, by Albert Sestak and others, presented by W. T. Boone and O'Hara, Madeen & Macdonald, is in all things denied.

'Mr. O' Hara: May we have an exception to the ruling of the Court?

'The Court: Certainly.'

Thereafter evidence was adduced and Judge Besancon assumed to make an order establishing the irrigation district wherein, over appellants' objections; their lands were included.

Appellants assign six specifications of error. The first three specifications present the question: Did Judge Besancon have jurisdiction to sit or act as judge in the trial of this cause?

Jurisdiction. The word 'jurisdiction' is derived from the Latin 'juris dicto,' 'I speak by the law.' The jurisdiction of a court is in a broad sense its power to hear and determine controversies and in a more restricted sense its power to adjudicate a particular case. It is not within the power of litigants to invest a court with any jurisdiction or power not conferred on it by law. Accordingly consent cannot cure jurisdictional defects resulting from the determination of matters by a person, judge or tribunal not qualified or empowered to preside or perform judicial acts. See 21 C.J.S., Courts, § 85, pages 127-131.

The Wimett affidavit, filed in time, is sufficient in substance and form to meet all the requirements of our Fair Trial Law, subd. 4 of sec. 8868, Rev.Codes.

The mere filing of the affidavit ipso facto worked the disqualification of the district judge against whom it was directed. State ex rel. Lohman v. District Court, 49 Mont. 247, 249, 141 P. 659; State ex rel. Durand v. District Court, 30 Mont. 547, 77 P. 318; Washoe Copper Co. v. Hickey, 46 Mont. 363, 365, 128 P. 584; State ex rel. Goodman v. District Court, 46 Mont. 492, 494, 128 P. 913; State ex rel. Anaconda Copper Mining Co. v. Clancy, Judge, 30 Mont. 529, 542, 77 P. 312; State ex rel. Grogan v. District Court, 44 Mont. 72, 75, 119 P. 174; State ex rel. Coleman v. District Court, Mont., 186 P.2d 91; State ex rel. Ballard v. Jefferson Circuit Court, Ind.Supp., 1947, 73 N.E.2d 489.

'Upon the filing of the affidavit, the judge as to whom said disqualification is averred shall be without authority to act further in the action, motion, or proceeding.' Subd. 4, sec. 8868.

When the affidavit is filed in the cause the judge so challenged 'must not sit or act as such' in that particular action or proceeding. Sec. 8868.

Upon the filing of the affidavit the authority of the challenged judge to act in the cause is expressly limited to the doing of the purely ministerial acts of arranging the calendar, regulating the order of business, calling in another judge or transferring the cause, if a transfer is proper. Subd. 4, sec. 8868; Rowan v. Gazette Printing Co., 69 Mont. 170, 220 P. 1104; State ex rel. Moser v. District Court, 116 Mont. 305, 314, 151 P.2d 1002; State ex rel. Goodman v. District Court, supra; State ex rel. Working v. District Court, 50 Mont. 435, 439, 147 P. 614; State ex rel. Sherman v. District Court, 51 Mont. 220, 152 P.32; State ex rel. First Trust & Savings Bank of Billings v. District Court, 50 Mont. 259, 261, 146 P. 539; State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244; State ex rel. Stefonick v. District Court, 117 Mont. 86, 157 P.2d 96;

State ex rel. Ballard v. Jefferson Circuit Court, supra.

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