State ex rel. Westlake v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 01 November 1946
• Docket Number: 8681.
• Parties: STATE ex rel. WESTLAKE et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
• Court: Montana Supreme Court

173 P.2d 896

119 Mont. 222

STATE ex rel. WESTLAKE et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 8681.

Supreme Court of Montana

November 1, 1946

Petition by the State of Montana, on the relation of Lowell B Westlake and others, against the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, and Honorable A. J. Horsky, one of the Judges thereof, for a writ of supervisory control directing the defendants to set aside order of June 17, 1946 and reinstate order of January 28, 1946, permitting relators to be heard in action pending before the court.

Writ directed to issue. Arthur P. Acher and Stanley Foot, both of Helena, for respondents.

MORRIS Justice.

Petition for writ of supervisory control.

This controversy was before us in case No. 8655, 167 P.2d 588 591, and reference is hereby made to that case for the scope of the pleadings and proceedings as presented and determined at that time.

In some of the pleadings and briefs the plaintiff is referred to as the respondent and in others the intervenors are referred to as relators. In order to avoid confusion the parties will be referred to in this opinion as the plaintiff, the defendants and the intervenors.

In the original case, C. L. Brackman of Helena, Montana, a retail grocer and dealer in other related food products, commenced an action in the district court of the first judicial district against the commissioner of agriculture of the state of Montana and others, alleging, among other things, that sections 2620.45 and 2620.46 of the Political Code, Rev.Codes 1935, providing for a license tax on oleomargarine, are in violation of certain constitutional provisions. The attorney general of Montana answered for and on behalf of the commissioner of agriculture and the other state officials named as defendants. Intervenors, who are dairymen and butter makers, and whose products are in competition with oleomargarine, filed their petition for leave to intervene, alleging certain facts in support of their contentions to the effect that their rights were jeopardized by certain admissions made by the attorney general in his answer to the Brackman complaint and that relators' property rights would not be adequately protected unless they were permitted to be heard in their own behalf. Thereupon the trial judge made and entered an order granting relators' petition to intervene and their complaint in intervention was duly filed. The plaintiff moved to strike the complaint in intervention and after argument the motion was granted and the intervenors came to this court seeking a writ of supervisory control. That action we have referred to above as cause No. 8655. By our decision in that case the lower court was directed 'to annul the order striking the relators' complaint and answer in intervention.' That order having been complied with, the intervenors filed an amended complaint and answer on May 11, 1946. On June 5th the plaintiff filed a combined general and special demurrer to the intervenors' complaint and answer. Paragraphs V and VI of such demurrer set out the grounds upon which the complaint in intervention was attacked in these words:

'V. That said amended complaint in intervention and accompanying answer failed to set forth facts sufficient to show such an interest of the plaintiff in intervention in the matter of litigation, in the success of either of the parties, or an interest against both, as contemplated and required under the provisions of Section 9088, R.C.M. 1935, towarrant intervention.

'VI. That the interest of the plaintiffs in intervention, if any, are already represented in said litigation, and the amended complaint in intervention, and the amended answer in intervention fail to set forth any facts showing that counsel for the defendants have been guilty of any fraud or collusion so that the interests represented by the defendants are not properly represented.'

On June 17, 1946, the court sustained the demurrer. In the order sustaining the demurrer, the court said: 'The Court is of the opinion that the demurrer is well taken. Section 9088 R.C.M. 1935, which authorizes intervention, was borrowed from California, after the highest court of that State had placed its construction upon the corresponding provision, and it must be presumed that the interpretation theretofore placed upon it in California was also adopted. Moreland v. Monarch Mining & Mill. Co., 55 Mont. 419, 149 P. 175.

'The Supreme Court of California declared in the early case of Horn v. Volcano Water Co., 1859, 13 Cal. 62, 73 Am.Dec. 569, that the interest which entitles a person to intervene in a suit between other parties must be direct and immediate in character, and not consequential. Also see Elliott v. Superior Court, 168 Cal. 727, 145 P. 101, 105; La Mesa Lemon Grove & Spring Valley Irr. Dist. v. Halley, 195 Cal. 739, 235 P. 999, 1000; Drumhiller v. Wright, 64 Cal.App. 498, 222 P. 166, 167; City of Alhambra v. Jacob Bean Realty Co., 138 Cal.App. 251, 31 P.2d 1052.

'Idaho and Utah likewise adopted this provision from California, and follow the same rule. People ex rel. Glidden v. Green, 1 Idaho 235, 240; Utah Power & Light Co. v. Ogden, 95 Utah 161, 79 P.2d 61.

'However, it would not seem necessary to go beyond the decision of our own Supreme Court. The Court is of the opinion that State Bank of Outlook v. Sheridan County, 72 Mont. 1, 230 P. 1097, is controlling, requires that the demurrer be sustained, and precludes intervention in a case such as at bar until the Supreme Court sees fit to modify the scope and effect of that decision.

'In the absence of any allegations of fraud or collusion between plaintiffs and defendants it appears that the interests of the plaintiffs in intervention are already adequately represented.'

On July 11, 1946, the intervenors came back to this court and filed a petition praying for an order requiring the district court to show cause why its order of June 17th should not be annulled and set aside and its order of January 28, 1946, permitting intervenors to be heard in the action be reinstated and the cause proceeded with in accordance with section 9088, supra, on the merits. The writ was issued as prayed for and the matter was set for hearing and heard on July 17th.

At the outset we deem it advisable to set out the contentions of the parties as such contentions are gathered from the pleadings and arguments. The plaintiff's expressed purpose is to have sections 2620.45 and 2620.46 of Chapter 240 of the Political Code declared unconstitutional on the ground that it is confiscatory and in violation of amendment 14 of the Constitution of the United States in that it deprives plaintiff and others similarly situated of property without due process of law and denies them the equal protection of the laws; that it violates sections 3 and 27 of Article III of the Constitution of Montana, in that it denies the plaintiff and others similarly situated the right to carry on a lawful business without due process of law; that it violates sections 1 and 11 of Article XII of the Constitution of Montana, in that it assesses a tax which results in unreasonable and arbitrary discrimination and that it violates Article XII of the Constitution of Montana in that it levies a tax for a private purpose by prohibiting in large part the sale of oleomargerine and that such act is for the purpose of aiding the dairy business of the state. In paragraph X of the complaint it is alleged that the sections of the statute mentioned above were passed in the exercise of the police power of the state; that the license fee is prohibitive and is not necessary for the protection of the public health, morals, safety or welfare of the people of the state.

The defendants, by paragraph VI of their answer, deny that the statutes mentioned above were passed in the exercise of the police power of the state. At this point we think it well to say that the only part that the defendants have taken in this controversy was to file their answer. No brief has been filed by the defendants and they were not represented in this court in any of the arguments. The intervenors allege, and we think the facts sustain their allegation, that no objection has been made by the defendants to the petition of the intervenors to be heard in the proceeding in their own behalf. Their answer was filed in the original proceeding on September 27, 1945, and they have taken no part so far as this court is advised since their answer was filed more than a year ago.

While it is necessary to touch upon other questions, particularly the constitutional questions involved, the sole question we are required to determine in this proceeding is as to whether or not the intervenors are entitled to come in as parties file their answer and be heard in their own behalf. Section 9088, Revised Codes, provides: 'Any person may, before the trial, intervene in an action or proceeding who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it...