State v. Clancy
| Citation | 77 P. 312,30 Mont. 529 |
| Parties | STATE ex rel. ANACONDA COPPER MIN. CO. v. CLANCY, Judge et al. |
| Decision Date | 22 June 1904 |
| Court | United States State Supreme Court of Montana |
Application by the state, on the relation of the Anaconda Copper Mining Company, for a writ of prohibition against the Second judicial district court and William Clancy, judge thereof. Writ granted.
A. J Shores, C. F. Kelley, and Forbis & Evans, for relator.
John J McHatton, T. J. Walsh, J. M. Denny, Toole & Bach, and J. B Roote, for respondents.
On November 10, 1903, the Governor of Montana issued his proclamation convening the Eighth Legislative Assembly in extraordinary session at the capital of the state on December 1, 1903. The purposes for which this Assembly was convened are indicated in the preamble to the proclamation. After reciting the fact that a large number of petitions had been addressed to him, asking that the Legislature be convened in extra session, the Governor continues: "Whereas, they [certain petitioners] further represent the desirability of general legislation by which the bias and prejudice of district judges be made a disqualification of such judges to try any case that may come before them or either of them, as well as legislation making suitable provision for the trial of such case or cases in such event: *** Now, therefore, I. J. K. Toole, Governor of the state of Montana, *** do hereby and by virtue of the power and authority in me vested by the Constitution convene the Eighth Legislative Assembly in extraordinary session, at Helena, Montana, the capital of said state, at 12 o'clock m., on December 1, A. D. 1903, for the purpose of considering the legislation herein before referred to and taking such action thereon as it may deem wise or expedient."
Pursuant to this call the Legislature met and passed two measures, which received the Governor's approval and are now before us for consideration. The first of these is entitled "An act to amend section 615 of the Code of Civil Procedure." The other is entitled "An act to amend section 180 of the Code of Civil Procedure." The only material change made in section 615 was to provide that: "If any qualified district judge shall be called in and shall within thirty days after the motion is made, appear and assume jurisdiction of the cause and of all matters and proceedings therein, no change of the place of trial shall be made." Section 180 was amended by adding thereto subdivision 4, the portions of which material here read as follows: "(4) When either party makes and files an affidavit as hereinafter provided, that he has reason to believe, and does believe, he cannot have a fair and impartial hearing or trial before a district judge by reason of the bias or prejudice of such judge. *** 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, but the provisions of this section do not apply to the arrangement of the calendar, the regulation of the order of business, the power of transferring the action or proceeding to some other court, nor to the power of calling in another district judge to sit and act in such action or proceeding. No more than five judges can be disqualified for bias or prejudice, in said action or proceeding, at the instance of the plaintiff, and no more than five at the instance of the defendant in said action or proceeding. ***
Thereafter an action was pending, ready for trial, in department No. 2 of the district court of the Second judicial district of Montana, which action is entitled "Anaconda Copper Mining Company, Plaintiff, versus Montana Ore Purchasing Company and Others, Defendants," and numbered 8,833 of the files and records of that court. This cause was set for trial for the 10th day of February, 1904. On February 5, 1904, the plaintiff, through its secretary and agent, made and filed an affidavit in accordance with the provisions of subdivision 4 of section 180, as amended by the act to which reference is made above. The filing of this affidavit was called to the attention of the court; but, notwithstanding this fact, the district judge presiding in the department in which the cause was set for trial, and against whom the affidavit of disqualification had been filed, announced his intention of proceeding with the trial. Thereupon an alternative writ of prohibition was issued from this court, directed to the district court and to the Honorable William Clancy, judge of department 2 thereof, requiring him to desist and refrain from any further proceedings in the cause until the further order of this court. This writ was made returnable, and the matter was argued and submitted to this court, on February 27, 1904.
The two acts above referred to are companion measures. The amendment to section 615 is intended to carry into effect the provisions of section 180 as amended. Numerous objections are lodged against the constitutionality of these acts. However, no particular infirmity is pointed out respecting the act amending section 615. If the act amending section 180 is valid, it is quite clear that no constitutional objection can be urged against the other.
1. In the first instance it is contended that the legislation is not within the purview of the Governor's call. Section 11, art. 7, of the Constitution provides: "He [the Governor] may on extraordinary occasions convene the Legislative Assembly by proclamation, stating the purposes for which it is convened, but when so convened, it shall have no power to legislate on any subjects other than those specified in the proclamation, or which may be recommended by the Governor." There is nothing contained in the Governor's recommendations to the Legislature, after it convened, in any manner qualifying the terms of the proclamation, so far as the particular measures under consideration are concerned. It must be borne in mind that the Governor is not a part of the lawmaking body. When convened in regular session, the power of the Legislature to enact laws is plenary, except in so far as the Constitution has limited it. State v. French, 17 Mont. 54, 41 P. 1078, 30 L. R. A. 415. The utmost extent of the Governor's authority, so far as constructive legislative work is concerned, is to recommend such measures as he shall deem expedient (section 10, art. 7, Const.); but there is not any legal or moral obligation resting upon the members of the Legislative Assembly to follow such recommendations, if they deem them unwise or the measures indorsed inexpedient. When the exigencies of the times require it, the Legislature may be called in extraordinary session by the Governor to consider particular subjects of legislation. Those subjects must be enumerated in the proclamation or in the Governor's message to the Assembly, and the power of the Legislature is limited to enacting laws affecting those subjects only. Section 11, art. 7, above. In other words, the Governor may submit the subjects with reference to which legislation is desired, but the lawmaking body then has absolute power to construct such laws respecting those subjects as it shall see fit (unless restrained by constitutional inhibition), or to disregard the subjects altogether and not enact any measures respecting them. The Governor has the same authority at a special session of the Legislature that he has at a regular session to recommend any particular measures which he may deem expedient; but such recommendation does not measure or limit the legislative authority. That authority is only limited by the scope of the subjects submitted for consideration, and any recommendation respecting a particular measure would not be binding upon the legislature assembly.
In order to determine whether a particular measure is germane to the subjects stated in the Governor's proclamation, it is incumbent upon us to examine the proclamation as a whole ( Chicago, B. & Q. R. R. Co. v. Wolfe, 61 Neb. 502, 86 N.W. 441) giving to the language used its ordinary meaning. It is fairly deducible from an examination of the proclamation that the Governor's purpose in calling the Legislative Assembly in extraordinary session was to secure if possible, the enactment of some measure whereby a district judge, charged with entertaining bias and prejudice against a litigant, to such an extent as to engender the belief in the litigant's mind that he could not have a fair and impartial trial of his cause, should not be permitted to sit and hear the same. It was not the Governor's purpose to advocate any particular measure, but, with this subject for consideration laid before the lawmaking power, to permit it freely to exercise its legislative discretion in framing any measure which might accomplish the result sought in calling the members together. To say that because, in his proclamation, the Governor specified "general legislation by which the bias and prejudice of district judges be made a disqualification of such judges to try any case," etc., no law enacted in pursuance thereof would be valid which did not expressly declare bias and prejudice a disqualification, would be to lodge in the Governor greater power than was ever contemplated by the constitutional provision under consideration. He cannot in advance tie the hands of the Legislature. He cannot submit the draft of a proposed bill, and direct the Legislature to enact it, or no measure at all; but any enactment which will meet the ends sought to be accomplished in his call must be deemed to be embraced within the limits of the subjects submitted for consideration. That a liberal rule for the interpretation of these proclamations has been generally applied, to the end that the legislation enacted in pursuance thereof be operative, is apparent from...
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