State v. District Court of Lewis and Clark County
| Decision Date | 22 April 1914 |
| Docket Number | 3452. |
| Citation | 140 P. 732,49 Mont. 146 |
| Parties | STATE EX REL. COTTER v. DISTRICT COURT OF LEWIS AND CLARK COUNTY ET AL. |
| Court | Montana Supreme Court |
Application by the State, on the relation of Harry C. Cotter, against the District Court of Lewis and Clark County and the Judge thereof for a supervisory order annulling an order of the district court. Order annulled with directions.
W. D Rankin, of Helena, and H. A. Frank, of Butte, for relator.
C. B Nolan, of Helena, for respondents.
On December 22, 1913, Mary Margaret Cotter died in Lewis and Clark county, leaving a will in which Thomas Cruse, her father, is named as her sole legatee. The will does not designate an executor. On December 29th Thomas Cruse filed in the district court a petition asking that the will be admitted to probate and that he be appointed administrator with the will annexed of the estate of the deceased. On January 9, 1914, the relator herein, as surviving husband of the deceased, appeared to contest the will by filing written grounds in opposition to the probate of it. At the same time he presented to the court a petition asking that he be appointed special administrator pending a determination of the contest. On January 16th Thomas Cruse filed his petition asking that he be appointed, presenting therewith, in writing, objections to the appointment of the relator on the grounds, among others, that he is not the surviving husband of the deceased, and that he is incompetent to act as administrator by reason of his improvidence. The petitions and objections were heard together, with the result that on January 27th the court made and caused to be entered an order denying the petition of the relator, and appointing Thomas Cruse. Thereupon, there being no appeal, the relator applied to this court for a supervisory order annulling the order of the district court and directing the appointment of himself. Two questions are submitted for decision, viz.: Whether, upon the facts disclosed, the relator is the surviving husband of the deceased; and whether he is incompetent by reason of his improvidence.
Upon the assumption that he is the surviving husband of the deceased, and legal cause was shown for the appointment of a special administrator (that such cause was shown is not now controverted), the relator was prima facie entitled to the appointment. The surviving husband or wife is entitled to general letters of administration, to the exclusion of any other person (Rev. Codes, § 7432), unless at least one of the grounds of incompetency enumerated in section 7436 is shown. In selecting a person to act as special administrator, the court or judge is expressly required to give preference to the person who is entitled to letters testamentary or of administration. Section 7472. A refusal to accord the preference thus given, in the absence of a showing of incompetency, is a direct violation of this provision. State ex rel. Eakins v. District Court, 34 Mont 226, 85 P. 1022.
It appears that the deceased obtained a divorce from her first husband by a decree of the district court of Lewis and Clark county, on May 19, 1911, and that she and the relator were married at Boulder, in Jefferson county, on October 26, 1911. It was insisted by counsel for Thomas Cruse in the district court, and the same argument was made at the hearing in this court, that the second marriage, being within the prohibition of section 3657 of the Revised Codes, was void, and hence that the relator, not having thereby become the lawful husband of the deceased, occupies the position of a stranger to the estate, and is not entitled to administer it, without regard to the question whether he is otherwise competent. Counsel for the relator have proceeded upon the assumption that section 3657 was repealed by an act of the legislative assembly approved March 6, 1895, and hence could not affect the validity of the marriage. This assumption, it is said by counsel for Thomas Cruse, is unwarranted because the invalidity of the repealing act is apparent on its face, in that the title of it, as enacted and approved by the Governor, contained no reference to section 3657, and was therefore obnoxious to the provisions of section 23, art. 5, of the Constitution, which declares: "No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." Section 3657 reads as follows: "When a divorce is granted for any of the causes mentioned in section 3643, the innocent party cannot marry until after the expiration of two years, and the guilty party cannot marry until after the expiration of three years from the entry of the judgment of divorce; but this section shall not prevent the parties to the action for a divorce from re-marrying each other at any time."
To a proper understanding and decision of the question presented, a brief statement of the history of the legislation is necessary. The Code commission created by the act of the territorial Legislature approved March 14, 1889 (Laws 16th Sess. p. 116), filed with the Secretary of State on February 4, 1892, the result of its labors in the form of four Codes, which, with amendments thereto, were adopted by the fourth legislative assembly, as the Civil Code, Code of Civil Procedure, Penal Code, and Political Code, and were published as the Codes of 1895. When the assembly convened in January, 1895, it at once became a question what course should be pursued by it in adopting these Codes. The plan recommended by the Code committee was to enact each Code as a whole by a separate bill with certain excepted provisions, and thereafter to enact such amendments by separate bills as might be deemed necessary (House Journal, p. 115); and this plan was adopted and pursued. House Bill 36, to establish a Civil Code, was introduced on January 17th (House Journal, p. 86). It was finally adopted on February 19th (House Journal, p. 280), and approved by the Governor on the same day. The parts, divisions, titles, chapters, articles, and section numbers, except certain sections which had been stricken out, remained as they were when the Code was reported by the commission. By its own terms, the Code was to become effective on July 1, 1895. On February 1, House Bill 142 was introduced, entitled: "An act to amend sections 90, 95, 110 and 112 of the Civil Code of the state of Montana." This was approved and became a law on March 6th. It consisted of two sections. The first re-enacted sections 90, 95, and 112, as amended; the second provided: Section 91, it will be observed, is not mentioned in the title. Section 110 is not anywhere mentioned in the body of the bill. Amended sections 90, 95, and 112 found their way into the Code as finally published, under the section numbers 145, 160, and 177, and appear in the Revised Codes as sections 3656, 3658, and 3675. Section 110 appeared in the Code of 1895 as section 175, and is section 3673 of the Revised Codes. All of these sections relate to the subject of divorce. The commissioner provided for by the same legislative assembly to compile and codify the general laws enacted by the third and fourth legislative assemblies, to arrange the same in proper form and to insert their various provisions in the several Codes in their appropriate places, being of the opinion that section 91, supra, had not been repealed, because not mentioned in the title of the bill, brought it forward into the Codes as section 146, and it appears in the Revised Codes as section 3657.
It was said by this court, in considering the validity of another statute enacted at the same session of the Legislature, the title of which was similarly defective: In re Ryan, 20 Mont. 64, 50 P. 129. This statement is amply justified by the brief history of the course of legislation during the sitting of that assembly, and the plan adopted to accomplish the task before it. Recognizing the impossibility of considering section by section the four Codes, consisting of some 10,000 sections, within the 60 days allotted to it under the Constitution in which to complete its work, it was compelled to adopt some more practicable and expeditious plan to secure their adoption. The plan adopted, though anomalous is not obnoxious to any express or implied provision of the...
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