Territory v. Board of Com'rs of Yellowstone County

• Citation: 9 P. 918,6 Mont. 147
• Parties: TERRITORY ex rel. BOARD OF COM'RS OF CUSTER CO. v. BOARD OF COM'RS OF YELLOWSTONE CO.
• Decision Date: 25 January 1886
• Court: Montana Supreme Court

9 P. 918

6 Mont. 147

TERRITORY ex rel. BOARD OF COM'RS OF CUSTER CO. v. BOARD OF COM'RS OF YELLOWSTONE CO.

Supreme Court of Montana

January 25, 1886

Appeal from First district, Gallatin county.

E. W. & J. K. Toole, Wm. Wallace, Jr., and Sanders, Cullen & Sanders for appellant.

Strevelle & Garlock, for respondent.

WADE C.J.

This is an application for a writ of mandate, in which the relator substantially sets forth that a large part of the territory and area embraced within the present county of Yellowstone was, previous to the organization of Yellowstone county, a part of Custer county; that Yellowstone county was created and organized under the provisions of an act of the legislative assembly of the territory, approved on the twenty-sixth day of February, 1883; that by the provisions of said act the county of Yellowstone was attached to the county of Custer for judicial purposes, and the officers of Custer county were to act as officers of Yellowstone, except as otherwise provided by said act, until the first day of May 1883; that while Yellowstone county remained so attached to the county of Custer for judicial purposes there was, on the tenth day of April, 1883, at Miles City, the county seat of Custer county, begun and holden a term of the district court of the Third judicial district, in and for said county of Custer and the county of Yellowstone, which said term of court was duly appointed to be held at the time and place aforesaid; that at the term of said court there were brought and were pending, and then and there tried and otherwise disposed of by said court, a large number of causes from the county of Yellowstone, on account of which was incurred a large part of the public expenses of said term, which expenses were incurred for, and on account of, and are chargeable to, the county of Yellowstone while the same was so attached to Custer county; that at the close of said term of court the judge thereof made inquiry as to what share of the public expense of said term was incurred for and on account of said Yellowstone county, and properly chargeable thereto; that upon said inquiry said judge did find that the expenses of said term, in certain cases which are named and set forth in the said application, were incurred for and on account of the said county of Yellowstone; that thereupon the said court and the judge thereof did rule that the board of county commissioners of Yellowstone reimburse the county of Custer all costs, charges, and public expenses incurred at said term of court in all the cases so named in said application; that the said court and the judge thereof did further order that the said board of commissioners of said Yellowstone county draw their warrant on the treasurer of their said county against the general fund thereof payable to the county commissioners of the county of Custer for said expenses, and forward the same to the treasurer of Custer county, and did further order that the clerk of said court should, as soon as practicable, furnish the board of commissioners of each of said counties a statement of the items of said expenses incurred in said causes, a copy of which order and itemized statement are attached to and form a part of said application; that the amount of said expenses is $5,812.20; that the commissioners of Yellowstone county refuse to draw a warrant therefor in pursuance of said order; that the county of Custer has no speedy or adequate remedy at law. Whereupon the relator prays for a writ of mandamus.

There was a demurrer to the application overruled, and an alternative writ of mandate issued; and an answer, in which the appellant alleged, in substance, that it is a municipal corporation existing by and under the provisions of an act of the legislative assembly of Montana, entitled "An act to create the county of Yellowstone, and for the election of officers thereof," approved February 26, 1883; that relator ought not to have the relief in the writ required and demanded because all the services mentioned and set forth in said application are for services rendered in prosecuting the sundry persons therein named for offenses committed in Custer county, and not otherwise; and then follows an allegation as to each case named in the application, showing that the crime for which the defendant was tried was committed in the county of Custer prior to the passage of the act creating the county of Yellowstone, but there is no...