Great Falls tribune., 1888-10-20
THE MANITOBA SUIT.
Judge Bach Sustains the Demurre
of the Defendant.

Judge Bach Sustains the Demurrer
of the Defendant.
Judge Bach has rendered his decision
! in the land suit of the Manitoba railroad
against Robert Ford, Phil Manix and
others. The judge sustans the demurrer
made by the defendants. In his decis
ion the judge states in detail his reasons
IN order that the plaintiff may know
wherein to amend his complaint. The
first ground is that the defendant asserts
| this action under section 652, page 813
Of the complied statutes of Montana and
not under sections 6058 title XIV of sub
| ject first Of that compilation.
Judge Bach gives the history of the
| Legislation connected, with the complied
! statutes In the course of such synop
sis he says:
| To ascertain what is the meaning Of the
Legislature as concealed by the "com-
piled statutes" is a difficult task. In
many instances the courts will be forced
to invent new rules Of statutory construc
| ton, not to become precedents, for it is
quite inconceivable that similar state of
facts can exist elsewhere; In some in
stances the courts, as they are so fire.
quently accused Of doing, must resort to
guessing.
The history Of the laws Of Montana is
humorous, and shows that one man has
really created some of the sections of the
compiled laws, he thus becoming to that
extent the entire legislative power Of the
territory, the lower house, the council
and the governor, all in one. In 1879 the
Revised Statutes We're passed, Mr.. Comfy
being the compiler. Mr.. Comfy having
! filed his report, the legislature, after some
amendments thereof, enacted the same rs
the Revised Statutes. Thereafter Mr..
Smell, us private task, prepared com
pilation Of the statutes of Montana, using
as II basis the original report of Mr.. Comfy
without ut least some of the amendments
made by the legislature which adopted
that report. See the opinion of the
learned Chief Justice an re ETC. Thomas
j. Lowry deceased"
It seems that Mr. Smell then added to
that report all laws of a general nature
passed by the legislature thereafter up to
January 10, 1887, by pasting upon paper
the different sections of MIR. Comy's re-
port with the laws passed subsequent
4 thereto, he himself constituting the effect
of amendments in, at least, some instan-
ces; and, it would appear, thus giving te
amendments an effect which the legis-
lature never intended. 1t is this confused
mass of paste and paper which became
the compiled statutes of Montana; and
the legislature instead of enacting laws
which were the laws OF 1879 as amended
by the subsequent sessions of that body
as it intended to do, really enacted the
original report of Mr.. Comfy as amended
by subsequent acts of the Legislature as
construed by Mr.. Smell. Such are the
J laws of Montana.
There are some rules of Interpretation
which may help us as a guide:
1. Repeals by implication are moi
favored.
: 2. Where there is general law and ;
special law, an amendment to the genera
law will not imply repeal of the special
law unless they are irrect ncilable.
3. The intent of the legislature will
control, and unless it is unavoidable, such
construction will not be put upon al
act of legislature as will repeal ar ac
passed at the same session.
4. Although the title cannot contro
| still in doubtful cases it may be resortet
to in order to ascertain the intent of tho
legislature.
Among others l find the following
authorities: Harnden VS.. Gould, 1876 Mass
' All. State VS.. Carr 10 N. E. Rep. 31e.
On this point Judge Bach concludes al
as follows: am of opinion that the
special law contained in section 6S5 il
still in existance and controls in all case
A within it's terms and that this and tina
action is improperly brought"
! On the next ground of demurrer tina
the plaintiff is a foreign corporation ant
that it has not complied with the law il
9 such cases, Judge Bach decides also for th'
/! defendants. He holds also that th'
a plaintiffs complaint is defective inasmucl
: as it does not allege that the partie
could not agree as to damages before tn
< suit was brought. He oyerules the oh
t lection that the plaintiff has not prove'
+ that the lands is needed for railroad pun
: : poses, He likewise overuled the objec
tions based on the assumption that con
gress, not the territory of Montana, ha
) the right of eminent domain. II
overules this the and preceding objectio
formally, being unwilling to decide o.
: such matters in the first stage of the pre-
5 ceedings.