The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-10-31
STATE SUPREME COURT
Rehearing in School Tax Case Is
Denied.
FIRST DECISION STANDS
The Court Cannot Assume the Function
of Legislature-But One Course
Open - Some Other
Opinions.
Special Dispatch to the Standard.

to-day passed upon the motion for re-
hearing of the courts decision in the
case of County Treasurer Hillburn of
Flathead county against the Great
Northern, more Familiarity known as the
special school tax levy case. which was
2 made last week by the attorney gen.
eral. The court denies the motion in a |
decision by the whole court.
The court says that at the time the |
original opinion was handed down it |
was fully aware of its Importance and |
of the disastrous consequences that
might result in some districts.
Yet" says the court. " when con-
fronted with the necessity of a choice |
between declaring the sections of the |
statute in question invalid and assum- |
ing the functions of the legislature,
there was but one course left to us. |
We could find no other legitimate solu- |
ton of the matter. Nor are we now,
after a further examination of the
statute itself and the authorities cited
by counsel able to announce different
conclusion"
The attorney general contended in
his first motion for a rehearing that
because of the antiquities of section
1910 touching the submission of the
district no sum can be voted unless for
the words ''the sum voted" there were
sumbftted, 1.-The sum mentioned in the
notice. claiming that where it is mani
fest upon the face of an act that an
error has been committed in the use of
words the court may correct the error
and read the statute as corrected in or
der to give the effect of the obvious in
tention Of the legislature. The court,
after citing various authorities, says 1t
does not feel justified In taking such
action.
I'VE apprehend," says the opinion,
that no authority can be found to sus
tain a court in reading such a change
into a statute as that the effect will be
to abrogate a specific provision made
therein. We do not think the suggestion
made by the counsel will avoid the diff
Guilty. In our opinion it is impossible to
observe the requirements of the statute,
under the rules of construction APP
Il plicable to it, without making a sub
stantial amendment to it sufficient to
carry out one or the other of the
theories contemplated by it's inconsist
ent provisions
In conclusion. the court says:
but even if we agree with counsel
as to the proposed change in the read
ing of section 1910. what disposition
shall we make of the difficulty touching
the tax roll? Section 1941 is a part Of
the old act. but reading it in connection
with 1910. it is perfectly apparent that
the tax rate, however it may be fixed,
is levied upon the roll as equalized by
the board as we showed in the original
opinion; this roll must be based upon the
valuations of the previous year and
there is no authority of law either in
the title relating to revenue or in that
relating to education to use this roll.
In fact it contravenes the express pro-
visions of the former in this respect.
= I. ~ 49, .r,&,,, TOW, lat n
down by the legislature itself, these
must prevail where there is conflict
with the other titles.
Counsel seeks to avoid this diff
Guilty, however, by invoking other rules
of construction, viz: That the con-
temporaneous and long continued prac.
tice of officers required to execute OF
take special cognizance of statute Is
strong evidence of it's true meaning.
And that If the legislature, by its mac
ton, has sanctioned a certain construc
tion, language apparently unambigu-
Gus may be given by the court such
construction, especially if the usage
has been public and authoritative.
Under authorities quoted counsel ar
CUES that, in view of the inveterate con
struction which the country treasurerE
throughout the state have given to this
feature of the act. and especially ir
view of the acquiesence therein of thu
legislature. this court should allow i
to stand. While the old act stood fol-
many years upon our statute books, /
was essentially different from the Law
as passed in 1895 and amended in 1897
This difference was pointed out In tn
original opinion. Prior to 1895 the powe
of the voter was unlimited in consent
Ing to the laying of special school taxes
In the act thus amended limit wa
imposed upon this power; moreove
there was no express provision in thu
revenue laws touching the basis of tax
alton and the legislature had not priol
to that time laid down the rule of con
struction to be applied. While in favol
of vested rights we should be strongly
inclined to yield to the argumentun
alb convenient, but we cannot considel
it in the face of the conditions here
presented The authorities cited are
only applicable in a condition Of thing!
where vested rights have been acquired
and where for many years the construc
ton insisted upon has been the rul
of action and to disturb it would be t.
work great public and private injur.
and Inconvenience. Under the act be
fore us and the other provisions Of lay
to which we must also look, the praC
tice has not become inveterate. Thi
tax was levied for the year 1897, With
two years of the date of the passas
of the act Its terms are not apparent
unambiguous. They are both ambigr
Gus and conflicting with each other an
with other provisions Of law which the
cannot be held to repeal. The motto
for rehearing is denied
The court united in an oninion affirm
ing the district court of Silver Bow
an order granting new trial in Il
case of John O'Rourke and Cthe
against E. II. Sherman. Plaintiffs SUI
to recover the sum of S1.233.I6. alleg'
to be due by the defendant under Il
terms of written lease between plaiI
tiffs as lessons and defendant as Jesse
On the trial before the lower court d
PENDANT denied the Indebtedness and :
legged a surrender of the lease and |
assignment of all his interest there
with plaintiffs consent and for the co
sideration of release of his oblieati'
TO the firm of T 7. Sherman & Co,
which firm defendant claimed platnt
O'Rourke was a member with defen
ant A verdict was rendered for I