The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-02-28
Judge Clancy Had q Right to
Appoint Receiver Hind.
AMENDMENTS ARE ILLEGAL
Constitutional Amendments Voted Last
Fall We're Not Adopted According
to Law and Are Therefore
of No Erect
Special Dispatch to the Standard.

|
Boston & Montana receivershlp case by
passing upon the certiorari proceedings
instituted by the Boston & Montana to
| review the action of Judge Clancy Of
/ Dec. Is last in appointing T. r. Kinds
| receiver for the company upon the
| showing made by Forester and Magin-
| mis- in their famous receivership suit.
! The case is parallel to the one decid-
| ed last week when the court held that
| Judge Clancy had the power to .ap-
| point a receiver for the company.
The main question at issue in the case
1 decided to-day was whether Judge
| Clancy had exceeded his jurisdiction in
appointing Kinds. In an opinion by
Justice Pigott the court holds that he
| has not. A large part of the decision
of the court traverses points covered
in the previous opinion. Ransom Coop
err, one Of the attorneys for the Boston
| q Montana, who was in court when
the decision was announced, asked that
| the remittitur be held a few days. The
| court ordered that 1T be not sent to
Butte until Monday. Unless other pro-
| ceedings are commenced by the Boston
& Montana, it is not seen how the
company can prevent Kinds from TAX
ing possession Of the property as soon
as the supreme courts ruling is Off
| cially known in Butte.
| In addition to declaring that Clancy
has not exceeded his jurisdiction the
court says: Petitioners (the Boston &
| Montana) complain that an unit man
has been appointed receiver by the dis
trict court; that he has been required
| to give bond which Is merely nominal
| as compared with the immense inter
ests involved. and that Forester and
Maginnis are endeavoring to secure to
rival corporation the control of the
| property of the Montana company.
These are matters impertinent to the
question raised by the writ and with
which this court has nothing to do at
this time. We have heretofore held,
[ upon the facts in the controversy as
presented to us upon the appeal from
! the interlocutory injunction order that
| petitioners have failed to observe the
law in their futile attempts to divest
the Montana company of its property;
in SO far as this court is advised, they
| stand in such attitude at the present
time, So long as they remain in that
position they may not be heard on
| certoriari, to complain of the danger
to their property consequent upon the
appointment of receiver. When they
shall have made suitable restitution
and are willing to obey the law, then a
different condition will be presented
and court of equity would not hes
itate to exert its power to the end that
they suffer no wrong. The facts here
presented with respect to their opera
tion upon jurisdiction are not distin-
guishable from those involved in the
IyNS-S III :, ~ to-.
them must be applied the principles
there announced. 1t Is therefore adj
judged that the order OF Dec. 49, 1898,
appointing receiver be, and Is hereby,
affirmed upon the sole ground that in
making said order the respondents
have not exceeded their jurisdiction
The court granted stay Of proceed
ings until the two amendments to the
constitution voted upon in the last
election, carried and declared by the
governor in full force and effect a
| few weeks ago, one permitting dis
trict judges to be called in to sit upon
the supreme court In cases where the
present members are disqualified, and
the other fixing the terms of county
commissioners, were not legally adopt
| ed, could be declared. The supreme
court ruled to that effect to-day.
The case Of Durfee VS.. Harper APP
pealed from Granite county, was set for
|
was disqualified because Of connection
with the case before going on the
bench. The attorneys desired to call
in Judge Henry from Park county, and
that official came here for that pur-
pose to-day. A few days ago the point
was raised about the legality OF the
| amendment, and after considering the
matter the court to-day held that 1t
was not in effect since it had not been
adopted according to law in that the
amendment in full as well as the vote
upon the bill in the last legislature,
were not spread upon the minutes in
both houses, as Is required by section
| 8, article 10, of the state constitution.
The court, in making its ruling, an
nounced that the court is Of the opin-
ion that said amendment was not
adopted in"pursuance of law, and that
| it conferred no power upon the court
to invite any district Judge to sit and
! justice is disqualified" AS the amend
ment in regard to the commissioners
has the same defect, the courts rul-
ing applies likewise to that. The leg
islature will take steps to remedy the
error. and the people will again be
called upon to vote upon the two
amendments. 1t is estimated that the
expenses attendant upon having the
people vote upon the two amendments,
the principal feature of which was the
advertising, cost the state at least
$500.
Decisions were also rendered in two
cases appealed from Silver Bow-Mel-
vina B. Mitchell VS.. John Mccormick
and John R. Bordeaux VS. Flora e.
Greene. The former was an appeal
from the judgment of the district court
in setting aside the sale Of plaintiff s
homestead to satisfy judgment of
$1,000. The lower courts judgment is
affirmed.
The other case grew out of an action
commenced to abate a nuisance. The
plaintiff sued the defendant because
of board fence 40 feet high built
around his house, setting up that it
shut the plaintiff out of light, air and
a decent view. Judge Mediation, then
on the district bench, held in favor of
the defendant The judgment is af-
flrmed in an opinion by Justice Hunt.
In an opinion per curtain the court
orders new trial in the case of P. ].