Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-02-11
SNOH0MlSH
new TRIAL
Continued From Page ~

section o92 by the law of 1899 is then
considered. This allows one OF more
Contestants in mining property to enter
upon ii at points not in act
ual occupancy of others, mine
the ground, extract ore, paying
their own expenses. and account
to other co-tenants for net profits;
or co-tenants not joining in these OPP
erations may receive their share of the
ore on the dump on payment, or tender
ing payment of actual cost of mining
the same. The court holds that, as it
has held the act of 1865 could not he
retroactive, " like view must be taken
with respect to the amendment of 1899,
for it was plainly intended to restore to
one class of co-tenants certain vcIuo,,le
rights which We're taken away by the
act of 1865, and to deprive another class
of valuable rights which We're created
by that act Careful examination of
the amendment must. we think result in
the view that it could not impair any
rights then existing and is therefore "a
operative as to them. Its language IS
not such as would seem appropriate FOR
but is rather suitable as expressive of
merely legislative construction. Its dec
laration is, that nothing herein con-
tanned shall prevent and WHILE if such
clause has been inserted in the original
act of 1865 it would have operated as i.
restriction upon the Legislative force OF
the main body of the section, yet, con-
sidered an amendment, it must be -
garded as trespassing upon the powers
and functions of courts, or as meaning
that Nothing contained in this section
shall SO operate on tenancies nereaft1.
created as to to preven) etc. The pre-
fnrna nf va T q
positive effect, is to be determined
by the judiciary. and though me
Legislative assembly may. and often does
alter existing statutes because of their
legal meaning ascertained and an
nounced by the courts, the law making
power cannot determine the past legal
force and effect of statute; such power
would involve the right to review and
reverse rulings of those tribunals to
which the people have entrusted eXclu-
Sively the power and duty of interpret
ing all acts and determining their posi-
tive force and preventive operation.
Whatever rights are affected by the
amendment of 1899 did not exist thereto
fore. and unless we have erred in the
views expressed as 20 the force and eff
feet of the act of 1855 and as to vested
rights of cO-tenantS under it before the
amendment, the conclusion tnHI the
amendment does not apply to property
rights of persons which co-tenancies
were created prior to the time it took eff
feet must Ue correct.
"Our opinion is therefore any Gotten
ant whose estate was created after the
act of 1865 took effect and before the
amendment of 1889 became operative, is
entitled to restrain by injunction the
commission by his co-tenant of any acts
denounced in the original statute 1865.
and section 592, code civil procedure pro-
vided of course, the remedy of law is in
adequate and threatened injury ire
parable-ir other words, we do not con-
slider any right in property conferred
upon or taken away from co-tenants by
the act of 1865 are affected by the act Of
1S99 and that the latter act is ONLY pros
pective in operation.
Further than they are involved in
| the case at bar we do not care to at
| tempt to define the character or extent
| of rights so created by the act of 1865.
in so far as part of the amendment