district attorney of the county. As the salary under the latter provision is the same, we may also presume that it applies to, plaintiff. We may therefore take the provision conceded by defendant to be constitutional, and which applies to all counties, and we cannot say that plaintiff was not entitled, under its provisions, to his salary as claimed.

3. It is claimed that the county government act of 1897, by express provision, repeals the act of 1893, except as to the salaries of present incumbents, and that, as plaintiff was not appointed until after the act of 1897 went into effect, he was not a present incumbent. The act of 1897 authorized the district attorney of Fresno county to appoint one deputy at a salary of $150 per month and one at a salary of $100 per month. If we concede that the act of 1897 applies, then we must further presume that plaintiff was the deputy appointed at a salary of $125 (less than $150) per month, because the record does not show to the contrary, and the finding is that he was duly and regularly appointed. It is therefore a moot question as to whether or not the act of 1893 was repealed by the act of 1897 as to plaintiff. All presumptions are in favor of the correctness of the judgment of the court below. The district attorney having power under the provisions of some act to appoint a deputy whose salary is $1,500 per year, and it not appearing from the record before us that any other deputy was ever appointed by the district attorney, and the salary claimed not exceeding $1,500 per year, we must affirm the judgment. To analyze the various county government acts, and the sections bearing upon the question, in order to determine what particular section of what particular act authorized the appointment, would be a useless task.

4. It is finally claimed that the plaintiff is estopped by a prior judgment. The finding as to the said prior judgment is all the information we have on the question. The finding is as follows: "That on the 2d day of December, 1895, the superior court of said county of Fresno, state of California, made and entered a judgment and decree perpetually enjoining said auditor, H. E. Barnum, from drawing or delivering any warrant on the treasurer of said county of Fresno, and likewise enjoining said plaintiff, G. C. Freman, from receiving any warrant upon the treasurer of said county for any services by the said G. C. Freman as deputy district attorney of said county, under a general appointment, and said judgment and decree has never been vacated, annulled, or modified, but remains, and is now, in full force and effect." As the court elsewhere finds that the plaintiff was appointed in July, 1898, and that the warrant was for services for October, 1898, it is plain that the former judgment is not conclusive. It may be that, under the general appointment referred to in the quoted finding, the plaintiff never qualified, nor performed any services. The fact

that plaintiff was not entitled to any salary for services as deputy district attorney prior to December, 1895, does not show that he is not entitled to a salary for services performed in October, 1898, under a different appointment.

It follows that the judgment should be affirmed.

We concur: HAYNES, C.; SMITH, C

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

(27 Mont. 128) STATE ex rel. SUTTON ▼. DISTRICT COURT OF SECOND JUDICIAL

DIST. et al.

(Supreme Court of Montana. July 21, 1902.) SUPREME COURT-JURISDICTION-WRIT OF SUPERVISORY CONTROL CONSTITUTIONAL LAW-JUDGMENT OF CONTEMPT.

1. Code Civ. Proc. § 2183, providing that the judgment in a case of contempt is final and conclusive, and there is no appeal, but the action of a district court can be reviewed on writ of certiorari by the supreme court, if intended to preclude the supreme court from reviewing, except by certiorari, a judgment of contempt, violates Const. art. 8, § 2, giving the supreme court a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by statute; a writ of supervisory control being the only means by which the question whether there is evidence to support a judgment of contempt can be determined.

Writ of supervisory control, on the relation of Wakeman Sutton, to the district court of the Second judicial district, and William Clancy, a judge thereof.

McBride & McBride, for relator. McHatton & Cotter, for respondents.

PIGOTT, J. Wakeman Sutton was adjudged guilty of a constructive contempt of the district court of Silver Bow county. One of the penalties imposed by the judgment was a fine of $200, with imprisonment until paid or satisfied. At his instance, a writ of habeas corpus, aided by writ of certiorari, was issued by a justice of this court. After a hearing, the writs were quashed, and the proceeding was dismissed on the ground that the judgment sought to be annulled was rendered by a court having jurisdiction of the subject-matter and of the parties. We held that the supreme court could not, upon such proceedings in habeas corpus or certiorari, or both, examine the evidence received at the hearing on the charge of contempt. In the matter of the petition of Wakeman Sutton for writ of habeas corpus; and, in aid thereof, State v. District Court of Second Judicial Dist., 26 Mont., 69 Pac. 1131. Thereafter, the present application was made by means of a verified petition containing copies of all the proceedings, including the evidence adduced in the district court. The applicant

asks for a writ of supervisory control commanding the defendants district court and judge to vacate the judgment.

The jurisdiction of the supreme court to entertain the petition is challenged by a motion to dismiss the proceeding, the defendants insisting that the only means by which a judgment of contempt can be brought up for review is by certiorari as provided in section 2183 of the Code of Civil Procedure, and that, unless annulled or modified on certiorari, such a judgment is absolutely final and conclusive, and therefore beyond the power of this court to consider. In short, the contention of the defendants is that section 2183 prescribes the only means whereby judicial relief may be obtained against judgments of contempt. That section reads: "Section 2183. The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive, and there is no appeal; but the action of a district court or judge can be reviewed on a writ of certiorari, by the supreme court or a judge thereof, and the action of a justice of the peace or other inferior court by the district court or judge of the county in which such justice or judge of such inferior court resides."

Do these provisions preclude the supreme court from employing any means, other than certiorari, to review the integrity of judgments in contempt proceedings? We think they do not. Sections 2 and 3 of article 8 of the constitution contain three several and distinct grants to the supreme court: (1) The grant of appellate jurisdiction in all cases at law and in equity, subject to such limitations and regulations as the legislative assembly may prescribe, together with the incidental power to issue, hear, and determine all such original and remedial writs as may be necessary or proper to the complete exercise of such jurisdiction; (2) the grant of original jurisdiction to issue and to hear and determine certain enumerated writs; and (3) the grant (contained in section 2) of a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by statute. State v. District Court, 24 Mont. 539, 63 Pac. 395; Finlen v. Heinze, 69 Pac. 829. Now it must be at once conceded that contempt proceedings are not, within the meaning of the constitution, cases at law or in equity which, in the absence of legislative action authorizing it, may be reviewed by appeal (In Re Boyle, 26 Mont., 68 Pac. 409); and in State v. District Court, 26 Mont. -, 68 Pac. 470, we have held that, on certiorari, the question whether there was evidence in support of a judgment for contempt cannot be determined. Is a person, then, remediless whenever a district or justice's court of competent jurisdiction adjudges him guilty of constructive contempt without evidence to support the charge? Must he suffer such a judgment to be executed against his person and property or either? If any judicial re

lief can be obtained, it must be through the exercise, by this court, of its constitutional power of supervisory control. To this court has been confided and intrusted the ultimate and supreme judicial power of supervisory control over all the inferior courts within the state. It is a power liable to abuse, and should be exercised with discretion, caution, sparingly, and only in exigent cases, to protect a manifest right or to redress a palpable wrong. We have just decided in Finlen v. Heinze, supra, that the appellate jurisdiction with which the organic law has clothed the supreme court cannot be taken away or diminished by the legislative assembly. Limitations and regulations may properly be prescribed, provided the right of effective appeal be not denied or substantially invaded. The same rule seems applicable to the present matter. The power to exercise a general supervisory control over district courts, being conferred by a constitutional grant, cannot be lessened or interfered with by the legislative assembly. It may, of course, prescribe reasonable regulations and limitations as to the time within which, and the mode by which, the relief may be sought; the procedure is a legitimate subject of legislation; for instance, the legislative assembly may require the application to be made within a certain period of time, it may require a bond or undertaking, it may provide for authentication and certification of the record of transcript, and the like. But it is without power to deprive this court of any part of its jurisdiction conferred by a rigid constitution. If the effect of section 2183, supra, be a declaration that the action of inferior courts can be reviewed only on certiorari, it must be held to be an attempt to withdraw from the supreme court part of its jurisdiction by confining the scope of its review to the single question which can be decided on certiorari. Concede the right of the legislative assembly in this case so to curtail the jurisdiction of the supreme court, and its right to do so in any case must, as it seems to us, be likewise conceded. The result would be that the legislative assembly may abolish review through the exercise of supervisory control, and lawfully declare that the writ of certiorari (which is one of the writs enumerated in a separate grant of power) shall be the sole means of obtaining redress. If the section, when so interpreted, be consistent with the constitution, then a statute in terms destroying the jurisdiction of the supreme court to exercise such control would necessarily be valid. But the legislative assembly may not substitute for an adequate remedy created and guarantied by the constitution a proceeding which is inappropriate, and under which the particular wrong cannot be redressed.

Our conclusion being that the supreme court, notwithstanding section 2183, supra, has power, by means of writs of supervisory control, to review judgments of contempt, on the application of the contemner, the next

question is whether the present case is one calling for the issuance of such a writ. We believe it is. There was at least a technical violation of the injunction by those in Sutton's employ, for which, as we incidentally observe, they have been punished as for contempt; but the transcript sets out all the evidence taken in the district court, and there is not any substantial evidence from which may be justly deduced the inference that Sutton either intentionally, or through carelessness, disobeyed the injunction order in the particulars set forth in the affidavit charging him with contempt, or permitted his agents or servants to do so. The district court, by its judgment in a summary proceeding, has, without evidence to justify it, wrongly declared that Sutton shall be deprived of his liberty and of property. The case is exigent; the wrong is manifest. Let a writ of supervisory control issue, commanding the defendant district court and judge to set aside, annul, and for naught hold the judgment of September 3, 1901.

BRANTLY, C. J., concurs.

MILBURN, J. I concur in the foregoing opinion. Counsel for the defendants contend that there is no remedy for a person deprived of his liberty or property by an inferior court which acts within its jurisdiction; and that the judge of such court, even if he act arbitrarily, maliciously, or viciously, and do a flagrant wrong to an unoffending person, be ing responsible to the people, may be removed from office for his wrongdoing. If this be true, a citizen may be fined $500 twice a day, for 30 days, and the records be made regular upon their face, showing jurisdiction of the court. If such acts of the court be all done through malice, then, if the contention of the defendants be correct, the citizen must submit without remedy, and lose his property, or be imprisoned in default. It is said that the conscience of the single subordinate officer, perhaps some ignorant and unworthy person unfortunately holding the office of justice of the peace by the vote of a dozen voters, is ultimate, and that he cannot be controlled in a case of fine or commitment for contempt of court. This was the danger to which citizens were subject until the people, by their representatives in the constitutional convention, provided that the supreme court, composed of justices chosen, one every two years, from the whole state, and thus, as far as possible, removed from prejudice, local influence, and personal contact with interested litigants, and being influenced by the consciences of its members, should control and exercise supervision over inferior courts and the judges thereof. Perfection cannot be attained in governments. The people, being unwilling to leave their liberties entirely to what in some, and happily only a very few, cases might be whim, caprice, prejudice, or gross ignorance, provided by their constitu

tion that, in cases of great emergency, the acts of inferior courts could be controlled by the supreme court. It is a tremendous power, but not more so than the alleged arbitrary power said to be reposed in the inferior courts. It is to be exercised only when solemn duty shall force interference. There may be, occasionally, times when the ordinary processes and procedure of the law are Inadequate. If courts tyrannically deprive citizens of their liberty or property, and there be no appeal or other remedy except petition to the supreme court for a writ of supervisory control, at such times the supreme court, under the power conferred upon it by the people for their own protection, must exercise this dangerous power,-dangerous because it is possible that it may be improperly exercised. The danger of its improper exercise by the supreme court, removed, as its justices are, from local clamor and prejudice, is not as great as uncontrollable power in a single judge or justice of the peace, who, it is claimed, may do as he please in contempt cases, provided he cause the record to be written up with skill, and be only liable to a proceeding for his removal, or to have his acts passed upon at the polls at the next election, if he stand for re-election, and perhaps by only a single score of voters in a township election. This writ must not be, and will not be, used to supplant effective remedies provided by law.

(42 Or. 41)

McCOURT v. BEAM. (Supreme Court of Oregon. Aug. 18, 1902.) MUNICIPAL CORPORATIONS-CITY COUNCIL MAYOR-CASTING VOTE-REMOVAL OF

OFFICER-APPOINTMENT.

1. By the charter of Pendleton (Sess. Laws 1899, p. 710) art. 2, § 1, the government of the city is "vested in a mayor and common council." Article 3, 7, provides that the mayor shall preside at all meetings of the council, and "give the casting vote in case of a tie.' Article 2, § 6, as amended (Sp. Laws 1901, p. 401), provides that the common council shall, with the consent of the mayor, appoint a recorder, subject to removal by resolution. Defendant having been elected as recorder, a resolution that he be removed was introduced in the council, on which there were four votes each in the affirmative and negative, whereupon the mayor voted in the affirmative, and declared the resolution adopted. The plaintiff was then appointed recorder by the same vote. Held, that the mayor had the right to give the casting vote in both instances, and the removal and appointment were valid.

Appeal from circuit court, Umatilla county; W. R. Ellis, Judge.

Action by John McCourt against John E. Beam. From a judgment for plaintiff, de fendant appeals. Affirmed.

J. J. Balleray, for appellant. T. G. Halley, for respondent.

BEAN, J. This is a mandamus proceeding to compel the defendant to deliver to plaintiff the books, records, papers, files, and furni

ture pertaining to the office of recorder of the city of Pendleton.

Some preliminary questions are presented as to the sufficiency of the alternative writ, and as to what matters are properly determinable in this proceeding; but we shall not notice them in detail. The alternative writ alleges the plaintiff's appointment as recorder, by the common council of the city, with the consent of the mayor, his qualification, the issuance to him of a certificate of appointment and qualification, a demand by him on the defendant, who was his predecessor in office, for possession of the books, papers, and files of the office, and the latter's refusal to comply therewith; and, although it may not set out the facts upon which the plaintiff relies with that particularity required by good pleading, the defects therein, if any, are merely formal, and are cured by the answer. We pass directly, therefore, to the consideration of the real point in contro

versy.

On January 2, 1902, the defendant was appointed city recorder by the common council, with the consent of the mayor, immediately qualified as such, and entered upon the discharge of his duties. He continued to serve in that capacity until the 26th of the following month, when a resolution for his removal came up for consideration by the common council in regular session; all the members being present, and the mayor presiding. Upon the resolution being put to a vote, four councilmen voted in the affirmative, and four in the negative. The mayor thereupon, ruling that, under the city charter, he had authority to break the tie, voted in favor of the resolution, and the defendant was declared removed, and the office vacated. The plaintiff was then appointed to fill the vacancy by the same vote, immediately qualified, and a certificate of his appointment and qualification was duly issued to him by direction of the council. He thereafter demanded of the defendant possession of all the books, records, papers, and other property of the office, and, the defendant refusing to surrender them, this proceeding was commenced. The question to be decided, therefore, is whether the mayor of the city has a right to give the deciding vote upon the removal and appointment of a city recorder where the council is a tie.

By section 1, art. 2, of the charter of Pendleton (Sess. Laws 1899, p. 710), the government of the city is "vested in a mayor and common council, to consist of eight members," and by section 7, art. 3, it is provided that the mayor shall preside at all meetings of the council, and "give the casting vote in case of a tie." By section 6, art. 2, the recorder and marshal of the city were to be elected biennially by the legal voters, but in 1901 it was so amended as to provide that "the common council shall, with the consent of the mayor, appoint a recorder and a marshal, who shall hold their respective offices

during the pleasure of the council, and be subject to removal from office at any time by its resolution." Sp. Laws 1901, p. 401. The defendant contends that, under this amendment, the mayor has no right to par ticipate in the appointment of a recorder, even to the casting vote in case of a tie; that the appointment must be made by a majority of the council, independent of the mayor; and that his only right therein is to give or withhold his consent. It is not believed that this is a proper construction of the language of the section. The amendment is a part of the city charter. The charter does not authorize the council to act independently of the mayor, or one of its members chosen to act in his place in case of his absence or inability to serve. He is made a constituent part of the governmental body of the city, with certain duties, rights, and powers. He is, for certain purposes, a part of the council; is counted to make a quorum (section 1, art. 4); is required to preside over its meetings; and, in case of a tie, his right to vote is as clearly provided for by the charter as that of any member of that body. Now, the appointment to an office by the council necessarily requires a vote of the persons authorized by the charter to participate in its deliberations, and the mere fact that such appointment is not valid without the consent of the mayor does not manifest an intention to exclude him from giving the casting vote in case of a tie any more than in other cases. By the charter, the "common council," without mentioning the mayor, is given power and authority to do many things; yet it would hardly be contended that the mayor could not participate in its deliberations to the extent of giving the casting vote in case of a tie. The provision, in the amendment of 1901, that the appointment to the office of recorder or marshal shall require his consent, to be operative, is no more restrictive of his powers than the many other provisions where the common council alone is mentioned. It was not intended thereby to take away any of his rights, but, on the contrary, to enlarge his powers by making his consent necessary to every appointment to the office of recorder or marshal, without regard to the vote of the council. In ordinary cases, a majority vote of a quorum of that body would control, regardless of the wishes of the mayor; but the amendment makes his consent essential in case of an appointment to the offices mentioned. Under city charters giving the mayor a right to vote in case of a tie, and providing that he shall appoint to office by and with the consent of the council, it is uniformly held, as far as we are advised, that he is authorized to give the casting vote upon the confirmation of his nominee when the council is equally divided. 1 Dill. Mun. Corp. (4th Ed.) § 270; Carroll v. Wall, 35 Kan. 36, 10 Pac. 1; State v. Yates, 19 Mont. 239, 47 Pac. 1004, 37 L. R. A. 205. And the same reasoning and principles apply in the case at bar.

If

the legislature had intended to deny the mayor a right to vote upon the appointment to an office in case of a tie, it could easily have required such appointment to be made by a majority vote of the council; but, there being nothing in the act indicative of such intention, his right to vote remains the same in this as in other matters coming before the council for consideration.

It follows that the judgment of the court below must be affirmed, and it is so ordered.

(41 Or. 609)

WEST v. EDWARDS et al. (Supreme Court of Oregon. Aug. 18, 1902.) ADVERSE

POSSESSION-PRIVITY-CONTINUITY

-EVIDENCE.

1. The owner and occupant of a tract containing 150 acres sold and contracted to convey the tract to defendants. Defendants went into possession of the whole tract, and received a deed which was supposed to convey all, but which omitted a triangular piece of about nine acres. Thereafter defendants sold and delivered possession of the whole tract, giving a deed containing the same description as in the deed to them. From such purchaser the title and possession passed through various conveyances to plaintiff, each purchaser holding possession of the entire tract until he passed the possession to his vendee. More than ten years after defendants received their deed, their grantor having died, they obtained deeds to such omitted nine acres from all his heirs and legatees. Held, that defendants' possession of the nine acres was adverse to their grantor from the time they received their first deed, and that there was such privity and continuity of possession between them and the subsequent purchasers, to and including plaintiff, that the title of such original owner and his heirs was lost before such heirs executed deeds to defendants, and they acquired no title or interest in such nine acres by such deeds.

Appeal from circuit court, Marion county; R. P. Boise, Judge.

Action by A. L. West against Arthur and Thomas Edwards. From a judgment for plaintiff, defendants appeal. Affirmed.

B. F. Bonham and Carey F. Martin, for appellants. John W. Reynolds and W. H. Holmes, for respondent.

WOLVERTON, J. This is a suit instituted September 4, 1901, to quiet the title to certain real property, consisting of eight acres, more or less, of which plaintiff is in possession, claiming title thereto by adverse possession, extending back through himself and predecessors to June 8, 1891, and the defendant Arthur Edwards claiming by deed from the heirs and legatees of Thomas H. McIntire, deceased. The decree of the court below being in favor of the plaintiff, the defendants appeal.

The facts are that Thomas H. McIntire had been the owner and in the exclusive possession of the property for more than 18 years prior to May 6, 1891, upon which latter date he executed to Arthur Edwards a bond for a deed or contract for the conveyance of a tract of land, designated as containing 150

acres, more or less, which included the parcel in controversy, for the consideration of $5,250, the conveyance to be made upon the payment of the second installment thereof of $3,050 on July 6, 1891, $1,000 having been paid in cash, and by the same instrument Edwards agreed to execute to McIntire a mortgage on the premises, to secure the balance of $1,200, payable on or before May 1, 1895. Upon the execution of this bond, or shortly thereafter, McIntire surrendered, and Arthur Edwards and his father, Thomas Edwards, entered into the possession of, the whole of such tract. The second installment designated in the bond or contract having been paid, McIntire and wife, on June 8, 1891, executed and delivered to Arthur Edwards a deed, but which omitted the parcel in dispute, and this was accepted by him and placed of record. On August 25, 1892, Arthur Edwards gave his deed to the Oregon Land Company, containing the same description as the McIntire deed, and in the meanwhile Arthur and Thomas remained in possession, exercising ownership over the whole, and continued thereon until October or November, when the Oregon Land Company entered into possession of the entire tract, occupying and improving the same, until on March 19, 1898, at which time it made a general assignment to Charles Scott for the benefit of its creditors, which assignment included the property in dispute. Scott thereupon entered into possession, and on November 20, 1900, conveyed and surrendered the same to B. B. Cronk. The plaintiff derives title and possession from Cronk, his deed bearing date March 12, 1901. McIntire having died in the meanwhile, Arthur Edwards, on July 18, 1901, obtained a quitclaim deed to the premises from his widow, heirs and legatees, who derived from McIntire whatsoever title he had thereto through his last will and testament.

It will be readily seen from these facts, which are uncontroverted, that in order to prevail plaintiff must first establish the further fact that Edwards began to hold adversely to the McIntires and all other persons prior to or at the time Arthur obtained his deed from McIntire; and, second, a continued adverse holding through his predecessors and by himself from that time on for a period of 10 years. The pivotal dispute centers about the transaction between McIntire and the Edwardses, and the conveyance and delivery of possession by Arthur Edwards to the Oregon Land Company. There is testimony tending strongly to show that Arthur Edwards took the contract for a deed and the title deed itself in his name for the purpose of holding the property in secret trust for his father, who at that time was having trouble with his wife, and from whom he subsequently procured a divorce. Arthur was at the time but 22 years of age, had little or no means, and furnished, if anything, only about $500 towards the purchase from McIntire; while the father paid upon the contract to