by which the sufficiency of the pleadings are to be determined, are those prescribed in this Code." Section 662 provides: "The only pleadings allowed on the part of the plaintiff are: (1) The complaint. (2) The demurrer to the answer. (3) The reply to defendant's answer. And on the part of the defendant: (1) The demurrer to the complaint. (2) The answer. (3) The demurrer to reply." The only pleading of facts on the part of the defendant, then, is the answer, and this is so irrespective of whether the action is one at law or in equity, for there is now but one form of civil action known to our law. Section 460. The answer may consist of (1) denials, and (2) statements of new matter. The new matter may constitute a defense or a counterclaim. Section 690. When a cause is tried, judgment may be given which determines the ultimate rights of the parties on each side as between themselves. Section 1001. And this being so, and an answer being the only pleading of facts permitted on the part of a defendant, it must be apparent that a cross-bill or cross-complaint is not known to our practice, but that an answer under our Code affords a defendant every opportunity for relief which a cross-bill or cross-complaint could have secured to him. No matter, then, what form the answer assumes, it is nevertheless an answer, and the only pleading of facts on the part of the plaintiff thereafter is a reply. In such reply the plaintiff may allege any new matter, not inconsistent with the complaint, constituting a defense to the counterclaim or new matter in the answer. Chapter 5, p. 8. Laws of 1905. But every allegation of new matter in a reply is deemed denied. Code Civ. Proc. § 754. And in this case, no matter what the defendant Meyer may have called that portion of her pleading in which she sought foreclosure of her mortgage, it was in fact a part of her answer, and the pleading of facts thereafter filed by the plaintiff, no matter by what term designated, was in fact a reply, and every allegation of new matter in it was deemed denied. It was the last pleading of facts authorized by our Code. These conclusions appear plain upon principle from the language of the Code itself. They do, however, find support in the decisions of other courts treating similar Code provisons. Kollock v. Kaiser, 98 Wis. 104, 73 N. W. 776; Hughes v. Durein, 3 Kan. App. 63, 44 Pac. 434. Counsel for respondent refers to section 981 of the Code of Civil Procedure, and suggests that it may modify section 662 above. But the provisions of section 981 are by express terms applicable only to title 7 of that Code, and that title has to do with provisional remedies in civil actions and not qestions of pleading, which are controlled by title 6 of the same Code.

It is apparent from finding No. 5 that the trial court refused to consider the evidence offered by the defendant Meyer to show the

amount of rents received by her from the property, but must have held that the allegation in plaintff's reply that the amount was $1,000—was admitted. In this the court erred.

The cause is remanded to the district court, with directions to hear proof and determine the amount of rents received by the defendant Meyer from the property, and to make such modification in the decree as may be justified by the finding upon the matter so considered. Remanded.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 448)

STATE ex rel. BRAY v. SETTLES. County Treasurer.

(Supreme Court of Montana. Oct. 29, 1906.) 1. INTOXICATING LIQUORS-LICENSES-NECESSITY OF OBTAINING LICENSE.

Laws 1905, p. 154, c. 71. requires retail liquor dealers to obtain a license from the county treasurer, but provides that he shall not issue a license until directed so to do by the board of county commissioners on a petition signed by a specified number of freeholders residing in the city, etc.. in which any person, seeking such a license, "intends to engage in business." Code Civ. Proc. § 3135, provides that in the construction of a statute the intention of the Legislature is to be pursued if possible, that when general and particular provisions are inconsistent the latter is paramount, and that a particular intent controls a general one inconsistent therewith. Held, that one engaged in the liquor business, under a license, on the expiration thereof is not entitled to receive another license from the treasurer until there has been a petition to the county commissioners and favorable action thereon by them.

2. SAME-STATUTES-VALIDITY.

The statute is not obnoxious to constitutional principles on the ground that it grants to the board of county commissioners authority to act capriciously.

[Ed. Note.-For cases in point, see vol. 29. Cent. Dig. Intoxicating Liquors, §§ 17, 18.]

Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge.

Mandamus by the state, on relation of M. H. Bray, to compel W. M. G. Settles, as county treasurer of Lewis and Clarke county, to issue a liquor license to relator. From a judgment dismissing the proceedings, relator appeals. Affirmed.

C. B. Nolan, for appellant. Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for respondent.

BRANTLY, C. J. Mandamus. On or before September 9, 1905, the appellant (relator) "filed and presented to the board of county commissioners" of Lewis and Clarke county a petition signed by 20 freeholders residing in the village of Wolf Creek in said county, asking that a license be issued to him permitting him to carry on the business of a retail liquor dealer at Wolf Creek for six months, said village having a population of

less than 100. After considering the petition, the board ordered the county treasurer to issue the license, and that officer did so under date of September 9, 1905, upon payment of $165, this sum being fixed by the statute (chapter 82, p. 174, Laws of 1905, § 1) as the amount to be paid semiannually for such license. On March 9, 1905, the day the license expired, the relator tendered $165 to the county treasurer, and demanded a license to be issued to him to carry on the same business at the same place for the six months beginning on that day. The treasurer refused to grant the demand without an order of the board of commissioners, directing him to do

This action was then begun to compel the issuance of the license. The district court issued an alternative writ. The defendant showed cause by demurrer, which upon consideration the court sustained, dismissing the proceedings and rendering judgment for defendant for costs. Thereupon the relator appealed.

The contention is that it was the duty of the treasurer, under the provisions of chapter 71, p. 154, of the Laws of 1905, to issue the license on demand, because the appellant, haying once presented his petition to the board of county commissioners, was not required thereafter at any time to present a new petition or to have any action thereon by the board. The act referred to is entitled: "An act to regulate the issuance of licenses of retail liquor dealers in cities, towns, villages or camps containing a population of less than one hundred;" and whether the appellant's contention is maintainable depends upon what construction is to be given to it.

Section 1 of the act, after declaring that all retail liquor dealers in all cities, towns, villages, or camps, etc., having a population of less than 100 shall obtain a license from the county treasurer, proceeds: "But before the county treasurer shall be permitted to issue such license, petition shall first be filed and presented to the board of county commissioners of the county, signed by at least twenty freeholders residing within the particular city, town, village, camp, or township in which any person seeking such a license, intends to engage in business, requesting the issuance of such license to such person, and they shall in their discretion thereupon direct the county treasurer to issue such license, but not otherwise."

Section 2 lodges the matter of directing the license to issue, entirely in the discretion of the board of county commissioners.

Section 3 provides for the revocation of such license, and specifies the circumstances under which the revocation may be made.

Counsel for appellant bases his contention upon the words "intends to engage in business," found in section 1 quoted supra, and argues that one already engaged in business cannot entertain an intention to engage in it, and therefore the use of the word "intends"

precludes the idea that after a license has once been issued, an applicant for another license at the expiration of the term for which he has already been licensed, shall again apply to the board for an order. It is manifest, however, from reading the act, that it was the intention of the Legislature to prohibit specially the sale of intoxicating liquors in the class of communities mentioned in all cases, except where the people residing in them should give their consent. For unless this were the purpose, the act could not apply to a person already engaged in the business at the time of the passage of the act; and we may not conclude that the Legislature intended it to apply only to persons about to engage in it in those communities where no such business was then being carried on. "In the construction of a statute the intention of the Legislature *** is to be pursued if possible; and when general and particular provisions are inconsistent, the latter is paramount to the former. So a particular intent will contro! a general one that is inconsistent with it." Code Civ. Proc. § 3135.

We think the general intention of the Legislature is manifest, and that the loose use of the word "intends" in the recital, upon which appellant founds his contention, cannot be held to be an expression of a particular intent which will control and in great measure render the act nugatory. Literally interpreted, the word "intends" conveys the idea contended for by appellant; but we think it apparent that its use was the result of hasty and careless work on the part of the person who drew the bill, rather than that it is the expression of a well-defined intention on the part of the Legislature to limit its operation. It renders the act somewhat ambiguous, but the ambiguity must be resolved in favor of that construction which will render the act uniform in its operation in all localities to which it was intended to apply. And it can be no serious objection to the act as a whole, that it renders it exceedingly inconvenient for persons intending to obtain a second license, to apply to the board of county commissioners, for the reason that licenses expire at different dates, and that the board is not always in session, or that, in order to accommodate those engaged in such business, it must hold special meetings at the expense of the county. It is entirely within the province of the Legislature, in the exercise of the police power of the state to regulate the sale of intoxicating liquors and to impose such restrictions upon those engaged in the bustness as will carry out its purpose. "The right to manufacture and traffic in intoxicating liquors is one which is exercised subject to the regulation and control of the police power of the state; a power of which the Legislature cannot divest itself; and such body is the exclusive judge of the manner in which such police power shall be exercised, and its action thereon should be liberally

construed." In re O'Brien, 29 Mont. 545, 75 Pac. 200. Any regulation of it is an inconvenience to the dealer, but no matter what inconvenience may be imposed upon him by the Legislature, so long as it bears equally upon all persons falling in his class, he has no right to complain. Counsel says that the legislation is obnoxious to constitutional principles, in that it grants to the board of county commissioners authority to act capriciously.

The discretion referred to in section 2 of the act must be construed to be a fair administrative discretion. The act does not in terms nor does it impliedly authorize the board to act capriciously or arbitrarily. The fact that it may so act is no objection to the validity of the statute, because wherever discretion in a particular matter is lodged in any judicial or administrative officer, he may be guilty of an abuse of it; but the fact that he may abuse the power vested in him is no valid objection to the legislation which vests the power.

Let the judgment of the district court be affirmed.

Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 433)

ALEXANDER v. GREAT NORTHERN RY. CO. et al.

(Supreme Court of Montana. Oct. 29, 1906.) APPEAL-BRIEFS-FORM AND REQUISITES.

Sup. Ct. Rule 10, par. 3, subd. a (82 Pac. x) requires appellant's brief to contain a concise abstract of the case, referring to the page numbers in the transcript in such manner that the pleadings, evidence, orders, etc., may be easily found; provided, that, where the transcript is not printed, the briefs. shall contain so much of the record as is necessary to make out appellant's case, with references to the transcript by page and marginal numbers. Held, that where a transcript was not printed, and appellant's brief did not refer to the pleadings, and did not attempt to state the issues, or how they were raised, the appeal should be dismissed.

[Ed. Note.--For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 3095, 3126.]

Appeal from District Court, Silver Bow County: Geo. M. Bourquin, Judge.

Action by Mrs. G. A. Alexander, Jr., against Great Northern Railway Company and Montana Central Railway Company. Judgment for plaintiff, and defendants appeal. Motion to dismiss. Sustained.

E. L. Bishop, for appellants. John A. Shelton, for respondent.

HOLLOWAY, J. This is an appeal by defendants from a judgment of the district court of Silver Bow county in favor of the plaintiff for $122, and for interest and costs.

The respondent moves to dismiss the appeal upon the ground that appellants have not complied with subdivision a, paragraph 3, Rule 10 (82 Pac. x) of the Rules of this

court which provides: "3. The appellant's brief shall contain, in the order here stated: a. A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised. The abstract shall refer to the page numbers in the transcript in such a manner that pleadings, evidence, orders, and the judgment may be easily found: Provided. that in cases in which the transcripts are not printed, the briefs shall contain so much. of the record as is necessary to make out the appellant's case, with references to the transcript by page and marginal numbers." The transcript is not printed, and appellants brief does not anywhere refer to the pleadings, and does not attempt to state the issues, or how they were raised. The purpose of the rule above is to relieve an appellant from the burden of printing the transcript in certain classes of cases, provided his brief contains so much of the record as will make out his case, and proper references are made to the transcript. It may not be necessary to print the pleadings in the brief if concise statements of their contents are made, with proper references to the pages of the transcript where they may be found, but, certainly, appellants do not make out their case in their brief, when they neglect to state whether any pleadings were filed, and, if any were filed, where they may be found, their contents or what, if any, issues were raised. The rule above was adopted for the benefit of appellants, and is deserving of more consideration than an observance of its existence by a breach of its conditions.

The motion is sustained, and the appeal is dismissed.

Dismissed.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 477)

JOHNSON v. MAIETTE. (Supreme Court of Montana. Nov. 12, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Where a servant was directed to perform certain work about an elevator, and he went on the elevator to do the work though he could have done it more safely standing outside the elevator, but he did not know that it was more dangerous to go on the elevator and the circumstances did not warrant the presumption that he ought to have known, negligence could not be imputed to him as a matter of law, but it was properly left to the jury to determine whether he ought to have known of the danger. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1132.] 2. SAME-INSTRUCTION.

Where, in an action for injuries to a servant. plaintiff requested an instruction that where an employé has two ways of performing a duty, one of which is dangerous and the other safe, and he knowingly and voluntarily through negligent ignorance selects the dangerous one, thereby bringing upon himself an in

jury which probably would not have befallen him if he had selected the other one, he cannot recover damages, the modification of the instruction by inserting the word "obviously" before the word "dangerous" was not error.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by August Johnson against Joseph Maiette. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McBride & McBride, for appellant. Maury & Hogevoll, for respondent.

BRANTLY, C. J. This action was brought to recover damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendant. The defendant is a building contractor. At the time of the accident he was engaged in erecting a building in the city of Butte. The plaintiff was employed by him as a mortar carrier. The complaint alleges that it was then and there the duty of the defendant to furnish to plaintiff a reasonably safe place to work; that the defendant directed the plaintiff to go upon a certain elevator; that, unknown to the plaintiff, the elevator was insecurely and negligently stationed at the second floor above the ground floor of the basement of the building; that it was in a dangerous condition through the negligence of the defendant in placing, or allowing to be placed, under it to support it a plank which was weak, insufficient, unsafe, and dangerous; and that without negligence on the part of the plaintiff, and while he was engaged in exercising due care, the plank broke while he was on the elevator at the command of the defendant, with the result that he fell a distance of 20 feet, breaking his arm at or near the wrist, resulting in permanent injury. Judgment is demanded for $2,575, including expenses for medical treatment.

The answer admits the employment and the injury, but denies all the other material allegations of the complaint. It alleges affirmatively that the injury was the result of plaintiff's own negligence, in this: That the elevator had been used to raise brick and mortar from the ground to the second floor of the building; that it had two cages, connected by cable, and was so operated that, when one cage was at the ground floor, the other was at the second floor; that during the progress of the work it became necessary to change it so that it could be used to raise material to the third floor also, and in order to effect the change it was necessary to detach the cage at the second floor from the cable which connected it with the cage on the ground floor; that to hold the cage at the second floor while making the change it was allowed to rest upon a plank which was placed under it, with its ends resting on the floor on either side of the elevator shaft; that the plank was intended to support the cage and nothing else; and that, while the

cage was so supported, the plaintiff, without directions from the defendant, but carelessly, negligently, and wrongfully, went upon it and busied himself in such a way thereon that the plank broke, allowing the cage to fall to the ground, carrying plaintiff with it. Upon these allegations there was issue by reply. The trial resulted in a verdict for plaintiff for $500, and judgment was entered accordingly. The defendant has appealed from the judgment and an order denying a new trial.

Many assignments of error are set out in the brief, but the only ones argued and submitted for decision are that the evidence is insufficient to justify the verdict, and that the court erred in submitting certain instructions to the jury.

Plaintiff's evidence tended to show that the defendant, desiring to effect the necessary change in the elevator, went with another employé to the second floor, and while this employé, assisted by the plaintiff, who remained on the ground floor and pulled upon the cable, raised the cage, the defendant thrust under it and across the shaft a plank, 2 inches thick and 10 or 12 inches in width, leaving the ends resting on the floor on either side of the shaft. Upon this plank the cage rested. The defendant, having then directed the plaintiff and the other employé to make the change, went to another part of the building. A part of the work necessary to effect the change was a removal of the guide rods. These were made of gas pipe and had to be unscrewed and lifted out. They could be lifted out by a person standing on the floor on the outside of the elevator shaft, but more conveniently by one standing on the deck of the cage. The plaintiff deemed it more convenient to stand on the deck of the cage, and did so, for the reason that he could not have the same purchase for the lift while standing on the floor, and for the further reason that one board was missing from the floor at the side of the shaft where he would have to stand, and for this reason the footing was not safe. The evidence does not show of what kind of wood the plank was, but it had a knothole in it, and, besides, was decayed. The plaintiff knew that the cage rested uopn the plank, but knew nothing of its character or of any defect therein. He testified that, if it had been sound and without flaw, it would easily have sustained his weight as he lifted in addition to that of the cage. The weight of the plaintiff was 160 pounds. As the plaintiff lifted upon the rod, the plank broke and the cage fell, breaking plaintiff's arm. Immediately after the accident the defendant admitted that he was solely to blame. The plaintiff had worked as a miner and had had some experience in using planks of the dimensions of the one here employed to support heavy machinery.

Defendant's testimony was to the effect that the cage was composed of hard wood