ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The decision of the Supreme Court of the State ends all inquiry as to a conflict between the statute or the proceedings had thereunder and the state constitution. The only question we may consider is whether there is any violation of the provisions of the Federal Constitution.
In the petition filed for the writ of error the plaintiffs in error alleged as the basis thereof that "the validity of said statute is drawn in question on the ground of its being repugnant to that provision of the Fourteenth Amendment to the Constitution of the United States, which prohibits any State from depriving any person of life, liberty, or property, without due process of law."
In the brief it is said that the Chief Justice of the Supreme Court of the State, in his opinion, summarized exactly what they insist upon, as follows:
"It is contended that this statute is unconstitutional, and authorizes the inspection, examination, and survey of the mining property of the Montana Company (Limited) upon the petition of the St. Louis Mining and Milling Company of Montana, and before the commencement of any action by the parties. The obnoxious features are pointed out in the brief, and may be summarized under the following heads: This law may be made an instrument of oppression and injustice; the quality of the interest of the petitioner is not defined; no bond is required to be given to secure the payment of the damages which may result to the owner of the property which is invaded; no appeal is allowed from the order of the court or judge in granting the prayer of the petitioner; the power of the court or judge is vast, and can practically confiscate any mine in the State; the innocent owners of mining property are injured without 'due process of law.'"
Inspection orders like this have been frequently made, sometimes
under the authority of special statutes and sometimes by virtue only of the general powers of a court of equity. See the following cases, most of which are collected in the opinion of the Supreme Court of the State: Earl of Lonsdale v. Curwen, 3 Bligh, 168; Walker v. Fletcher, 3 Bligh, 172; Blakesley v. Whieldon, 1 Hare, 176; Lewis v. Marsh, 8 Hare, 97; Bennitt v. Whitehouse, 28 Beav. 119; Bennett v. Griffiths, 30 L.J.N.S. Part 2, Q.B. 98; Whaley v. Brancker, 10 Law Times N.S. 155; Thornburgh v. Savage Mining Co., 1 Pac. Law Mag. 267; S.C. 7 Morrison Min. Rep. 667; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Thomas Iron Co. v. Allentown Mining Co., 1 Stewart, (28 N.J. Eq.) 77.
It was said in Lewis v. Marsh, supra, by the Vice-Chancellor: "I think the case is one in which there is a necessity that the party should be allowed what he asks, in order to prove his case. That is the meaning of necessity. A party cannot get his rights without proving what his rights are; and it is inherent in the case that the plaintiffs should have an opportunity of ascertaining that the defendants do not work more coal than they are entitled to do."
And in Bennett v. Griffiths, where leave was asked not merely for an inspection, but for making a driftway through a wall for the purpose of determining what workings had been done behind it, the court, by Cockburn, C.J., said: "We are of opinion that the judge had jurisdiction to make the order in question. The power to order an inspection of real or personal property has long existed in the courts of equity, and we find that as ancillary to that power the courts of equity have ordered the removal, where necessary, of obstructions to the inspection."
In Thornburgh v. Savage Mining Co., 7 Morrison's Min. Rep., a case heard and determined in the Circuit Court of the United States for the District of Nevada by the District Judge, Alexander W. Baldwin, we find the matter thus discussed:
"Ought a court of equity, in a mining case, when it has been convinced of the importance thereof for the purposes of the trial, to compel an ...