issue will not make the decision conclusive. Much more depends upon the opinion of the court, and the emphasis placed upon the decision, than upon the fact that any case has been followed subsequently. For a variety of reasons, several cases similarly decided are stronger than one. There is less likelihood of error; any points, decisions, or statutes overlooked in the one may be considered in subsequent cases; and the ease of reversing one decision is greater than the overthrow of a series. If there is but one case upon a point, and there seems no good reason for a reversal, that will ordinarily be taken as a fixed precedent. It is where there is a conflict of opinions or an evident error in the decision that a court will overrule one case when it would hesitate more about condemning several. Much depends upon the importance of the decision and the weight to be attached to it. Whether the court is emphatic in its approval, whether the decision is one affecting or changing important interests, and whether it is expedient or good policy to sustain or overrule a particular decision, are questions which have much influence upon the court." It will be seen that the author, as in all the cases cited so far, ends his section with the announcement, "whether the decision is one affecting or changing important interests." Note 1 to this section, referring to Morse v. Goold, 11 N. Y. 285, 62 Am. Dec. 103, is as follows: "The effect of such judgment of affirmance rendered by a divided court is as conclusive upon the rights of the parties to the judgment as any other, although it is not considered as settling the question of law as to cases which may arise between other parties." Etting v. Bank of U. S., 11 Wheat. 59, 6 L. Ed. 419, furnishes some very instructive reading. It is an opinion by Chief Justice Marshall, and is referred to by the author in his note 1, above referred to. These are the authorities referred to in the majority opinion, and, I assume, are the foundation for the judgment.

I will now take up the other view of the situation, as presented by the case at bar. In 23 A. & E. Ency. of Law (1st Ed.) 36. under the head of "Limitations of the Rule," the author says: "There are certain reasonable limitations to this, as to almost all rules. There are clear and palpable mistakes of law, which should be corrected. especially when it can be done without injury to any person or property. If no injury or injustice would result to any one, and a future and permanent benefit would undoubtedly result, the correction should be made at once. No prior decision is to be reversed without good and sufficient cause, yet the rule is not in any sense ironclad, and future and permanent good to the public is to be considered, rather than any particular case or interest. Even if the decision affects real estate interests and titles, there may be cases where it is plainly the duty of the court to inter76 P.-21

fere and overrule a bad decision. Precedent should not have an overwhelming or despotic influence in shaping legal decisions. No elementary or well-settled principle of law can be violated by any decision for any length of time. The benefit to the public in the future is of greater moment than any incorrect decision in the past. Whenever a correction can be made without working more harm than good, it should be done." In Hart v. Burnett, 15 Cal., beginning at page 530 and ending at page 630-a very exhaustive opinion, as well as instructive-at page 602 we find this significant language. quoted from Chancellor Kent: "But I do not wish to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are more than one thousand cases to be pointed out in the English and American books of Reports which have been overruled, doubted, or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and reversed without reluctance, rather than have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of the error." Again, it is said: "Even a series of decisions is not always conclusive evidence of what is law. and the revision of a decision very often resolves itself into a mere question of expediency, depending upon the consideration of the importance of certainty in the rule, and the extent of property to be affected by a change of it." This case cites with approval Martin's Ex'x v. Martin, 25 Ala. 201. in the following language: "A series of decisions made and followed up from the earliest judicial times is binding upon the judges" --but says that, if those decisions be opposed to the state or federal Constitutions, they would take pleasure in discarding them. In Houghton v. Austin, 47 Cal. 646, we find another long, instructive case on the question at bar, which approves the case of Hart v. Burnett et al. At page 668 we quote: "The question of the conclusiveness of adjudication is not necessarily dependent upon the number of them. * We must give force to the qualifications expressed in the words 'settled,' 'acquiesced in,' and the like. They cannot mean 'settled' by the mere fact of the adjudications, for then there would be no use in the terms. They would be without meaning, for every judgment on a title would, on this construction, settle the law. The rule itself implies that the doctrine protected by stare decisis cannot stand of itself. But it is a solecism to say that causes should be tried upon wrong principles --be decided against law-whether it be for the purpose of justice, or not, so to decide them. The law is not so false to itself as to require its own permanent overthrow, unless the subversion be necessary to the public interests; and whether it be so necessary

*

*

in a given case is for the court, as a matter of legal discretion, whenever the rule is invoked. No such rule ever existed as that a court should be absolutely bound by a previous decision. And it would be especially dangerous to apply this inexorable standard to questions decisive of the constitutional rights of the citizen. One provision of the Constitution can impose no greater obligation than another. It may be that some time in the far distant future a plain provision of the organic law may be temporarily lost sight of in the heat of a popular excitement. * * There may be those who assume that the judges of this court are utterly ignorant of the spirit of the times in which we live; but we are unwilling to believe we have reached the condition of 'progress' when it is supposed by persons, however influential, that judges are to be driven from carrying into judgment their conscientious convictions of what the law demands, by suggestions of public hostility, encouraged, perhaps, by those who affect to regret that the courts should place themselves in opposition to the prevailing sentiment. We are by no means convinced, however, that the people feel the intense affection for the sections of the Code which the parent entertains for his own bantling. There is a certain regard for the democratic idea which underlies all our institutions, which the mere demagogue always fails to appreciate. It is based on the firm conviction that the masses of the people will ultimately understand that the violation of a constitutional privilege in the person of the humblest citizen is a greater evil than any inconvenience which may be supposed to exist under the government the people have solemnly adopted." Again, in San Francisco v. Spring Valley W. W., 48 Cal. 493, we find this statement in the syllabus: "Stare Decisis. Even if property rights have grown up under an erroneous decision with regard to the construction of a clause in the Constitution, it is better that inconvenience should be submitted to, rather than such decision should stand, and a valuable provision in the fundamental law be obliterated." In Ex parte Koser, 60 Cal. 177, at page 204, in discussing the application of the rule of stare decisis, the court say: "Nor can the doctrine stare decisis be invoked to prevent us from inquiring into the constitutionality of the sections of the Penal Code. If, in Ex parte Andrews [18 Cal. 678] the act of 1858 was decided to be valid, in Ex parte Newman, 9 Cal. 502, the same act was declared to be in conflict with the fourth section of the first article of the former Constitution. In holding the sections of the Penal Code to be obnoxious to constitutional objection, we but return to the rule which for more than three years was the established rule in California. But, if the case of Ex parte Andrews stood alone, 'No such rule ever existed as that a court should be absolutely bound by a previous decision; and

it would be especially dangerous to apply this inexorable standard to questions decisive of the constitutional rights of the citizen.' Houghton v. Austin, 47 Cal. 666." The Supreme Court of Texas, in a very elaborate and well-considered opinion (Willis v. Owen, 43 Tex. 41, on pages 48, 49), speaks in no uncertain terms as to the application of the doctrine of stare decisis: "This doctrine grows out of the necessity for a uniform and settled rule of property, and definite basis for contracts and business transactions. If a decision is wrong, it is only when it has been so long the rule of action as that time and its continued application as the rule of right between parties demands the sanction of its error. Because, when a decision has been recognized as the law of property, and conflicting demands have been adjusted, and contracts have been made with reference to and on faith of it, greater injustice would be done to individuals, and more injury result to society, by a reversal of such decision, though erroneous, than to follow and observe it. But when a decision is not of this character, upon no sound principle do we feel at liberty to perpetuate an error into which either our predecessors or ourselves may have unadvisedly fallen, merely upon the ground of such erroneous decision having been previously rendered. The questions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitation upon legislative and executive power as safeguards against tyranny and oppression. Certainly it cannot be seriously insisted that questions of this character can be disposed of by the doctrine of stare decisis."

This court, in a very recent decision, published July 1, 1903, written by Mr. Chief Justice Sullivan, and concurred in by Mr. Justice Ailshie (the writer took no part in the decision, for the reason that the rights of the parties had been litigated before him while sitting as a district judge), laid down the rule for the application of the doctrine of stare decisis.

This being my first opportu- ́

nity to express my views on the question that was at issue in that case-Parke v. Boulware, 73 Pac. 19-I now give it my full and unqualified approval. The facts, as stated by the court, were as follows: "This action was brought to recover $500 damages for an alleged wrongful destruction of certain dams alleged to have been situated in appellant's irrigating ditch, by means of which appellant raised water out of his said ditch onto his land for irrigating purposes, and also for a perpetual injunction restraining respondent from interfering with said dams and ditches, or of the flow of the water therein. The defendants, who are respondents here, answered, and denied that appellant or his predecessors in interest constructed the water chan

nel claimed by him as a ditch, and averred that the same is one of the natural channels of Cassia Creek, through which water has from time beyond the memory of man ever flowed, and that said channel was known as the 'North Fork of Cassia Creek'; that said channel had been used by respondents and their predecessors in interest for more than twenty years from Cassia creek to and upon their lands; and averred that the use of said channel by appellants had been in common with that of respondents; and denied that they had cut away and removed said dams, or that they threatened to remove the same." The case was tried in the lower court, judgment entered, and appeal taken to this court, and, on hearing, reversed. Another trial was had below, judgment entered, another appeal taken, and upon the hearing the doctrine of stare decisis was sought to be invoked. The court said: "The doctrine of stare decisis is not applicable to this case. We cannot regard that rule as showing any application to this case. That rule or doctrine grew out of the necessity for a uniform and settled rule of property, and to form a definite basis for contracts and business transactions."

It would seem, from all the authorities bearing on the question of the application of the doctrine of stare decisis, that, if property rights have grown up or have been settled under an existing decision of the court of last resort, the judgment will usually be upheld. This is certainly the correct rulehas been twice so declared by this courtand, if it is shown in the case at bar that such a condition exists, then it should prevail here.

Are the reasons for the application of this rule sufficient? What property rights have grown up under these two sections of the statute? Does the fact that they have remained on the statute books since 1875 make them valid or give them special meaning, or is it because they were permitted to repose for a term of 27 years before any one attempted to enforce them that they are to be given a new meaning or special vitality? Does the fact that the two political parties were seeking for an advantage give these sections force and validity? Does the fact that the Legislature met in 1903, and did not repeal or modify this law, give it additional strength, or is their silence on the subject to be so construed that the doctrine of stare decisis must be invoked, and a new rule for the application of the doctrine established by this court? Does the fact that "bills were introduced making it a penal offense to violate the existing law on the subject" add force to the law or change the doctrine of stare decisis? It is true, as stated in the majority opinion, that "these facts are a part of the public history of the state"; but does that add force and validity to the law, or does it change the doctrine of stare decisis? If property rights have been settled or grown up since this law was first declared

constitutional by a divided court in June, 1901, then there is some reason for the application of the rule invoked by my associates in the majority opinion. Did any one ever hear of the government permitting property rights to attach to the public domain, excepting by proper entry under the land laws of the United States? It is as much a matter of public history that the government will not permit an individual to fence the public domain, and thus withdraw it from the use and benefit of the public, as is the action of the political parties in attempting to juggle with a statute, and thus acquire political advantage. The constitutional rights of the people cannot be disposed of in this way, nor can the doctrine of stare decisis be invoked to accommodate the whims or caprices of either or both parties.

I cannot concur in the statement in the majority opinion that the "respective rights and interests of settlers, on the one hand, and sheep owners, on the other, as between themselves, have become fixed and settled." The court records show that a vast number of suits have arisen, three of them finding their way to this court. The dangerous conflicts we have had in this state have not been between the settlers and stockmen, but between conflicting stock interests.

For the foregoing reasons, based on the decisions of all the courts, including the only two expressions of our own court, I do not believe the doctrine of stare decisis should control, and think appellants were entitled to a decision on the merits of the case.

(9 Idaho, 718)

HILL et al. v. MORGAN, Judge. (Supreme Court of Idaho. Feb. 27, 1904.) MANDAMUS-JUDICIAL OFFICER -PRELIMINARY QUESTIONS-SERVICE OF SUMMONS ON CORPORATIONS-ALIAS SUMMONS-WHAT IT MUST

CONTAIN.

1. The rule that mandamus will not issue to control discretion or revise judicial action has no application to the determination of preliminary questions relating to the sufficiency of the service of summons.

2. When the tribunal or officer whose duty it is to take jurisdiction of a matter, believing erroneously that it has no jurisdiction, declines to consider the matter, mandamus will issue to compel action.

3. Service of summons on a corporation is sufficient when it is shown to have been served upon some one who had theretofore been served with process, and the corporation accepted such service by its appearance; and this is especially true where it is not shown that the corporation, through its attorney, or some one authorized to act for it, did not inform the party in interest how better service could be made.

4. An alias summons that substantially complies with the original is not defective as to form under the provisions of section 4141, Rev. St. 1887.

5. A summons that states the names of the parties to the action, the court in which it is brought, the county in which the complaint is filed, a statement of the nature of the action

2. See Mandamus, vol. 33, Cent. Dig. § 75.

in general terms, a direction that the defendant appear and answer, and, if for damages, a notice that, unless defendant so appears and answers, the plaintiff will apply to the court for the relief demanded in the complaint, is not defective under the provisions of section 4140, Rev. St. 1887, even though it does state the amount demanded.

(Syllabus by the Court.)

Petition by Josiah Hill and J. S. Hill for writ of mandamus to Ralph T. Morgan, judge of the district court of the First Judicial District. Writ granted.

A. G. Kerns, for petitioners. C. W. Beale, for defendant.

STOCKSLAGER, J. This is an original proceeding in this court. The petitioners file their petition for a writ of mandate, viz.: "Josiah Hill and J. S. Hill respectfully petition for a peremptory writ of mandate commanding and requiring Ralph T. Morgan, Judge of the District Court of the First Judicial District of the state of Idaho, in and for the county of Shoshone, to proceed with the trial of an action pending in said district court wherein these petitioners are plaintiffs and the Standard Mining Company, Richard Wilson, Walter Mackay, William R. Leonard, James Leonard, and A. L. Scofield, copartners doing business under the firm name of the Mammoth Mining Company, are defendants, and to exercise jurisdiction over the defendants served in said action, and for all other and proper general relief. This petition is based upon the accompanying affidavit of Josiah Hill, and exhibits to be filed in this court with this petition." The affidavit of Josiah Hill, after stating that he is one of the plaintiffs, and that defendant is the judge of the First Judicial District of Idaho, states: That on the 30th day of September, 1903, plaintiffs commenced an action against the Standard Mining Company, a corporation organized and existing under the laws of the state of Idaho, Richard Wilson, Walter Mackay, William R. Leonard, James Leonard, and A. L. Scofield, copartners doing business under the firm name of the Mammoth Mining Company, to recover damages sustained by plaintiffs by reason of the overflow of their lands by tailings from the mining works of defendants, by filing a duly verified complaint in due form of law in the office of the clerk of the district court of the First Judicial District of the state of Idaho, in and for the county of Shoshone, and on the same day a summons in due form of law was issued out of said court in said action by said clerk, and on October 7, 1903, was served on A. L. Scofield, on October 14, 1903, served on the Standard Mining Company, and on October 19, 1903, was served on James Leonard, defendants therein named, by delivering a copy of the summons and a copy of the complaint in said action to each of said defendants; and said summons was on October 23, 1903, returned into court by said sheriff with a return indorsed thereon

showing such service, and that the other defendants could not be found. That a copy of said summons and the return indorsed thereon and the amended return made thereon is hereto attached, marked "Exhibit A,” and made a part of this affidavit. That each of said defendants served appeared specially by their counsel, and moved to quash said summons and the service thereof on the ground that said summons did not contain matters required by paragraphs 2 and 4 of section 4140, Rev. St. 1887. That on October 27, 1903, an alias summons was issued in said action by the clerk of said court on the application of plaintiffs, and service was made on Richard Wilson, Walter Mackay, and another service was made on the Standard Mining Company. Copies of the summons, the alias summons, and the motions to quash were filed, and made part of this affidavit. That each of said defendants served appeared specially by their counsel, and moved to quash said summons and the service thereof on the ground that said alias summons did not contain matters required by paragraphs 2 and 4 of section 4140, Rev. St. 1887. That on December 1, 1903, all of said motions of defendants were submitted to and by the court taken under advisement, and thereafter, on December 4, 1903, each of said motions was sustained by defendant as judge of said court. Plaintiff then and there in open court requested defendant as such judge to enter the default of each of such defendants served in said action, and that the trial of the cause against the defendants served proceed on its merits. Defendant then and there as such judge denied such requests, and ever since has, and does now, refuse to proceed with the trial of said cause. That on December 5, 1903, a new summons was issued in said cause by order of the court in form as an original, and on the 8th day of December, 1903, was served by the sheriff on the Standard Mining Company by delivering to and leaving with A. H. Fox, the secretary and treasurer of said corporation, a copy of said summons and a copy of the complaint, and on December 22, 1903, said summons was returned with such service indorsed thereon, and that none of the other defendants could be found in the state of Idaho, and thereupon the default of the Standard Mining Company was by the defendant, as such judge, entered in said cause. That said defendant Standard Mining Company appeared in said action, and filed a motion to quash and set aside said new summons and the complaint, and to quash and set aside the service of said summons and complaint on the ground that the A. H. Fox mentioned in the sheriff's return was not the secretary or cashier of said corporation. That on January 4, 1904, this affiant and his coplaintiff, by their counsel, filed in said court in said action a motion to strike from the files the motion of the Standard Mining Company to quash the summons and

complaint and service thereof, accompanied by an affidavit of C. W. Betts, the deputy sheriff who made the return, showing that Fox was the secretary and treasurer of said corporation, and as such secretary and treasurer had received the service of process in a great many other cases for said corporation, and that the corporation adopted the acts of said Fox as its own, and also filed an affidavit of this affiant. That upon the hearing of said motions the motion to strike by the plaintiffs was denied, and the motion of the Standard Mining Company was sustained to the extent of setting aside the service of the summons and complaint by the defendant as judge of said court. That plaintiffs, by their counsel, then and there in open court requested defendant, as judge, to proceed with the trial of said cause on its merits against the defendants served, and the defendant, as judge of said court, then and there refused, and ever since has refused, and does now refuse, to proceed with the trial of said cause against the defendants so served, or any of them. That on December 31, 1903, this affiant and his coplaintiff, by their counsel, in writing, notified and required the Standard Mining Company to produce for the inspection of the plaintiffs in said cause its journal of proceedings, check books and stubs, and other records, at the hearing of its motion to quash, and said corporation then and at all times since has refused to disclose to the plaintiffs the name or address of any officer or person upon whom process might be served; and on the 4th day of January, and prior to the hearing of said motions, in open court the plaintiffs requested the judge of said court to require the said corporation to disclose the name and address of an officer in Idaho upon whom process might be served, and the defendant then and there and at all times since has refused to make such order. That on the 5th day of January, 1904, this affiant and his coplaintiff, by their counsel, in writing, requested the defendant herein, as judge of said court, to reconsider his ruling holding the court had no jurisdiction of said cause, and to proceed with trial and determination of said cause on its merits, and the defendant as such judge has refused to reconsider his said decision, and at all times has refused to proceed with the trial of said cause. That the November, 1903, term of said district court was in session on said 5th day of January, 1904, and has not adjourned, and affiant is informed and believes will not adjourn before January 29, 1904. That affiant is informed and believes the Standard Mining Company aforesaid has transferred all its property in Idaho to the Federal Mining & Smelting Company, a foreign corporation, and that all its officers excepting A. H. Fox, its secretary and treasurer, upon whom the last process in said cause was served, have removed from the state of Idaho, and now claim to be nonresidents of Idaho, and that

all the books and records of said corporation have been removed from Idaho to Spokane, Wash., since the commencement of said action, and that all of said acts were performed by said defendant and its officers for the express purpose of preventing plaintiffs from securing any other service of process in said cause. That all of the other defendants in said cause upon whom process was served removed from the state of Idaho immediately after the making of said service of process, and have continuously remained absent from Idaho since said time, and this affiant and his coplaintiff are unable to secure another personal service of summons upon said defendants, and have no other plain, speedy, and adequate remedy in the ordinary course of law than by their petition to this court for a writ of mandate commanding and requiring the defendant, as judge of said court, to proceed with the trial of said cause against the defendants served.

At the time the application was filed, January 19, 1904, the following answer was filed: "I, Ralph T. Morgan, Judge of the District Court of the First Judicial District of the state of Idaho, in and for the county of Shoshone, do hereby acknowledge the receipt of due notice of the plaintiff's intention to apply for a writ of mandate herein; and do hereby certify that the affidavit for the writ and the exhibits referred to embrace a full and fair statement of the facts in said cause, and I hereby consent to a hearing and determination of said cause upon such showing. R. T. Morgan, the defendant above named."

Thereafter, and on the 21st day of January, 1904, this court received the following telegram from the defendant judge, to wit: "I request suspension writ mandate Hill versus Morgan Judge by wire until defendant can be heard answer signed by me under misrepresentation of facts parties leave for Boise to-morrow with complete record asked to be heard Monday, 25. Answer. [Signed] R. T. Morgan, District Judge." This request was granted by the court, and on the 27th day of January, 1904, defendant filed his answer, putting in issue all the material issues of the petition of plaintiffs.

It can be seen by the petition of the plaintiff's that the questions for determination are: (1) Is this action on the part of petitioners an attempt to control the discretion of the district judge, or is it an action to require him to perform a duty enjoined upon him by the statute? (2) Did the district court obtain jurisdiction of the defendants, or any of them, by what purports to be service of the original summons, the alias summons, or what is termed the new summons ordered by the court after sustaining motions to quash the original summons and the alias summons and the service thereof? If the contention of defendant be true that the court was acting within its discretion in sustaining motions to quash the summons, alias summons, and the new summons, or if by asking for the issue