State Ex Rel. Westlake v. District Court of First Judicial District Ex Rel. Lewis & Clark County

MR. JUSTICE MORRIS delivered the opinion of the court. *224 Petition for writ of supervisory control. This controversy was before us in case No. 8655, 167 Pac. (2d) 588, 591, and reference is hereby made .to that ease for the scope of the pleadings and proceedings as presented and determined at that time. In some of the pleadings and briefs the plaintiff is referred to as the respondent and in others the intervenors are referred to as relators. In order to avoid confusion the parties will be referred to in this opinion as the plaintiff, the defendants and the intervenors. In the original case, O. L. Brackman of Helena, Montana, a retail grocer and dealer in other related food products, commenced an action in the district court of the first judicial district against the commissioner of agriculture of the state of Montana and others, alleging, among other things, that sections 2620.45 and 2620.46 of the Political Code, Rev. Codes 1935, providing for a license tax on oleomargarine, are in violation of certain constitutional provisions. The attorney general of Montana answered for and on behalf of the commissioner of agriculture and the other state officials named as defendants. Intervenors, who are dairymen and butter makers, and whose products are in competition with oleomargarine, filed their petition for leave to intervene, alleging certain facts in support of their contentions to the effect that their rights were jeopardized by certain admissions made by the attorney general in his answer to the Brackman complaint and that relators’ property rights would not be adequately protected unless they were permitted to be heard in their own behalf. Thereupon the trial judge made and entered an order granting relators’ petition to intervene and their complaint in intervention was duly filed. The plaintiff moved to strike the complaint in intervention and after argument the motion was granted and the intervenors came to this court seeking a writ of supervisory control. That action we have referred to above as cause No. 8655. By our decision in that case the lower court was directed “to annul the order striking the relators’ com *225 plaint and answer in intervention.” That order having been complied with, the intervenors filed an amended complaint and answer on May 11, 1946. On June 5th the plaintiff filed a combined general and special demurrer to the intervenors’ complaint and answer. Paragraphs Y and VI of such demurrer set out the grounds upon which the complaint in intervention was attacked in these words: “V. That said amended complaint in intervention and accompanying answer failed to set forth facts sufficient to show such an interest of the plaintiff in intervention in the matter of litigation, in the success of either of the parties, or an interest against both, as contemplated and required under the provisions of Section 9088, R. C. M. 1935, to warrant intervention. “VI. That the interest of the plaintiffs in intervention, if any, are already represented in said litigation, and the amended complaint in intervention, and the amended answer in intervention fail to set forth any facts showing that counsel for the defendants have been guilty of any fraud or collusion so that the interests represented by the defendants are not properly represented. ’ ’ On June 17, 1946, the court sustained the demurrer. In the order sustaining the demurrer, the court said: “The Court is of the opinion that the demurrer is well taken. Section 9088 R. C. M. 1935, which authorizes intervention, was borrowed from California, after the highest court of that State had placed its construction upon the corresponding provision, and it must be presumed that the interpretation theretofore placed upon it in California was also adopted. Moreland v. Monarch Mining & Mill. Co., 55 Mont. 419, 178, Pac. 175. “The Supreme Court of California declared in the earl'y case of Horn v. Volcano Water Co., 1859, 13 Cal. 62, 73 Am. Dec. 569, that the interest which entitles a person to intervene in a suit between other parties must be direct and immediate in character, and not consequential. Also see Elliott v. Superior Court, 168 Cal. 727, 145 Pac. 101, 105; La Mesa Lemon Grove *226 & Spring Valley Irr. Dist. v. Halley, 195 Cal. 739, 235 Pac. 999, 1000; Drumhiller v. Wright, 64 Cal. App. 498, 222 Pac. 166, 167; City of Alhambra v. Jacob Bean Realty Co., 138 Cal. App. 251, 31 Pac. (2d) 1052. “Idaho and Utah likewise adopted this provision from California, and follow the same rule. People ex rel. Glidden v. Green, 1 Idaho 235, 240; Utah Power & Light Co. v. Ogden, 95 Utah 161, 79 Pac. (2d) 61. “However, it would not seem necessary to go beyond the decision of our own Supreme Court. The Court is of the opinion that State Bank of Outlook v. Sheridan County, 72 Mont. 1, 230 Pac. 1097, is controlling, requires that the demurrer be sustained, and precludes intervention in a case such as at bar until the Supreme Court sees fit to modify the scope and effect of that decision. “In the absence of any allegations of fraud or collusion between plaintiffs and defendants it appears that the interests of the plaintiffs in' intervention are already adequately represented. ’ ’ On July 11, 1946, the intervenors came back to this court and filed a petition praying for an order requiring the district court to show cause why its order of June 17th should not be annulled and set aside- and its order of January 28, 1946, permitting intervenors to be heard in the action be reinstated and the cause proceeded with in accordance with section 9088, supra, on the merits. The writ was issued as prayed for and the matter was set for hearing and heard on July 17. At the outset we deem it advisable to set out the contentions of the parties as such contentions are gathered from the pleadings and arguments. The plaintiff’s expressed purpose is to have sections 2620.45 and 2620.46 of Chapter 240 of the Political Code declared unconstitutional on the ground that it is confiscatory and in violation of amendment 14 of the Constitution of the United States in that.it deprives plaintiff and others similarly situated of property without due process of law and denies them the equal protection of the laws; that it violates *227 sections 3 and 27 of Article III of the Constitution of Montana, in that it denies the plaintiff and others similarly situated the right to carry on a lawful business without due process of law; that it violates sections 1 and 11 of Article XII of the Constitution of Montana, in that it assesses a tax which results in unreasonable and arbitrary discrimination and that it violates Article XII of the Constitution of Montana in that it levies a tax for a private purpose by prohibiting in large part the sale of oleomargarine and that such act is for the purpose of aiding the dairy business of the state. In paragraph X of the complaint it is alleged that the sections of the statute mentioned above were passed in the exercise of the police power of the state; that the license fee is prohibitive and is not necessary for the protection of the public health, morals, safety or welfare of the people of the state. The defendants, by paragraph VI of their answer, "deny that the statutes mentioned above were passed in the exercise of the police power of the state. At this point we think it well to say that the only part that the defendants have taken in this controversy was to file their answer. No brief has been filed by the defendants and they were not represented in this court in any of the arguments. The intervenors allege, and we think the facts sustain their allegation, that no objection has been made by the defendants to the petition of the intervenors to be heard in the proceeding in their own behalf. Their answer was filed in the original proceeding on September 27, 1945, and they have taken no part so far as this court is advised since their answer was filed more than a year ago. While it is necessary to touch upon other questions, particularly the constitutional questions involved, the sole question we are required to determine in this proceeding is as to whether or not the intervenors are entitled to come in as parties, file their answer and be heard in their own behalf. Section 9088, Revised Codes, provides: “Any person may, before the trial, intervene in an action or proceeding who has an interest in the matter in litigation, in the success of either *228 of the parties, or an interest against both. An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests, filed by leave of the court and served upon the parties to the action or proceeding who have not appeared, and upon the attorneys of the parties who have appeared, who may answer or demur to it as if it were an original complaint.” The section has been under consideration by this court in a number of cases and review of such cases we think will illuminate the controversy to some extent. The section was under consideration in the case of Equity Co-operative Association of Roy, Mont., v. Equity Co-Op. Milling Co., 63 Mont. 26, 37, 206 Pac. 349, 352, wherein it was said: * * * it appears to us that the trial court was in error in not allowing the filing of the complaint in intervention. The statute is plain * * * and, after intervenors made prima facie showing of interest in the subject of litigation, they should have been allowed to intervene.” In the case of State ex rel. Thelen v. District Court, 93 Mont. 149, 157, 17 Pac. (2d) 57, 59, it was said: “Prompted by a desire to do no injustice, and to render complete justice, courts allow the right of intervention in an equity case with liberality, when the petitioner’s rights will be directly affected by the decree. [Citing] 21 C. J. 341.” In the case of Foster v. Coyle, 59 Mont. 444, 197 Pac. 747, 749, this court, speaking through Mr. Chief Justice Brantly, said: “The statute is broad enough in terms to permit intervention in any case, provided only the person seeking to intervene can show either an interest in the subject-matter of the action, or an interest in the success of either of the parties, or an interest in the subject-matter against both.” In the case of State Bank of Outlook v. Sheridan County, 72 *229 Mont. 1, 230 Pac. 1097, 1098, cited by tbe learned trial judge in sustaining tbe demurrer to tbe intervenor’s petition in this action, the trial court permitted a tax payer to intervene and denied the plaintiff’s motion to strike the intervenor’s complaint. On appeal, the lower court was reversed as to that ruling and the cause remanded with directions to strike the complaint in intervention and proceed with the trial of the cause. Mr. Justice Holloway, speaking for the court in that ease, after quoting section 9088, said: “The purpose of the statute is to avoid circuity of action and needless multiplicity of suits (Moreland v. Monarch Mining & Mill. Co., 55 Mont. 419, 178 Pac. 175), but it is not its purpose to admit mere intermeddlers into litigation being conducted by other parties. “Matkin does not seek to join the plaintiff in claiming what is sought by the complaint; neither does he demand relief adverse to both plaintiff and defendant. He does, however, ask to make a partial defense to plaintiff’s cause of action, different from that made by the county attorney, and solely on the ground that he is a taxpayer, * * i:\ “A taxpayer, as such, does not represent the county, and is not authorized to speak for it. Section 4819, Revised Codes, declares: ‘The county attorney is the public prosecutor, and must * * * defend all suits brought against * * “ his county.’ When the county attorney appeared and filed an answer,, the presumption at once arose that he regularly performed his official duty. Section 10606. While he is prohibited from advocating claims against his county, except for his own services (section 4822), and is required to oppose all such claims ‘which are unjust or illegal’ (section 4820), he is not required to oppose just or legal claims merely -because they are presented against the county which he represents. It cannot be charged that the county attorney either failed or refused to act, for he did act, and the mere fact that he did not oppose the plaintiff’s claim in toto does not raise any presumption of bad faith or corrupt practice on his part. *230 “If one taxpayer, .merely by virtue of the fact that he is such, may intervene in this action, every other taxpayer may do so; and, if intervention is permitted upon the showing here made, a taxpayer may intervene in every action prosecuted against a county, even though the proper representative of the county has interposed a complete defense. “While a county is a civil division of a state, it is also a corporation (section 4441, Rev. Codes), and the same general rule which denies to a stockholder the right to maintain or defend an action on behalf of a private corporation until he has exhausted his remedy within the corporation itself (Allen v. Montana Refining Co., 71 Mont. 105, 227 Pac. 582), likewise denies to a taxpayer the right to appear or defend on behalf of his county, unless and until he has made it appear that the legal representative of the county has failed or refused to act or is acting in violation of the law. Hedges v. Dam, 72 Cal. 520, 14 Pac. 133. This is the theory upon which taxpayers’ suits have been sustained in this court and other courts; and upon the same principle, to warrant intervention by a taxpayer in a pending action against a county, it must be made to appear that the county attorney has failed or refused to represent the county, or is acting in collusion with the plaintiff, or otherwise is guilty of a breach of trust to the damage of the county and its taxpayers. Cornell College v. Iowa County, 32 Iowa 520; Greeley v. Lyon County, 40 Iowa 72; State ex rel. Skogstad v. Anderson, 130 Wis. 227, 109 N. W. 981; 15 C. J. 644. “In the absence of any suggestion of negligence or wrongdoing on the part of the county attorney, the complaint in intervention fails to state facts sufficient to warrant intervention. ’ ’ In the case of Burgess et al. v. Hooks, 103 Mont. 245, 257, 62 Pac. (2d) 228, 232, after reciting section 9088, the court said: “The purpose of this section is to avoid circuity of action and multiplicity of suits, if intervener’s interest be such that he would- be prejudicially affected as a necessary conse *231 quence of the determination of the action without his presence as a party to it, [he may intervene].” In the case of Smith v. Armstrong, 166 Pac. (2d) 793, 795, this court reviewed what had been said in a number of Montana cases relating to section 9088, supra, and repeated what former courts had said as follows: “Intervention is permissible in any case where the person asking too intervene can show either an interest in the subject matter of the action, or an interest in the success of either of the parties.” The next preceding sentence has been repeated in a number of decisions by this court and it is significant that the phrase used by the trial court and repeated in a number of decisions in other jurisdictions, has never been adopted in any decision by this Court in construing section 9088. We think that to add to the section the phrase, “The interest which entitles a person to intervene in a suit between other parties must be direct and immediate in character, and not consequential,” is not warranted by any words contained in the section. The phrase as quoted above is taken from the order of the court sustaining plaintiff’s demurrer to the intervenors’ complaint and answer and is cited in such order as taken from the early California case of Horn v. Volcano Water Co., 1859, 13 Cal. 62, 73 Am. Dec. 569, construing a section of that state from which our section 9088 was adopted and is cited as authority for the phrase. The syllabus of the Horn case, supra, supports the use of the phrase in question in that case but the body of the decision does not. Syllabi may lay down no rule not in complete accord with the opinion itself. The opinion in the Horn case was written by the distinguished jurist, Stephen J. Field, then an associate justice of the Supreme Court of California and later an associate justice of the Supreme Court of the United States. In that case Justice Field, after quoting the first sentence of the California statute from which our section 9088 was adopted, said at page 64 of the opinion in 13 Cal.: “What is 'an interest,’ within the meaning of this statute, is *232 not clear.” Farther along in the opinion the justice cites the case of Gasquet v. Johnson, 1 La. 425, in which case the Louisiana court had under consideration the same word in a similar statute of that state. We quote from the Horn ease the following: “In regard to the interest entitling a person to intervene in an action, the [Louisiana] Court said: ‘This we suppose must be a direct interest by which the intervening party is to obtain an immediate gain, or suffer loss by the judgment which may be rendered between the original parties.’ ” Note the use of the word “suppose”. This is the substance of all that was said in the Horn case by Mr. Justice Field that is similar in meaning to the pharse under consideration. Yet what we have quoted above appears to be the only foundation for the phrase which the intervenors complain has been added under the guise of construction to section 9088. It does not appear that Mr. Justice Field had any notion of laying, down a rule of law in quoting from the Louisiana case as indicated above. It seems to us that such quotation by the justice was merely in the nature of a passing comment, but in subsequent California cases (Elliott v. Superior Court, 168 Cal. 727, 734, 145 Pac. 101, 105; La Mesa Lemon Grove and Spring Valley Irr. District v. Halley, 195 Cal. 739, 235 Pac. 999; Drumhiller v. Wright, 64 Cal. App. 498, 222 Pac. 166), the phrase was cited as though it were a recognized rule of law in that jurisdiction and was expressly declared to be such. in the Case of Drumhiller v. Wright, supra. The intervenors say in subdivisions (a) and (b) of paragraph X of their petition that “ (a) The respondent Court and Judge assumed to add to the conditions for intervention stated in Section 9088, R. C. M. 1935, qualifications not expressed by the Legislative Assembly, i. e., the right of a trial judge to strike down a conceded interest because such interest does not meet a degree of directness and immediacy satisfying his individual views, as distinguished from the statutory requirements. “(b) The order, while (1) inferentially admitting that relators have an interest in the litigation and (2) stating that *233 said interest is represented by tbe original defendants, denies relators the right to present their stated and judicially admitted interest by gratuitously characterizing the same as not ‘direct and immediate.’ ” It appears to us that the complaint of the intervenors on this point is clearly justified. The only essentials necessary to the right to intervene are set out in the first sentence of section 9088 as quoted supra, and that right is modified only by certain rules of procedure and the necessity of obtaining “leave of the court” to become a party to an action by intervention. It will be noted that section 9088 provides that one may intervene when any one of three conditions exists: 1. When the person seeking to intervene has an interest in the matter in litigation. 2. When he is interested in the success of either party. And 3. When he has an interest against both. We think the intervenors in this case are entitled to intervene under any one or all of the three conditions mentioned, and particularly are they interested in the success of the defendants in upholding the constitutionality of sections 2620.45 and 2620.46 of the Political Code. In the several cases by this court which we have heretofore cited, nothing is said about the necessity of a person seeking to intervene having an interest which “must be direct and immediate in.character, and not consequential.” We see no sound reason for intruding such provisions and conditions into a clear and explicit statute such as section 9088 and we think such intrusion is a clear violation of two firmly established rules of statutory construction which maintain in this jurisdiction. First, it was said in the case of Equity Co-operative Association of Roy, Mont., v. Equity Co-Op. Milling Co., supra, that “the statute [sec. 9088] is plain” and that fact is as clear as the English language can make it and the rule has been in effect in this jurisdiction for more than 60 years that “ Whenever the language of a statute is plain,. simple, direct, and unambiguous, it does not require construction but *234 it construes itself.” Cruse et al. v. Fischl, 55 Mont. 258, 265, 175 Pac. 878, 880, and many other decisions to the same effect. Second, section 10519, Revised Codes, provides: “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” See also Conley et al. v. Johnson et al., 101 Mont. 376, 54 Pac. (2d) 585. True it has been said that when we adopt a statute from another state the construction placed upon such statute by the highest court of the state from whence it came is adopted along" with the statute. Moreland v. Monarch Min. Co., 55 Mont. 419, 178 Pac. 175. But the same Justice who wrote the opinion in that ease said in the case of Ancient Order of Hibernians et al. v. Sparrow et al., 29 Mont. 132, 74 Pac. 197, 198, 64 L. R. A. 128, 101 Am. St. Rep. 563, 1 Ann. Cas. 144, after citing the rule followed in the Moreland casé, that “However, this court will not blindly follow the construction given a particular statute by the court of a state from which we borrowed it, when the decision does not appeal to us as founded on right reaspning.” This last mentioned case was followed in Deer Lodge County v. United States Fidelity & Guaranty Co., 42 Mont. 315, 112 Pac. 1060, Ann. Cas. 1912A, 1010; State ex. rel. Goodman v. Stewart, 57 Mont. 144, 187 Pac. 641; State ex rel. Wallace v. Callow, 78 Mont. 308, 254 Pac. 187; In re Strode’s Estate, Mont., 167 Pac. (2d) 579. This court has no power to add new matter to a statute under the guise of construction. Section 9088, Revised Codes, as it appears in our Codes is plain, clear and specific and the part intruded therein relative to the necessity of a party having a “direct and immediate” interest in the matter would be an unwarranted invasion of a specific legislative function. On the question of the necessity of obtaining leave of court before a complaint in intervention may be filed, we *235 are inclined to the view that the. learned trial judge misapprehended the purpose of that clause of the statute. It was said in the Sheridan County case, supra, that, “The purpose of the statute is to avoid circuity of action and needless multiplicity of suits (Moreland v. Monarch Min. & Mill. Co., 55 Mont. 419, 178 Pac. 175), but it is not its purpose to admit mere inter-meddlers into litigation being conducted by other parties." This purpose of the statutes has been repeated in other decisions of this Court. We justify the repetition of this part of that opinion in order to emphasize what we are about to say: The purpose then is to shut out meddlers and avoid multiplicity of suits. The order of the lower court sustaining the demurrer to the intervenors ’ complaint was not based upon such grounds but upon rules laid down in other jurisdictions and such rules we think, for the reasons heretofore stated, if followed here, would be in derogation of the plain meaning of our statute. We think the provision in section 9088, requiring leave of court, has for its principal, and possibly its only purpose, the protection of the trial court. Meddlers, if allowed to intervene, would needlessly add to the labor and burdens of the court. Multiplicity of unrestricted suits would have the same result. By providing for “the leave of court" the trial judge is left to determine in his discretion as to what measure of latitude he shall allow one who seeks to intervene, keeping in mind at all times the purpose to do justice to one who applies in good faith, and when the trial court is in doubt we think the applicant should be given the benefit of such doubt. So much for our view as to the meaning of section 9088 and its purpose, but it should be kept in mind that the section specifies three separate grounds on which one may be entitled to intervene and any one of the three found to exist is sufficient to justify the court in granting the request. We think it would be an unwarranted assertion to say the intervenors, and many others, are not interested in upholding the validity of sections 2620.45 and 2620.46 of Chapter 240 of the Political Code. *236 Adverting to the case of State Bank of Outlook v. Sheridan County, supra, as authority in support of the trial court’s reason for striking intervenors’ complaint, we think there is a marked difference between the interest a mere taxpayer has in litigation between a county and one claiming a debt due from the county and a group of dairymen, creamery operators and others, who desire to be heard in a court action in opposition to the contentions of competitors who seek to have a legislative Act, obviously enacted in the interest of the dairy business, declared to be unconstitutional and void. We are not here concerned with the validity of the Act which the plaintiff seeks to have removed from the statute books. That question cannot be determined in this action. What we are now concerned with is the right of parties who believe their occupations and business are threatened with serious impairment, and who seek the court’s permission to be heard in defense of their property rights. This Court in the Sheridan County case, supra, characterized in effect the taxpayer who sought to intervene in that case a “mere intermeddler.” There is no justification for so characterizing the intervenors here. It is obvious from the contents of section 195 of 47 C. J. 100, that there is marked variations in the application of statutes relative to intervention, and no well settled rule is established as to when one should be permitted to intervene and when he should be denied. It is said by that text writer that, “Under some statutes any person may intervene who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. Other statutes provide for intervention where one claims an interest in the litigation.' Others permit intervention where applicant has an interest or title which the judgment will affect. Still others provide that a person may intervene if he has an interest in the subject of the action, in real property, the title to which may be affected by the judgment, or in real property for injury to which the complaint demands relief. Some statutory provisions which do not define specifically the interest required have been con *237 strued as requiring an interest in the subject matter of the suit which may be adversely affected. An ‘interest in the controversy,’ as used in a statute, has been construed as meaning an interest in the subject of the action, that is, the subject matter of the litigation. As used in certain statutes the phrase ‘interested in the subject-matter’ refers only to a case in which applicant shows an interest in property sued for. In some jurisdictions the view has been taken that, while a person may intervene who has an interest in the controversy, he cannot intervene when he merely claims an interest in the thing which is the subject of the controversy. While in some cases a view more favorable to the right to intervene has been taken, the rule frequently stated is that the right or interest which will authorize a third person to intervene must be of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation of the judgment. So it has been stated specifically or in substance that the interest is not sufficient if it is indirect and contingent, indirect and remote, indirect, remote and conjectural, consequential, or collateral. The word ‘interest,’ as used in an intervention statute, means more than mere concern. Where the direct and immediate interest referred to above is shown, intervention is proper provided the other elements of the right or privilege exist. The ' intervener’s interest has been regarded as sufficient under certain code provisions where the facts on which he relies would constitute a good defense if the action had first been brought against him. The interest must be one as to which a determination may properly be made in the proceeding in which the intervention is sought. * * * “In determining what interest is sufficient, the applicable statute should be liberally construed in favor of applicant, but such a statute must be substantially followed, and the applicant for intervention must bring himself within its provisions.” There is no sound reason for the suggestion that, to permit the intervenors to be heard in their own behalf reflects upon *238 the attorney general and his staff. Tnat official has made no objection to the intervenors appearing in the action as parties thereto. It is a well known fact that 'such 'public officials welcome the assistance of others in actions of more than passing importance, particularly where the action is of general interest. ' Taking up the right of an intervenor being permitted to be heard in questions usually attended to by a public prosecutor, it has been suggested, and vigorously contended for, that the rule laid down in 1 Bancroft, Code Pleading, 862, section 592, should be applied here. The rule is stated thus: “But when public officers are engaged in litigation to protect public rights, and their pleadings and procedure maintain the public interest, no private person is entitled to intervene.” Note the word “entitled” is used. The clause is not in the positive form. The text does not use the positive phrase such as “no private person shall be permitted to intervene.” Neither can it be said that section 9088 is a positive statutory denial of the right to intervene as the right is expressly given, but with the condition that “leave of court” shall first be obtained. A right bestowed to be exercised at the discretion of the court is not a right denied as contended for under the Bancroft rule, supra. It is contended in plaintiff’s brief filed July 29, 1946, at the time of the hearing herein, that this issue was raised by the demurrer to the intervenors’ complaint and answer in intervention. The contention is not in our opinion, well founded. The most that could be said in support of that contention is that such issue was raised by implication by what was said by the court relative to the Sheridan County case, supra. But issues are not propérly raised by implication, but by clear and positive allegations in accord with the following decisions: “Good pleading and fair practice demand the enforcement of the rule that the pleader must state the facts upon which he bases his action, and be confined to them in making [his] proof.” Welch v. All Persons, 78 Mont. 370, 254 Pac. 179, 183. “Cases are tried in court upon the issues joined by the parties. (Citing cases.) They are not to be decided upon an *239 issue outside of pleadings.” Barber v. Chase, 101 Vt. 343, 143 A. 302, 304. “It is likewise a well-recognized rule of law that the issues in a cause are made and raised alone by the pleadings. ’’ Kleinlein v. Foskin, 321 Mo. 887, 13 S. W. (2d) 648, 654. “Pleadings should be so framed as to form definite and specific issues.” State ex rel. Tate v. Sevier, 334 Mo. 771, 68 S. W. (2d) 50, 52. “We have repeatedly held that, under, our system of pleading and practice under the Code, issues to be tried must be formed by pleadings and a judgment rendered thereon must respond to the issues raised by the pleadings.” Bowman v. Cobb et al., 128 Neb. 289, 258 N. W. 535, 537. “* * * proof without pleading is just as unavailing as pleading without proof.” Louisville & N. R. Co. v. Whitaker, 222 Ky. 302, 300 S. W. 912, 913. The rule is universally applied. The only issues raised by the plaintiff as between him and the intervenors was by his demurrer filed June 5, 1946, to intervenors’ amended complaint, and answer filed May 11, 1946. By paragraph Y of such demurrer it is alleged that such amended complaint and answer “failed to set forth facts sufficient to show such an interest of the plaintiff in intervention in the matter of litigation, in the success of either of the parties, or an interest against both, as contemplated and required under the provisions of section 9088, R. C. M. 1935, to warrant intervention.” By paragraph VI of the demurrer it is alleged in effect that the interests of the intervenors are already represented in the litigation and that the answer fails to set forth any facts as to counsel for defendants being guilty of any impropriety or neglect in representing the interest of the intervenors. It is argued that “the right of a third person to intervene has been considered by this court both by review of an order on motion to strike and by review of an order on a general demurrer to the complaint in intervention.” Under the decisions relative to the raising of issues from which we *240 have quoted many pertinent excerpts, issues are not raised in the manner here contended for, and we think an analysis of section 9088, supra, and the authorities cited relative thereto fully cover the issue of the right of a third person to intervene in such an action as this. There is a further important reason why the intervenors’ petition should be granted: The plaintiff contends that sections 2620.45 and 2620.46 were enacted in the exercise of the police power of the state, while the defendants deny in paragraph X of their answer that such sections were so enacted. We think it must be presumed that such sections were either enacted pursuant to the police power, or as a purely revenue measure. Johnson v. City of Great Falls, 38 Mont. 369, 99 Pac. 1059, 16 Ann. Cas. 974. If the latter be conceded and the denial that the statutes were enacted in the exercise of the police power remains of record, a serious constitutional question may arise by reason thereof, and the defendants, having denied the statutes involved were enacted in the exercise of the police power of the state, would not be in a favorable position to defend their constitutionality. See City of Bozeman v. Nelson, 73 Mont. 147, 237 Pac. 528; and Reilly v. Hatheway, 46 Mont. 1, 125 Pac. 417. Let the writ issue. Mr. Chief Justice Lindquist and Associate Justice Cheadle concur.