I concur in the result reached in the majority opinion, but I believe that opinion contains dictum which has no place in the opinion. That opinion gratuitously attempts to add dignity to the opinion in the case of State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030, and to subtract from, or clarify the effect of the opinion in Hardenburgh v. Hardenburgh, 115 Mont. 469, 146 P.2d 151, when neither of them has anything to do with the question involved in this case.
In the Interstate Lumber Company case it was held that the word "may" in section 9096 means "must." At least two members of the court in the Hardenburgh case thought that the court should construe the word "may" according to its approved usage. As stated above, I do not see the necessity or propriety of discussing that point in this case. But if we are to consider the point, then I believe we should accept the statute as written by the legislature. I do so for two reasons. First, the statute becomes absurd when the word "may" is given the meaning of "must." The first part of the statute declares that "In all other cases the action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action." The word "shall" the court properly said in the Interstate Lumber Company case is expressive of obligation or necessity.
If defendant resides in a county other than the county where the contract was to be performed, how can the statute be given effect when the word "may" is also given the force of obligation or necessity without trying the case twice — once in the county of defendant's residence and the other in the county where the contract was to be performed? What the statute means is that either the county of defendant's residence or the county where the contract was to be performed is a proper county for the trial of the action and that if plaintiff chooses either of those counties defendant may not have it removed, except that as stated in the last two lines of section 9096, it is still subject "to the power of the court to change the place *Page 426 of trial as provided in this code" which latter clause has reference to subdivisions 2, 3 and 4 of section 9098.
Second, I think it is always dangerous for the court to attempt to improve upon legislation adopted by the legislature and that in endeavoring to do so it is difficult, if not impossible, to avoid encroaching upon a prohibited field of governmental endeavor. Section 1, Article IV of the Montana Constitution.
I think the Interstate Lumber Company case was wrong in declaring that "may" as used in section 9096 means "must" and that two members of the court were right to that extent when they so stated in the Hardenburgh case.
I regard the general language quoted from Corpus Juris in the Hardenburgh case to the effect that plaintiff must show that the contract was to be performed in the county where the action was commenced as dictum in that case and that it did not overrule the case of Courtney v. Gordon, 74 Mont. 408, 241 P. 233, which places the burden upon the party moving for a change of venue to show that the contract was not to be performed in the county where the action was commenced.
Rehearing denied June 21, 1945.