We dissent. The majority opinion holds, in substance, that the contestee was guilty of violating the Corrupt Practices Act as charged, but affirms the trial court for the alleged reason that there is substantial evidence in the record to support the findings of the trial court that the violation of the Act by the contestee was made in good faith. No other reasons are assigned for affirming the judgment. The majority does not hold, nor intimate, that the judgment of the trial court is supported by a preponderance of the evidence, but only by "substantial evidence," and contends that the established rule of this court prohibits us from reversing the judgment if there be any substantial evidence to support it. We concede the rule as stated is correct in law actions, but emphatically deny its proper application here (1) for the reason that the rule relied upon by the majority, as mentioned above, does not apply when the testimony given was all by one witness; (2) the plea of good faith, being an affirmative statutory plea, must be supported by a preponderance of the evidence; (3) the action here is not strictly an action at law but a statutory proceeding partaking of some of the features of an action in equity; (4) the acts and pronouncements of the defendant, both during the campaign and through all the court proceedings, discredit the plea of good faith, and his testimony that he made and published *Page 20 the incriminating statements alleged in the petition and admitted by respondent, in good faith, is not "substantial evidence."
On the first proposition, that the rule relied upon by the majority to support the finding of the district court does not apply when the testimony is all given by one witness, with the exception of a number of the attorneys representing the respondent whose testimony was in the nature of that of expert witnesses, the only testimony found in the record which can be said to lend any support to the finding that the contestee acted in good faith, is the statement made from the witness stand by the contestee himself to the effect that he made the utterances and caused the publications which the majority opinion holds to be in violation of the Corrupt Practices Act. At the outset it should be kept in mind that the evidence upon which the majority finds contestee violated the Corrupt Practices Act is evidence of the acts, publications and utterances made and done during the campaign when there was no cloud upon the horizon threatening the loss of office if once it were gained, and the plea of good faith, which, if not sustained, leaves the finding of the trial court and the majority here unsupported, was put forward in the heat of battle to save the office admittedly gained by illegal promises. The first part of the evidence being in the nature ofres gestae, and the latter a deliberate plan conceived by clever counsel to save a client from the penalty of the law.
If the evidence may be said to be in conflict, then the conflict is all within the testimony of the contestee. The rule long recognized by this court that where the evidence is in conflict and the findings of the trial court are supported by substantial evidence the findings will not be disturbed, is without application where, as here, the conflict, if any, is all within the testimony of the one witness. In Thuringer v.Trafton, 58 Colo. 250, 255, 144 P. 866, 868, application of the rule was contended for the same as it is applied by the majority here, but the court rejected such application in the following language: *Page 21 "True, her evidence was conflicting, but the conflict was internal, within itself, and not with that of any other witness, for no other witness testified on the subject, and the rule in regard to conflicting evidence does not apply in such a case."
In the case of Casey v. Northern Pacific Ry. Co., 60 Mont. 56,198 P. 141, 144, this court said: "Counsel for plaintiff insist that the evidence is conflicting, and, since the jury found upon the issues and the lower court denied a new trial, this court is without authority to interfere, but the principal conflicts arise upon the plaintiff's own testimony, rather than in the testimony of opposing witnesses. * * * The corollary of the first rule above is stated cogently in McAllister v.McDonald, 40 Mont. 375, 106 P. 882. It was there held that the supreme court is not authorized to affirm an order denying a new trial: (a) Where the evidence tending to support the verdict is an isolated statement of a witness which is in conflict with his other statements; or (b) when the verdict is contrary to the great weight of the evidence, and the evidence which tends to sustain the verdict is impeached or rendered improbable by conceded facts, or is against all reasonable inferences or probabilities of the case; or (c) when the verdict, though supported by some evidence, is so utterly at variance with the real and unexplained facts that the court can say that it is clearly wrong. The rule has been stated repeatedly in this jurisdiction that a court may reject the most positive testimony, though the witness be not discredited by direct evidence impeaching him or contradicting his statements. The inherent improbability of his story may deny it all claims to respect. [Citing cases.] The credulity of courts is not to be deemed commensurate with the facility or vehemence with which a witness swears. `It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude its judgment.'" The rule has its foundation in the assumption that the conflict is real and the supporting evidence is substantial.
In Morgan v. Butte Central Mining Milling Co., 58 Mont. 633,194 P. 496, 498, is was said: "Counsel for claimant contend *Page 22 that, as the appeal is from the judgment of the district court, the rule that `the supreme court will not reverse the findings of the district court except where the evidence clearly preponderates against them' controls, and that the findings and decision of the board are only indirectly involved. The reason for the adoption of the rule quoted is that in cases where such a rule is applicable the trial court has had the witnesses before it and had the superior advantage of considering their evidence in the light of their demeanor on the stand and the manner in which they testified. Where, however, the trial court renders its findings on the identical record presented to the appellate court, the reason for the rule does not attach; and it is one of our maxims that, `when the reason of a rule ceases so should the rule itself.'" (Sec. 8739, Rev. Codes, 1921.)
As indicated heretofore, the trial court did not have witnesses on the stand, but only a single witness. The trial judge could not choose between witnesses as to whom he would believe, but only between fragments of the testimony of the same witness. This case is not within the reason of the rule as indicated by this court in the cases cited.
If, on the other hand, the evidence be not in conflict, then the rule laid down in Milwaukee Land Co. v. Ruesink, 50 Mont. 489,498, 148 P. 396, 398, applies. Mr. Chief Justice Brantly, speaking for the court, there said: "The motion for a new trial was made upon several of the statutory grounds, among them that the evidence was insufficient to justify the findings, and that the decision was against law. Apparently these were the only grounds urged at the hearing. There was no substantial conflict in the evidence. This being the condition, the case was stripped of questions of fact, and it remained only for the court to determine the question of law arising upon all the evidence viewed as an agreed statement of facts. (Helena Nat. Bank v.Rocky Mountain Tel. Co., 20 Mont. 379, 51 P. 829, 63 Am. St. Rep. 628; Murray v. Hauser, 21 Mont. 120, 53 P. 99; Stateex rel. Quintin v. Edwards, 40 Mont. 287, 106 P. 695, 20 Ann. Cas. 239.) If a *Page 23 case is being tried to a jury and the evidence is such that reasonable men can come to but one conclusion thereon, the court may, as the case requires, direct a verdict for the party entitled to it, or withdraw the case from the jury and render judgment. (Rev. Codes, sec. 6761; Consolidated Gold etc. Min.Co. v. Struthers, 41 Mont. 565, 111 P. 152.) So when, as here, the case is submitted to the court without a jury and the evidence justifies but one conclusion, formal findings are unnecessary, though request be made for them in conformity with section 6766 of the Revised Codes. The judgment will not be reversed if the request is disregarded. (State ex rel. Quintin v. Edwards, supra.) For the same reason, if the court makes them, this court will not reverse the judgment because of defects in them, or any of them, though exception has been reserved because of the defects, under section 6767. In such a case this court will ignore the formal findings, and upon examination of the whole of the evidence, determine whether the conclusion reached thereon by the trial court was correct."
Referring to the second reason assigned above, the plea of good faith as an affirmative statutory plea, the majority opinion holds contestee violated the Corrupt Practices Act, but by the plea of good faith, a plea in the nature of confession and avoidance, he is exonerated. If the pleadings and proof are sufficient to sustain the conclusion that the contestee violated the Corrupt Practices Act, and such, in substance, is the conclusion of the majority, then certainly a prima facie case was made against contestee, and when a prima facie case was established by the contestant, then the burden was upon the contestee, under the statutes and the rules laid down by the courts, to establish by a preponderance of the evidence this plea of good faith. Such a plea under the statute is necessarily an affirmative plea, a plea of justification for violating the statute; therefore, the rule that a finding of a trial court may not be disturbed on appeal if there is substantial evidence to sustain it has no application here. The burden was upon the respondent to establish his special plea of good faith. (Barnett *Page 24 v. Kunkel, (C.C.A.) 259 Fed. 394; Robinson v. Smith,207 Ala. 378, 92 So. 546; Howard Harper v. Chicago etc. Ry.Co., 196 Iowa, 1378, 195 N.W. 153; Hughes v. Williams,229 Mass. 467, 118 N.E. 914; Equitable Surety Co. v. Sapp,77 Okla. 221, 187 P. 917; Davies v. Rutland, (Tex.Civ.App.)219 S.W. 235; Fidelity Oil Co. v. Swinney, (Tex.Civ.App.)260 S.W. 1111.) A party has the burden of proof of a fact peculiarly within his own knowledge. (City of Anniston v.Jewel Tea Co., 18 Ala. App. 4, 88 So. 351; Stevenson v.Yates, 183 Ky. 196, 208 S.W. 820; Pauley v. Business Men'sAssur. Co., 217 Mo. App. 302, 261 S.W. 340.) One who pleads in confession and avoidance has the burden of establishing facts alleged in avoidance. (Roux v. Indian Lumber Co., 119 Fla. 280, 161 So. 270, 271; Bennett v. National Union Fire Ins.Co., (Mo.App.) 80 S.W.2d 914; Clarke Garage Co. v.Rosenberg, 13 La. App. 374, 128 So. 62; Hall v. AmericanInsurance Union, (Mo.App.) 27 S.W.2d 1076; Prince v.Kennedy, 3 Cal. App. 404, 85 P. 859.)
Taking up the third reason for this dissent, the term "good faith" is borrowed from equity jurisprudence, and it is said "must be interpreted accordingly." (Cordenas v. Miller,108 Cal. 250, 39 P. 783, 49 Am. St. Rep. 84; 28 C.J. 715.) If the term must be interpreted according to the rules of equitable jurisprudence, we see no good reason why its use here should not be interpreted accordingly. 4 Words and Phrases, First Series, page 3117 says: "Good faith is the opposite of * * * bad faith, and its nonexistence must be established by proof." This implies the necessity of proof by one who stands upon the plea. The definition appears to be more a comparison than a definition. InCanal Bank v. Hudson, 111 U.S. 66, 4 Sup. Ct. 303,28 L. Ed. 354, it was said in connection with a fraudulent transaction, that good faith is that honesty of intention and freedom from knowledge, of circumstances which ought to put him on inquiry. In 2 Bouvier's Law Dictionary (Rawles' Third Rev.), page 1359, "good faith" is in substance defined as an honest intention to abstain from *Page 25 taking any unconscientious advantage of another, even though the act complained of be within the technical demands of law. Passing to citations from cases in which the question of good faith was an issue, in Allen v. Pioneer Press Co., 40 Minn. 117,41 N.W. 936, 12 Am. St. Rep. 707, 3 L.R.A. 532, it was said in an action for libel, and referring to the publication thereof: "It must have been honestly made * * * and upon reasonable grounds for this belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances."
The contestee here, after being advised in the premises by the Attorney General, and knowing that salaries which he denounced as illegal had been authorized and paid for more than thirty years, still arrogantly announced in the campaign that $1,500 of the salary was unconstitutional and unearned, and he would not accept it if elected. He made no attempt to invoke the regular processes of the law to verify his contentions, but governed his act by his own arbitrary motions.
In the interpretation of the term "good faith" in section 10803, Revised Codes of 1921, upon which the contestee depends, attention is called to the following: "The terms employed in the statute are presumed to be used in their ordinary sense, unless it is apparent from the context or from the subject-matter that they are used in a different or special sense." (State ex rel.Anaconda Copper Min. Co. v. District Court, 26 Mont. 396, 406,68 P. 570, 574, 69 P. 103; Scheffer v. Chicago, M. P.S.Ry. Co., 53 Mont. 302, 163 P. 565; Vitt v. Rogers,81 Mont. 120, 124, 262 P. 164.) There is nothing in the statute to support any contention that the legislature intended the phrase should be given any other than its usual meaning.
Want of knowledge of the law does not justify a plea of good faith. In Leggatt v. Prideaux, 16 Mont. 205, 40 P. 377, 50 Am. St. Rep. 498, Mr. Justice Hunt, in delivering the opinion of the court, said: "That the justice of the peace believed he had a legal right to charge the fees he did, and acted *Page 26 in good faith in taxing and collecting the fees, constitute no defense. It would be most dangerous to the welfare of society if an officer elected to administer the law could violate it to his own pecuniary advantage, and escape the consequences of his act by pleading ignorance of the statute he had violated. That ignorance of the law is no excuse is a postulate of law, but, unless the maxim is upheld, there would be innumerable problems presented to courts, and he who knew the least might fare the best; or as is said by the supreme court of California (People v. O'Brien, 96 Cal. 171, 31 P. 45) `the denser the ignorance the greater would be the exemption from liabililty.' The case is not one where there was a mistake of fact. The court of appeals of New York, in Gardner v. People, 62 N.Y. 299, say: `Such mistakes do not excuse the commission of prohibited acts. The rule on the subject appears to be that in acts mala in se the intent governs, but in those mala prohibita the only inquiry is, Has the law been violated?' (People v. Brooks, 1 Denio (N.Y.), 457 [43 Am. Dec. 704]; Beckham v. Nacke, 56 Mo. 546;Commonwealth v. Emmons, 98 Mass. 6; Carr v. Trainor, 36 Ill. App.? 587; Roberge v. Burnham, 124 Mass. 277; People v.Monk [8 Utah, 35], 28 P. 1115.) The receiving of the illegal fees is the gist of the wrong under the statute, and, when such fees are deliberately accepted, the law is violated, and the liability attaches." Here "the gist of the wrong under the statute" was contestee's offer to serve for less than the salary fixed by law. Ignorance of the law was not a legal excuse. Particular attention is called to the first portion of the foregoing quotation where Mr. Justice Hunt said that the fact that the justice of the peace believed he had a legal right to charge the fees and he acted in good faith constituted no defense.
In State ex rel. Wynne v. Examining Trial Board,43 Mont. 389, 117 P. 77, 80, Ann. Cas. 1912C, 143, where again a party was charged with violating the law by charging illegal fees, it was said: "It is contended for the relator that he acted in entire good faith; * * * but he cannot be heard to make such claim." *Page 27
Again, in the case of State ex rel. Rowe v. DistrictCourt, 44 Mont. 318, 119 P. 1103, 1106, Ann. Cas. 1913B, 396, Mr. Chief Justice Brantly, delivering the opinion of the court, also referred to the opinion of Mr. Justice Hunt quoted above, and stated in the course of the opinion: "Ignorance of law cannot be urged as an excuse for a violation of it. Nor is good faith, under such circumstances, any justification or excuse. [Citing cases.] `The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result. No system of criminal justice could be sustained with such an element in it to obstruct the course of its administration. The plea would be universally made, and would lead to interminable questions incapable of solution. Was the defendant in fact ignorant of the law? Was his ignorance of the law excusable? The denser the ignorance, the greater would be the exemption from liability.'"
The question inevitably arises, Why did not the contestee, being under the obligation due from all prudent men under such circumstances, institute a proper court action to test the constitutionality of the statute relating to the salaries of justices? He testified that he had believed the law invalid for several years, and the record shows he had had an extended controversy with the Secretary of State over the correct amount of the filing fee when he became a candidate for Chief Justice which the secretary called upon the Attorney General to solve, and contestee was advised by the Attorney General that the legal salary was $7,500. He undertook to force the Secretary of State, not by a legal action, but by much contention, to accept a filing fee based upon a $6,000 salary. As a lawyer he must have known the secretary could not accept a fee fixed on any other salary than the amount recognized as legal and drawn by every justice for the last thirty years; yet in the face of such presumed knowledge contestee continued to agitate the *Page 28 matter, and paid the extra $15 of the fee under protest. The resulting advertising arising from the newspaper notoriety following was no doubt considered good for a candidate just launching a campaign. It is quite obvious that contestee believed this salary question was his prize campaign issue, as it was given first place on all the four lots of campaign cards gotten out and circulated by him. He testified he discussed the issues over the radio and on the stump. So by this line of evidence we arrive at the obvious answer of why contestee did not test the matter in court instead of using it as his prize issue. A special proceeding could have been brought on an agreed statement of facts directly in the supreme court, and being an action that was entitled to preference, argued and decided long before the general election. But by that course the candidate would have been deprived of his prize campaign issue, and many a vote would, in all probability, be lost. The purpose is revealed and the plea of good faith is thus stripped of its garb in which it had been decked out for public consumption as an issue of economy, and in its nakedness we behold a glaring political trick, spread abroad over the state impugning the integrity of every individual who had occupied a place on the Supreme Bench of the state in the last thirty years. "Good faith" demanded that contestee submit the question to the regularly constituted tribunals of the state for adjudication before charging that all other members of the court were filching thousands of dollars from the state treasury illegally. It must be remembered that he did not say that, in his opinion, the law was unconstitutional, but made the bold, unqualified statement that $1,500 was "unearned and unconstitutional." From the statement on all his cards he might just as well have said, "all Justices for the last thirty years have stolen $1,500 each, each year for thirty years out of the state treasury." He made the positive statement with such assurance as to carry the notion that the question was determined and fully settled. He assumed to announce a conclusion with all the positiveness of a deliberate court decision and for the *Page 29 avowed purpose of securing votes, and then, when haled into court to answer for his false statements, comes here on a plea of good faith! A plea contradicted by contestee's own testimony from the witness stand under oath. On cross-examination contestee replied to questions as follows:
"Q. It was your intention that these campaign cards be read by the voters? A. Certainly.
"Q. You wanted them to read them? A. Yes, sir.
"Q. And act on them in accordance with the suggestions there made? A. Yes, sir.
"Q. That was for the purpose of being elected Chief Justice? A. Yes, sir.
"Q. The material was conceived by you with the view of bringing about that result? A. Yes, sir."
Here we have the whole story about the later claim of "good faith" and the announcement of "principles" for which the candidate stood, not in the campaign but in his defense in this action. If testimony in support of such a plea, under circumstances such as exist here, is entitled to any weight or consideration whatever, then the Corrupt Practices Act "to secure and protect the purity of the ballot" is an empty farce and utterly futile for the purposes expressed in its title. To contend for the construction placed upon section 10803, Revised Codes 1921, by the majority, is to assume that the people, when they initiated the Act, intended to stultify themselves by incorporating therein a provision which would practically defeat the very purpose they professed to have in view by its initiation.
It is one of our tenets of government held in particular regard, that all stand on an equality before the law, but it is particularly repugnant to one's sense of fairness and justice to hold that one who aspires to the exhalted position of the highest judicial office of a sovereign state, owes no higher duty in the observance of the law than the average citizen, and to contend that the contestee in this case should be excused for a plain and palpable violation of the law because he believed it *Page 30 invalid is to cheapen and degrade the court of which the contestee is a member, and to make a plea of ignorance a shield for corruption. When the contestee was charged with the violation of the Corrupt Practices Act he should have been the first to demand and require a trial of the matter on its merits without undue delay; but one dilatory move after another was made obviously for the purpose of preventing the action from being heard on its merits.
Recognition of the law is the basis of our liberties and our greatness, and its commands cannot be disregarded with impunity; personal regard and sympathy have no part in its domain; and, in our view, a plea of good faith here is not only specious to the last degree, but reprehensible under the facts and circumstances shown by the record.
The judgment should be reversed and the cause remanded to the district court, with instruction to grant the contestant's motion for judgment on the pleadings.