ON Motion eoe Eeheabing.
ME. CHIEF JUSTICE BEANTLYdelivered tbe opinion of tbe court.
Immediately after tbe original opinion was filed in tbis canse, in July of tbis year, counsel for tbe defendants filed a motion for a rebearing. Tbis motion was, after argument and further consideration of tbe questions involved, denied; Mr. Justice Milbuen dissenting. The time for the summer vacation having arrived, it was not practicable for tbe court to reduce to writing additional reasons in support of tbe conclusions announced in the former opinion. While a majority of tbe court deemed tbe reasons for its action upon tbe motion already sufficiently stated, it was thought advisable, when tbe court convened again, to elaborate them in certain respects* in order to dispose of suggestions made upon the argument of tbe motion, as well as to call attention to matters not theretofore adverted to.
1. It was earnestly and plausibly argued by counsel that it ivas tbe intention of tbe constitutional convention, as shown by the use of the clause, “subject, however, to such limitation'-1 and regulations as may be prescribed by law” (Constitution, Article VIII, Section 3), to grant to tbe legislature tbe power to limit absolutely tbe appellate jurisdiction of tbis court, even to the extent of cutting off the right of appeal in all cases, if it should so desire. Tbis result, they say, follows from tbe usual and ordinary definition of the word “limitation,” namely: “Tbe act of bounding or circumscribing; the fixing of a limit or restriction.”
It is tbe duty of tbis court to interpret tbe constitution in its entirety, and to endeavor to discover what its meaning is as a whole; giving to each word and phrase the definition which will make it consistent and harmonious with other words and phrases contained in it upon the same subject; exercising the utmost care *124not to impose restrictions where none were intended, nor to enlarge the meaning in any particular so- as to> effect results, or make it confer powers* not contemplated by its framers. This must be done by a study of the language employed, giving to each word its ordinary signification, unless it is apparent that it is used in some special or different sense. Reference may also be had to the history of our judicial system, and the conditions existing at the time the constitution was adopted.
In the former opinion the clause in question was held not to be open to the interpretation contended for by the defendants, for the reason that it must be construed in connection with the grant of appellate power contained in the preceding clause, and such a meaning given to it as will permit both to stand. We did not deem it possible that the convention intended itself to be understood as granting plenary appellate jurisdiction to this court, coupled with a right impliedly reserved to the citizen to invoke it, and at the same to declare that the jurisdiction should be used or the right exercised only at the option and by the express permission of the legislative assembly. That this was not the intention is manifest from the provision contained in Section 15 of the same Article, which declares: “Writs of error and appeals shall be allowed from the decisions of the said distinct courts to- the supreme court under such regulations as may be prescribed by law.” It will be noted that the expression is, “the decisions-;” that is, all the decisions. There is no limitation whatever as to any particular character of decision, but the expression includes every decision, of whatever character. Certainly, this must be construed in the light of the conditions and exceptions existing at the time the constitution was formulated and adopted; but this court is not permitted to go further, and give an import to the language of Section 3, supra, which would, practically destroy the import of the clear statement contained in Section 15, quoted. This latter seems to have been inserted ex industria- to give scope and meaning to the limitation clause, so that there could be no mistake as to its intended-signification. If the contention of the defendants should be sustained, then the powers of this court, except its power under *125the sis original writs enumerated in Section 3, would be held in abeyance until the legislature should choose to grant it permission to exercise them. This would, of course, be of no moment, were it clear from any express declaration that such was the intention of the convention; but there being no such expressly declared intention, and the declaration contained in Section 15 being inconsistent with such a purpose, we were constrained to adopt and adhere to the interpretation given to the limitation clause contained in Section 3. We are confirmed in this view1 by an examination of the Organic Act creating the territorial judicial system, after which our present system was modeled in several particulars, and of the decisions which have discussed and defined the jurisdiction of the appellate court established thereby. Section 9 of this Act declares “that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace.” Then, after providing for the organization of the supreme and district courts, it proceeds: “The jurisdiction of the several courts herein provided for, both appellate and original, and that of probate courts and of justices of the peace shall be limited by law: provided, that * * * said supreme and district courts respectively shall possess chancery as well as common law jurisdiction.” Then follows the further provision: “Writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law.” It requires but a cursory examination of these provisions to induce the conclusion that the constitutional convention, in formjulating Sections 3 and 15, supra, had them in mind, and intended to embody them as nearly as might be in the organic law of our state, SO' that upon the change to statehood there might be as little departure as possible from the system already established. It would seem that the clause declaring that the appellate jurisdiction of the supreme court should be limited by law was a sufficient warrant to the legislature to declare that in certain cases appeals should not lie; yet the territorial supreme court (Payne v. Davis, 2 Mont. 381) held, in considering *126this provision, tbat it conferred no power to take away tbe right of appeal in any case. After referring to tbe language last above quoted, tbe court said: “Under tbis provision, tbe legislative assembly has tbe power to define tbe mode and manner of tbe proceedings by which appeals can be taken to tbis court. But it has no authority to limit tbe appellate jurisdiction of tbis court, and deprive any party of bis right to be beard on appeal in any case.” And tbis view is entirely in accord with tbat stated by tbe supreme court of tbe United States in Ferris v. Higley, 20 Wall. 375, 22 L. Ed. 383, wherein that court held tbat these provisions did not authorize legislation which limited or impaired tbe jurisdiction of tbe territorial supreme ór district coui’ts. See, also, Gallagher v. Basey, 1 Mont. 462; Chumasero v. Potts, 2 Mont. 242; U. S. v. Ensign, 2 Mont. 401; Kleinschmidt v. McAndrews, 4 Mont. 32. Tbis court has heretofore, and since tbe adoption of tbe constitution, declared substantially tbe same conclusions. In Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218,-a case which arose after tbe establishment of tbe state government, — an appeal was taken by tbe plaintiff in an election contest from an order denying him a new trial. It was contended by tbe respondent tbat tbe appeal did not lié. Tbe statute did not in express terms permit an appeal in such cases, but' did allow, generally, appeals from orders denying new trials. The court overruled tbe contention, however, — citing Payne v. Davis, supra, — rand held tbat these constitutional provisions, when construed together, extended tbe appellate jurisdiction of tbis court to all cases, actions, and proceedings which have finally been decided by the district court, including an appeal from an order denying a motion for a new trial in an election contest, and tbat tbe right thus guarantied is a substantial one.
It thus becomes clear tbat parties litigant have tbe right of appeal from all tbe decisions made in tbe progress of tbe ease, and tbat tbis court has jurisdiction to bear and determine them, subject only to such reasonable limitations and regulations as tbe legislature may enact affecting tbe time within which and tbe mode by which tbe appeal may be taken. Tbe only exceptions to this broad statement of tbe rule are judgments in con*127tempt, and perhaps orders made in a few' summary proceedings, in which appeals were not allowed under the Organic Act, and may therefore be deemed to have been impliedly excepted from the general provisions of the constitution.
The cases cited by counsel, such as U. S. v. More, 3 Cranch, 172, 2 L. Ed. 397; Durousseau v. U. S., 6 Cranch, 312, 3 L. Ed. 232; Wiscart v. Dauchy, 3 Dall. 327, 1 L. Ed. 619; Robinson v. Baillieul, 2 Tex. 161; Yarbrough v. State, Id. 526; and State v. Daugherty, 5 Tex. 3,—and similar cases, being based upon different constitutional provisions, do not apply.
2. Counsel insisted that this court was in error in declaring that the appeal was taken in good faith, and in basing this declaration upon the statement “that the same appears from the assignment of errors.” In determining whether the plaintiff was entitled to the relief demanded pending the appeal, reference must, of- necessity, be had to the assignments of error and the record, in order to determine whether the appeal was taken in good faith. Of course, this court did not wish to be understood as having confined its preliminary examination of the record to the list of errors assigned therein, without looking further, to see if there were matters in the record upon which the assignments were predicated. This the court did; and having found that such was the case, and that important and doubtful questions were raised, and, further, that a correct solution of them would require a careful investigation of the authorities, it was thought that a sufficient case was made out to authorize the issuance of the writ, to prevent the partial or total destruction of the estate involved before the appeal could finally be reached and disposed of.
3. Much was said in the argument to the effect that, whatever powers this court has under the constitution, it has no power to reverse or modify, upon an application of this character, the judgment rendered upon the merits by the district court. This the court did not do; nor is this the effect of the relief granted. That judgment stands as rendered, without modification, and will remain in full force until reversed, modified, or affirmed upon a final hearing. The only effect of the writ is, *128and will be, to preserve the mine until the disposition of the appeal.
For these additional reasons, we were, and still are, of the opinion that the writ was properly issued, and that the motion for a rehearing should be denied.
Motion denied.