Lake county where suit was commenced is a proper county for the trial of this action and defendant's motion for a change of venue, being without merit, was properly overruled. Plaintiff's complaint and affidavit show that at the time of entering into the contract, the contracting parties both resided in Lake county where the contract was made; that the contract was for the selling of defendant's land situate in Lake county; that the property was sold in Lake county and that the commission owing from defendant on such sale was to be paid to plaintiff in Lake county. Such showing entitles plaintiff to have the action tried in Lake county, "subject, however, to the power of the court to change the place of trial as provided in" the codes. Section 9096, Revised Codes.
That portion of the majority opinion devoted to a discussion or explanation of what was said by the court or the individual members thereof in the Hardenburgh case, 1944, 115 Mont. 469,146 P.2d 151, and in the Interstate Lumber Co. case, 1918,54 Mont. 602, 172 P. 1030, is unnecessary to the decision of this case, gratuitous and obiter dictum.
We are not here called upon to determine whether the permissive word "may" used by the legislature in the enactment of sections 9096 and 9097, Revised Codes, is to be "construed according to the context and the approved usage of the language" (section 15, Revised Codes) or whether in the construction of the statutes governing venue the court may, in *Page 424 direct violation of the express prohibitions of section 10519, Revised Codes, omit from the sections the word "may" that has been inserted therein by the legislature and insert in lieu thereof the mandatory and imperative word "must" which the legislature has seen fit to omit from the language of the section.
The power to make such amendments lies, not in the judiciary, but in the legislative department of government. Constitution of Montana, Article IV; section 10519, Revised Codes.
The word "may" remained in the statutes undisturbed for 47 years prior to the Interstate Lumber Co. decision, supra, in 1918 and if need then developed for an amendment in the language of section 9096, such proposed amendment should have been submitted to the 1919 legislature and to the governor for their approval rather than by resorting to the unconstitutional method of legislation in this court by far-fetched and prohibited judicial construction.
In 1924, being but six years after the Interstate Lumber Co. decision, this court, in an opinion by Mr. Justice Holloway concurred in by the other four justices, conceded that the Interstate Lumber Co. decision was handed down "with but little consideration given to the incidental question of procedure." See State ex rel. Bonners Ferry Lumber Co. v. District Court,69 Mont. 436, 222 P. 1050.
The dictum of the majority opinion in the instant case only adds to the confusion that has since resulted respecting the rules for determining the question of venue in this jurisdiction. Because of such confusion and conflict, in the recent Hardenburgh case (1944) we examined, reviewed and classified the former decisions of this court construing section 9096 and I am convinced that the Hardenburgh case was correctly decided in conformity with the requirements of our Constitution and with the intent of the legislature as expressed in the clear and simple language used by it when enacting section 9096 of the Codes.