in the complaint; that judgment had been obtained at the October term, 1867, on the note sued upon; that said judgment was still valid, and no new cause of action had accrued; and that affiant had written to Eppel to be in court at 10 A. M. of October 2, 1868, and placed the letter post-paid in the U. S. post-office of Deer Lodge City four days ago, but had received no answer, and, therefore, affiant made this affidavit. No other affidavits were filed. The note was as follows: "604.50. One day hafter dayt we promise to pay to L. Loeb, or bearer, the sum of six hundred and four dollars 50c., for value received, whit interest from date at 5% per each month. BEAR TOWN, June 30, 1866. Mr. Loeb will stamp this if stamps are had. JACOB SCHMITH CO., JOSEPH HOLZBAUER." JACOB SCHMITH CO., Internal Revenue, The court, KNOWLES, J., set aside the judgment on October 8, 1868, and allowed the defendants till 2 o'clock P. M. to answer, on the payment of all costs. The plaintiff excepted. ROBINSON & STEPHENS, for appellant. The court abused its discretion in setting aside the default. The affidavit on which the order was based was insufficient, and made by an improper party; and there was no answer with the affidavit. Bailey v. Taafe, 29 Cal. 422. Apple should have made the affidavit instead of Williams, his attorney. Apple used no diligence to appear within the statutory time. The sending of a frivolous demurrer by express, instead of an answer to parties, not known to the record, is not diligence. The affidavit must show that the default was the result of mistake, surprise, inadvertence or excusable neglect. Prac. Act 1867, 146, § 68; Harlan v. Smith, 6 Cal. 173; People v. O'Connell, 23 id. 281. Every fact necessary to be shown to authorize the court to VOL. 1.-12. set aside the default must be shown by the affidavit of a person, who could testify upon the trial of the cause to the facts. Williams' knowledge is derived from the statements of others, and is not competent proof by affidavit to establish the connection of Apple with "Schmith & Co." Williams' affidavit is inconsistent. It shows that Apple was not a party to the note sued upon, and that a former judgment against Apple is in force, without any new cause of action accruing. There should have been an answer with the affidavit, as the complaint was verified, and there was nothing from Apple under oath to indicate that he had a defense. See authorities cited above. R. H. WILLIAMS, for respondent. WARREN, C. J. This is an appeal from an order of the second judicial district court setting aside a judgment entered in vacation by default, against Henry Eppel or Apple, one of the defendants below, with leave to answer, upon payment of costs. The setting aside of the default rested in the discretion of the court below upon the facts disclosed in the affidavit, and we see no such abuse of that discretion as calls for the interposition of this court. The order is affirmed and the cause remanded. Exceptions overruled. KNOWLES, J., concurred. 1 90 2 600 CARPENTER, respondent, v. RODGERS, Territorial Auditor, appellant. STATUTORY CONSTRUCTION - retroactive effect. Section 6 of the act of congress amending the organic act of this Territory, approved March 2, 1867, did not have a retroactive effect and give full force to a law from the date of its first enactment, which had been annulled by congress and re-enacted by a subsequent legislature of Montana. STATUTORY CONSTRUCTION — meaning of said section. In passing said section 6, congress gave to subsequent territorial legislatures the right to re-enact certain laws that had been annulled by congress. STATUTORY CONSTRUCTION - historical facts referred to. This court can refer to the history of the Territory to ascertain the proper construction of a statute which is ambiguous. STATUTORY CONSTRUCTION— repugnant proviso void. A proviso which is inconsistent with any reasonable intention of the assembly which passed it, and repugnant to the body of the act, is void. Appeal from the First District, Madison County. IN January, 1868, Carpenter filed his affidavit, and applied for a peremptory writ of mandate. After a hearing at chambers, the court, HOSMER, J., issued the writ in accordance with the application, and Rodgers appealed. The facts appear in the opinion. W. M. STAFFORD, district attorney, first district, and DAVIS & THOROUGHMAN, for appellants. (No brief on file.) WORD & SPRATT, for respondent. The first legislature created the office of superintendent of public instruction. Acts 1865, 433. The law fixing the salary was passed by the second legislature on April 10, 1866. Acts 1866, 17. This last act was recognized as the law of this Territory, until its repeal by the amended organic act of March 2, 1867. The legislature, elected under the provisions of the sixth section of this act, assembled on the first Monday of November, 1867. By an act approved December 24, 1867, this legislature re-enacted the law of April 10, 1866. Acts 1867, 255, § 6. The only difference between them is a slight increase of salary. The respondent was in office at the time of the passage of this act. An equitable construction of these statutes would award him his salary. The Territory has received the benefit of his labors, and he should be paid therefor. This is a controversy between the Territory and one of its citizens. A court will never presume that it was the intention of the legislature to perpetrate a fraud by receiving respondent's labor, and declare that the law giving him his salary had no application to his case. Smith's Stat. and Const. Law, §§ 694, 695. The last proviso of the sixth section of the act of congress of March 2, 1867, is repugnant to, and repeals all parts of the section in conflict with it. Does this section make all Does it suspend them until the laws passed in 1866 void? the election of the legislature provided for? The first part of this section makes the laws void, but the proviso repeals this part. Sedg. Stat. and Const. Law, title "Proviso;" Smith's Com., §§ 578, 579. We contend that the laws of the two legislatures of Montana, in 1866, were not repealed by this act of congress. They were only suspended until an election of the legislature should take place, as provided for in the act. That election took place before the commencement of this suit. The act of April 10, 1866, was then in full force, fixing respondent's salary. Respondent is entitled to recover under this act, even if this court should be of the opinion that the act of December 24, 1867, is not applicable. KNOWLES, J. This cause comes to this court on appeal from a judgment of the district court of the first judicial district of this Territory awarding the respondent, A. M. S. Carpenter, a peremptory writ of mandamus against the appellant, Wm. H. Rodgers, as territorial auditor, commanding him to issue to respondent territorial warrants for the sum of $253.33, for salary as superintendent of public instruction for the Territory. The facts presented in the record are as follows: Carpenter was appointed by the acting governor for this Territory superintendent of public instruction, and confirmed by the legislative council on the 4th day of March, 1867. He entered upon and performed the duties of that office from that time until January 4, 1868. The law providing for the office of superintendent of public instruction was enacted by the first legislative assembly. No salary was provided for such officer until a law was enacted fixing the same by the second legislative assembly. On the 2d day of March, 1867, two days before the appointment of Carpenter to said office, congress amended the organic act of this Territory. The construction of section 6 of this amendment is the only difficulty presented to the court in deciding this case. It is contended by the respondent in the first place that the act of the fourth legislative assembly, entitled "An act to define the duties of territorial superintendent of public instruction," was a re-enactment of the law of the second legislative assembly upon the same subject, which rendered this act of the second legislative assembly valid. The portion of the section under consideration which it is claimed had this force and effect reads as follows: "And be it further enacted, That all acts passed at the two sessions of the so-called legislative assembly of the Territory of Montana, held in eighteen hundred and sixtysix, are hereby disapproved and declared null and void, except such acts as the legislative assembly herein authorized to be elected shall, by special act in each case, reenact." Let it be granted that the act of the fourth legislative assembly, entitled "An act to define the duties of territorial superintendent of public instruction," was a re-enactment of the statute upon the same subject by the second legislative assembly. Does this section have the force claimed for it? It is certain that the fourth legislative assembly did not expect that their act upon this subject was to have any retroactive effect, for the last section of their act reads as follows: "This act to take effect and be in force from and after its passage." We cannot think that congress intended to say that the acts of the legislative assembly of eighteen hundred and sixty-six, which the fourth legislative assembly should by special act in each case re-enact should be valid and go into effect from the date of the first enactment. The more reasonable view of what congress did intend to do is this: Congress no doubt entertained the opinion that should it |