In re Application of O'Sullivan

• Decision Date: 01 May 1945
• Docket Number: No. 8526.,8526.
• Citation: 117 Mont. 295
• Parties: Application of O'SULLIVAN.
• Court: Montana Supreme Court

117 Mont. 295

Application of O'SULLIVAN.

No. 8526.

Supreme Court of Montana.

May 1, 1945.

Appeal from District Court, Fourteenth District, Wheatland County; Lyman H. Bennett, Judge.

Proceeding in the matter of the application of Emmet O'Sullivan for appointment to the office of attorney for the city of Harlowton, wherein the mayor and members of the City Council filed a petition asking for leave to file an answer. From an order dismissing the proceeding, petitioner appeals.

Reversed and remanded, with directions.Emmet O'Sullivan, of Harlowton, and Edmond G. Toomey, of Helena, for appellant.

John J. Cavan, of Harlowton, for respondent.

ANGSTMAN, Justice.

This proceeding was instituted by Emmet O'Sullivan to secure an order determining that he is entitled to preference for appointment as city attorney of Harlowton and directing the mayor and city council to employ him.

The petition alleges that Mr. O'Sullivan is a duly licensed attorney-at-law practicing his profession at Harlowton, and that because of military service in the first world war he is entitled to preference in the appointment of city attorney of Harlowton, which position he unsuccessfully sought by written application to the city, its mayor and city council, alleging facts showing that he possessed all the qualifications entitlinghim to preference under Chapter 66, Laws of 1937, and Chapter 160, Laws of 1943. It further alleges that in addition to his written application petitioner appeared in person before the mayor and city council urging his appointment; that the mayor and city council wrongfully refused to appoint him and appointed a non-veteran instead.

Judge Husband, deeming himself disqualified, called in Judge Lyman H. Bennett to hear the petition and entered an order fixing the date for a hearing. Before the time set for hearing the mayor and members of the city council filed a petition asking leave to file an answer putting in issue the allegations of the petition of Mr. O'Sullivan. The court issued an order directing Mr. O'Sullivan to show cause why the petition of the mayor and members of the city council should not be granted. Mr. O'Sullivan filed objections to the order to show cause and a motion to strike it and the petition from the files upon the following, among other grounds: That the petitioners are not shown to be real parties in interest; that the petition does not state facts sufficient to describe any right in petitioners to intervene under section 9088, Revised Codes; that the proceeding is not one wherein intervention may be had; and that the proceeding is ex parte in character.

The hearing consisted of legal argument only as to the construction of Chapter 66, Laws of 1937, and Chapter 160, Laws 1943, and as to the validity of the latter.

The court held that Chapter 160, Laws 1943, is unconstitutional and void in that it deprives the appointing power of notice and the right to be heard upon the application of petitioner, and that the petition filed by Mr. O'Sullivan was insufficient to vest in the court or judge jurisdiction to proceed upon the petition, and ordered its dismissal. Judgment was entered accordingly. The appeal is from the order of dismissal and from the judgment.

While the court's order does not so indicate, it is clear from what transpired at the hearing that the trial judge in entering the order of dismissal believed that in proceedings under Chapter 160, Laws 1943, the only issue before the court is whether the appointing power abused its discretion. Whether the court was right in so believing makes it necessary to consider the meaning of Chapter 160. In ascertaining that meaning we of course are permitted to consider the state of the law before the amendment was made in 1943 as an aid in arriving at the legislative intent.

Chapter 160 of the Laws of 1943 is in most respects a re-enactment of Chapter 66, Laws of 1937. We shall hereinafter allude to the changes made in 1943. Both acts in the identical language give preference to veterans for public employment ‘provided they possess the business capacity, competency and education to discharge the duties of the position involved’ and ‘age, loss of limb or other physical impairment, which does not in fact incapacitate, shall not be deemed to disqualify them.’

Under both acts the veteran is permitted to petition the court when he feels that the spirit of the act has been violated. Under Chapter 66, being the 1937 enactment, upon the filing of the petition, ‘any judge in said court shall forthwith issue an order to show cause to the appointment authority directing said appointing authority to appear in said court at a specified time and place, not less than five (5) nor more than ten (10) days after the filing of said verified petition, to show cause, if any he has, why said veteran or person entitled to preference should not be employed by him and that said district court shall have jurisdiction upon the proper showing to issue its order directing and ordering said appointing authority to comply with this law in giving the preference herein provided.’

Under Chapter 160, Laws of 1943, the above-quoted language is omitted and in lieu thereof appears the following: ‘Any judge in said court shall have original jurisdiction to determine whether said applicant shall be preferred for appointment and to issue its order directing and ordering said appointing authority to employ said applicant, and said applicant's compensation shall be effective as of the date his employment would have been effective if the appointing authority had employed him.’

While Chapter 66 was in effect and before its amendment, the case of Horvath v. Mayor of City of Anaconda, 112 Mont. 266, 116 P.2d 874, was decided. In that case we held that the appointing power had discretion in determining whether the applicant was qualified within the meaning of the act and that the province of the court was to determine whether the appointing power acted arbitrarily or otherwise abused its discretion. Under the above-quoted part of Chapter 66 the appointing power was treated as an adverse party and entitled to show cause why the veteran should not be employed.

By eliminating the order to show cause provision, and substituting the above-quoted part of Chapter 160, the Legislature evidently intended to dispense with notice and a hearing before the district court. The applicant contends that the amended statute makes the court the appointing power. The amendment gives the court original jurisdiction to determine whether the applicant shall be preferred for appointment and to issue its order commanding the appointing authority to employ the applicant. To all intents and purposes the amended statute makes the court the appointing authority. If the court issues its order under the statute it leaves no discretion in the appointing authority as to whom it may appoint. The court's order is equivalent to appointment and dates back to the time when the authority should have made the employment. The question then is, May the Legislature place the power of appointment in the judiciary? The answer must be in the negative where, as here, the appointment is in no manner connected with the operations of the judiciary. Generally speaking, the power of appointment is an executive function (In re Weston, 28 Mont. 207, 72 P. 512), which cannot be delegated to the judiciary. Sec. 1, Article IV of the Montana Constitution; 11 Am.Jur. pp. 885, 886, 42 Am.Jur. p. 949.

In State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204, 209,57 L.R.A. 244, 93 Am.St.Rep. 222, the court stated the applicable rule as follows: ‘Generally speaking, appointment to an office is an executive function. True, not every appointment is executive in character, for appointments may be made by judicial officers in the discharge of their official duties, and the legislature may appoint the officers necessary to enable it to discharge its duties. But such appointments are necessary to enable them to properly discharge their duties, and to maintain their separate existence. These do not involve an encroachment on the function of any other branch. The appointments authorized by the Act in question are in no manner connected with the discharge of judicial duties, and to our minds clearly fall within the prohibition of the article of the constitution hitherto quoted. Much more might be said in support of the conclusion reached, but this opinion has already outgrown proper limits. Judges of courts created by the constitution should not be burdened with executive or administrative duties. They should, as nearly as possible, be freed from everything not...