Meinecke v. McFarland

• Decision Date: 02 June 1949
• Docket Number: 8852.
• Citation: Meinecke v. McFarland, 122 Mont. 515, 206 P.2d 1012 (Mont. 1949)
• Parties: MEINECKE v. McFARLAND et al.
• Court: Montana Supreme Court

206 P.2d 1012

122 Mont. 515

MEINECKE v. McFARLAND et al.

No. 8852.

Supreme Court of Montana

June 2, 1949

Appeal from First Judicial District Court, Lewis and Clark County A. J. Horsky, Judge.

Action by Lucille Meinecke against John Slover McFarland, as State Fish and Game Warden, and American Bonding Company of Baltimore for damages for wrongful refusal to issue plaintiff game licenses for sale. From a judgment for defendant after sustaining demurrer to plaintiff's amended complaint, the plaintiff appeals.

Judgment affirmed.

The liability of the surety cannot exceed that of his principal. ANGSTMAN, J., dissenting.

M. J. Doepker, Butte, argued orally, for appellant.

R. V Bottomly, Atty. Gen., Fred Lay, 1st Asst. Atty. Gen., for State Fish & Game Dept.

Weir Gough & Matson, Helena, for American Bonding Co.

E. K. Matson, Helena, argued orally.

The Honorable R. M. HATTERSLEY, District Judge sitting in place of Mr. Justice BOTTOMLY, disqualified.

This is an action for damages brought by Lucille Meinecke, plaintiff against John Slover McFarland, as state fish and game warden of the state of Montana, and American Bonding Company of Baltimore, defendants.

The defendants, appearing by separate counsel, filed separate general demurrers to plaintiff's amended complaint. The demurrers were sustained and time allowed plaintiff to further plead. Plaintiff, electing to stand on her amended complaint, declined to further plead, whereupon her default was entered and judgment of dismissal rendered. This is an appeal by plaintiff from the judgment entered.

The plaintiff assigns as error the sustaining of the demurrers to her amended complaint and the entering of the judgment against her.

Plaintiff concedes that recovery may not be had against the defendant McFarland in his official capacity as state fish and game warden of the state of Montana, nor against the state of Montana. The sole question for determination therefore, is whether the amended complaint states a cause of action against the defendant McFarland individually for the alleged failure to perform his official duty.

The general duties of the state fish and game warden are stated in section 3655, R.C.M. 1935, which, so far as here pertinent, reads: 'He shall be the administrative agent of the state fish and game commission * * *.'

Section 3684, R.C.M. 1935, relating to the issuance of licenses, provides: 'Such license shall be procured from the state fish and game warden, or any salaried or special deputy state fish and game warden, any justice of the peace, or any person authorized by the state fish and game warden. Before giving any person other than a salaried deputy state fish and game warden, or any justice of the peace, the authority to sell or issue licenses, the state fish and game warden may exact from such person a bond not to exceed the sum of one thousand dollars, to be approved by the state fish and game warden, conditioned that such person will turn over to the state fish and game warden all sums received by him for such licenses, which said bond shall run to the state of Montana.'

The state game warden determines the persons who are to sell licenses and he has the duty and responsibility of selecting such persons. He is not required to grant such authority to any and all who make application therefor or who may desire to sell licenses. There is nothing in the law giving to every person the right to sell licenses, nor, once having had the right, the right to continue to sell licenses. The plaintiff has not alleged, nor can she say, that she had a fixed or vested right to sell licenses. Her right depended at all times upon the decision of the state fish and game warden, who had the continuing responsibility of determining who should have that right. It is clearly apparent from the statute that the state fish and game warden is vested with a wide discretion and is empowered to exercise his judgment in determining who shall have authority to sell or to continue to sell licenses. He must require of the seller a bond of not to exceed $1,000 and is also required to otherwise exercise his discretion in considering and determining the fitness of the applicant. We find nothing in the statutes to warrant the conclusion that the state fish and game warden's duty in this respect is a purely ministerial one.

In 43 Am.Jur., 'Public Officers,' sec. 274, p. 86, it is said: 'Where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasijudicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as a result of an erroneous or mistaken decision, however erroneous his judgment may be, provided the acts complained of are done within the scope of the officer's authority, and without wilfullness, malice, or corruption.'

In Crowell v. McFadon, 8 Cranch, U.S., 94, 3 L.Ed. 499, 500, the court said: 'The law places a confidence in the opinion of the officer, and he is bound to act according to his opinion; and when he honestly exercises it, as he must do in the execution of his duty, he cannot be punished for it.'

Kendall v. Stokes et al., 3 How., U.S., 87, 11 L.Ed. 506, 509, states: 'An action will lie against a public officer only when the duty to be performed is wholly ministerial, and never in a case where judgment is to be exercised. (The United States v. Bank of Metropolis, 15 Pet. [377] 403 [10 L.Ed. 774].). * * * We are not aware of any case in England or in this country in which it has been held that a public officer, acting to the best of his judgment and from a sense of duty in a matter of account with an individual, has been held liable in an action for an error of judgment.'

Even though plaintiff filed a bond, she acquired no fixed or vested right to sell licenses. The state fish and game warden, acting within the scope of his authority and duty to the state, could suspend or revoke her authority whenever in his judgment the interest of the state required it. That he had such discretion of power cannot be denied. No liability for damages would attach to such action on his part and whether he acted affirmatively or negatively by refusing to furnish license blanks, the result was the same. Both were within his discretion and within the scope of his authority. Protection is not extended to the officer for his own sake, but because the public interest requires full independence of action and decision on his part, uninfluenced by any fear or apprehension of consequences personal to himelf. See Robinette v. Price, 214 Minn. 521, 8 N.W.2d 800, 807.

In Coldwater v. State Highway Comm., 1945, 118 Mont. 65, 162 P.2d 772, 777, this court said: 'We have held that in carrying out the mandates of the Highway Act the commission acts in a governmental capacity, and in this instance acted within the scope of the duties imposed by that Act. Under such circumstances, if the commission itself cannot be held liable, neither may the individual members thereof, in the absence of legislative sanction, no showing of actual willful or malicious negligence on their part being made. As stated, the method of the performance of the duties imposed with reference to the construction, maintenance and repair of roads is discretionary. The crux of the complaint is negligence in failure to repair the highway and to place proper warning signs. No malice or corruption is imputed to defendants.'

The duty of appointing or selecting honest and capable persons to sell licenses is one owed to the sportsmen of the state and to the public generally. It is quasi judicial and discretionary rather than ministerial in character. The method of performance of such duty is also discretionary. No wilfullness or malicious negligence has been alleged and no malice or corruption has been imputed to the defendant, McFarland.

In order to recover in tort on the theory of failure to perform some official duty of a ministerial character, plaintiff must point out some statutory obligation on the part of the public officer. No attempt is here made to do this. In fact, it could not be done because the duties of the state fish and game warden are quasi judicial and not ministerial. Failing to point out a statutory duty, plaintiff could not show a right to recover without stating in her pleading facts from which it would appear as a matter of law that the defendant McFarland owed an absolute, specific, and imperative duty to plaintiff to furnish her with license blanks. Weise v. Tate, 45 Ill.App. 626. No such facts are alleged.

The statement that the defendant 'wrongfully failed to perform his official duty to supply the plaintiff with license blanks' is not a statement of facts but merely the statement of a bald conclusion of law and must be disregarded. Crenshaw v. Crenshaw, Mont. 1947, 182 P.2d 477, 485. Such a statement does not meet the statutory requirements of section 9129, R.C.M. 1935, that the complaint must contain 'A statement of the facts constituting the cause of action * * *' and is insufficient to withstand a general demurrer. See Bordeaux v. Greene, 22 Mont. 254, 56 P. 218, 74 Am.St.Rep. 600; Johnson v. Herring, 89 Mont. 156, 167, 295 P. 1100; Thompson v. Shanley, 93 Mont. 235, 246, 17 P.2d 1085; Linney v. Chicago, M. St. P. R. Co., 94 Mont. 229, 234, 21 P.2d 1101; Mining Securities Co. v. Wall, 99 Mont. 596, 602, 45 P.2d 302; Crenshaw v Crenshaw, supra; 41 Am.Jur. 'Pleading', sec. 16, p. 301; 41 Am.Jur. 'Pleading', sec. 20, 303; Miles v. McDermott, 31 Cal. 270, 271, 272; Mensinger v. O'Hara, 189 Ill.App. 48, 50; State v. American Surety Co., 26 Idaho 652, 145 P. 1097, 1101, 1102, Ann.Cas.1916E, 209.

The amended complaint alleged that during the...