State ex rel. Bonner v. Dist. Court of First Judicial Dist. In

Citation122 Mont. 464
Decision Date14 May 1949
Docket NumberNo. 8902.,8902.
PartiesSTATE ex rel. BONNER, Governor, et al. v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.
CourtMontana Supreme Court

122 Mont. 464

STATE ex rel. BONNER, Governor, et al.
v.
DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY et al.

No. 8902.

Supreme Court of Montana.

May 14, 1949.


Original proceeding in the nature of quo warranto by the State of Montana, on relation of John W. Bonner, Governor of the State of Montana, and Carroll Stewart, against the District Court of the First Judicial District of the State of Montana in and for the County of Lewis and Clark, and the Honorable George W. Padbury, Jr., one of the judges thereof, to determine title to the office of commissioner of the unemployment compensation commission.

Decision for relators in accordance with opinion.

[122 Mont. 466]


Arnold H. Olsen, Atty. Gen., and Hugh D. Carmichael, Asst. Atty. Gen., argued orally and Myles J. Thomas, Sp. Asst. Atty. Gen., all for relators.

Rankin & Acher, of Helena, for respondent. Wellington D. Rankin, of Helena, argued orally.


Loble & Loble, Don Sullivan, Robert L. Word, Jr., and Wesley W. Wertz, all of Helena, amici curiae.

ADAIR, Chief Justice.

This is an original proceeding to determine title to office brought in the name of the state on the relation of John W. Bonner, as Governor, and Carroll M. Stewart, relators, against Barclay Craighead, the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark and George W. Padbury, Jr., a Judge thereof, respondents.

This court accepted jurisdiction. Respondents, appearing by counsel, interposed separate motions to quash and, without waiving their rights thereunder, made separate answers and returns and filed briefs. On motion of the respective parties the cause was advanced on the calendar. The facts pleaded are not in dispute. On the hearing counsel confined their respective arguments to their interpretation of the provisions and principles of law involved and the cause was submitted for decision.

In 1937 the Twenty-fifth Legislative Assembly of the State of

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Montana enacted the Unemployment Compensation Law, Laws 1937, c. 137, and provided that it ‘shall take effect and be in force from and after its passage and approval.’ § 24. The Act was approved on March 16, 1937.

The law created a commission of three members to be appointed by the governor and to be known as the unemployment compensation commission of Montana.

Except as limited by the Constitution, the term of public officers is a matter purely of legislative discretion. ‘Where not fixed by the constitution, the legislature has the power to fix the commencement of terms of office.’ 46 C.J., ‘Officers,’ sec. 100, p. 965. While this power is vested in the legislature, yet it also has the discretion to determine whether or not to exercise such power.

In the enactment of the Unemployment Compensation Law the 1937 legislature exercised its power to fix therein, for two of the commissioners, a definite and fixed term of office and a definite and fixed compensation.

The law provides: ‘ Two of the members of the commission shall serve on a per diem basis and shall be paid at the rate of ten dollars ($10.00) per day of service plus actual and necessary expenses * * *.’ Sec. 10.

The law provides that the terms of office of the two per diem members first appointed shall expire ‘one at the end of three years, the other at the end of six years' and thereafter, ‘Each per diem member shall hold office for a term of six years, * * *’ This expresses the legislative intent that the commission should at all times, have in its composition at least one experienced per diem member.

In the law the legislative assembly, as was its prerogative, wholly omitted to fix the extent, limit or time that the third member should hold office or to fix his compensation or salary.

The law provides: ‘ The third member of the commission, who shall be designated as chairman at the time of his appointment, shall be paid a full-time salary in an amount to be fixed by the

[122 Mont. 468]

governor and shall be the executive director.’ Sec. 10. (Emphasis supplied.)

The legislature has provided in section 422 of the Revised Codes of Montana of 1935: ‘Every office of which the duration is not fixed by law is held at the pleasure of the appointing power.’

On May 6, 1937, the Honorable Roy E. Ayers, then governor of this state, appointted the respondent, Barclay Craighead, to membership on the unemployment compensation commission and designated him as chairman and executive director thereof. The respondent, Craighead, promptly qualified and entered upon the performance of the duties of the office. Thereafter he continuously occupied the office during the remainder of the four-year term of Governor Ayers and also during the two terms of four years each of Governor S. C. Ford, who succeeded Governor Ayers as Governor.

At the general election held November 2, 1948, the relator John W. Bonner was elected to the office of Governor for the term of four years from January 3, 1949, to January 5, 1953.

On January 3, 1949, the relator Bonner qualified and assumed the office of Governor. Thereafter and on the same date he informed the respondent Craighead that the latter's services on the commission would no longer be required after adjournment of the Thirty-first Legislative Assembly, then in session, and that said relator would then appoint another as chairman and executive director of the commission.

Following the sine die adjournment of the legislative assembly the realtor Governor on March 28, 1949, informed the respondent Craighead that his services would not be needed after March 31, 1949, and that from and after the latter date he was removed from office and that the office would be filled and occupied by another under an appointment by the relator Governor.

On March 31, 1949, Governor Bonner issued to relator Carroll M. Stewart a written commission appointing him as a member of the unemployment compensation commission and designating him as chairman thereof effective as of April 1, 1949.

[122 Mont. 469]

On April 1, 1949, the respondent Craighead, as plaintiff, commenced in the respondent District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark, an action in equity against the relator Carroll M. Stewart, as defendant, seeking a restraining order and also a permanent injunction against Stewart, his agents, representatives and attorneys. On the filing of the complaint in such suit the respondent District Court and the respondent George W. Padbury, Jr., as a judge thereof, issued ex parte, a restraining order enjoining the relator Stewart and the relator Governor from in any wise interfering with respondent Craighead as chairman and executive director of said commission. Relator Stewart appeared in the suit by filing a motion to dissolve the restraining order. A hearing was had on the motion. Following the hearing the court dissolved the restraining order as to the relator Governor but refused to dissolve as to the relator Stewart, and made a further order continuing in force pendente lite the injunction against the relator Stewart who thereupon moved to dissolve such injunction. The motion was denied and the injunction continued in force. From the order refusing to dissolve the injunction an appeal was taken and is now pending.

The respondent Craighead and the relator Stewart each claims to be entitled to hold and exercise the office of chairman and executive director of the unemployment compensation commission of Montana.

The respondent Craighead claims under the warrant issued to him on May 6, 1937, by the then Governor, Roy E. Ayers.

The relator Stewart claims under the warrant issued to him on March 31, 1949, by Governor Bonner.

The question presented is one of law: Who, under the law, is entitled to hold and exercise the office?

At common law, an officer could only be removed for cause and after a hearing. Throop on Public Officers, sec. 362, p. 358. This was because at common law in England, a public office was considered as an incorporeal hereditament grantable by the

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Crown in which the holder acquired and had an estate. 42 Am.Jur., Public Officers, sec. 9, p. 886.

That conception of a public office does not obtain in this country. Here a public office is considered a public trust. State ex rel. Grant v. Eaton, 114 Mont. 199, 133 P.2d 588. ‘With us, a public office has never been regarded as an incorporeal hereditament, or as having the character or qualities of a grant. That a public office is the property of him to whom the execution of its duties is intrusted is repugnant to the institutions of our country, and at issue with that universal understanding of the community which is the result of those institutions. With us, public offices are public agencies or trusts, and the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. Every public office is created in the interest and for the benefit of the people, and belongs to them. The right, it has been said, is not the right of the incumbent to the place, but of the people to the officer. * * * The incumbent has no vested right in the office which he holds, * * *’ 42 Am.Jur., Public Officers, sec. 9, pp. 886, 887. ‘Public officers, in other words, are but the servants of the people, and not their rulers.’ 42 Am.Jur., Public Officers, sec. 8, p. 885.

An office created by an Act of the legislature is within the control of the legislature and ‘is taken in full view of all the vicissitudes of the legislative action, including removal for such cause as the legislative assembly may deem sufficient.’ State ex rel. Bullock v. District Court, 62 Mont. 600, 604, 205 P. 955, 957.

In the enactment of section 422 of the Revised Codes of Montana of 1935, supra, the legislature wrote into the law of this state, in concise language, the general rule respecting the holding of an office of which the duration is not fixed by law...

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