State ex rel. Grant v. Eaton

• Decision Date: 02 February 1943
• Docket Number: 8408.
• Parties: STATE ex rel. GRANT v. EATON et al.
• Court: Montana Supreme Court

133 P.2d 588

114 Mont. 199

STATE ex rel. GRANT v. EATON et al.

No. 8408.

Supreme Court of Montana

February 2, 1943

Original proceeding by the State of Montana on the relation of Jesse T. Grant against Ernest T. Eaton, as Lieutenant Governor and ex officio President of the Senate of the State of Montana and others for a writ of mandate to compel respondents to deliver to relator the emoluments of the office of state senator. On respondents' motion to quash for failure to state a cause of action or to show relator's right to a writ of mandate.

Writ denied and proceeding dismissed.

E. J Stromnes, of Great Falls, and E. G. Toomey, of Helena, for relator.

Victor H. Fall, of Helena, amicus curiae.

R. V Bottomly, Atty. Gen., and George S. Smith and Alfred F. Dougherty, Asst. Attys. Gen., for respondents.

ADAIR Justice.

Mandamus. Original proceeding. The relator, Jesse T. Grant, petitions for a writ of mandate to compel respondents to deliver to him the emoluments of the office of "acting" senator from Garfield county.

Relator's petition states the following facts: At the general election held on November 4, 1940, Charles H. Mahoney was elected to the office of state senator from Garfield county for a full term of four years. On January 6, 1941, he qualified and served throughout the Twenty-Seventh Legislative Session as such senator. Following the declaration of war by Congress, Charles H. Mahoney, then an officer of the Officers' Reserve Corps of the United States, formally entered the Army of the United States, on active duty in time of war with the commission of lieutenant. Since November 27, 1942, due solely to his military duties and his status as an officer in the army, Lieutenant Mahoney has been absent from the state of Montana. Lieutenant Mahoney has not resigned his office as state senator. Relator states that Lieutenant Mahoney would resume his seat in the state senate if permitted so to do by his superior officers in the army, but such officers have granted him no leave to return to this state. On December 10, 1942, the board of county commissioners of Garfield county, taking cognizance of Lieutenant Mahoney's military status and absence from the state, assumed to appoint the relator as "acting" state senator of Garfield county, and issued relator a certificate of appointment "to replace C. H. Mahoney, the elected state senator *** who has entered the military service of the United States in the manner set forth in Section 1 of Chapter 47, Laws of Montana, Twenty-Seventh Session, 1941, said appointment to be effective January 4th, 1943, and to continue for the unexpired term of the officer whose duties he assumes."

On January 4, 1943, at the opening of the Twenty-Eighth Legislative Assembly, relator presented his certificate of appointment to the senate and, after taking and subscribing the oath of office, was given the seat of Senator Mahoney, assuming to occupy same as "acting" state senator from Garfield county and, as such, participated in the proceedings of the senate to and including the fifth legislative day. On January 8, 1943, the respondent Ernest T. Eaton, lieutenant-governor and ex officio president of the senate, refused to certify relator's name on the mileage and per diem payrolls of the senate, the respondent John J. Holmes, as state auditor, advised relator that he would refuse to issue relator a warrant, and respondent Thomas E. Carey, as state treasurer, advised relator that he would refuse to pay any warrant issued to relator for any mileage or per diem unless commanded so to do by court order on the ground that, relator, as "acting" senator, is entitled to neither mileage nor per diem. Relator states that, unless he receives compensation therefor, he will be unable to continue to serve as such "acting" senator and that he has no plain, speedy and adequate remedy at law except by application to this court.

The respondents, represented by the Attorney General, have filed motions to quash upon the ground that the facts stated in the petition and the alternative writ are insufficient to constitute a cause of action or to show that relator is entitled to a writ of mandate. The facts, as stated in relator's petition, stand uncontroverted. The controversy is thus brought before this court on the law. State ex rel. Du Fresne v. Leslie et al., 100 Mont. 449, 453, 50 P.2d 959, 101 A.L.R. 1329.

The question for decision is: Do the facts stated in relator's petition establish a clear legal right in himself to an office in the state senate so as to legally entitle him to a writ of mandate.

"To obtain the aid of a court by mandamus, a party must establish a clear legal right in himself to the relief prayed for, and a violation of duty upon the part of the person or officer sought to be coerced." State ex rel. Cutts v. Hart, 56 Mont. 571, 578, 185 P. 769, 771, 7 A.L.R. 1678; Rev.Codes, sec. 9848.

Relator bases his claim to a seat in the legislative assembly solely upon the provisions of Chapter 47, Laws 1941, which, he contends, authorizes his appointment as an "acting state senator" under the circumstances disclosed by his petition.

Senate Bill No. 48, introduced by Senator Mahoney and another, upon its passage and approval became Chapter 47, Laws 1941. Its title reads: "An Act to provide for reemployment of elected officers and employees of the State of Montana and any political subdivision thereof, who shall hereafter serve in the military forces of the United States, upon the completion of their period of training and service; to provide for 'acting' officers to serve during such absence of elected officers; and relating to procedure to be followed to secure such reemployment."

Section 1 of the Act assumes to designate the particular public officers and employees to whom the Act applies. Subdivision (b) of paragraph (2) of section 1 specifically designates the elected public officers to whom the Act applies in these words: "(b) If such position was that of an elected, executive or judicial officer of the State of Montana or any political subdivision thereof, such person shall be restored to such position, status and pay at any time during the term for which he was elected as provided herein."

No mention whatever is made of legislative officers in section 1. Only elected, executive and judicial officers are designated. Notwithstanding this particular naming of elected, executive or judicial officers, and the complete failure to mention legislative officers, still relator contends that the Act applies to all elected officers including the elected members of the legislative assembly.

To make subdivision (b) of paragraph (2) of section 1 apply to all elected officers, executive, judicial and legislative, would require the deleting of the words "executive or judicial" therefrom, or, the adding of the word "legislative" thereto. Such alterations of the statute and resulting changes in the Act, if made at all, must be made by the legislature and not by the courts. (11 Am.Jur. Constitutional Law, sec. 198, pp. 900, 901). Courts are enjoined by the Constitution from exercising powers properly belonging to the legislative department (Article IV, Constitution).

The reference in section 7 of Chapter 47 to members of the legislative assembly does not enlarge the specific limitations set forth in paragraph (2) (b) of section 1 of the Act wherein are listed the only elected public officers to which the Act is to apply for the reason that in said section 7, the application of the Act is specifically confined to "any elected officer, designated in paragraph (b) of Section 1." As before stated, the elected members of the legislative assembly are not "designated in paragraph (b) of Section 1." We conclude therefore, that Chapter 47, Laws of 1941, does not apply to elected legislative officers. This court so commented in the recent case of Gullickson v. Mitchell, 113 Mont. 359, 126 P.2d 1106, 1110.

A public office is a public trust. It is possible that the legislators so considered their respective offices when they thus eliminated themselves from the applicability of the Act.

"At common law in England, a public office was considered as an incorporeal hereditament grantable by the Crown as the source of all power and the disposer of offices. *** But that idea of a public office does not prevail in this country. *** 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. *** 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., sec. 9, pp. 886, 887.)

"The American concept of a public office is that of a public agency or trust created in the interest and for the benefit of the people. *** An incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty. The powers so delegated to the officer are held in trust for the people and are to be exercised in behalf of the government or of all citizens who may need the intervention of the officer. *** Public officers, in other words, are but the servants of the people, and not their rulers. They are amenable to the rule which forbids an agent or trustee to place himself in such an attitude toward his principal or cestui que trust as to have his interest conflict with his duty." (42 Am.Jur., sec. 8, p. 885.)

On oral argument of this cause it appeared that two...