State ex rel. Matson v. O'Hern

• Decision Date: 17 February 1937
• Docket Number: 7667.
• Parties: STATE ex rel. MATSON, Atty. Gen., v. O'HERN et al.
• Court: Montana Supreme Court

65 P.2d 619

104 Mont. 126

STATE ex rel. MATSON, Atty. Gen., v. O'HERN et al.

No. 7667.

Supreme Court of Montana

February 17, 1937

Rehearing Denied March 10, 1937.

Quo warranto proceeding by the State on the relation of Enor K Matson, Attorney General of the State of Montana, against D L. O'Hern and others and Harry J. McGregor and others.

Judgment in accordance with opinion.

ANGSTMAN J., and SANDS, C.J., dissenting.

Enor K. Matson, of Helena, and John L. Slattery, of Great Falls, for relator.

George E. Hurd, of Great Falls, and Horace S. Davis, of Billings, for respondents.

STEWART Justice.

This is a quo warranto proceeding brought by the Attorney General against two sets of claimants to the offices of highway commissioners in the state of Montana. Some of the matters involved were before this court on a previous occasion. State ex rel. Holt v. District Court, 103 Mont. 438, 63 P.2d 1026. The opinions promulgated at that time contain a statement of the case and detail certain of the facts involved. Reference may be had thereto to supplement the statement now made.

The complaint filed by the Attorney General sets forth that the action was brought by direction of the acting Governor of the state of Montana. The allegations are directed against two sets of respondents, each set claiming to be the duly appointed and constituted board of highway commissioners of the state. The action was instituted in order to prevent a multiplicity of suits.

The complaint recites the provisions of the State Highway Commission Law (Rev. Codes 1935, § 1783 et seq.); the appointment of respondents McGregor, Brown, and Croonenberghs by the then acting Governor of the state, their qualification and their entry into office; the filing of charges by the Governor against them; the hearing of the charges; the orders of removal from office by the Governor; the appointment of respondents O'Hern, Fligman, and Collins to the commissionerships by the Governor; the claim of both sets of appointees to the offices and their pretensions to be the duly appointed, qualified, and acting members of the state highway commission; the fact that the highway commission is charged by law with the performance of numerous recited duties; and the further fact that the titles to the offices are in controversy and should be settled. The Attorney General prayed that this court decide and determine the relative claims of the different commissioners to the offices claimed by them.

The former proceeding in this court involved only the right of the "old commission," McGregor, Brown, and Croonenberghs, to present certain evidence before the Governor in defense of the charges made against them. The court there decided that the Governor had not accorded them a full hearing, and in effect annulled certain orders of removal theretofore made by the Governor.

The record discloses that on October 28, 1936, the acting Governor presented his accusations and caused notices to be given and hearing held. After proof in support of the charges had been presented, and before any defense thereto had been made, the Governor closed the hearing and made the orders of removal.

It is unnecessary to detail in full all of the matters contained in the charges. It is sufficient to say that they involved the collection of per diem, fees, and expenses incurred by commissioners McGregor, Brown, and Croonenberghs at times when the commission was not in official session, and the fact that commissioners Brown and McGregor had authorized commissioner Croonenberghs to act as traveling representative for the commission and to devote such time as he might be able to in looking after equipment and other business matters of the commission throughout the state. The record further discloses that after such order was made on April 3, 1935, commissioner Croonenberghs did devote his time almost exclusively to the commission, and did for a period of several months file practically full-time claims for $10 a day for per diem, and for traveling and sustenance expenses; that the total amount collected upon the claims amounted to over $5,000; and that most of the per diem charges and the expense accounts represented days when no meetings of the commission were held. As an example, it was charged that for the month of January, 1936, he collected per diem and expenses for every day in the month, and collected therefor a total of $563.13, whereas he was entitled to charge but $40 per diem and expenses, or a total of $75, there having been but one meeting of the commission during the month. The evidence discloses that commissioner Croonenberghs traveled about the state as representative of the highway commission and assumed to act in an official capacity; that, in addition thereto, he traveled extensively without the state; and that for all of the days he was so engaged he collected per diem and expenses.

The charges against McGregor and Brown were to the effect that they collected per diem and expenses for numerous days when the commission was not in session. For example, in the charge against McGregor, there appear numerous items of per diem and expenses involved in visits to different parts of the state of Montana and to distant points without the state, including days spent in California, Nevada, Idaho, Florida, Washington, and other points in the United States.

The charges against commissioner Brown likewise involved charges for time spent at different points, mostly in the state of Montana. These charges were not so extensive as were the charges against the other two commissioners.

It was charged that commissioners McGregor and Brown wrongfully authorized commissioner Croonenberghs to devote full time to the duties of the office of commissioner, and that they thereby aided and abetted in his collection of illegal per diem and expense fees from the state of Montana.

Separate answers were filed by the accused commissioners previous to the beginning of the hearing. In effect the cases were consolidated, so that the evidence with relation to one commissioner could be considered in connection with the charges against the others. Previous to filing answers, demurrers were filed, and numerous motions were made throughout the course of the proceeding. After the decision of this court in the preliminary matter, additional and further answers were filed, and the hearing was resumed and concluded.

Numerous objections and motions were made in the progress of the proceeding. Many assignments of error were predicated upon adverse rulings in the matter of these motions. Most of these matters we do not deem of serious importance. Attention was directed in the previous opinion to the fact that the power vested in the Governor to remove commissioners was not a judicial power (State ex rel. Payne v. District Court, 53 Mont. 350, 165 P. 294, 295), and that the Legislature had not outlined any procedure as to the manner of removal, but had left the same to be determined by the public policy of the state. It was there decided that any method of procedure in conformity with the public policy of the state was sufficient. It is particularly pertinent to have in mind that this court in the Payne Case, wherein removal proceedings were prosecuted in court, made the following declaration: "The statute does not prescribe rules of pleading. It does contemplate that the accusation may be prepared by a layman. In any event, it is sufficient if it clearly and distinctly sets forth the facts constituting the offense, in ordinary and concise language and in such manner that a person of common understanding may know what was intended. Woods v. Varnum, 85 Cal. 639, 24 P. 843." If the trial courts are not to hold to strict legal procedure in such matters, it must be obvious that the Governor cannot be held to a more formal and technical rule in that particular.

We now say that, in our opinion, the Governor was empowered to proceed in any reasonable manner not in conflict with the policy of the state and to fairly decide what was appropriate in the circumstances.

We think the Supreme Court of the state of Illinois, in Wilcox v. People ex rel. Lipe, 90 Ill. 186, stated the true rule in that particular, as follows: "No mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved which his judgment may suggest as the proper one, acting under his official responsibility, and it is not for the courts to dictate to him in what manner he shall proceed in the performance of his duty, his action not being subject to their revision."

In the previous opinion, we endeavored to explain just what was there passed upon. The point decided at that time went only to the denial of the Governor to allow the accused to present their defenses. The authority for that holding was based very largely upon the theory of public policy as announced by the Legislature, and upon what was said in the case of State ex rel. Nagle v. State ex rel. Sullivan, 98 Mont. 425, 40 P.2d 995, 998, 99 A.L.R. 321. It was there emphasized that the courts may not control or coerce the discretion of the Governor. Ample authority was cited in support of that principle. It is unnecessary at this time to reiterate what was therein said. The whole subject as it involved the right of the Governor to remove a public official for cause under statutes that so provide was discussed at great length in that case. Although the matter involved at that time was much more restricted than the issues here presented, the court did assume to treat the whole subject.

In attacking the discretionary power of the Governor in the premises, respondents McGregor, Brown, and Croonenberghs have relied upon the...