State ex rel. Nagle v. Kelsey

• Citation: 55 P.2d 685,102 Mont. 8
• Decision Date: 03 March 1936
• Docket Number: 7538.
• Parties: STATE ex rel. NAGLE, Atty. Gen., v. KELSEY.
• Court: United States State Supreme Court of Montana

55 P.2d 685

102 Mont. 8

STATE ex rel. NAGLE, Atty. Gen., v. KELSEY.

No. 7538.

Supreme Court of Montana

March 3, 1936

Original proceeding in quo warranto by the State, on the relation of Raymond T. Nagle, as Attorney General, against Frank T Kelsey.

Writ of quo warranto issued.

Raymond T. Nagle, Atty. Gen., and Jeremiah J. Lynch, Asst. Atty Gen., for plaintiff.

H. L Maury and A. G. Shone, both of Butte, for defendant.

STEWART Justice.

This is an original proceeding in quo warranto brought by the Attorney General on behalf of the state against one Frank T. Kelsey for the purpose of ousting him from office.

At the outset we are here confronted by the contention that this court is without power and devoid of jurisdiction in the instant action. The determination of that question depends upon the following provision of our Constitution: The Supreme Court "shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo-warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction." Section 3, art. 8, Montana Constitution.

It seems to us that the matter of the jurisdiction of the court in such a proceeding is beyond question. Nevertheless the same contention has been urged from time to time ever since the adoption of the Constitution. It was presented to this court in the very early days of statehood. In the year 1891 the above-quoted provision of the Constitution was carefully considered by the court and the implications thereof explained and elaborated in most lucid and convincing fashion. Justice Harwood was there speaking for the court then consisting of Chief Justice Blake, Associate Justice De Witt, and the author of the opinion. In re MacKnight, 11 Mont. 126, 27 P. 336, 337, 28 Am.St.Rep. 451. The matter should have been forever set at rest in this jurisdiction by that pronouncement, but apparently not all citizens are imbued with the understanding that legal principles are permanent, enduring, immutable.

The construction of the language of the constitutional provision there and here involved is indeed worthy of repetition, not alone because of the clarity of expression and the inescapable logic thereof, but because we find ourselves unable to restate those principles in improved manner or fashion. The writ under consideration in the MacKnight Case was certiorari, while here it is quo warranto; however, the power to issue either is derived from the same provision of the Constitution, if it obtains at all. Justice Harwood's analysis of the provision is indeed worthy of repetition and is, in part, as follows:

"Upon the hearing before this court, counsel who appeared in the court below, as amicus curiae in the proceedings, also appeared here, and raised the point that this court has no jurisdiction to bring up for review by writ of certiorari the proceedings of the lower court in the matter in question. In support of this position, he cites that clause of section 3, art. 8 of the constitution, which provides that the supreme court 'shall have power, in its discretion, to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.' Counsel contends that the writ of certiorari, and others named in said clause can only be issued by this court when the same are necessary or proper in the exercise of its appellate jurisdiction, and therefore the issuance of the writ of certiorari in this case was irregular, because it was not in aid of appellate jurisdiction of this court. His position is that the latter words of said clause relate to the writs specifically mentioned, and restrict this court to the use of said writs, in the exercise of its appellate jurisdiction only.

The case at bar presents a striking illustration of the error involved in such a construction of said clause of the constitution as is contended for by counsel. It is clear that this court is given power to issue, hear, and determine all of the writs mentioned, among others the writ of habeas corpus. That is conceded by all, but the contention is that this court can issue, hear, and determine said writs only in the exercise of its appellate jurisdiction. Now, how would the writ of habeas corpus be ordinarily used by the supreme court in the exercise of its appellate jurisdiction? So the writ of certiorari is among the writs which this court is expressly authorized to issue, hear, and determine. Yet that writ is peculiarly inapplicable to use in aid of appellate jurisdiction; and, indeed, cannot be lawfully issued in cases where error may be reached by appeal. Code Civil Proc. § 555. Is it to be presumed that the framers of the constitution placed within the jurisdiction of this court these writs, the use and effect of which, in the actual administration of law, is so well defined, and some of which are in no way adapted to, or used in, the exercise of appellate jurisdiction, and then restricted the use of said writs by this court simply to the aid of its appellate jurisdiction? We think not. The clause carries no such purport with it. The writs named are defined in law; and their use in the administration of justice is fixed by long usage and well-settled principles.

It is provided in the constitution that this court shall have power 'to issue and to hear and determine' said writs, which are known and certain implements of courts. Their office being known, the framers of the constitution understood exactly what jurisdiction was being granted by placing them within the power of the court to issue, hear, and determine. In that there was no uncertain grant of jurisdiction. But the constitution does not stop there. It adds: 'And such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.' These other original or remedial writs are restricted to the exercise of appellate jurisdiction. Why? Because otherwise this grant of jurisdiction to frame, issue, hear, and determine new writs, heretofore unknown in the administration of justice, would have been the granting of an unknown, unlimited, and undefined power; therefore such other writs were limited to the exercise of appellate jurisdiction."

The principles so enunciated more than forty years ago have had recognition by the courts and the bar of Montana generally throughout the ensuing period. They seem as convincing and persuasive to us as they did to the court at that time. We have no doubt of the jurisdictional right of the court in this instance. See, also, State ex rel. Scharnikow v. Hogan, 24 Mont. 379, 62 P. 493, 51 L.R.A. 958; State ex rel. Clarke v. Moran, 24 Mont. 433, 63 P. 390; State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 P. 395; State ex rel. Anaconda C. M. Co. v. Second Judicial District Court, 25 Mont. 504, 65 P. 1020; State ex rel. City of Helena v. Helena Water Works Co., 43 Mont. 169, 115 P. 200; State ex rel. Wallace v. Callow, 78 Mont. 308, 254 P. 187; State ex rel. Hahn v. District Court, 83 Mont. 400, 272 P. 525; Rules of Montana Supreme Court, 87 Mont. xvii, xviii.

Having assumed jurisdiction of the instant cause under the provision mentioned, we now have the matter regularly before us for appropriate disposition. The assumption of jurisdiction did not in any sense decide the ultimate rights of the parties or adjudicate any issues. We may now, after a consideration of all factors involved, decide such issues on the merits, with the resultant permission or refusal of a final writ.

This cause having been instituted by the Attorney General of the state for the purpose of ousting an incumbent from an office, it is not necessary that the pleadings set forth the name of any other claimant to the office, nor is it necessary that it be shown that any one else is entitled to the office. 51 C.J. 347.

The defendant is a state Senator of the state of Montana, elected from Powder River county for the term of four years beginning the first Monday in January, 1933, and not yet ended. On March 18, 1935, the then acting Governor of Montana appointed defendant to the office of member of the Montana relief commission for a term ending February 1, 1937. Defendant shortly thereafter subscribed and filed an oath of office, and executed and filed an official bond to the state of Montana in the usual manner required of public officers. He thereafter entered upon the duties of the office, and from thence hitherto has continued to discharge the same and to enjoy the emoluments thereof. All of these things are made to appear by proper and appropriate pleadings filed in the cause.

The proceedings to oust defendant is predicated upon the provisions of section 7, article 5, of our Constitution, which reads as follows: "No senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state; and no member of congress, or other person holding an office (except notary public or in the militia) under the United States or this state, shall be a member of either house during his continuance in office."

It at once becomes important to understand the nature of the position to which defendant was appointed and the powers functions, and attributes thereof in order that it may be determined if it in fact is a civil office within the purview of the section; if the interdictions thereof extend to and affect the right of the defendant to hold the same, discharge the duties thereof, and receive the perquisites...