State ex rel. Nagle v. Sullivan

• Citation: 40 P.2d 995,98 Mont. 425
• Decision Date: 03 January 1935
• Docket Number: 7364.
• Parties: STATE ex rel. NAGLE, Atty. Gen., v. SULLIVAN et al.
• Court: United States State Supreme Court of Montana

40 P.2d 995

98 Mont. 425

STATE ex rel. NAGLE, Atty. Gen., v. SULLIVAN et al.

No. 7364.

Supreme Court of Montana

January 3, 1935

Rehearing Denied Feb. 18, 1935.

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Application for writ of quo warranto by the State, on the relation of Raymond T. Nagle, as Attorney General of the state of Montana, against W. P. Sullivan and A. C. Baumgartner wherein defendants filed cross-complaints. From a judgment in quo warranto in favor of first-named defendant, second-named defendant appeals.

Affirmed.

ANGSTMAN J., dissenting.

W. P. Costello and R. J. Reynolds, both of Great Falls, and S. C. Ford, of Helena, for appellant.

Harry P. Bennett and E. G. Toomey, both of Helena, for respondent.

PER CURIAM.

Application for writ of quo warranto by the state, on the relation of Raymond T. Nagle, as Attorney General, against W. P. Sullivan and A. C. Baumgartner.

The state fish and game commission, composed of five members, and as it now exists, was created by section 3650, Revised Codes of 1921. Section 3651 provides for the appointment of the members of the commission by the Governor, and that the selection shall be made without regard to political affiliations, "but for the sole welfare of the fish game, and wild life of the state." It is then provided that the members first appointed shall hold or serve for one, two, three, and four years, and thereafter, on the expiration of these terms, the Governor shall appoint commissioners "to serve for four years, unless sooner removed." The Governor is authorized to fill all vacancies and is given "the power to remove any member of said commission for cause or for the good of the commission."

On May 23, 1932, all members of the existing commission having resigned, Gov. Erickson made, and filed with the secretary of state, the following appointments:

William Steinbrenner, for the term ending April 15, 1933; Harry P. Stanford, for the term ending April 15, 1934; B. L. Price, for the term ending April 15, 1934; W. P. Sullivan, for the term ending April 15, 1935; and William F. Flynn, for the term ending April 15, 1936.

Steinbrenner was evidently appointed for a four-year term at the expiration of the term above specified. Each of the men named commissioner duly qualified in the manner prescribed by law and entered upon the discharge of the duties of his office.

On March 13, 1933, Gov. Erickson resigned, and the powers and duties of the office of Governor devolved upon Lieut. Gov. F. H. Cooney.

On April 17, 1934, the terms of Commissioners Stanford and Price having expired, Acting Gov. Cooney subscribed and filed with the secretary of state an instrument in writing in which he declared: "I have this day revoked and do hereby revoke the appointments heretofore made, of the following named members of the State Fish and Game Commission, said revocation being made for the good of the Commission: W. P. Sullivan, of Chouteau County, appointed for the term ending April 15, 1935; William F. Flynn, of Deer Lodge County, appointed for the term ending April 15, 1936; William Steinbrenner, of Missoula County, appointed for the term ending April 15, 1937."

On the same day Acting Gov. Cooney subscribed and filed with the secretary of state the following declaration: "I have this day appointed and do hereby appoint the following named persons to be members of the State Fish and Game Commission: A. C. Baumgartner, of Great Falls, Cascade County, for the term ending April 15, 1935, to fill the vacancy caused by the removal of W. P. Sullivan; P. G. Gutensohn, of Whitefish, Flathead County, for the term ending April 15, 1936, to fill the vacancy caused by the removal of William F. Flynn; J. J. Harper, of Anaconda, Deer Lodge County, for the term ending April 15, 1937, to fill the vacancy caused by the removal of William Steinbrenner; Ray G. Lowe, of Glendive, Dawson County, for the term ending April, 1938; W. C. Keil, of Billings, Yellowstone County, for the term ending April 15, 1938."

The above-named five men took the usual oath of office and filed the required bonds, and thereafter, on April 19, 1934, met in the office of the fish and game commission, claiming to constitute that commission, and proceeded to transact business as such, and on the following day, Sullivan, Flynn, and Steinbrenner met in that office, claiming to constitute the commission, and likewise proceeded to transact business.

On April 21, 1934, the Attorney General filed his complaint herein, reciting the foregoing facts, and alleged the importance of the duties of the commission and their orderly discharge, and that Sullivan and Baumgartner each contend that the other is attempting to usurp, and is usurping and unlawfully holding and exercising the powers of the office, and that he cannot determine which is right. The relator prays that the defendants be required to try their rights before the court, and that the court determine which one of the defendants, if either, is entitled to the office.

Defendant Sullivan filed an answer and cross-complaint, in which he alleged that his attempted removal was void and of no effect, as the sole ground of the Governor's action was the refusal of the commission to appoint a game warden of the Governor's selection, and the action was taken without notice, hearing, or opportunity to be heard.

Defendant Baumgartner filed an answer and cross-complaint, and a reply to Sullivan's pleadings, wherein he alleged, on information and belief, many matters which, if proved, would constitute grounds for removal of the members of the commission, and alleged, on information and belief, that these matters were known to the Governor and were the moving cause of the order of removal. He admitted that Sullivan was removed without notice and hearing, but alleged that such preliminaries were not necessary.

Sullivan thereafter filed a motion to strike all matter in the Baumgartner pleadings reflecting on the members of the commission as conclusions, surplusage and immaterial allegations, "unless and until the Executive assumes to act after accusation in writing, notice and hearing."

The matter was set for hearing on June 27, 1934, before Hon. Lyman H. Bennett, judge of the Fifth judicial district, and, at the opening of the trial, Sullivan moved for judgment on the pleadings, on the ground that no one of the Baumgartner pleadings raises "a question of fact upon the material issues," but show upon their face that Sullivan is entitled to the relief for which he prays.

It was agreed that the motion to strike and the motion for judgment should be submitted together, and they were argued, submitted, and taken under advisement. On September 12, 1934, Judge Bennett made and filed an order granting the motion for judgment, and declaring that it disposes of the motion to strike. Formal judgment in quo warranto, in favor of Sullivan and against Baumgartner, followed. Hence the appeal.

The sole question presented here is whether or not the Governor had authority to remove Sullivan without notice and an opportunity to be heard in his defense.

At common law, an officer could only be removed for cause and after a hearing (Throop on Public Officers, 358), but this result followed from the English rule that offices were incorporeal hereditaments and one might have an estate in them (23 Am. & Eng. Ency. of Law, 328). The American concept of a public office is that of a public trust or agency created for the benefit of the people, and in which the incumbent has not a property right, to be administered under legislative control in the interest of the people. Newton v. Mahoning County, 100 U.S. 548, 25 L.Ed. 710; Robinson v. White, 26 Ark. 139; Ford v. Board of State Harbor Commissioners, 81 Cal. 19, 22 P. 278; State v. Hobart, 12 Nev. 408; People ex rel. Robertson v. Van Gaskin, 5 Mont. 352, 6 P. 30; Territory v. Carson, 7 Mont. 417, 16 P. 569; Lloyd v. Silver Bow County, 11 Mont. 408, 28 P. 453. Where an office is created by statute, it is wholly within the control of the Legislature (People ex rel. Robertson v. Van Gaskin, above), and "is taken in full view of all the vicissitudes of legislative action, including removal for such cause as the legislative assembly may deem sufficient" (State ex rel. Bullock v. District Court, 62 Mont. 600, 205 P. 955, 957).

This being the American view of the nature of a public office, the doctrine has been developed by the courts of this country that, when a definite term of office is not fixed by law, the appointing power may remove the appointee at pleasure and without notice or opportunity to be heard (Throop on Public Officers, 358), and, in any case, the Legislature may, if it sees fit, provide for the removal of an incumbent without notice or hearing (State ex rel. Payne v. District Court, 53 Mont. 350, 165 P. 294; People v. Draper, 67 Misc. 460, 124 N.Y.S. 758; Trimble v. People, 19 Colo. 189, 34 P. 981, 41 Am. St. Rep. 236; Lynch v. Chase, 55 Kan. 367, 40 P. 666; Eckloff v. District of Columbia, 135 U.S. 240, 10 S.Ct. 752, 34 L.Ed. 120), but the extent of the power and the manner of its exercise is to be determined by the wording of the applicable statute.

Where provision is made for the appointment of an officer, but no definite term is prescribed, the appointing power may remove the appointee at will, without notice or opportunity to be heard. Throop, above 358. Patton v. Vaughan, 39 Ark. 211; People v. Shear, 73 Cal. xix, 15 P. 92; Newsom v. Cocke, 44 Miss. 352, 7 Am. Rep. 686; People v. City of Brooklyn, 149 N.Y. 215, 43 N.E. 554; Keenan v. Perry, 24 Tex. 253; In re Hennen, 13 Pet. 230, 10 L.Ed. 138; Field v. Com., 32 Pa. 479.

The power to appoint carries with it, as an incident, in the...