State ex rel. Nagle v. Page

• Decision Date: 07 November 1934
• Docket Number: 7374.
• Parties: STATE ex rel. NAGLE, Atty. Gen., v. PAGE.
• Court: Montana Supreme Court

37 P.2d 575

98 Mont. 14

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

No. 7374.

Supreme Court of Montana

November 7, 1934

Original quo warranto proceeding by the State, on the relation of Raymond T. Nagle, as Attorney General against John R. Page. On demurrer to the complaint.

Demurrer sustained, and proceeding dismissed.

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

Toomey & McFarland and John W. Chapman, all of Helena, for defendant.

ANDERSON Justice.

This is an original proceeding in quo warranto, filed in this court by the Attorney General in his official capacity, seeking to oust the defendant from the position or office of state boiler inspector.

Plaintiff alleges in his complaint that on June 25, 1927, the defendant was at a duly and regularly called meeting of the Industrial Accident Board appointed boiler inspector and assigned to the western district of the state of Montana, with directions to begin his duties on the 1st day of July succeeding; that defendant qualified for the position, and on that date began to discharge his duties as state boiler inspector, and continued so to do until January 5, 1931; that prior to the date of appointment the Industrial Accident Board had regularly fixed the annual salary of the boiler inspector assigned to this district at the sum of $2,700, which was approved by the Governor of the state; that at the general election held on November 4, 1930, defendant was duly and regularly elected state Senator from Granite county for the term of four years commencing on the first Monday of January, 1931; that on that date defendant qualified for the office of Senator by taking the oath of office, and ever since has been the duly elected, qualified, and acting Senator from Granite county; that he has actively participated in the proceedings of the Senate of the state of Montana at both the regular and extraordinary sessions thereof occurring since that time, and has claimed and received his salary as Senator; and that, notwithstanding the fact defendant has so held the office of Senator, he has since the commencement of his term of Senator continued to perform the duties of boiler inspector, except during such time as the Legislature has been in session, and has received the salary as fixed by the board for his services rendered as boiler inspector. It is further alleged that he has unlawfully usurped and intruded himself into, and claimed the right to hold, the position of boiler inspector ever since the 5th day of January, 1931.

The defendant demurred to the complaint upon the ground and for the reason that it failed to state facts sufficient to constitute a cause of action. The cause is submitted to us on the demurrer.

It is apparent from the facts as alleged that, after the election of the defendant to the office of Senator, he has at all times, except during such period as the Legislature was in session, continued to perform his duties as state boiler inspector and received his salary therefor. At no time however, was he receiving a double salary, but at all times he was receiving a salary either as state Senator or as boiler inspector.

Section 7, art. 5, of our Constitution, provides: "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 is the contention of the plaintiff that the defendant as state boiler inspector was occupying a state office at the time of his election to the state Senate; and, when he qualified as a Senator and entered into the performance of his duties as such, he thereby resigned his office as state boiler inspector.

The defendant contends that the office of state boiler inspector is not a state office, and that therefore the constitutional provision is inapplicable, and that quo warranto will only lie as against an officer, and not an employee, of the state.

The question of primary importance for decision as here presented is whether one appointed as, performing the duties of, and receiving the compensation provided for, state boiler inspector, is a state officer or merely an employee of the state.

This court in the case of State ex rel. Barney v Hawkins, 79 Mont. 506, 257 P. 411, 418, 53 A. L. R. 583, defined the essential elements necessary in order for a public servant to be a public officer, as distinguished from a public employee, and after a prolonged discussion of the question summarized the result of its investigation in the following language: "After an exhaustive examination of the authorities, we hold that five elements are indispensable in any position of public employment, in order to make it a public office of a civil nature: (1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. In addition, in this state, an officer must take and file an official oath, hold a commission or other written authority, and give an official bond, if the latter be required by proper authority."

Therefore it becomes necessary for us to examine the law pertaining to the appointment and duties of state boiler inspectors in order to determine the presence or absence of the essential elements of a public office, as announced in the above decision.

Inspectors of boilers were first provided for by statute in the territorial days; the first act being found in the Laws of 1889, p. 101. This act was supplanted by sections 550 to 568, inclusive, of the Political Code of 1895. It is unnecessary for us further to notice these early provisions. The law as found in the Revised Codes of 1907 (section 1639 et seq.) provided for the appointment of a boiler inspector by the Governor, with the advice and consent of the senate, a definite salary, a term of office for four years, unless sooner removed by the Governor, and the execution of an official bond (section 1639). Section 1641 of those Codes provided for the appointment of assistant boiler inspectors, a clerk for the office, and the salaries of these subordinates. Section 1642 provided for the establishment of an office at the seat of government, and the promulgation of uniform rules for the inspection of steam boilers and the nature and extent of the examination of applicants for licenses to be issued to engineers and firemen. Sections 1643 to 1659, inclusive, contained various provisions pertaining to the duties of the boiler inspector and his assistants. Many of these sections were amended by chapter 30 of the Laws of 1913; but, aside from changes in salary, the providing of an additional assistant boiler inspector, and other changes relating to the performance of the duties of these appointees, they are unimportant here.

By the provisions of chapter 92 of the Laws of 1917, the office of inspector of boilers, the office of inspector of mines, and the office of state coal mine inspector were combined "and placed under the general supervision of the industrial accident board." Section 1, now section 3034, Rev. Codes 1921. Section 2, now section 3035, Id., provided that this board should appoint not to exceed four inspectors of boilers, whose terms of office would be at the pleasure of the board. Section 3, now section 3036, provided that their salaries should be fixed by the board, subject to the approval of the Governor. Section 4, now section 3037 provided for the division of the state into districts and the assignment of a boiler inspector to each district. It was also provided therein that "said board shall have the power and it shall be its duty to provide rules and regulations under which said inspectors of boilers *** shall perform their duties," and that the board might require them, in addition to their statutory duties, to make the annual inspections, reports and collections required by the safety provisions of certain sections of chapter 96, Laws of 1915, now sections 3017 to 3019, 3021 to 3023, inclusive, Revised Codes of 1921. Section 6 of this act (chapter 92, supra), now section 3039, provided that all laws then prescribing the qualifications, powers, and duties of the inspectors of boilers, and which were not inconsistent...