State ex rel. Nagle v. Stafford

• Decision Date: 20 June 1934
• Docket Number: 7296.
• Parties: STATE ex rel. NAGLE, Atty. Gen., v. STAFFORD et al. BRUCE v. STAFFORD.
• Court: Montana Supreme Court

34 P.2d 372

97 Mont. 275

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

BRUCE v. STAFFORD.

No. 7296.

Supreme Court of Montana

June 20, 1934

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

Quo warranto proceeding by the State of Montana, on the relation of Raymond T. Nagle, as Attorney General of the State of Montana, against A. H. Stafford and A. P. Bruce, wherein A P. Bruce and A. H. Stafford filed cross-complaints. From a judgment sustaining a demurrer to the reply of A. P. Bruce and entering judgment for A. H. Stafford, A. P. Bruce appeals.

Affirmed.

E. C. Mulroney, of Missoula, and S. C. Ford, of Helena, for appellant.

Raymond T. Nagle, Atty. Gen., for the State and Relator.

E. G. Toomey, R. Lee Word, Jr., Carl McFarland and H. K. Anderson, all of Helena, for respondent.

PER CURIAM.

This is a quo warranto proceeding brought by the Attorney General against A. H. Stafford and A. P. Bruce, who severally claim the office of Commissioner of Agriculture, Labor and Industry.

Section 1 of article 18 of the Constitution of Montana provides "The legislative assembly may provide for a bureau of agriculture, labor and industry, to be located at the capital and be under the control of a commissioner appointed by the governor subject to the confirmation of the senate. The commissioner shall hold his office for four years, and until his successor is appointed and qualified; his compensation shall be as provided by law."

Pursuant to this authority, the Seventeenth Legislative Assembly in its regular session created the Department of Agriculture, Labor and Industry (section 3556, Rev. Codes 1921), and provided that: "the chief executive officer of the department of agriculture, labor, and industry, hereinafter referred to as the commissioner of agriculture, shall be a commissioner of agriculture, to be appointed by the governor, by and with the consent of the senate, and such commissioner shall hold office for a term of four years or until his successor is appointed and qualified."

The bond, salary, and expenses of the commissioner, with a provision that he shall maintain his office at the state capitol, are prescribed by section 3557, Id. The Commissioner of Agriculture is ex officio a member of the Industrial Accident Board and its treasurer. See sections 2819, 2821 and 2822, Id. The treasurer's bond, as fixed by the Governor, is $10,000.

The Commissioner of Agriculture, under chapter 27, Laws 1929, is made ex officio commissioner of farm storage, and is required to furnish a surety bond in the sum of $20,000. Sections 2 and 3, p. 40, c. 27, Laws 1929.

On April 5, 1929, Honorable John E. Erickson was the duly elected, qualified, and acting Governor of Montana, and upon that day he executed and filed in the office of the Secretary of State of Montana a written instrument appointing A. H. Stafford Commissioner of Agriculture, the appointment to become effective the first day of June, 1929, and to be for the term ending the 1st day of April, 1933. On April 8, 1929, an appropriate commission was issued to Stafford, and he immediately assumed the duties of Commissioner of Agriculture, Labor and Industry and has ever since at all times continued to administer the same.

Stafford furnished the several bonds required of him, to wit, one as Commissioner of Agriculture, Labor and Industry in the sum of $5,000, one as treasurer of the Industrial Accident Board in the sum of $10,000, an additional one as treasurer of the Industrial Accident Board in the sum of $15,000, and one as ex officio commissioner of farm storage in the sum of $20,000. All these bonds were approved by Governor Erickson, were filed in the office of the Secretary of State, and the same, except as presently to be noted, have remained in full force and effect.

On January 16, 1933, it was made to appear to the Board of Examiners that the Farm Storage Act was inoperative, and that there was therefore no necessity for the continued payment of premiums upon the bond of Stafford to secure the faithful performance of his duties as farm storage commissioner; therefore, by action of the Board of Examiners the surety upon that bond was released from liability for any default of Stafford, the principal, occurring after January 13, 1933.

The Twenty-Second Legislative Assembly met on the first Monday in January, 1931--that being the first session since the appointment of Stafford--and on January 8, 1931, the senate confirmed the appointment of Stafford as Commissioner of Agriculture, Labor and Industry.

At the regular election held in the state of Montana upon the 8th day of November, 1932, Honorable J. E. Erickson was re-elected Governor, and Honorable Frank H. Cooney was elected Lieutenant Governor, of the state of Montana. Each qualified as such officer and assumed his respective duties. On March 13, 1933, Governor Erickson executed and caused to be filed in the office of the Secretary of State a written instrument reappointing A. H. Stafford to the office of Commissioner of Agriculture, Labor and Industry for a term of four years commencing April 1, 1933, and thereafter a commission issued out of the office of the Secretary of State in certification of such appointment. Thereafter, and on the same day, Governor Erickson resigned his office by filing his resignation in writing in the office of the Secretary of State. On March 14, 1933, Stafford subscribed to the constitutional oath before the Secretary of State.

In view of the conclusion at which we have arrived, it is not necessary to narrate the facts relating to the filing of any bonds after March 13, 1933, when Governor Erickson made the second appointment of Stafford.

Immediately upon the resignation of Governor Erickson, Lieutenant Governor Cooney assumed all the powers and duties of the office of Governor, and ever since, except when absent from the state on official business, has continued to occupy the office, perform the duties, and exercise the powers of the Governor of the state.

On the 27th of November, 1933, Governor Cooney convened in extraordinary session the Twenty-Third Legislative Assembly, and on the 29th day of December, 1933, he as Governor transmitted to the senate for confirmation a message containing the names of persons appointed to public office in the state of Montana during the period between the end of the regular session and the commencement of the extraordinary session, but the instrument did not contain the name of A. H. Stafford. On January 6th the Secretary of State was requested to furnish to the senate the complete list of all appointments filed in his office since the adjournment of the regular session of the Twenty-Third Legislative Assembly and which had not been transmitted to the senate for confirmation. The Secretary of State immediately furnished the list required, which included the name of A. H. Stafford. Thereafter in the senate on the 9th day of January, 1934, a motion was made to confirm the appointment of A. H. Stafford as Commissioner of Agriculture, Labor and Industry, which, being duly seconded, was carried by the following vote: Ayes, 27; noes 26; absent, 2; vote passed, 1.

It is alleged by the relator that thereafter, and on January 9, 1934, the senate caused to be written a communication addressed to the Governor and signed by C.J. McAllister, Secretary of the Senate, which reads as follows: "In accordance with action taken by the Senate January 9, 1934, I beg to advise you that Hon. A. H. Stafford appointed March 13, 1933, for the term ending April 1, 1937, as Commissioner of Agriculture, was confirmed." Relator alleges that he is unable to aver with exactitude whether or not the communication was received at the office of the Governor before the senate reconsidered the confirmation.

It appears that on January 10, 1934, the senate reconsidered its action confirming the appointment of Stafford, and on January 12, 1934, it was duly moved, seconded, and carried that the further consideration of the appointment of Stafford to the office of Commissioner of Agriculture, Labor and Industry be indefinitely postponed. It also appears that on January 8 1934, Governor Cooney transmitted to the senate a purported appointment of one J. T. Kelley to the office of Commissioner of Agriculture, which the senate refused to confirm. Like action was taken by the senate on January 17, 1934, upon a purported appointment of Robert J. Kelly to the office of Commissioner of Agriculture for the term ending April 1, 1937. About February 1, 1934, and after the Legislative Assembly had adjourned, the Governor attempted to appoint A. P. Bruce to the office of Commissioner of Agriculture for the term ending April 1, 1937. Mr. Bruce subscribed to the constitutional oath of office and filed the same in the office of the Secretary of State, and thereafter executed a bond in the sum of $5,000 to secure the faithful performance of his official duties as Commissioner of Agriculture, and the bond was approved by Governor Cooney on February 2, 1934, and was deposited in the office of the Secretary of State on the same day. On the last-named date, at 9 o'clock in the morning, Mr. Bruce appeared in person at the office of the Commissioner of Agriculture, Labor and Industry and demanded possession of the office from Mr. Stafford, who was then in possession thereof. Mr. Stafford refused to deliver possession to Mr. Bruce, and ever since has remained in possession and in the performance of the duties thereof, claiming title to the office by reason of the appointment made by Governor Erickson on March 13, 1933, and also upon the theory that he was confirmed by the senate. He also claims that there is no vacancy in the office, and that it...