State ex rel. Running v. Jacobson, 10345

• Decision Date: 06 April 1962
• Docket Number: No. 10345,10345
• Parties: STATE of Montana ex rel. Doretta A. RUNNING, Plaintiff and Appellant, v. Blanche JACOBSON, Defendant and Respondent.
• Court: Montana Supreme Court

Page 483

370 P.2d 483

140 Mont. 221

STATE of Montana ex rel. Doretta A. RUNNING, Plaintiff and Appellant, v. Blanche JACOBSON, Defendant and Respondent.

No. 10345.

Supreme Court of Montana.

April 6, 1962.

Robert R. Skelton and Thomas P. Hendricks, Missoula (Robert R. Skelton, Missoula, argued orally), for appellant.

Harold J. Pinsoneault, County Atty. Missoula (argued orally), Thomas R. Kennedy, Missoula (argued orally), for respondent.

JOHN C. HARRISON, Justice.

This is an appeal from a judgment of the district court for Missoula County, Montana, denying the plaintiff, Doretta A. Running's application for leave to file a complaint in quo warranto against the defendant, Blanche Jacobson.

This action was brought by the plaintiff, Doretta A. Running, pursuant to R.C.M.1947, § 93-6401 et seq., to test the right of the defendant, Blanche Jacobson, to occupy the 'office' of Clerk of the Board of Trustees of School District No. 40, Frenchtown, Missoula County, Montana.

The petition for leave to file a complaint in quo warranto alleges: That on April 15, 1961, the plaintiff was, at a duly and regularly called meeting of the Board of Trustees of School District No. 40, Missoula County, Montana, appointed clerk of said board; that the term of her appointment, as fixed by law, was to run from April 15, 1961, until the third Saturday in April, 1962; that she qualified for the position by subscribing to the oath and filing the bond prescribed by law; that she entered into and upon the discharge of her duties on April 15, 1961, and continued to carry out such duties until July 14, 1961; that from and after her appointment she never resigned abandoned or forfeited the 'office' of clerk, nor has such 'office' ever been abolished, nor has she never been removed or displaced from such 'office' by the judgment of any court; that on July 14, 1961, the defendant, Blanche Jacobson, well knowing the premises aforesaid, unlawfully usurped the 'office' of Clerk of the Board of Trustees of School District No. 40, and entered into and upon the exercise of all the powers and duties incidental thereto; that by such unlawful usurpation, the defendant became possessed of said 'office' contrary to law; that from and since July 14, 1961, the defendant has unlawfully held said 'office,' the plaintiff being during all such time the legal and lawfully appointed clerk; and that from and since said date, the defendant has refused and still does refuse 'to allow the Plaintiff to hold and execute said office or to receive the emoluments, or to enjoy the rights, privileges and emoluments thereof.'

It is the contention of the plaintiff that, as clerk of the Board of Trustees of School District No. 40, she was a public officer and therefore could be removed only for cause after notice and after an opportunity to be heard as provided by R.C.M.1947, Chapter 55 of Title 94 (Removal of Officers Otherwise than by Impeachment), and R.C.M.1947, § 75-1832.

The defendant contends that the clerk of the board of trustees of a school district is not a public officer, nor is she employed to a set term, but that she is merely an employee with administrative duties, and as such may be removed without notice or an opportunity to be heard. The defendant further contends that since quo warranto will lie only as against an officer, and not an employee, that the application by the plaintiff for leave to file a complaint in quo warranto was by the lower court properly denied.

The sole question raised by this appeal, therefore, is whether the position of Clerk of the Board of Trustees of School District No. 40, is a public office or an employment and whether the occupant thereof is a public officer or an employee.

In State ex rel. Boyle v. Hall, 53 Mont. 595, 600, 165 P. 757, this court said:

'Courts and text-writers have undertaken to define the term 'public office,' and to prescribe certain criteria by which to determine whether, in a given instance, a public office is involved, but their efforts have been expended with rather indifferent success. The tests applied and found sufficient in one case have proved altogether inapplicable in another. The authorities are, however, quite generally agreed that the character of the functions to be performed is a primary consideration, if not a determining factor. 23 Ency. of Law (2d Ed.), 323. The duties attached to the position must concern the public directly, and must be imposed by public authority--not by contract. Mechem on Public Officers, 1-6; Throop on Public Officers, 3, 4; Wyman's Administrative Law, § 44. The duties must be public in the sense that they comprehend the exercise of some portion of the sovereign power and authority of the state, either in making, administering, or executing the laws . Eliason v. Coleman, 86 N.C. 235; Commonwealth v. Bush, 131 Ky. 384, 115 S.W. 249. They must be public, also, in the sense that they imply the element of personal responsibility, as distinguished from the merely clerical acts of an agent or servant. Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058, 17 Ann.Cas. 449. In other words, a public officer is a part of the personal force by which the state thinks, acts, determines, and administers to the end that its Constitution may be effective and its laws operative. People [ex rel. Rodgers] v. Coler, 166 N.Y. 1, 59 N.E. 716, 52 L.R.A. 814, 82 Am.St.Rep. 605. While the elements of...