State ex rel. Schara v. Holmes

• Decision Date: 06 April 1956
• Docket Number: No. 9623,9623
• Parties: STATE of Montana ex rel. John SCHARA, Plaintiff, Relator and Respondent, v. John J. HOLMES, State Auditor, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1045

295 P.2d 1045

130 Mont. 108

STATE of Montana ex rel. John SCHARA, Plaintiff, Relator and Respondent, v. John J. HOLMES, State Auditor, Defendant and Appellant.

No. 9623.

Supreme Court of Montana.

Submitted Dec. 1, 1955.

Decided April 6, 1956.

Arnold H. Olsen, Atty. Gen., Emmet T. Walsh, Asst. Atty. Gen. (John L. McKeon, Sp. Asst. Atty. Gen., argued the case orally), for appellant.

Wesley W. Wertz, Helena, argued the case orally, for respondent.

DeKalb, Dockery & Symmes, Lewistown, amici curiae.

ANDERSON, Justice.

The plaintiff, a taxpayer, brought this action for the purpose of enjoining John J. Holmes, the state auditor of the State of Montana, from auditing and processing any claim for the payment of any sums of money which were authorized by Chapter 265, Laws of Montana 1955. The intent of the 1955 Act was to create a legislative interim committee composed of members of the House of Representatives and members of the Senate.

The complaint sets out the names of the various members of the legislature purportedly appointed to the interim committee as provided by the Act, after which the complaint says that all of the foregoing senators and representatives were members of the 34th Legislative Assembly; that none of them was elected to serve beyond the duration of the 34th Legislative Assembly; that said persons, so mentioned, assert that they constitute the commission on reorganization of state government by virtue of the Act, and propose to act under the provisions thereof, in accordance with its terms, and are attempting to, and will perform duties alleged to be delegated by said Act, and propose to and will expend from the funds of the State of Montana the sum of $40,000 so appropriated for the purpose of this Act unless restrained.

The defendant filed a demurrer to the complaint and after the demurrer was heard by the court below the same was overruled and the defendant was granted 10 days within which to further plead, whereupon the defendant filed his election not to further plead.

The court below, after the defendant had filed his election not to further plead, ruled in favor of the plaintiff and restrained the defendant John J. Holmes, state auditor of the State of Montana, from processing any claims under the Act.

Chapter 265, supra, provides in section 2 thereof the following: "There is hereby created a commission on reorganization of state government to be composed of six (6) members of the house of representatives * * *, no more than three (3) of whom shall be of the same political party, and six (6) members of the state senate who shall be appointed by the committee on committees of the state senate, no more than three (3) of whom shall be of the same political party. The members of the commission shall be appointed within fifteen (15) days after the passage and approval of this act."

The Act was to become effective from and after its passage and approval and the said Act was approved on March 10, 1955, which was after the 34th Legislative Assembly had adjourned sine die. If the members of the commission on reorganization of state government were appointed, those appointments took effect on March 3, 1955, which is seven days prior to the effective date of the Act. See entry of House Journal, 34th Legislative Assembly, dated March 3, 1955. It is apparent that neither the speaker of the house nor the committee on committees of the senate can do something which the law specifically provides they cannot do, and if they were to make their appointments at all they were to have been made according to the statute in question, namely the members of the commission should have been appointed after the passage and approval of the Act and not before. Were it otherwise there would have been no reason for the language found in section 2, hereinbefore set out. However even if it were to be held otherwise the result would not differ.

The closest analogy which can be cited in support of the appointment of members to an interim committee is found under the general title "Offices and Officers". It is unnecessary to find one way or another whether the purported members of the committee are or are not public officers and nothing herein contained in any way supposes that the members of the interim committee hold a public office.

The cases generally hold that an appointment to an office is valid although made before the effective date of the statute which created the office. The same rule would be applicable where appointments are made to a committee created by statute. However in those cases where an appointment to an office is involved the statute at least had a potential existence when the appointment was made, i.e., the statute at least had been passed and approved. Broadwater v. Kendig, 80 Mont. 515, 261 P. 264. However such case and such line of cases do not fit the situation here because the members of this legislative council were purportedly appointed by the authority of the house and senate respectively before the statute itself, Chapter 265, Laws of 1955, was approved by the governor on March 10, 1955, and consequently before the chapter became a law at all.

No case sustains an appointment made in such circumstances. To the contrary, there are a number of authorities which hold an appointment made prior to the time that the statute did in fact become a law is wholly void. State ex rel. Cook v. Meares, 116 N.C. 582, 21 S.E. 973. In that case the legislature established a new criminal court for certain counties in North Carolina. The Act became law on March 12, 1895, and consistent with the provisions of the statute as it thereafter became effective the legislature elected a judge for which the statute made provision. On March 13, 1895, the governor of North Carolina appointed Meares to the office of Judge under the Act. On this state of fact the supreme court of North Carolina held that the election of the judge by the legislature was void because at the time there was no office to which he could be elected inasmuch as the statute in question had not been passed. The rule announced would be applicable to the case at bar.

In State ex rel. Rhodes v. Hampton, 101 N.C. 629, 8 S.E. 219, a treasurer was elected in the general election held in November 1886. The office of the treasurer was not established until December 13, 1886, following. Under these circumstances the supreme court of North Carolina held that the election was a nullity because at the time the office of treasurer did not exist.

In State ex rel. Giles v. Hyde, 105 Utah 436, 142 P.2d 665, the following facts are found: The first special session of the 1941 Utah legislature enacted on March 26, 1941, a law creating a department of finance and providing for appointments to be made to the commission of finance which this particular law established. The terms of the Act provided that it should take effect on July 1, 1941. The legislative session which passed the statute adjourned sine die on March 29, 1941. On April 1, 1941, the governor of Utah approved the Act, which under the Utah Constitution (as is the case in Montana in the instant case) became a potential law. However, on March 28, 1941, the governor nominated the respondent Hyde to fill one of the offices for which the law provided. On March 29, 1941, and before the statute was approved by the governor, the senate of Utah confirmed the appointment of Hyde, which confirmation was of course in anticipation of the governor's approval of the Act itself (expressly the case at bar). In consideration of these facts the supreme court of Utah held that both the governor's appointment and the senate's confirmation of the appointee were nullities without effect because the statute, which authorized the appointment created the office to which the appointment here was made and established the commission in question, did not come into existence until the Act was approved by the governor on April 1, 1941. To the same effect see: State ex rel. Langer v. Scow, 38 N.D. 246, 164 N.W. 939; State ex rel. Rhodes v. Hampton, 101 N.C. 629, 8 S.E. 219; Kennelly v. Lowery, 64 Cal.App.2d 903, 149 P.2d 476; Harrison v. Colgan, 148 Cal. 69, 82 P. 674.

These and other similar cases leave little doubt but what the appointments of the members of the legislative council are void.

The question remaining is whether or not a taxpayer can in equity question the invalidity of the appointments of certain persons who assume to act as members of a legislative committee. Here the statute and the appointments were of themselves incompatible and thus the appointments were illegal and void. The conclusion of the whole matter depends upon the meaning of the statute and on examination of the indisputable record.

"A taxpayer may bring an action to prevent an 'illegal act' (Peck v. Belknap, 130 N.Y. 394, 29 N.E. 977; Consol.Laws, c. 24, [General Municipal Law] § 51; Laws 1909, c. 29), and it necessarily follows that he may also bring an action to restrain waste because an individual assumes to act illegally in an official capacity." Whitney v. Patrick, 64 Misc. 191, 120 N.Y.S. 550, 555.

The appointees were not, nor could they have been named by the legislature because the legislature had adjourned sine die before the appointments, under the Act, could in fact be made. The appointing power as prescribed by the Act had ceased to exist and thus the purported members are intruders.

It follows that the judgment of the district court must be and it is affirmed.

Speaking for myself, this opinion is in no way to be construed as to change my position announced in the dissent in the case of State ex rel. Mitchell v. Holmes, Mont., 274 P.2d 611.

ADAIR, C.J., and BOTTOMLY, J., concur.

DAVIS, Justice.

I dissent.

For the purposes of that dissent I shall assume that the conclusion which Mr. Justice ANDERSON reaches for the majority is as an abstract statement of the law sound, and therefore unassailable, i.e.,...