State v. Callow
| Decision Date | 21 February 1927 |
| Docket Number | 6094. |
| Citation | 254 P. 187,78 Mont. 308 |
| Parties | STATE ex rel. v. CALLOW. WALLACE |
| Court | Montana Supreme Court |
Rehearing Denied March 8, 1927.
Original application for writ of quo warranto by the State, on the relation of W. A. Wallace, against F. B. Callow, the Attorney General consenting and joining in the application. Order to show cause why leave to file the complaint should not be granted was issued, and it was agreed that the entire matter be heard and submitted on the return day of the order. At that time defendant moved to dismiss the proceeding and moved to strike certain portions of the complaint, and demurred to the complaint and answered. Motion to dismiss overruled and tendered complaint ordered filed; motion to strike certain portions of the complaint allowed in part; demurrer overruled, and complaint dismissed.
L. A Foot, Atty. Gen., and Walchli & Korn, of Kalispell, and B. J McIntire, of Troy, for relator.
Henry C. Smith, of Helena, Heath Youell, of Troy, and H. G Pomeroy, of Eureka, for respondent.
Original application for writ of quo warranto by the state, on the relation of W. A. Wallace, against F. B. Callow, the Attorney General consenting and joining therein.
Counsel for relator made application to this court for leave to file his complaint tendered, and showed to the court his reasons why he considered it necessary that this court assume original jurisdiction in the cause. Deeming the reasons urged sufficient to warrant such action, but being willing that the defendant be heard on the subject, this court directed that the defendant be notified of said application and caused to be served with an order to show cause why leave to fie the complaint should not be granted, which order was made returnable on January 24, 1927, at the hour of 10 a. m. At the time designated in the order, defendant appeared by counsel, who agreed that, pursuant to the usual practice, the entire matter should be heard and submitted at that time. Counsel thereupon filed herein, to be argued and considered in their logical order (1) a motion to dismiss the proceeding; (2) a motion to strike certain portions of the complaint; (3) a demurrer to the complaint; and (4) defendant's answer to the complaint.
1. The motion to dismiss is made upon the ground that the subject-matter of the proceeding is not such as, under the law and the rules of this court, should come within the original jurisdiction of this court. We will consider this motion as defendant's showing of cause why the complaint should not be filed.
It clearly appeared from the complaint tendered that the facts alleged disclose a proper subject for quo warranto proceedings (section 9576, Rev. Codes 1921; State ex rel. Brooks v. Farnsham, 19 Mont. 273, 48 P. 1; State ex rel. Boyle v. Hall, 53 Mont. 595, 165 P. 757), and we deem the exigencies of the case as shown sufficient to warrant us in permitting the short cut, sought by the relator, to be taken. The motion is therefore overruled and the tendered complaint ordered filed.
The allegations of the complaint, necessary to our consideration of all of the questions submitted, are substantially as follows-those allegations against which the motion to strike is directed are inclosed in brackets:
It is alleged in paragraph 3 that the relator was duly elected to the office of county commissioner of Lincoln county, at the general election held on November 2, 1926, and that on November 13 he received his certificate of election (but which certificate of election merely certified and notified the same W. A. Wallace that he had received the highest number of votes for said office and was duly elected thereto, and contained no notice or information whatsoever requiring said W. A. Wallace to qualify or specifying the time within which he should qualify for said office). It is then alleged that relator took and subscribed the required oath of office and presented the same, with a bond duly executed by himself and the Maryland Casualty Company on December 6, 1926, on December 14, 1926. Copies of the oath and of a second bond, hereinafter mentioned, were attached to the complaint, which alleged that the first bond was in all respects the same as the second except as to date, and that it described the term of office as commencing on January 1, 1927, instead of January 3. Paragraph 4 contains the allegation that on being presented with said oath and bond, as aforesaid, the said county clerk instructed the said W. A. Wallace to forward said oath and bond to Hon. C. W. Pomeroy, at Kalispell, Montana, for approval, the said C. W. Pomeroy being then and there the duly elected, qualified, and acting district judge of the Eleventh judicial district of the state of Montana, in and for the county of Lincoln, and that pursuant to said direction, the said W. A. Wallace did then and there, on the 14th day of December, forward said oath and bond to said judge for approval; that they were received by said judge on the 15th day of December and the bond duly approved on said day in chambers, the judge indorsing on said bond, "Approved this 15th day of December, 1926, C. W. Pomeroy, Judge," but that, after making such approval, said judge noticed that the bond described the term as commencing January 1st, instead of January 3d, and thereupon struck out and canceled his approval "for the, and giving as his only, reason" the error in description of the term. It is next alleged that thereupon relator secured the second bond mentioned above, and on December 20, 1926, filed his oath and the new bond with the clerk of the district court.
Paragraph 6 of the complaint alleged that on December 21, 1926, the judge (having knowledge of the filing of the new bond and of said oath on the 20th day of December, 1926, in said office, as above alleged, but concluding that said qualification by said W. A. Wallace was too late) made and entered an order in open court declaring the office vacant by reason of the alleged failure of relator to qualify and appointed the defendant to fill the vacancy.
It is alleged that the defendant presumed to qualify and enter upon the discharge of the duties of the office, and that he and the other members of the board refused to permit relator; that relator did not know that the statute ostensibly required him to qualify within 30 days; and that he is willing and desirous of entering upon the duties of his office. Relator prays that defendant be adjudged guilty of usurping, intruding into, and unlawfully holding the office, and that relator be adjudged entitled thereto.
2. On motion to strike. (a) The relator is presumed to know the law, and ignorance thereof cannot excuse him from failure to comply therewith. State ex rel. Rowe v. District Court, 44 Mont. 318, 119 P. 1103, Ann. Cas. 1913B, 396. It is therefore immaterial whether he had notice to qualify or of the time within which he should qualify; further, the law does not require any such information to be given in the certificate of election. Section 797, Rev. Codes 1921. The motion will therefore be granted as to the matter inclosed within brackets appearing in paragraph 3 of the complaint, and the same will be stricken.
(b) It is also immaterial for what reason, or at whose suggestion, the bond was sent to Judge Pomeroy for approval. That portion of paragraph 4 referring to such reasons will therefore be stricken from the complaint. However, the recitation of facts showing the submission of the bond to Judge Pomeroy and the action taken by him is material, and as to such matter the motion is denied.
(c) Again, the bracketed clause of paragraph 6 contains matter both material and immaterial; it is immaterial what the conclusion reached by Judge Pemeroy may have been; the action taken, with his reason therefor, is all that we have to consider. The phrase, "but concluding that said qualification by said W. A. Wallace was too late," is stricken.
But the knowledge of the judge that a bond and oath had been filed on December 20, 1926, at the time he declared the office vacant on the following day, is material, as will hereafter be seen, and the motion will be denied as to the allegation of such knowledge.
3. The only question raised on the demurrer is that the complaint does not allege facts showing the sufficiency of the bond tendered, and particularly that the amount of the bond was sufficient in that it does not allege in what class Lincoln county belonged in 1926.
"For the purpose of * * * fixing the penalties of officers' bonds," the counties of the state are divided into seven classes, according to the taxable value of property therein (section 4741, Rev. Codes 1921), and the class in which each county falls must be declared by the board of county commissioners in each even-numbered year. (Section 4742, Id.) Under the provisions of section 466, Id., commissioners in counties of the first, second, third, and fourth classes must give bonds in the sum of $5,000, in the fifth and sixth classes, $3,000, and in the seventh class, $2,000.
But the sufficiency of a bond is a question for determination by the approving officer, and, when relator's bond was submitted to Judge Pomeroy on December 14, 1926, it was the duty of the judge to ascertain the then class of the county and to not approve the bond if it was not in the amount required by law and when the judge approved that bond and thereafter withdrew his approval upon the sole ground that the date of the commencement of the term was incorrectly stated, he determined that the bond was otherwise sufficient. By alleging those facts, the complaint sufficiently alleged the sufficiency of the bond tendered to Judge Pomeroy, and by alleging that the new bond was in all particulars the same as the first...
To continue reading
Request your trial