State v. Cocking
| Decision Date | 14 February 1923 |
| Docket Number | 5149. |
| Parties | STATE EX REL. SHEA v. COCKING, MAYOR, ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied March 9, 1923.
Appeal from District Court, Silver Bow County; Joseph R. Jackson Judge.
Mandamus by the State of Montana on the relation of Daniel F. Shea against James G. Cocking, as mayor of the City of Butte, and others. From a judgment for relator, defendants appeal. Modified and affirmed.
J. O Davies and Miles J. Cavanaugh, both of Butte, for appellants.
F. E Blodgett and N. A. Rotering, both of Butte, for respondent.
This is a proceeding brought by relator to compel the city of Butte and its mayor, treasurer, and clerk to issue to him two warrants in payment of his salary as police judge. He was elected and qualified as police judge of the city of Butte in 1921, and had been drawing his salary without question prior to the time when these officers refused to pay it further.
To the petition praying for a writ of mandate, the respondents answered, setting forth as a defense that the relator was not, when he was elected, and never has been, eligible to hold the office because at all times he has been blind. Upon the hearing the court gave judgment for relator, commanding respondents to issue the warrants, and awarding him the sum of $250--this for attorney's fees, and costs. Respondents have appealed from the judgment.
These questions are presented: (1) Whether a blind man is eligible to hold the office of police judge, and, if he is, (2) whether an attorney's fee should be allowed as damages and (3) whether these damages and costs should be assessed against the city as well as against its officers.
1. In this state the qualifications for holding office are prescribed either by constitutional provisions or legislative enactments. And this is so generally in the United States. Throop on Public Officers, § 72.
Section 11 of article 9 of Montana's Constitution provides:
"Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this Constitution, and subject to such additional qualifications as may be prescribed by the Legislative Assembly for city offices and offices hereafter created."
The statutory qualifications for one holding a municipal office are prescribed by section 5007 of the Revised Codes of 1921, which reads as follows:
"No person is eligible to any municipal office, elective or appointive, who is not a citizen of the United States, and who has not resided in the town or city for at least two years immediately preceding his election or appointment and is not a qualified elector thereof."
And section 5010 provides:
"All qualified electors of the state who have resided in the city or town for six months and in the ward for thirty days next preceding the election are entitled to vote at any municipal election."
At the time of his election as police judge, relator was a qualified elector under these sections. The office of police judge is a creation of the statute and not of the Constitution. State ex rel. Working v. Mayor, 43 Mont. 61, 114 P. 777.
The Legislature has not prescribed any qualifications for the incumbent of the office of police judge in addition to the statutes above quoted. This policy is consistent with the general rule.
"Where no limitations are prescribed, the right to hold a public office under our political system is an implied attribute of citizenship and is presumed to be coextensive with that of voting at an election held for the purpose of choosing an incumbent for that office; those, and those only, who are competent to select the officer being deemed competent also to hold the office." Mechem on Public Office and Officers, § 67.
Under the common law it was held that unfitness, if gross and palpable, is a disqualification for holding an office. Throop says:
Throop on Public Officers, § 71.
We have not been cited to an instance where a blind man has been declared ineligible to hold an office. No doubt it would be desirable to have as police judge a person perfect physically and mentally, but no such person is to be found in the body of the electorate. It would be desirable, also, to have as police judge a person well educated, learned in the law, a keen student of human nature, possessed of and alert in all his natural faculties. This court, while passing upon the weight of evidence in a lifeless record, has frequently spoken of the advantage possessed by the trial judge who has observed the demeanor of the witness on the stand. Often in the trial court have we observed a witness attempt by words to conceal the truth which the expression of his eye or the lines of his face disclosed. The blind judge is deprived of this advantage; in this respect certainly he is handicapped. But it is suggested that nature somewhat compensates for the loss of the faculty of sight by amplifying his other faculties, and that a blind man, while not able to see the person who speaks, may learn more from what he hears than another who is possessed of all his faculties but fails to use them. Some men have much keener perceptions than others and are truer in the deductions they draw; some possessing all their faculties have little power of observation. So, after all, the difference is one of degree.
It is contended that as the blind judge may not view the appearance of the complaining witness, which is often so material in that court--and sometimes the defendant is a "sight" for those who can see--the judge's disqualification is apparent. This disqualification is further emphasized, say counsel for respondent, by the fact that the police judge in this case personally cannot keep the docket which the law requires, but must intrust that duty to his clerk, and when the judge is called upon to certify to copies of that docket, necessarily he must certify to the verity of something of which he knows nothing except by hearsay. The judge, however, may cause the docket to be kept by his clerk, having what is written therein read to him by the clerk. and may certify to his docket from what is read to him by another. True, there is room for imposition here, but no more so than if the judge were making his will, and testamentary capacity is not affected by the fact that the testator is blind. See Welch v. Kirby, 255 F. 451, 166 C. C. A. 527, 9 A. L. R. 1409, and note on page 1416, in which appears a reference to the fact that the Supreme Court of Louisiana, in State v. Martin, 2 La. Ann. 667, sustained the will of Francois Xavier Martin, who had served upon the Supreme Court of Louisiana for 31 years, during the last 8 years of which time he was totally blind.
It may be observed that, as to keeping and certifying his docket, a blind man is in no worse situation than one who can neither read nor write. And let it be noted, too, that under the law at present an elector possessed of all his faculties, but unable to read or write, and ignorant to a gross extent, is nevertheless eligible to hold any office in the gift of the people, unless special qualifications for that office are prescribed by the Constitution or the statutes. In this connection it is interesting to recall the fact that a juror is required to be "in possession of his natural faculties, and of ordinary intelligence and not decrepit," and "possessed of sufficient knowledge of the English language." Section 8890, Rev. Codes 1921.
Notwithstanding the disadvantages under which a blind man must labor in the position of police judge, it...
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