State v. Cunningham
| Decision Date | 07 June 1909 |
| Citation | 103 P. 497,39 Mont. 197 |
| Parties | STATE ex rel. PEYTON v. CUNNINGHAM, State Auditor. |
| Court | Montana Supreme Court |
Mandamus by the State, on relation of Mrs. Charles B. Peyton, against Harry R. Cunningham, as Auditor of the State. Writ denied.
Walsh & Nolan, for relatrix. Albert J. Galen, Atty. Gen., and W. H Poorman, Asst. Atty. Gen., for respondent.
Original application for mandamus. The Eleventh Legislative Assembly adopted the following joint resolution: "Whereas, in the month of October, 1908, Charles B. Peyton was shot and killed by Indians while in the discharge of his duty as deputy game and fish warden, and whereas, by his death his wife and three small children were left without support, and whereas, in recognition of the services rendered the state by Charles B Peyton there is due to those who were dependent upon him some means of support, therefore, be it resolved by the House of Representatives, the Senate concurring, that the state game and fish warden appoint Mrs. Charles B. Peyton, wife of Charles B Peyton, deceased, deputy game and fish warden for the term of four years with a salary of $125.00 per month, and that the appointment be made in addition to the prescribed number of deputy game and fish wardens." Sess. Laws 1909, p. 390. Upon its approval by the Governor, and on March 10, 1909, the relatrix, the person named therein, under the authority ostensibly conferred thereby, was appointed by the state game and fish warden a special deputy. She at once took the oath of office, filed the bond required by law, and has since discharged, and has been ready to discharge, the duties of the office under the direction of the state game and fish warden. Prior to the making of the application, claiming that she was and is entitled to the salary provided for in the resolution, she demanded of the respondent, as state auditor, that he issue to her a warrant for the sum of $83.33, the amount of salary claimed to be due her for the portion of the month of March subsequent to her appointment, and also for the sum of $125, the amount claimed for the month of April. This demand was refused. At that time there was in the state treasury to the credit of the game and fish fund an amount of money largely in excess of the amount claimed by the relatrix, as well as of all other lawful demands against the same, and there was an unexhausted specific appropriation provided by law to meet the salaries of deputy game and fish wardens. The relatrix is, and was at the time of her appointment, a citizen of the United States, and had been a resident of the state for the time necessary to qualify her to hold the office. The purpose of this proceeding is to compel the respondent to issue to her warrants to the amounts so claimed.
Upon the return of the alternative writ, the Attorney General interposed a general demurrer to the verified petition, which alleges the facts stated above. He makes two contentions: (1) That the joint resolution has not the force or effect of a statute legally and constitutionally enacted, and that, since this is so, no office was created by it, nor was the appointment made under the authority granted by it valid for any purpose; and (2) that, even if this were not so, the relatrix is not eligible to the office, because, being a woman, she is not an elector.
1. The state game and fish warden was authorized by section 1953 of the Revised Codes, to appoint not to exceed 8 deputies. By an amendment enacted by the Eleventh Legislative Assembly and approved on March 5, 1909 (Sess. Laws 1909, p. 118, c. 87), this number was increased to 15. The resolution, it will be noted, authorized the appointment of the relatrix by name, in addition to the number already prescribed; so that, if it be accorded the force of law, the result is that the act approved March 5th must be deemed to have been amended, and the number of deputies authorized by law for the present term of 4 years to be 16; the relatrix being, by express mention, the sixteenth.
It is elementary that an office can be created only by law duly enacted for that purpose. It is also elementary that no act of the Legislature will be declared invalid as repugnant to the fundamental law except in the clearest cases, or, as is generally said, where the repugnancy is established beyond a reasonable doubt. Territory v. Farnsworth, 5 Mont 303, 5 P. 869; People ex rel. Robertson v. Van Gasken, 5 Mont. 352, 6 P. 30; State ex rel. Harrington v. Kenney, 10 Mont. 410, 25 P. 1022; Western Ranches Co. v. Custer County, 28 Mont. 278, 72 P. 659; State v. Courtney, 27 Mont. 378, 71 P. 308. The reason for the rule is that the power of the Legislature is plenary and subject to no limitation or restriction except as declared in the state Constitution, or where exclusive control of the particular subject has been granted to the federal government; but under the Constitution the question whether an act of legislation has the force of law does not depend merely upon the constitutional majorities of the two Houses having so determined, but...
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