State v. District Court of Nineteenth Judicial Dist. In and For County of Pondera
| Citation | 205 P. 955,62 Mont. 600 |
| Decision Date | 27 March 1922 |
| Docket Number | 5006. |
| Parties | STATE EX. REL. BULLOCK, COUNTY ATTY., v. DISTRICT COURT OF NINETEENTH JUDICIAL DIST. IN AND FOR COUNTY OF PONDERA ET AL. |
| Court | United States State Supreme Court of Montana |
Original application for writ of supervisory control by the State of Montana, on relation of W. L. Bullock, County Attorney of Pondera County, and directed to the District Court of Pondera County and the Honorable William E. Carroll, Judge presiding. Writ granted.
Pray Callaway & Toole, of Great Falls, for relator.
Speer & Gerth, of Great Falls, and Harry Meyer, of Butte, for respondents.
This is an original application for a writ of supervisory control directed to the district court of Pondera county and Hon William E. Carroll, judge presiding.
On October 5, 1921, the county attorney of Pondera county filed in the district court a written accusation against James T Green, praying his removal as county clerk for neglect and refusal to perform his official duties. In one paragraph it is charged that ever since the 7th day of March, 1921, as county clerk, he has willfully refused to make a full and complete statement of the financial condition of his county as required by sections 2953 and 3045 of the Revised Codes of 1907. In another, that he willfully neglected and refused to file a copy of the assessment book or the original thereof, with the county treasurer on the first Monday in October, 1920, as prescribed by section 2609. The eighth paragraph charges that in eighteen specific instances he performed the services required of him as county clerk, collected the legal fees chargeable therefor (section 3139), but on each occasion willfully refused to enter, in the reception fee book provided by law, the full amount so charged and received, and in each instance has willfully paid into the county treasury an amount less than the legal fee so collected. In still another paragraph it is alleged that, as county clerk, he charged and collected as a legal fee the sum of $15.85 for the services of a clerk and deputy in his office in searching and transcribing certain records of Teton county, but has willfully refused and neglected to perform his official duty to enter the same in the reception fee book, or to pay any part of that amount into the county treasury.
Hon. John J. Greene, the judge of the Nineteenth judicial district, being disqualified, Hon. C. W. Pomeroy, judge of the Eleventh judicial district, appeared in court prepared to try the cause. The defendant demanded a jury trial. This the court denied. The defendant then filed an affidavit charging Judge Pomeroy with bias and prejudice. At the instance of the Governor, Hon. William E. Carroll, a judge of the Second judicial district, on the 10th day of January, 1922, appeared and assumed jurisdiction of the cause. The defendant entered a plea of not guilty and again demanded a jury trial. Judge Carroll annulled the order of Judge Pomeroy denying defendant a trial by jury, and set the cause for trial on Monday, February 6, 1922, before himself as judge and a jury to be impaneled and sworn on that day. To test the legality of the order last made, this proceeding was commenced.
The relator's contention is that, the charges to be tried being for misconduct involving willful refusal and neglect to perform official duty, the defendant Green is not entitled to a jury trial. The respondents insist that the charges involve a "criminal prosecution" under section 3 of article 3 of the Constitution, and that Green is entitled to a jury trial as a matter of right.
Since the attempted disqualification of Judge Pomeroy, this court has held that in removal proceedings a judge may not be disqualified for imputed bias and prejudice. State ex rel. Houston v. District Court, 61 Mont. 558, 202 P. 757.
By the provisions of section 9006 of the Revised Codes of 1907 chapter 25 of the Session Laws of 1917, a public officer is subject to removal if he has willfully refused or neglected to perform his official duty, or "has knowingly, willfully or corruptly" charged and collected "illegal fees for services rendered or to be rendered." He is to be cited into court "not more than ten or less than five days from the time the accusation" is filed, and the time for the hearing or trial set. If the charges are sustained, a judgment of removal from office is to be rendered and costs allowed as in civil actions. The gist of the offense charged in this case is willful neglect of duties imposed by law, and not the collection of illegal fees.
For the purpose of fixing penalties for all crimes and offenses punishable at all, section 8107 of the Revised Codes of 1907 was enacted. In that statute death is prescribed as the penalty for murder in the first degree; for lesser crimes and offenses, fine and imprisonment; and lastly, for misconduct or malfeasance in office, removal therefrom and disqualification to hold public office again. By the provisions of chapter 25, supra, the offender has a right to a jury trial upon a charge for the collection of illegal fees. For neglect, or nonfeasance, he has not. The accusations in the present case are that the county clerk failed and neglected to perform official duty. That removal proceedings are special and statutory, all the authorities declare. State ex rel. Payne v. District Court, 53 Mont. 350, 165 P. 294; State ex rel. Rowe v. District Court, 44 Mont.
318 119 P. 1103, Ann. Cas. 1913B, 396; State ex rel. Houston v. District Court, supra; Gay v. District Court, 41 Nev. 330, 171 P. 156, 3 A. L. R. 224, note; State...
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