State v. District Court of Fourth Judicial Dist. In and For Missoula County

• Decision Date: 13 December 1921
• Docket Number: 4984.
• Citation: 202 P. 756,61 Mont. 558
• Parties: STATE EX REL. HOUSTON v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY ET AL.
• Court: Montana Supreme Court

202 P. 756

61 Mont. 558

STATE EX REL. HOUSTON v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR MISSOULA COUNTY ET AL.

No. 4984.

Supreme Court of Montana

December 13, 1921

Petition by the State, on the relation of William H. Houston, for writ of prohibition directed to the District Court of the Fourth Judicial District in and for the County of Missoula and Charles W. Pomeroy, Judge presiding. On respondent's motion to quash. Motion sustained, and proceedings dismissed.

Holloway J., dissenting.

F. C Webster and Mulroney & Mulroney, all of Missoula, for appellant.

W. D Rankin, Atty. Gen., for respondent.

REYNOLDS J.

Relator is the duly elected, qualified, and acting sheriff of the county of Missoula. Wellington D. Rankin, as Attorney General, filed an accusation in the district court of Missoula county accusing relator of misconduct in office and praying for his removal under the provisions of section 9006 of the Revised Codes, as amended by chapter 25, Session Laws of 1917. The local judges, deeming themselves disqualified called upon Hon. Chas. W. Pomeroy, judge of the Eleventh judicial district, to preside at the hearing. Relator filed an affidavit of disqualification under the provisions of subdivision 4, § 6315, of the Revised Codes, as amended by chapter 114 of the Laws of 1909. The Attorney General filed a motion to have the affidavit stricken from the files, which was done, and thereupon Judge Pomeroy set the case for trial and announced his determination to retain jurisdiction thereof, and to hear the same. Relator then filed in this court his petition for writ of prohibition to restrain Judge Pomeroy from proceeding with the trial of the case, and to compel the reinstatement of the affidavit of disqualification. Order to show cause was issued. Upon return day, respondents filed their motion to quash on the ground that, upon the face of the application, relator is not entitled to the relief prayed for, and that the application does not state facts sufficient to warrant the granting of such relief.

It is conceded by both parties that the statute authorizing a party to file a disqualifying affidavit does not apply to cases of criminal nature. The question involved here is whether the proceeding in the district court is in its nature civil or criminal. If it is the former, then the affidavit of disqualification was properly filed, and Judge Pomeroy was disqualified from hearing the case; but, if the latter, then the disqualifying affidavit was ineffectual for any purpose, and Judge Pomeroy was justified in proceeding with the trial.

In determining this question, we do not consider that it is necessary to go outside of the Constitution and statutes of this state and the former decisions of this court. Section 17 of article 5 of the state Constitution provides that the Governor and other state and judicial officers, except justices of the peace, shall be liable to impeachment for high crimes and misconduct and malfeasance in office. Section 18 of the same article provides that all officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law. The Constitution provides that impeachment shall be tried by the Senate sitting for that purpose, but the Constitution leaves it entirely to the Legislature to provide in what manner actions for the removal of other officers shall be brought and tried. It is established that impeachment proceedings are criminal in their nature. 29 Cyc. 1413. Inasmuch as there cannot be any substantial difference in character between a proceeding brought against a certain class of officers before the Senate for removal, and one brought for the same object before some other tribunal in such manner as may be designated by the Legislature, it must be held that the actions are essentially of the same nature. As impeachment proceedings are criminal in nature, as already pointed out, then, as a natural consequence, it follows that proceedings to remove other officers are likewise criminal in their nature.

A reference to the statutes confirms the theory that such was the understanding of the Legislature. The section under which the proceedings are brought, being section 9006, Revised Codes, as amended by Chapter 25, Laws of 1917, reads as follows:

"When an accusation in writing, verified by the oath of any person, is presented to the district court, alleging that any officer within the jurisdiction of the court has been guilty of knowingly, willfully, and corruptly charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has willfully refused or neglected to perform the official duties pertaining to his office, the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented; and on that day, or some other subsequent day not more than forty days from the date on which the accusation was presented, must proceed to hearing, in a summary manner, or trial, upon the accusation and evidence offered in support of the same, and the answer and evidence offered by the party accused; provided, if the charge be for the charging and collecting of illegal fees or salaries, the trial must be by jury if the defendant so demands, and conducted in all respects and in the same manner as the trial of an indictment for a misdemeanor, and the defendant shall be entitled, as a matter of defense, to offer evidence of, and the jury under proper instructions shall consider, his good faith or honest mistake, if any be shown, and the value received by the state, county, township, or municipality against whom the charges or fees were made. If, upon such hearing or trial, the charge is sustained, the court must enter a judgment that the party accused be deprived of his office, and for such costs as are allowed in civil cases; and if the charge is not sustained, the court may enter a judgment against the complaining witness for costs as are allowed in civil cases."

This section is included within a chapter entitled: "The Removal of Civil Officers otherwise than by Impeachment." The first section of the chapter provides that:

"All officers not liable to impeachment are subject to removal for misconduct or malfeasance in office, as provided in this chapter."

Section 8991.

Following the section last quoted appear two methods for the removal of officers, one method to be used in certain cases, and the other method in certain other cases. The first method provides that an accusation against the officer for willful or corrupt misconduct or malfeasance in office may be presented by the grand jury, and then provides for subsequent proceedings, including the trial and judgment. The second method is found in the section under which the proceedings in the district court were commenced. Inasmuch as the object in both proceedings was the same, and they differed only in the method of accomplishing such object, and inasmuch as both were included in the same chapter and under the same heading, and were included within the Penal Code, there is substantial reason for believing that it was the intent of the Legislature to characterize these proceedings as criminal in nature.

As was stated in the case of State ex rel. Brandegee v. Clements, 52 Mont. 57, 155 P. 271, involving the question as to whether or not habeas corpus proceedings were criminal in nature, the essential nature of a remedy is not to be determined solely by its classification in the Codes; yet "those circumstances are to be considered but they are not to be given weight beyond their due." The definition by the Code of "crime" is significant in this case. Section 8107 of the Revised Codes defines crime as follows:

"A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:

1. Death.

2. Imprisonment.

3. Fine.

4. Removal from office; or,

5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state."

Section 8911, Revised Codes, provides that criminal actions shall be prosecuted as follows:

"Every public offense must be prosecuted by indictment or information, except--1. Where proceedings are had for the removal of civil officers of the state. * * *"

Revised Codes, § 9102, provides that--

"All public offenses triable in the district courts must be prosecuted by indictment or information, except as provided in the next section."

The next section reads as follows:

"When the proceedings are had for the removal of district, county, municipal, or township officers, they may be commenced by an accusation or information, in writing, as provided in sections 8992 (1531) and 9000 [9006?] (1545) of this Code."

From these statutory references to the subject of removal from office, it is clear that the proceedings involving removal from office were deemed by the Legislature to be criminal in character. Removal from office is included as a part of the definition of a crime in certain cases, and it is expressly exempted from the class of criminal cases to be prosecuted by indictment or information, which exception would be unnecessary if the proceeding was civil in character.

This court has had occasion to construe this section in the following cases: State ex rel. Rowe v. District Court, 44 Mont. 318, 119 P. 1103, Ann. Cas. 1913B, 396; State ex rel. McGrade v. District Court, 52 Mont 371, 157 P. 1157; State ex rel. Payne v. District Court, 53 Mont. 350, 165 P. 294. In the Rowe Case, after discussing section 9006 in connection with the other provisions in the same chapter...