State v. Hall

• Citation: 165 P. 757,53 Mont. 595
• Decision Date: 29 May 1917
• Docket Number: 4045.
• Parties: STATE EX REL. BOYLE v. HALL.
• Court: Montana Supreme Court

165 P. 757

53 Mont. 595

STATE EX REL. BOYLE v. HALL.

No. 4045.

Supreme Court of Montana

May 29, 1917

Quo warranto by the State, on the relation of Daniel Boyle against J. H. Hall. Demurrer sustained, and complaint dismissed.

Galen & Mettler and E. G. Toomey, all of Helena, for relator.

H. C Hall, of Havre, for respondent.

HOLLOWAY J.

By chapter 37, Laws 1907, the "board of railroad commissioners of the state of Montana" was created, and by that act, and acts supplementary thereto, its powers and duties are defined. The board consists of three members, each elected for a term of six years, and the present members are J. H. Hall, J. E. McCormick, and Daniel Boyle. Hall was elected in 1912, McCormick in 1914, and Boyle in 1916. On January 1, 1917, Hall was duly elected chairman and continued in that capacity until April 16th, when, at a regular meeting of the board at which all three members were present, by the votes of McCormick and Boyle he was deposed and Boyle elected chairman in his stead. Hall refused to abide by the order and has since claimed and assumed to act as chairman. This proceeding in the nature of quo warranto was instituted by Boyle to have determined the right or title to the chairmanship of the board. To the complaint, which sets forth the proceedings fully, the defendant demurred, and, electing to stand on his demurrer, the matter was submitted for final determination. Defendant presents three contentions:

1. That the chairmanship of the board is not a public office. If this be sustained, the other contentions need not be noticed; for though the authority of the state (represented by the Attorney General) to invoke the remedy by quo warranto is quite extensive (Rev. Codes, §§ 6943-6946), a private individual is limited in his right to the remedy to a single case, viz. a case in which he claims "to be entitled to a public office unlawfully held and exercised by another" (section 6947). The question before us in limine is: Is the chairmanship of the board of railroad commissioners a public office, with public functions to be performed by the occupant independently of his duties as a member of the railroad commission?

Courts and text-writers have undertaken to define the term "public office," and to prescribe certain criteria by which to determine whether, in a given instance, a public office is involved, but their efforts have been expended with rather indifferent success. The tests applied and found sufficient in one case have proved altogether inapplicable in another. The authorities are, however, quite generally agreed that the character of the functions to be performed is a primary consideration, if not a determining factor. 23 Ency. of Law (2d Ed.) 323. The duties attached to the position must concern the public directly, and must be imposed by public authority-not by contract. Mechem on Public Officers, 1-6; Throop on Public Officers, 3, 4; Wyman's Administrative Law, § 44. The duties must be public in the sense that they comprehend the exercise of some portion of the sovereign power and authority of the state, either in making, administering, or executing the laws. Eliason v. Coleman, 86 N.C. 235; Commonwealth v. Bush, 131 Ky. 384, 115 S.W. 249. They must be public, also, in the sense that they imply the element of personal responsibility, as distinguished from the merely clerical acts of an agent or servant. Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058, 17 Ann. Cas. 449. In other words, a public officer is a part of the personal force by which the state thinks, acts, determines, and administers to the end that its Constitution may be effective and its laws operative. People v. Coler, 166 N.Y. 1, 59 N.E. 716, 52 L. R. A. 814, 82 Am. St. Rep. 605. While the elements of fixed term and compensation cannot be said to be indispensable to a public office, they are indices the presence of which points to the existence of such a position, and the absence of which indicates to some extent the contrary conclusion.

The board of railroad commissioners is the creature of statute. It has such authority as is conferred expressly or necessarily implied from that which is expressed. It is subject at all times to legislative regulation and control. Its officers and employés--even the members of the commission--may be dismissed from the service of...