State v. McCarthy
| Decision Date | 13 November 1929 |
| Docket Number | 6496. |
| Citation | 282 P. 1045,86 Mont. 100 |
| Parties | STATE ex rel. v. McCARTHY, City Treasurer. O'CONNOR |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.
Proceedings by the State, on the relation of F. J. O'Connor, against Thomas J. McCarthy, as City Treasurer of the City of Butte. From a judgment for plaintiff, defendant appeals. Affirmed as directed to be modified.
Maury Brown & Maury, of Butte, for appellant.
Clarence Hanley, of Butte, for respondent.
On motion of the relator, F. J. O'Connor, the district court of Silver Bow county rendered judgment on the pleadings in a proceeding for writ of mandate, granting a peremptory writ commanding Thomas J. McCarthy, as treasurer of the city of Butte, to pay out of the general fund of the city the amounts called for by 12 city warrants issued to relator for a year's salary as assistant city treasurer. In addition to the writ the court adjudged that "Relator do have and recover of and from the respondent, Thomas J. McCarthy, the sum of * * * $337.57 * * * as damages, * * * being * * * $250 attorneys' fees and * * * $87.50 * * * for damages and loss of interest," with costs taxed at $10, but thereupon declared: "It appearing to the court from all of the proceedings had before it and the issues therein adjudicated that the respondent appeared in said proceeding in his official capacity * * * and in that capacity represented the city, and it is here further determined that he appeared and made the defense in good faith; and that the relator * * * may present his claim to the city * * * for said total of $337.57 damages, together with his costs * * * as a proper claim against it and when allowed the same shall be paid as other claims against said city."
Defendant challenged that portion of the judgment dealing with costs and damages by motion to strike and motion to "retax costs," which motions being denied, he appealed from the judgment.
Herein defendant makes no complaint concerning the issuance of the writ and has abandoned his appeal as to that portion of the judgment, but asserts that the court erred in entering a money judgment against him and in overruling his motions to strike such matter from the judgment and to "re-tax" the costs. His contention is that, as the court found that he represented the city and acted in good faith, the only judgment as to damages and costs which could have been entered was one against the city. Relator has made a cross-assignment of error upon which he contends that the court's findings in this regard are not based upon or supported by facts before the court and, therefore, that portion of the judgment requiring presentation to the city must be stricken from the judgment. As the trial court determined the matter solely upon the pleadings, and we have them before us, we are in a position to declare whether or not the judgment is warranted by the showing made.
The general rule is that public officers are personally liable for the costs incurred in mandamus proceedings to compel them to perform duties which they are required by law to perform. 38 C.J. 954.
Prior to 1925 our general statutory provision, applying in all cases wherein an officer prosecuted or defended "on behalf of the state or county, or any subdivision thereof," declared that he should not be taxed with costs or assessed damages, but that these should be "taxed to the state or county, as the case may be" (section 9810, Rev. Codes 1921), while, with reference to mandamus proceedings, it was merely declared that, "if judgment be given for the applicant, he may recover the damages which he has sustained, * * * together with the costs" (section 9858, Id.).
As illustrative of when, and when not, section 9810 applies in favor of a public officer, it is held in Griggs v. Glass, 58 Mont. 476, 193 P. 564, that, where the Attorney General brought action in the name of the state, seeking to oust a county official for alleged misconduct in office, the action was on behalf of the public affected, i. e., the county, "to the end that we may have faithful public officers," and therefore, on losing the case, neither the relator nor the state should be cast in costs, but that they were proper charges against the county. But where action was brought against a city, its mayor, treasurer, and clerk to compel issuance of salary warrants to relator, and the officers defended on the ground that relator did not possess the necessary qualifications to hold his office, it was held that no cause of action was stated against the city or the treasurer, as neither was chargeable with the duty to issue warrants, and that "the record is barren of any showing" that the other officers, in defending as they did, were acting on behalf of the city. Mr. Chief Justice Callaway, speaking for the court, declared that, "so far as the record discloses, they were acting upon their own initiative in doing what they did." State ex rel. Shea v. Cocking et al., 66 Mont. 169, 213 P. 594, 597, 28 A. L. R. 772. In the latter case the court called attention to the fact that section 9810, above, did not "in terms" include municipal officers in its exemption, and suggested that the section might well be amended to conform to the California statute on the subject. This suggestion was promptly acted upon by the Legislature, section 9810 being amended to include municipal officers and municipalities in its provisions (chapter 9, Laws of 1925), and section 9858, above, was thereupon amended, by adding thereto the following proviso, added by California to its like statute in 1913: "Provided, however, that in all cases where the respondent is a state, county or municipal officer all damages and costs, or either, which may be recovered or awarded shall be recovered and awarded against the state, county or municipal corporation represented by such officer, and not against such officer so appearing in said proceeding and the same shall be a proper claim against the state or county or municipal corporation for which such officer shall have appeared, and shall be paid as other claims against the state, county or municipality are paid; but in all such cases, the court shall first determine that the officer appeared and made defense in such proceeding in good faith." Chapter 5, Laws of 1925.
It is suggested that there exists a conflict between the two sections, as amended, as section 9858 now requires a finding of good faith, while section 9810 does not. There is no difficulty here, however, since the former is a special statute applying only in mandamus proceedings, while the latter applies generally to all forms of actions other than such proceedings, under the well-known rule of construction announced in State ex rel. Daly v. Dryburgh, Mayor, 62 Mont. 36, 203 P. 508.
Aside from the provision with reference to "good faith," the two sections, as amended, differ, in that section 9810, as amended, exempts officers from liability when they appear "on behalf of" the state, county, or municipality, while 9858, as amended, declares that the damages and costs shall be awarded against the body "represented" by the officer so appearing; but, when used in connection with a court action, the two mean the same thing-To "represent" another in court means to conduct and control the proceeding "on behalf of" that other ( Carpenter v. Superior Court, 75 Cal. 596, 19 P. 174); to stand in the place of and act for the one represented (Plummer v. Brown, 64 Cal. 429, 1 P. 703; Chase v. Swayne, 88 Tex. 218, 30 S.W. 1049, 53 Am. St. Rep. 742).
The relator's affidavit for the writ, which is his complaint herein, bases a "count" upon each of the 12 city warrants on which payment was refused by the defendant treasurer. Each count alleges that the relator is the owner and holder of the warrant therein described and set out in full, which warrant "was duly and regularly executed, drawn upon the treasurer * * * pursuant to the direction of the city council, * * * signed by the mayor * * * and countersigned by the city clerk, * * * bearing the corporate seal" and made payable to relator and out of the general fund of the city. Each warrant recites that it is for salary "Asst, City Treasurer." Each count then alleges the duty of the treasurer to pay warrants so issued, when presented to him for payment, if in funds, otherwise to register them for want of funds, and alleges presentation and willful and arbitrary refusal of the treasurer to either pay or register the warrant at the time of presentation.
Answering each of the counts, defendant admits his official capacity, and that he is in charge of the city money; denies that he has information on which to form a belief as to the allegations that the warrant was issued in the manner alleged, but admits "the form of the warrant as set out." He admits that he refused to pay or register each of the warrants; and alleges that he did so "because of the fact that said warrant alleged was not in fact and in truth any valid or legal obligation against the city of Butte, or such instrument as your defendant was required by law to pay"; denies that he acted willfully or arbitrarily; and alleges that he refused "in good faith" and to prevent the public moneys under his charge from being unlawfully diverted.
Having answered each of the 12 counts, defendant interposed a special defense, setting up the ordinance of the city establishing a budget system showing the budgeting of his office and the amount appropriated for the conduct of his office, including the amount for the payment of his salary and that of his deputies. He alleges that thereafter he, as city treasurer, employed such deputies as were necessary to do the work and without whose help he could not...
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