State v. Peck

• Decision Date: 17 November 1931
• Docket Number: 6916.
• Citation: 4 P.2d 1086,91 Mont. 5
• Parties: STATE ex rel. PETERSON et al., Town Council, v. PECK, Mayor.
• Court: Montana Supreme Court

4 P.2d 1086

91 Mont. 5

STATE ex rel. PETERSON et al., Town Council, v. PECK, Mayor.

No. 6916.

Supreme Court of Montana

November 17, 1931

Appeal from District Court, Toole County; R. M. Hattersley, Judge.

Mandamus by the State, on the relation of Jack Peterson and others members of the Town Council of the Town of Sweet Grass, Toole County, against M. L. Peck, Mayor of the Town of Sweet Grass Toole County. From a judgment dissolving an alternative writ of mandate directed to the defendant, relators appeal.

Affirmed.

R. L Clinton and W. M. Black, both of Shelby, for appellants.

Louis P. Donovan and Henry McClernan, both of Shelby, for respondent.

GALEN J.

This is an appeal from a judgment dissolving an alternative writ of mandate directed to the respondent, M. L. Peck as mayor of the town of Sweet Grass. The only question involved is whether the court erred in refusing to make the writ peremptory.

From the pleadings and proof it appears without dispute that at all of the times herein mentioned, and now, the respondent was the duly elected, qualified, and acting mayor of the town of Sweet Grass. Ray Barkuloo, who was the acknowledged clerk of the town of Sweet Grass, resigned his office on or about the 14th day of May, 1931, and removed to the city of Great Falls. Before leaving he delivered the minute books of the town council, the warrant register, book of town ordinances and other town papers and documents to one Eva Merritt, at respondent's direction. After Barkuloo's resignation, the mayor named her to be the city clerk, but the city council refused to confirm her appointment or to conduct any meeting while she was present, assuming to act as clerk; and therefore the mayor at the regular monthly meetings held in June and July, although all councilmen were present, directed Mrs. Merritt to mark them absent, as they refused to answer roll call made by her and adjourned the meetings. Mrs. Merritt states that she has never been requested by any of the councilmen to inspect any of the books or documents of the town in her possession, and that they or any of them are welcome to inspect the same at any time during business hours. There has been much ado and neglect of the business and affairs of the town, all because the mayor insists that Mrs. Merritt shall be the town clerk, and the city council has refused to confirm her appointment or to officially recognize her.

The town clerk is an appointive officer, and the mayor of a city or town has power "to nominate, and, with the consent of the council, to appoint all non-elective officers of the city or town, provided for by the council." Subdivision 1, § 5030, Rev. Codes 1921. The power to nominate to fill a non-elective office also includes like authority when a vacancy arises therein; but in either event the appointment is not effective until concurred in by a majority of the city or town council. And, when duly appointed, it is expressly made the duty of the clerk of a city or town "to file and keep all records, books, papers, or property belonging to the city or town, and to deliver the same to his successor when qualified." Id. 5033, subd. 5. But in this instance there is no clerk of the town. The books, documents and papers are in the possession of one Eva Meritt, a stranger, whom the city council refuses to recognize as a town officer. Her possession of them may be considered as the mayor's possession, since they were delivered to her and by her held at his direction. The statute made it the specific duty of the former town clerk to deliver the city records, books, and papers "to his successor when qualified." This he could have been compelled to do as an especial duty enjoined by statute. And where, as in this instance, there be no clerk, then, under the facts in this case, it is the duty of the mayor as representative of the town to care for and preserve such documents...