State v. Rogers

• Decision Date: 26 January 1933
• Docket Number: 7060.
• Citation: 18 P.2d 617,93 Mont. 355
• Parties: STATE ex rel. SANDQUIST v. ROGERS, Mayor.
• Court: Montana Supreme Court

18 P.2d 617

93 Mont. 355

STATE ex rel. SANDQUIST v. ROGERS, Mayor.

No. 7060.

Supreme Court of Montana

January 26, 1933

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

Action by the State, on the relation of E. Sandquist, to compel W B. Rogers, as Mayor of the City of Havre, to sign warrants in payment of relator's claims for salary as city engineer. From a judgment granting a peremptory writ of mandate defendant appeals.

Affirmed.

Molumby Busha & Greenan, of Great Falls, for appellant.

A. F Lamey, of Havre, for respondent.

ANDERSON J.

The relator, Sandquist, was appointed and confirmed on May 5, 1930, as city engineer of the city of Havre, a city of the second class. He qualified soon thereafter, and was in office on May 2, 1932, when defendant Rogers became mayor of the city. On that date the mayor nominated one Wallinder as city engineer, whose nomination failed of confirmation. The following day this nominee attempted to gain control of the engineer's office, but relator refused to yield. On May 16, 1932, the mayor nominated one Tower, and again the city council refused to confirm. He likewise tried to obtain custody of the engineer's office, without result. At a meeting of the city council on the same date, by motion carried, the relator was directed to discharge the duties of the office of city engineer at the salary provided by city ordinance until his successor was appointed and qualified. He alone performed the duties of the office during the month of May, 1932. His claims for salary in accordance therewith were approved and ordered paid by the council. Warrants were issued in payment by the clerk, and the mayor refused to sign the same. This action was brought to compel the mayor to sign the warrants in payment of the claims.

The defendant appeared pursuant to an alternative writ of mandate and endeavored to show cause by motion to quash. The cause was submitted, by stipulation of the parties, to the trial court upon the pleadings filed for judgment and decision. Judgment was entered directing the issuance of a peremptory writ of mandate in accordance with the prayer of relator's petition, for costs and damages, from which judgment appeal was perfected to this court.

By ordinance of the city of Havre it was provided that "as soon as convenient after each election, the mayor shall appoint his subordinate officers subject to confirmation by a majority vote of council, as follows: *** one city engineer."

Section 5030, Revised Codes of 1921, enumerates among the powers of the mayor of a city the following: "To nominate, and, with the consent of the council, to appoint all nonelective officers of the city." Section 4996, Id., enumerates the elective and appointive officers of a city of the second class specifically, and among the latter provides "and any other officer necessary to carry out the provisions of this title." Section 4999, Id., provides: "The city *** council has the power to abolish any office, the appointment to which is made by the mayor, with the advice and consent of the council, and discharge any officer so appointed, by a majority vote of the council."

The office of city engineer of the city of Havre was an office created under the power conferred by statute and by ordinance of the city council, the incumbent of which might be removed at any time.

The nominees of a mayor who fail to be confirmed by a city council do not become effective as officers, and cannot assume that status...