State v. Sullivan
| Decision Date | 13 December 1913 |
| Parties | STATE EX REL. HILLIS v. SULLIVAN, COUNTY TREASURER. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; Roy E. Ayers Judge.
Proceeding by the State, on relation of W. W. Hillis against Stephen Sullivan, as Treasurer of Lewis and Clark County. From a judgment directing the issuance of a peremptory writ of mandate and an order denying a new trial, defendant appeals. Reversed and remanded, with directions.
Andrew H. McConnell, Co. Atty., and Joseph P. Donnelly, Asst. Co. Atty., both of Helena, for appellant.
Chas H. Cooper, of Helena, for respondent.
This cause was presented to the district court upon an agreed statement of facts, and judgment was entered directing that a peremptory writ of mandate issue to the appellant, as county treasurer of Lewis and Clark county, requiring him to pay to the respondent the sum of $100 for services rendered as court attendant for the month of June, 1913. From that judgment and from an order denying him a new trial, the treasurer has appealed. The following are the material facts: The Honorable J. Miller Smith is, and since January 6, 1909, has been, one of the judges of the First judicial district of this state presiding over department No. 2. On January 6, 1909, the respondent was appointed by Judge Smith as court attendant in said department No. 2, and ever since that time he has performed the duties required of him, devoting "all the working hours of every judicial day to the care and custody of the courtroom, the judge's chambers, and all the books, papers and other property connected with the said court and the judge thereof." He also acts as crier of said court, opening and adjourning court, and "when the court is engaged in the trial of cases, with a panel of jurors in attendance, takes care of jurors, under the usual oath, and performs all the duties required of bailiffs and court attendants" in the district court. For these services he was, up to and including the month of May, 1913 paid the sum of $100 per month, but on May 1, 1913, he received a notice from the board of county commissioners of Lewis and Clark county, to the effect that from and after June 1, 1913, bailiffs or court attendants would be allowed the sum of $3 per day "for those days upon which the jury was in attendance at their respective courts." On June 30, 1913, he made out his receipt in the sum of $100 for salary as court attendant for the month of June, 1913, and, after indorsement of approval by the county auditor, presented the same to the board of county commissioners; but the board declined to allow or authorize payment of such sum for the reason that under its above-mentioned order there was not due to the relator to exceed $24 for the eight days of June upon which a jury was present in department No. 2. Thereupon the relator cast his demand into the form of a verified claim, in which he recited that his services had been rendered "at the special instance and request of the judge presiding," presented the same to Judge Smith who, on July 3, 1913, indorsed it as follows: "It is hereby certified that the foregoing claim and account is correct, and a proper charge against the county treasury of Lewis and Clark county, and must be paid out of the general fund thereof; and the treasurer of Lewis and Clark county is hereby authorized and directed to pay the same." A similar order was on the same day entered on the minutes of the court, preceded by the following recitals: "The board of county commissioners of Lewis and Clark county not having provided a court attendant for department No. 2 of this court, and a court attendant being necessary in said department of this court for the proper and expeditious transaction of the business of this court, and the judge of department No. 2 of this court having heretofore requested and appointed W. W. Hillis to act as court attendant of department No. 2 of this court, and the said W. W. Hillis having presented his claim and account for services, * * * it is hereby certified," etc. Notwithstanding the above indorsement and order, the county treasurer refused and still refuses to pay the respondent's claim. In the agreed statement of facts there appears this further recital: "That immediately upon the qualification of the sheriff of Lewis and Clark county, Mont., he offered to perform the duties of court bailiff as required of him under the statute, and has ever since been willing, and is now willing, to perform such duties specified in the statute; but the court objected, as the relator herein had been and is now performing such services."
Briefly stated, the position of the appellant is that by the statute it is made the duty of the sheriff to attend upon the district court, act as crier thereof, call the parties, witnesses, and all other persons bound to appear, and make proclamation of the opening and adjournment of court, and of any other matter under its direction (Rev. Codes, §§ 3010, 3026); that by the statute the board of county commissioners is charged primarily with the care of the property and the disbursement of the funds of the county, and upon them, in the first instance, is imposed the duty of furnishing suitable rooms, attendants, etc., for the district court (Rev. Codes, §§ 2894, 6302); that if the board shall fail to furnish suitable rooms, attendants, etc., the court may direct the sheriff to procure them, and, when so procured, the expense thereof, certified by the judge, is a proper charge upon the county (Rev. Codes, § 6302); and that if the court has any power to appoint an attendant to perform the service required of the respondent, to fix his compensation, and make it a county charge payable without the assent of the board, such power can only be exercised upon and during necessity, and after the failure or refusal of the sheriff to perform such service, or that of the board to furnish the same.
On behalf of respondent we are favored with an elaborate and able brief, devoted to the demonstration of the following propositions: That by the Constitution of this state the powers of government are divided into three distinct departments: The legislative, the executive, and the judicial. That no person or collection of persons charged with the exercise of powers properly belonging to one of these departments can lawfully exercise any powers properly belonging to either of the others, save as expressly authorized by the Constitution. That the whole judicial power of the state is vested by the Constitution in the judicial department, of which the district court is an integral part. That the district court is a court of record and, as the one court of general original jurisdiction in this state, is vested with all the powers necessarily incident to the full and free exercise of all its functions, save as limited by the Constitution. That included in these powers is the right to appoint its own attendants whenever necessary, and to itself determine the necessity in every case. That included in the right to appoint is the right and power to fix their compensation. As a conclusion from these postulates, it is contended that the district judge was authorized to appoint the respondent, to impose upon him the duties which he has performed, to fix his compensation, and to make it a liquidated charge upon the county, without regard to the neglect or default of either the board or the sheriff in the premises. We should be loath indeed to question any of the above propositions; but we think that, properly understood, they make for a conclusion quite different from that for which the respondent contends.
"It is an elementary rule," said this court in State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 P. 94, "that Constitutions are to be construed in the light of previous history and the surrounding circumstances." The framers of our Constitution spoke in general terms, and their intention is to be ascertained not merely from the language used, but "in the light of our history, the surrounding circumstances, the subject-matter under consideration, and the object sought to be attained." Northern P. Ry. Co. v. Mjelde, 48 Mont. 287, 137 P. 386. Our Constitution uses many terms that it does not define, provides for many offices the duties of which it does not prescribe. "In judging what it means, we are to keep in mind that it is not the beginning of law for the state, but that it assumes the existence of a well-understood system which is still to remain in force and be administered, but under such limitations and restrictions as that instrument imposes." Cooley's Const. Limitations (7th Ed.) p. 94; Constitution of Montana, Scheddule 1; Wastl v. Montana Union Ry. Co., 24 Mont. 159, 61 P. 9.
When the Constitution was adopted, "the previous history" of this community, "the well-understood system" then in use, included a political organization of more than 20 years' standing, which was republican in form, constitutional in character, and broadly resembled in all but complete autonomy the scheme of government with which we are familiar. Then, as now, the common law was "the law and rule of decision," save as affected by legislation. There was also an extensive body of statute law all of which was continued in force except where inconsistent with the Constitution. Schedule, § 1. And there were such instrumentalities of government as district courts, sheriffs, and county commissioners. These instrumentalities were continued by the Constitution--the district court with an expression of its general jurisdiction only, the sheriff and county commissioners without any definition whatever. The Constitution is not a grant, but a limitation, of power (Northern P. Ry. Co. v. Mjelde, supra; In...
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