State v. Tyler
| Decision Date | 03 July 1922 |
| Docket Number | 5115. |
| Citation | 208 P. 1081,64 Mont. 124 |
| Parties | STATE EX REL. LOCKWOOD ET AL. v. TYLER ET AL. |
| Court | Montana Supreme Court |
Original application by the State of Montana on the relation of L. V Lockwood and another against R. G. Tyler as member and the chairman of the county commissioners of Sheridan county Montana, and others for a writ of mandamus. Writ granted as to defendants R. G. Tyler and B. K. O'Grady, county clerk and recorder of Sheridan county.
Hurly Kline & Slattery, of Glasgow, and Howard M. Lewis, of Plentywood, for relators.
Alfred T. Vollum and Arthur C. Erickson, both of Plentywood, for respondents.
Wheeler & Baldwin, of Butte, for respondents O'Grady and Olson.
Original application for a writ of mandamus based upon a petition alleging substantially as follows: That the relators, Lockwood and Blakeslee, as copartners, entered into a contract with Sheridan county for the classification of certain lands in that county under the provisions of chapter 89, Session Laws of 1919, Sixteenth legislative assembly. During the performance of the work, an injunction suit was brought by one Clair Stoner for the purpose of testing the validity of the contract, and the legislative act under the authority of which it was made. The district court, after a hearing, denied the application for an injunction, whereupon the plaintiff Stoner appealed, and this court held the act unconstitutional. Stoner v. Timmons, 59 Mont. 158, 196 P. 519. After the filing of the remittitur in the district court, that court granted a perpetual injunction, restraining the county officials of Sheridan county from carrying out the provisions and terms of the contract, which judgment was based upon the opinion of this court, no new hearing upon the facts having been had after the receipt of the remittitur. After the decision in the Stoner Case, the state Legislature passed another act, providing for the classification of lands for assessment and taxation purposes, in which it was provided, among other things, that--
* * *" Section 4, c. 239, Session Laws 1921.
While the Stoner Case was pending on appeal, and before the decision of this court thereon, the petitioners Lockwood and Blakeslee, on January 3, 1921, filed with the board of county commissioners of Sheridan county seven claims or bills, aggregating $7,113.91, the same constituting a balance claimed to be due upon the contract. After these claims were presented, the board took no action thereon, whereupon, on January 15, 1921, the relator Lockwood commenced an action in the district court of Sheridan county for a writ of mandamus, pursuant to which an alternative writ was issued, directed to the members of the board of county commissioners as such board, B. K. O'Grady, clerk and recorder, and D. J. Olson, substituted for Rex M. Movius, his predecessor in office, as county treasurer, commanding them to do and perform certain acts in connection with the allowance of the claims of Lockwood and Blakeslee, the relators herein, against the county for the classification of lands for taxation and assessment purposes. Thereafter such proceedings were had in the action that on January 22, 1921, the district court made and entered its judgment that a peremptory writ of mandate issue against the members of the board of county commissioners, directing the performance of the acts above mentioned. Thereafter the commissioners appealed from that judgment to this court, which appeal was thereafter dismissed. While the case was pending in this court on appeal, the members of the board of county commissioners appeared before the district court, stating that they had abandoned the appeal, and asked that the district court issue a writ of mandate, and pursuant thereto the court made an order, amending its judgment of January 22d, and required the board to meet on May 27 and settle and allow the said claims and order warrants to be drawn on the classification fund in payment thereof, and issued a peremptory writ in accordance with the terms of the judgment as amended. The board convened pursuant to the writ, and, as commanded, settled and allowed the claims of the relators, Lockwood and Blakeslee, and ordered warrants in payment thereof to be drawn.
That thereupon it became the duty of the respondent O'Grady, as county clerk, to draw warrants of Sheridan county on the classification fund thereof to the order of relators, and the duty of respondent Tyler to sign and execute the warrants, as chairman of the board, and the duty of the respondent O'Grady, as county clerk, to sign and execute the said warrants, and the duty of Tyler and O'Grady to deliver the warrants to relators; that neither Tyler nor O'Grady has signed, executed, or delivered any warrant to the relators, or either of them, on account of said claims, or any of them, and that Tyler and O'Grady refuse to sign, execute, or deliver any warrant or warrants to relators, or either of them, for the allowed claims, or any of them; that the said Tyler and O'Grady did sign certain pretended warrants, but did not fill in any amount in any of the pretended warrants, and did not attach the seal of Sheridan county to any of them, and that these pretended warrants Tyler and O'Grady delivered to the respondent Olson, who ever since has had them and now has them in his possession.
An alternative writ of mandamus was issued by this court, commanding the respondent Tyler, as chairman of the board of county commissioners of Sheridan county, and the respondent O'Grady, as county clerk of said county, to make, execute, and deliver to relators a warrant of Sheridan county on the classification fund thereof for each claim described in the relators' petition, the warrants to be dated as of May 27, 1921, and commanding the respondent Olson, as county treasurer, to register the warrants as of said May 27, 1921, or that they show cause why they should not do as commanded in the alternative writ.
The respondent Tyler, as chairman of the board of county commissioners, has not appeared, and as to him the allegations of the petition are to be considered as confessed. The respondents O'Grady and Olson have separately appeared by motion to quash, challenging the sufficiency of the relators' petition. O'Grady and Olson have also filed a joint answer, to which the relators have demurred on general grounds. No issue of fact is presented requiring its submission to a referee, as has been suggested by respondents, and the cause can be determined upon the questions of law presented by the pleadings.
The respondents first question the propriety of this court exercising original jurisdiction. The facts set out in the petition constitute more than a mere controversy between private litigants. The subject-matter of this controversy has been before this court in two preceding cases. Stoner v. Timmons, supra; State ex rel. O'Grady v. District Court, 61 Mont. 346, 202 P. 575. In the first case the court held unconstitutional the Land Classification Act, which is the very basis of all this litigation. The state Legislature has since enacted a remedial statute. Chapter 239, Session Laws 1921. The effect of this remedial legislation upon the final judgment rendered by the district court in Stoner v. Timmons, pursuant to the order of this court, is one of the questions here raised. The petition involves questions publici juris, and upon the facts as stated in our opinion the failure to exercise original jurisdiction would amount to a denial of justice.
As to the case sought to be made against the respondent D. J Olson, as county treasurer: It is the opinion of the court that the petition does not state facts sufficient to justify the granting of the relief sought as to the county treasurer. Until a county warrant in proper form is presented to D. J. Olson, as county treasurer, and he has either refused to pay it, if there is money in the county treasury for that purpose, or, if there are not sufficient funds in the county treasury, he has refused to register it as "not paid for want of funds," it cannot be said that he has refused to perform any act which the law specifically enjoins upon him as a duty resulting from his office. The basis of relators' cause of action against the chairman of the board of county commissioners and the county clerk is that no warrant in proper form has been issued. A "warrant" not properly made out,...
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