State v. Wittmer

• Decision Date: 27 November 1914
• Docket Number: 3419.
• Citation: 144 P. 648,50 Mont. 22
• Parties: STATE EX REL. KLICK v. WITTMER.
• Court: Montana Supreme Court

144 P. 648

50 Mont. 22

STATE EX REL. KLICK v. WITTMER.

No. 3419.

Supreme Court of Montana

November 27, 1914

Appeal from District Court, Cascade County; H. H. Ewing, Judge.

Action by the State, on the relation of Theodore Klick, against J G. Wittmer. From a judgment for defendant rendered after sustaining a general demurrer to the complaint, the relator appeals. Reversed and remanded.

E. A Smith, of Great Falls, for appellant.

Cooper & Stephenson, of Great Falls, for respondent.

SANNER J.

Appeal from a judgment after an order sustaining a general demurrer to the complaint. The facts recited are: That the city of Great Falls possesses five wards, and its common council consists of ten aldermen, two from each ward. That on June 30, 1913, J. G. Wittmer was, and since April 13, 1913, had been, one of the duly elected, qualified, and acting aldermen from the Fifth ward of said city. That on June 30th he was appointed by the mayor to the office of "city purchasing agent," which office had been created by ordinance approved May 26, 1913. That his appointment was confirmed by the council and he immediately accepted, qualified, and entered upon the duties of said office, and has since received and enjoyed the salary attached thereto, to wit, $50 per month; that at the regular meeting of the city council of Great Falls held September 2, 1913--all the members thereof as well as the mayor being present, the said Wittmer assuming to act as alderman from the Fifth ward--the following resolution was presented and read by Alderman Johnston:

"Whereas there exists a vacancy in the office of alderman from the Fifth ward, caused by the appointment and qualification of former Alderman J. G. Wittmer to the office of city purchasing agent, an office incompatible with the office of alderman, I hereby nominate Theodore Klick, residing at 611 First Avenue Southwest, within the said Fifth ward, by occupation a stable boss, to fill such vacancy."

That said nomination was duly seconded, but the mayor refused to entertain the same, and, on appeal from the decision of the chair, five aldermen voted against sustaining such decision. That the mayor, however, declared a tie by including the vote of Wittmer with four others to sustain said decision, and thereupon resolved the tie by himself voting to sustain such decision. That thereupon five aldermen "requested the recording of their votes in favor of the nominee--Theodore Klick--as alderman from the Fifth ward to fill the vacancy herein alleged," which five votes were so recorded by the city clerk and made part of the records of the proceedings of the council. That Klick possesses the necessary qualifications to hold the office of alderman and filed his official oath in due time, but Wittmer persists in unlawfully acting and intruding himself into such office.

The questions presented are: Was there a vacancy in the office of alderman from the Fifth ward to be filled by the election of the city council; and, if there was, was the relator elected thereto?

1. Whether a vacancy occurred in the office of alderman in consequence of the acceptance by Wittmer of the appointment as purchasing agent depends upon the power of the city council to create such office, and upon the nature of the office. No question is raised as to the power of the city council to create this office, and we shall therefore assume, without deciding, that it had such power. By reference to the ordinance creating the office we learn:

"The city purchasing agent shall be appointed by the mayor. * * * His duties shall be to make all purchases of sundries and supplies for all departments of the said city; he shall keep a complete record of all his purchases, acts and doings, an accurate account of all the supplies purchased and the price paid therefor. * * * That all bills against the city for purchases shall be filed with the purchasing agent, who shall examine and approve or disallow the same and recommend to the council the payment or rejection of the same, and report the said bills to the said council at its first regular meeting in each month, or oftener, for allowance or rejection by the said council. * * * The said purchasing agent shall, before entering upon his duties, take the oath of office and execute a bond in such sum as the council may require, but for not less than $1,000, * * * the same to be in proper form and approved by the city council."

We think the office thus created and defined is clearly incompatible with the office of alderman. Offices are "incompatible" when one has power of removal over the other (29 Cyc. 1382; Attorney General v Council, 112 Mich. 145, 70 N.W. 450, 37 L. R. A. 211), when one is in any way subordinate to the other (State v. Jones, 130 Wis. 572, 110 N.W. 431, 8 L. R. A. [ N. S.] 1107, 118 Am. St. Rep. 1042, 10 Ann. Cas. 696), when one has power of supervision over the other (State v. Taylor, 12 Ohio St. 130; Cotton v. Phillips, 56 N.H. 220; State v. Hilton, 80 N. J. Law, 528, 78 A. 16), or when the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both (Mechem on Public Officers, § 422; State v. Anderson, 155 Iowa, 271, 136 N.W. 128; State v. Thompson, 122 N.C. 493, 29 S.E. 720; State v. Goff, 15 R.I. 505, 9 A. 226, 2 Am. St. Rep. 921; Magie v. Stoddard, 25 Conn. 565, 68 Am. Dec. 375; People v. Commissioners, 76 Hun, 146, 27 N.Y.S. 548; State v. Buttz, 9 S. C. 156). The relations between the office of alderman of Great Falls and that...