Steel v. Board of R. R. Com'rs, 10843
| Decision Date | 08 December 1964 |
| Docket Number | No. 10843,10843 |
| Parties | , 56 P.U.R.3d 487 Ernest C. STEEL, Plaintiff and Appellant, v. BOARD OF RAILROAD COMMISSIONERS et al., Defendants and Respondents. |
| Court | Montana Supreme Court |
Risken & Scribner, Arthur W. Scribner (argued), Helena, for appellant.
Forrest H. Anderson, Donald A. Douglas (argued), William E. O'Leary (argued), Rankin & Acher, Wellington D. Rankin (argued), and Ross Cannon (argued), Helena, for respondents.
This is an appeal from certain orders entered in an injunctive proceeding in the district court of Lewis and Clark County.
The record discloses that on July 8, 1964, plaintiff filed a complaint alleging that he was a citizen and taxpayer of the state of Montana; that the Board of Railroad Commissioners, hereinafter referred to as the Board, was a state administrative agency and that the defendants Paul T. Smith, Jack Holmes and Louis G. Boedecker are the duly-elected members thereof; that defendant E. V. 'Sonny' Omholt is the state auditor; that defendant Edna J. Hinman is the state treasurer; that Chapter 205 of the 1963 Session Laws provided for the appointment by the Board of a supervisor of motor carriers and further provided: 'The supervisor shall be either an attorney admitted to practice law in the state of Montana, or a person qualified by at least five (5) years of suitable experience and training in appropriate phases of the motor carrier industry; * * *.' Also on or about June 8, 1964, the Board appointed defendant Paul Cannon such supervisor contrary to and in violation of the above-quoted provision of the law because Cannon is not an attorney or a person qualified by at least five years of suitable experience and training in appropriate phases of the motor carrier industry, and since he did not fulfill the requirements set forth in the law he was not qualified to act in that position; that Cannon has been paid for his services by the issuance of a warrant by the auditor and payment thereof by the treasurer and unless they are restrained and enjoined during the pendency of the action irreparable damage will be done to the taxpayers of the state; and that plaintiff brings the action on behalf of himself and all other taxpayers in the state and that they have no plain, speedy or adequate remedy at law.
Plaintiff prayed, so far as pertinent here, for injunctions against the Board to prohibit the employment of Cannon; against Cannon to prohibit him from acting as supervisor or drawing a salary in such capacity; and against the auditor and treasurer to prohibit them from drawing or paying out the funds of the state on any claim of Cannon.
On the same day an order to show cause was issued which stated that a temporary restraining order, without hearing, was denied but ordered defendants to appear before the court and show cause, if any they had, why such injunctions should not be issued against them as prayed.
The auditor and treasurer filed a return and answer and alleged that in drawing a warrant and paying the same they were exercising their respective public offices in a lawful manner, and that if a claim or claims for payment of salary to Cannon are audited by the state controller and filed in the auditor's office he must draw the warrant and the treasurer must pay the same pursuant to duties enjoined upon them by statute. They prayed that judgment be entered denying an injunction.
Defendant Cannon appeared by motion to quash the order upon the grounds that plaintiff had not shown such interest or that he will suffer such injury as to authorize issuance of a temporary injunction; that injunction does not lie to control the discretionary power of the Board; that injunction is not a proper remedy; and that since plaintiff does not himself claim any right to the position the cause cannot be construed as quo warranto and its prosecution by plaintiff as such a proceeding is prohibited by section 93-6405, R.C.M.1947.
The defendant Board appeared by return and answer and moved to quash the order upon much the same grounds as defendant Cannon, and in addition that such an injunction proceeding is forbidden under the provisions of section 93-4203, R.C.M.1947, subds. 4 and 6.
Upon the return day, the court heard arguments of counsel and the matter was submitted on briefs. On July 28, 1964, the court made and entered the orders appealed from, the first of which granted the motion to quash filed by the defendant Board and refused to grant an injunction against it and the members thereof; the second refusing to grant an injunction against the defendants, state auditor and state treasurer; and the third granting the motion to quash of the defendant Paul Cannon and refusing to grant an injunction against him, and in each order granted the defendants twenty days in which to further plead. At the same time the court issued a written opinion in which it stated that its rulings were based upon the opinion of this court in Holtz v. Babcock, 143 Mont. 341, 389 P.2d 869, 390 P.2d 801.
Plaintiff's specifications of error challenge these rulings by the court and contend that a taxpayer may bring an action to restrain waste when an individual assumes to act illegally in an official capacity. This contention is based primarily upon the holdings of this court in State ex rel. Mitchell v. Holmes, 128 Mont....
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