Territory v. Van Gaskin

• Decision Date: 31 January 1885
• Citation: 6 P. 30,5 Mont. 352
• Parties: TERRITORY ex rel. ROBERTSON v. VAN GASKIN and others.
• Court: Montana Supreme Court

6 P. 30

5 Mont. 352

TERRITORY ex rel. ROBERTSON v. VAN GASKIN and others.

Supreme Court of Montana

January 31, 1885

Appeal from First district, Custer county.

Chumasero & Chadwick and Andrew F. Burleigh, for appellant.

W. F Sanders and Strevell & Garlock, for respondents.

GALBRAITH J.

This is an appeal from a judgment for the defendants, rendered in pursuance of an order sustaining a demurrer to the complaint. The complaint was, in substance, as follows, viz.:

"That the district attorney of the First judicial district, in which is situate the county of Custer, has been applied to to bring this action, and that he has refused so to do upon the complaint of the appellant, who therefore brings this action upon his own relation; that the respondents have intruded into the offices of county commissioners of said county, and now unlawfully hold and exercise the said offices; that on the seventh day of November, 1882, the appellant was duly elected to the office of county commissioner of said county and that he did, within the time prescribed by law, qualify himself to hold said office, and entered upon the performance of its duties, and is still entitled to the said office and the emoluments thereof; that on or about the first day of May 1882, Russell Briggs was duly appointed by the probate judge of said county as one of the commissioners thereof, to fill a vacancy, and duly qualified, and entered upon the duties of the office; that on or about the first day of September, 1882, James B. Hubbell was duly appointed one of the commissioners of said county, to fill a vacancy, who also duly qualified and entered upon the duties of the office; that on or about the fifteenth day of March, 1883, at the time of the alleged unlawful intrusion, while the three last-named persons were in possession of and entitled to these offices, the respondents usurped and intruded into and now unlawfully hold them, and withhold the same from the relator, and said Briggs and Hubbell. Wherefore, the appellant asked that the respondents be ousted from said offices, and the relator, and Briggs and Hubbell, be restored thereto."

The demurrer was upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The question presented by this demurrer relates to the validity of an act of the legislative assembly of Montana territory, (Laws of the Thirteenth Regular Session, 140,) by which the offices of county commissioners of Custer county were declared vacant; the relator, and Briggs and Hubbell, being the then incumbents of said offices, and the respondents appointed to fill the vacancies. The language of the statute, so far as it is necessary to state it, is as follows:

"That the offices of county commissioners of the county of Custer be, and the said offices are, hereby declared to be vacant, and no official duty shall be performed by the persons constituting the present board of county commissioners, except to make report, *** and that William Van Gaskin, George M. Miles, and Thomas J. Bryan are hereby appointed commissioners of Custer county."

The act then provided for the election, upon the third Monday of April following, of three commissioners of Custer county, who, after their election and qualification, should act as said commissioners, and enter upon their official duties; and thereupon the powers and duties of said commissioners herein appointed shall cease. The act was approved March 8, 1883.

It is claimed by the appellant that the above act is invalid for the alleged reason that it contravenes the constitution of the United States and the laws of congress. The declaration that the act of a co-ordinate branch of the government has been done in disregard of constitutional limitations is the exercise of a solemn function, and one which courts will exert with delicacy and reluctance. An act of the legislature should not be adjudged to be in violation of the constitution except where plainly repugnant thereto. The act will be presumed to be constitutional until the contrary is clearly and satisfactorily shown. "Plenary power in the legislature is the rule. A prohibition to exercise a particular power is the exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show it is forbidden." DENIO, C.J., in People v. Draper, 15 N.Y. 532. A court "cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guarantied or protected by the constitution." Cooley, Const. Lim. 197. In a case of this kind it is only with the power of the legislature, viewed in relation to the fundamental law, and not with the expediency or propriety of its legislation, that the court has to do. These are matters for the consideration of the legislature itself, when it enacts the law. The above act can only be declared invalid because it violates the constitution of the United States or the acts of congress, or interferes with or prevents the exercise of some right conferred or protected thereby. The act of congress in relation to county officers is as follows:

"All township, district, and county officers, except justices of the peace and general officers of the militia, shall be appointed or elected in such manner as may be provided by the governor and legislative assembly of each territory."

It will be observed that this act uses the term "county officers," thus recognizing the political division of the territory into counties, and the necessity for and the existence of such officers for their government; but the particular office of county commissioner is not named therein, and the creation thereof was left entirely to legislative enactment. The office of county commissioner in this territory does not exist by virtue of common law, but by statutory law; and we find that the legislative assembly, in providing for the government of counties, acted in accordance with both these views. It created the office of county commissioner. It provided that "the powers of the county, as a body corporate and politic, shall be exercised by a board of county commissioners therefor." Rev. St. 1879, p. 479, § 337. "The board of county commissioners shall consist of three qualified electors, any two of whom shall be competent to transact business."

The creation, therefore, of the office of county commissioner, the manner of their selection, whether by election or appointment, the term or the period during which they shall act, the character of the duties to be performed, and the compensation to be paid for the performance of such duties, are entirely the subject of legislative enactment. There is nothing in the above act of congress which in any way limits the power of the legislative assembly in respect to the foregoing particulars. All the above matters relating to county commissioners are by this act committed to the governor and legislative assembly of the territory, when acting together in a legislative capacity, to be provided for according to their discretion. So far, therefore, as the above act of congress is concerned, this office, having been created by legislative enactment, was wholly under legislative control. It had the power to lengthen or abridge the term of office, or to declare the office vacant and appoint another to fill the vacancy, at least in so far as to make a provisional appointment was concerned. By the enactment of the law appointing the respondents to the office thereby declared vacant, until the commissioners thereafter to be elected assumed the duties of their office, the governor and the legislative assembly acted within the limits of the act of congress which required that the county officers should be appointed or elected in such manner as they might provide. The governor and legislative assembly have the power to provide the manner of the appointment; therefore they had the power to appoint directly. The law was "the manner" of the appointment. "Where an office is created by statute, it is wholly within the control of the legislature. The term, the mode of appointment, and the compensation may be altered at pleasure, and the latter may even be taken away without abolishing the office. Such extreme legislation is not to be deemed probable in any case. But we are now discussing the legislative power, not its expediency or propriety. Having the power, the legislature will exercise it for the public good, and it is the sole judge of the exigency which demands its interference." SANDFORD, J., in Conner v. City of New York, 2 Sandf. 355, 369.

We may say here, in relation to the legislation in question, that the presumption will be that it was had for the public good and that the exigency of the case required its enactment. "The selection of officers, who are nothing more than public agents for the effectuating of public purposes, is a matter of public convenience or necessity; and so, too, are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can constitute any obligation to continue such agents, or to reappoint them after the measures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised compensation for services actually performed and accepted during the continuance of the particular agency may undoubtedly be claimed, both upon principles of compact and of equity; but to insist beyond this upon the perpetuation of a public policy either useless or...