208 P. 1081 | Mont. | 1922
delivered the opinion of the court.
Original application for a writ of mmdamus based upon a petition alleging substantially as follows: That the relators, Lockwood and Blakeslee, as copartners, entered into a contract
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 'ease 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
That thereupon it*5 became the duty of the respondent 0 ’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 0’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
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 Pac. 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. (Chap. 239, Sess. 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,
As to the case against B. K. O’Grady, as county clerk: The county clerk seeks to question the legality of the action of the board of county commissioners in the allowance of the claim of the relators, and its order that warrants be issued in payment thereof, for several reasons, among which is the constitutionality of the curative Act of .the legislative assembly. (Chap. 239, Sess. Laws 1921.) It is the relators’ contention that the county clerk cannot call in question the validity of the Act of the board because in the issuance of warrants pursuant to order of the board she acts ministerially.
The board of county commissioners is given power “to examine, settle, and allow all accounts legally chargeable against the county except salaries of officers, and order war
■ If it is desired by any taxpayer to question the legality of the claim, the law provides a method (sec. 4610, Rev. Codes 1921), but certainly the clerk of the board, whose duty it is to draw and sign all the warrants issued by order of the
The language of the supreme court of Oklahoma in the case of Bodine v. McDaniel Auto Co. (Old. Supp.), 170 Pac. 899, is peculiarly applicable to the facts in the instant case. The proceeding there was for a writ of mandate to require the county clerk to attest a warrant ordered drawn by the board of county commissioners of a county, in payment of a claim of the relator against the county which had been ordered paid by the board. In response to the alternative writ, the county clerk defended upon the ground that the board had no authority to make the purchase represented by the allowed claim, and the court said: “We cannot see the materiality of such argument in the present action. No claim can be paid by the county until the same is duly filed and allowed by the board of county commissioners. In case of rejection by the board, the claimant may either appeal to the district court or institute an independent action in a proper court on such claim. The authority to pass upon claims against the county is vested solely in the board of county commissioners. The duties of such board and those of the county clerk are entirely separate and independent. The county clerk has no power to approve or disapprove claims against the county, nor is there any provision for appeal from the board to such officer. The clerk, in attempting to pass upon the validity of a claim, usurps the functions of the board of county commissioners. There is no statute that makes the clerk in any way the guardian of the people’s money or property, nor is he vested with any supervision in respect thereto. The statutes provide ample means for relief in cases of misappropriation of county funds by the board of county commissioners or unauthorized expenditures of the county’s money. * * * The county clerk ñas no more authority
So far as the answer of the respondent O’Grady attempts to question the conclusion or finding of the board in settling and allowing relators’ claims, it cannot be considered. So far as she is concerned, such questions as, for example, whether the contract was entered into, whether the work -was fully performed, whether the claims were duly presented or duly allowed, are res adjudicata; the board of county commissioners, the qiiim-judieial board of the county so far as the passing on claims against the county are concerned—the body to whose determination such matters are submitted by statute —having made a determination thereof.
Respondent relies upon the case of State ex rel. Dolin v. Major, 58 Mont. 140, 192 Pac. 618, as authority for her contention that, if the board of county commissioners direct that the county clerk draw a warrant for any claim which is not properly chargeable against the county or which has not been legally examined, allowed and ordered paid by it, it is not only the right, but it is the duty, of the county clerk , to refuse to draw the warrant. The only question presented to or
An examination of the decided cases will disclose that a well-defined distinction is recognized between those claims which a board of similar power and jurisdiction to those of a board of county commissioners may allow and order paid, which are void upon their face for want of jurisdiction, and those which, so far as appears from the face of the claims, are within the jurisdiction of the board. The former class— those which appear on their face to be without the jurisdiction of the board, as was the condition in the case of State ex rel. Dolin v. Major, supra, the ministerial officer whose duty it is to draw the warrant, can properly refuse; but as to claims which upon their face appear to have been acted upon and allowed within the jurisdiction of the board, the ministerial officer possesses no such authority.
The supreme court of California, in the case of McFarland v. McCowen, 98 Cal. 329, 33 Pac. 113, which appears to be one
In the ease of State ex rel. Dolin v. Major, supra, the warrant appeared on its face to have been acted upon by the board entirely without jurisdiction. Our statute expressly provides that in those counties having a county auditor, no
In order that there may be no confusion as to the facts of the ease of State ex rel. Dolin v. Major, supra, with the case at bar, it is proper to say that since the occurrences which gave rise to the decision of the court in that case, by reason of the change in the classification of Sheridan county, it did not have a county auditor at the time of the presentation by the relators of the claims involved in this proceeding.
It is also immaterial what prompted or caused the board to allow the claims. The fact that the board convened as such, pursuant to a judgment of the district court, which judgment was by this court, in another proceeding (State ex rel. O’Grady v. District Court, supra), held invalid, is immaterial. No appeal was taken from the judgment. The board of county commissioners acted in response to the writ of mandate and, having acted pursuant to the command of the writ, the board was without the right of appeal. (State ex rel. Begeman v. Napton, 10 Mont. 369, 25 Pac. 1045; State ex rel. Horn v. Brass, 36 Mont. 419, 93 Pac. 351; State ex rel. Coad v. District Court, 23 Mont. 171, 57 Pac. 1095.) The fact that O’Grady, the county clerk, refused to obey the writ, and that in contempt proceedings this court held the judgment invalid as to her, does not affect the result as to those who did act pursuant thereto.
The inhibition against the respondent 0’Grady questioning the correctness, justness or legality of the relators’ claims extends also to the constitutionality of the Act upon which these claims are based, and she will not be heard in these
There can be no liability on the county clerk, O’Grady, for drawing, signing and certifying the warrants ordered issued to the relators by the board of county commissioners. Ministerial officers, such as the respondent, are not liable for their
This court has, on several occasions, had before it the right of one whose interests are not affected by a statute to question its validity, and it has in each case held that one whose rights are not affected thereby will not be heard to draw in question the validity of a statute. First, in the case of Spratt v. Helena Power T. Go., 37 Mont. 60, 94 Pac. 631, it was sought to question the constitutionality of an Act of the legislative assembly, and the court said: “In answer to this contention it is enough to say that even if the objection were tenable—which we do not concede—appellants, who do not belong to the class discriminated against, may not avail themselves of it.”
The decision of the court in Uihlein v. Caplice Com. Co., 39 Mont. 327, 102 Pac. 564, was to the effect that a foreign corporation unaffected thereby might not raise the question of the constitutionality of section 3823 of the Eevised Codes of 1907-, under the contention that such statute placed a burden on domestic corporations. In State v. Rose, 40 Mont. 66, 105 Pac. 82, the defendant convicted of a violation of the statute prohibiting the betting on contests held outside the state was held, in an opinion written by Mr. Justice Smith, not competent to raise the question of the constitutionality of an
Applying the principle of these decisions to the facts of the instant case, it is clear that, while the board of county commissioners, whose duty it w^as to pass on, settle and allow claims against the county, could have questioned the legality of the claims and the constitutionality of the Act under which they arose, or raised any defect, if any, therein, that might have suggested itself to the board, such claims having been allowed by the board, one who acts in a ministerial capacity in carrying out the Act of the board, such as the county clerk, cannot question the constitutionality of the law upon which the claims are based. The county clerk’s duty with respect to the drawing, signing and certifying' of the warrants ordered by- the board of county commissioners to be drawn on the county treasury of Sheridan county was mandatory on her, and in so doing she would act in only a minis
Finally, it is urged by the- respondent O’Grady that she cannot issue warrants in payment of claims so allowed by the board, because of the judgment and injunction issued by the district court of Sheridan county in the case of Clair Stoner v. J. C. Timmons, supra, pursuant to the order of this court on the decision of that case on appeal in this court. This court in that case held unconstitutional the Land Classification Act (Chap. 89, Sess. Laws 1919), under which the original contract with the relators was drawn. The seventeenth legislative assembly passed the curative Act previously referred to in this opinion. While the constitutionality of this curative Act, for the reason heretofore assigned cannot be questioned in this proceeding, the question of the effect of the Act on the decision of this court in Stoner v. Timmons, supra, will be considered. Its effect was to cure and validate that which was, before its enactment, invalid or illegal. The decision was the law as it then existed, and it may be assumed that the paramount object of the curative Act was to obviate the effect of the decision declaring the original Land Classification Act unconstitutional. In other words, the legislature sought to enact a law which would not be subject to the constitutional objection as was sustained to the first Classification Act. Such is frequently the purpose of curative legislation, and there is no rule of law or constitutional construction which forbids or prohibits legislation of this kind, provided, of course, that the curative Act itself is not for some other reason unconstitutional. (Nottage v. City of Portland, 35 Or. 539, 76 Am. St. Rep. 513, 53 Pac. 883; Hall v. Street Commissioner of Boston, 177 Mass. 434, 59 N. E. 68.) The curative Act gave to the board of county commissioners valid authority, where before there was none, to compensate the person or persons who had performed any work or labor or rendered any service in the classification of land in any county for
The question, however, is not a new one in this court, and the principle here stated was adopted by this court in the case of State ex rel. Northwestern Nat. Bank of Great Falls v. Dickerman, 16 Mont. 292, 40 Pac. 701. This court had previously held the issue of bonds in question in that suit invalid. (State ex rel. Stanford v. School Dist. No. 1, 15 Mont. 133, 38 Pac. 462.) After that decision was rendered, which was an action praying for an injunction restraining the issuance of the bonds, and the court having in effect held that the injunction ordered should be issued, curative legislation was enacted
Again, in In re Pomeroy, 51 Mont. 119, 151 Pac. 333: The opinion discloses that one William B. Pomeroy, a citizen of the United States, instituted a proceeding in the district court, the object of which was to secure an adjudication of his right to certain moneys then in the hands of the state treasurer, and representing the value of property formerly belonging to the estate of Thomas M. Pomeroy, deceased. The district court granted the relief sought, but on appeal to this court by the state the judgment was reversed and the cause remanded for dismissal. (In re Pomeroy, 33 Mont. 69, 81 Pac. 629.) Subsequently the statute was amended by the legislature. Thereupon a new proceeding was instituted, a judgment rendered in favor of the petitioner, and an appeal taken by the state to this court. In substance, Mr. Justice Holloway said in discussing this feature of the appeal: “It is the contention of the Attorney General that the former decision by this court constituted an adjudication of all the matters and things involved in the present proceeding, and is conclusive against the petitioner’s right to have them determined a second time. * # * If this petitioner was seeking relief under or by virtue of the laws in force at the time he instituted the former proceeding, the judgment in that instance would be conclusive in this. But such is not his position. He seeks the same relief, but by virtue of a statute enacted since the judgment in the former proceeding was rendered. The conditions have changed and with them the issue as formerly made.”
The fact that this curative Act was passed after the claims were presented to the board is immaterial. The ease of State ex rel. Russell v. Abraham, 64 Wash. 621, 117 Pac. 501, is illustrative of this proposition. A commercial water company was organized under an Act of 1909. The Act was subse
In order that there may be no misunderstanding as to the extent of the writ of mandamus to be issued by this court in this ease it will reiterate that it is the duty of the county clerk to draw, sign and certify warrants in payment of the relators’ claims referred to in the petition—and this contemplates the doing of all those things prerequisite to their presentation by the relators in whose favor the warrants are to be drawn to the county treasurer for payment, including their delivery to the relators. The whole process constitutes the issuance of the warrants. (American Bridge Co. of New
For the reasons herein stated, the motion of the respondent D. J. Olson, county treasurer of Sheridan county, to quash the alternative writ of mandate heretofore issued out of this court, is sustained, and he is dismissed from this proceeding, and he may recover his costs. As to the respondent E. G. Tyler, a member and the chairman of the board of county commissioners of Sheridan county, by reason of his default the petition as to him is taken as confessed; as to B. K. O’Grady, the clerk and recorder of Sheridan county, the petition states a cause of action against her; her answer and return to the writ do not state matters constituting a defense; and it is therefore ordered that a writ of mandamus issue out of and under the hand and seal of this court, directed to the said E. G. Tyler, as a member and as the chairman of the board of county commissioners of Sheridan county, Montana, and against B. K. O’Grady, as county clerk and recorder of Sheridan county, in conformity with the views herein expressed.
Writ granted.