213 P. 594 | Mont. | 1923
delivered the opinion of the court.
This is a proceeding brought by relator to compel the city of Butte and its mayor, treasurer, and clerk to issue to him two warrants in payment of his salary as police judge. He was elected and qualified as police judge of the city of Butte in 1921, and had been drawing his salary without question prior to the time when these officers refused to pay it further.
To the petition praying for a writ of mandate, the respond
These questions are presented: (1) Whether a blind man is eligible to hold the office of police judge, and, if he is, (2) whether an attorney’s fee should be allowed as damages, and (3) whether these damages and costs should be assessed against the city as well as against its officers.
1. In this state the qualifications for holding office are prescribed either by constitutional provisions or legislative enactments. And this is so generally in the United States. (Throop on Public Officers, see. 72.)
Section 11 of Article IX of Montana’s Constitution provides: “Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in-this Constitution, and subject to such additional qualifications as may be prescribed by the Legislative Assembly for city offices and offices hereafter created.”
The statutory qualifications for one holding a municipal office
The legislature has not prescribed any qualifications for the
Under the common law it was held that unfitness, if gross
We have not been cited to an instance where a blind man has been declared ineligible to hold an office. No doubt it would be desirable to have as police judge a person perfect physically and mentally, but no such person is to be found in the body of the electorate. It would be desirable, also, to have as police judge a person well educated, learned in the law, a keen student of human nature, possessed of and alert in all his natural faculties. This court, while passing upon the weight of evidence in a lifeless record, has frequently spoken of the advantage possessed by the trial judge who has observed the demeanor of the witness on the stand. Often in the trial court have we observed a witness attempt by words to conceal the truth which the expression of his eyes or the lines of his face disclosed. The blind judge is deprived of
It is contended that as the blind judge may not view the appearance of the complaining witness, which is often so material in that court—and sometimes the defendant is a “sight” for those who can see—the judge’s disqualification is apparent. This disqualification is further emphasized, say counsel for appellants, by the fact that the police judge in this ease personally cannot keep the docket which the law requires, but must intrust that duty to his clerk, and when the judge is called upon to certify to copies of that docket, necessarily he must certify to the verity of something of which he knows nothing except by hearsay. The judge, however, may cause the docket to be kept by his clerk, having what is written therein read to him by the clerk, and may certify to his docket from what is read to him by another. True, there is room for imposition here, but no more so than if the judge were making his will, and testamentary capacity is not affected by the fact that the testator is blind. See Welch v. Kirby, 225 Fed. 451, 166 C. C. A. 527, 9 A. L. R. 1409, and note on page 1416, in which appears a reference to the fact that the supreme court of Louisiana, in State v. Martin, 2 La. Ann. 667, sustained the will of Francois Xavier Martin, who had served upon the supreme court of Louisiana for thirty-one years, during the last eight years of which time he was totally blind.
It may be observed that, as to keeping and certifying his docket, a blind man is in no worse situation than one who can neither read nor -write. And let it be noted, too, that
Notwithstanding the disadvantages under which a blind man must labor in the position of police judge, it cannot be said that this misfortune wholly disqualifies him from holding the office. The people of a municipality have the right to select as their police judge anyone who comes within the qualifications prescribed by statute. It is their sovereign right to select their own officers. If this rule permits too much latitude, then the question of eligibility cannot be corrected by the courts but must be by the legislature, in whom the power is reposed. (People v. May, 3 Mich. 598.)
2. Section 9858, Eevised Codes of 1921, provides: “If judg
The question as to whether this word “damages” includes the expense which relator has been put to in paying for the services of a lawyer to bring the proceeding, must be answered in the affirmative. Under the construction given the section in Bailey v. Eckvards, with which we are satisfied, this must be
3. As to the subject of costs: When a public officer is posi
Our section 9810 of the Kevised Codes of 1921 reads as follows: “The state or a county, or any subdivision thereof, or any officer when prosecuting or defending an action on behalf of the state or county, or subdivision thereof, is not required to pay or deposit any fee or amount to or with any officer during the prosecution or defense of an action. No officer so prosecuting or defending shall be taxed with costs or damages, but such costs or damages, if any, shall be taxed to the state or county, as the case may be.” It will be noted that section 9810 does not in terms include municipal officers. It is suggested that our legislature might well amend section 9810 to comprehend every officer who may have occasion to prosecute or defend an action or special proceeding in behalf of the public he represents; in other words, it might well supplement section 9810 with the provisions of the California statute which are not now embraced within the terms of section 9810.
Whether section 9810 can be construed to include municipal officers need not be decided in. this action, for the record is barren of any showing that the officers were acting in behalf of the city in refusing to issue the warrants. So far as the
Mandamus being a special proceeding under the provisions of section 9898, costs are allowed of course to the plaintiff upon a judgment in his favor. Sections 9787 and 9858 when construed together, determine that the award of costs in a mandamus proceeding is not discretionary. (Power v. May, 123 Cal. 147, 55 Pac. 796.)
Moreover, relator’s amended petition does not state a cause of action against the city or the treasurer; such allegations as are made indicate that the city as such was not remiss in its duty; the fault was with the mayor and city clerk who refused to draw' the warrants. The treasurer was not at fault because no warrants were presented to him for payment; there were no warrants for him to pay. It follows from what has been said that the judgment should be affirmed, with the modification that it shall run only against the mayor and city clerk and not against the city of Butte or its treasurer.
The cause is remanded to the district court of Silver Bow county, with directions to modify the judgment accordingly, and, when so modified, it shall stand affirmed.
Modified and affirmed.