No. 5,443 | Mont. | Jun 3, 1924
delivered the opinion of the court.
This is an appeal from a judgment entered on a verdict of a jury in Pondera county finding defendant guilty of a violation of the statute prohibiting the sale of intoxicating liquors in Montana.
Query: Is the county attorney of a county authorized-to ap point a deputy to serve without compensation; and, if so, may such deputy legally act in the name of his principal in the filing of informations and the prosecution of criminal cases ?
The record in this appeal is silent as to the classification of Pondera county. However, we do not deem such showing essential to a determination of the questions presented.
It appears that one Prank B. 'Walkup was on April 16, 1923, the duly elected, qualified and acting county attorney of Pondera county, and that, having become sick, on the date mentioned he filed in the office of the county clerk an appointment in writing of one R. M. Hattersley, as deputy county attorney to
The questions presented on appeal were raised by motion to quash the information and in arrest of the judgment.
The statute provides that “Every county and township officer, except county commissioner and justice of the peace, may appoint as many deputies as may be necessary for the faithful and prompt discharge of the duties of his office, but no compensation or salary must be allowed any deputy except as provided in this Code.” (Sec. 4731, Rev. Codes, 1921.) Further it is provided: “All assistants, deputies, and other subordinate officers, whose appointments are not otherwise provided for, must be appointed by the officer or body to whom they are respectfully subordinate.” (Sec. 420, Rev. Codes 1921.) And when the number of deputies is not fixed by law the appointing power is limited by his discretion alone. {Id., sec. 421.)
However, it is the contention of counsel for appellant that a deputy county attorney may be appointed only upon authority granted by the board of county commissioners under the provisions of section 4880 of the Revised Codes of 1921. In part that section reads: “The whole number of deputies allowed the county attorney in counties of the first and second classes must not exceed one chief deputy, and one deputy; and in all other counties such deputies as may be allowed by the board of county commissioners, not to exceed one chief deputy and one deputy.” Further it is provided by Chapter 82 of the
Counsel’s argument is wholly without merit, as appears plain from a most casual reading of the statutes. The right of the principal to appoint deputies is not restricted by either section 4880 or 4874 of the Revised Codes. They relate alone to the payment of compensation to deputies appointed. So that, although the board of county commissioners of Pondera county did not authorize the appointment of Hattersley as deputy county attorney, and at the time of his appointment there was in effect a resolution of the board of county commissioners to the effect that no deputy officer should be appointed nor the salary of any deputy fixed without first obtaining authority from the board of county commissioners, yet the county attorney was not thus denied his right to appoint a deputy without compensation, as was done in this instance. The deputy was in our opinion legally appointed.
This brings us to a consideration of the deputy’s authority. The statute provides that a deputy shall possess all the powers and may perform all the duties “attached by law to the office' of his principal. (Sec. 418, Rev. Codes 1921.) With this statutory reference alone we might with propriety conclude this decision, but it is thought best to make slight reference to leading authority. Professor Mechem says: “Where a public officer is authorized to appoint a deputy, the authority of that deputy, unless otherwise limited, is commensurate with that of the officer himself. * * * Any act, therefore, which the officer himself might do, his general deputy may do also.” (Mechem on Public Offices and Officers, sec. 570; see, also, Throop on Public Officers, sec. 583; 18 C. J. 784.)
The judgment is affirmed.
Affirmed.