Carland v. Commissioners of Custer County , 5 Mont. 579 ( 1885 )

Galbraith, J.

This is an appeal from an order of the court confirming the action of the respondent in removing the appellant from the office of treasurer of said county of Custer, and appointing another person to fill the vacancy. The first question presented relates to the right of the persons constituting the board of commissioners of Custer county, to hold and exercise their offices as such commissioners. An act of the legislative assembly, entitled “An act relative to the offices of county commissioners of Custer county,” approved March, 1883, declared the offices of county commissioners of Custer county vacant, and appointed William Vangaskin, George M. Miles and Thomas J. Bryan to the said offices. It appears from the record in this case, that, at the time of the acts complained of, they were holding said offices and acting therein as county commissioners. These persons were, therefore, at the time, holding and exercising their respective offices, at least, under color of right, and were then commissioners de facto of Ouster county. Their title to the offices cannot be tried in this proceeding; it cannot be attacked collaterally. “An act of assembly, even if it he unconstitutional, is sufficient to give color of title; and an officer acting under it is an officer de facto. When a person is acting under the apparent authority of an act of assembly, his title to the office is not to be assailed collaterally.” Commonwealth v. McCowles, 56 Pa. St. 436. Persons in the actual and unobstructed exercise of office must be held to be legal officers except in proceedings where their official character is the issue to be tried as against themselves. “ The title to office can never he tried collaterally.” Johns v. People, 25 Mich. 499; Tracy v. Fuller, 13 Mich. 527; Douglas v. Wickwire, 19 Conn. 488; Druse v. Wheeler, 22 Mich. 438: Parks, Petitioner for Writ of Habeas Corpus, 3 Mont. 426.

The board of county commissioners will, therefore, be presumed to have been at this time rightfully in the exercise of its lawful authority. The next question presented is, as to whether or not, by the removal of the appellant, the board exceeded its jurisdiction. The proceedings of the board of county commissioners, in relation to the removal of the appellant, were brought before the court by writ of certiorari. From the transcript of these proceedings, it appears that the appellant was the acting treasurer of Custer county, his term of office having commenced on the first Monday of March, 1883. R. S. 1879, p. 522, sec. 548. His bond as treasurer was not presented to the hoard until the 8th day of March, when a bond in the sum of $25,000 was presented. It does not appear that this bond was ever accepted or approved by the hoard. On the 24th day of March, he was notified that the time of filing his official bond had expired, and that he had no bond on file. On the 31st day of March he presented a bond in the sum of $25,000, which was not accepted, and he was allowed five days to secure bondsmen, and the amount of the bond fixed at the sum of $50,000. On the 2d day of April, the clerk of the board was instructed to serve a- written demand upon the appellant for the immediate return of $1,700 to the county treasury, found by the board to have been paid out as attorneys’ fees, not in accordance with law; and he was granted three days in which to return the same. On the 6th day of April, the appellant presented a bond in the sum of $50,000. On the same day this bond, upon due examination, was found insufficient, and thereupon disapproved. On the same day the following preamble and resolution was adopted:

“Whereas, the board finds that Willis W. Garland, elected county treasurer of this county for the term of two years, commencing on the first Monday in March, 1883, did not, before entering upon the- duties of said office for said term, execute to the board of commissioners of this county, or deposit either with said board or the chairman and clerk thereof, his official bond, with three or more sufficient sureties, either in such penal sum as had theretofore been directed by the board, or in a sum not less than double the amount of all money directed by the board to be levied in the county, and to be paid to such treasurer during the year;

“And whereas, the board did, at an extra session thereof, held on the 31st day of March, 1883, direct and require the said Garland, as such treasurer, to execute- and deliver to the board, on or before the 5th day of April, 1883, his official bond, with sufficient sureties, im the penal sum of $50,000, for the approval of said board;- and the said treasurer having on this day presented to-the board an official bond, which is not approved, and the said treasurer having been at all times, since the commencement of said term, without any official bond, as required by law; and whereas, upon an examination of the books of said treasurer, and.an inspection and count of the funds in the hands of said Garland as county treasurer of said county, this day made by the board, the board finds that the said books do not show the actual condition of said office; and it further appearing to the board upon such count and inspection that certain of the funds of said county, to wit, the sum of $1,700, claimed to have been paid by said treasurer in February, 1883, to certain persons, as attorneys and counselors, for retainer fees, without any warrant having been drawn by the direction of the board of commissioners upon him therefor, have been diverted from their proper channel, and expended and taken from the treasury of said county, without authority of law; and that there has been culpable negligence by the said treasurer in the care and keeping of the said public moneys;

“ Therefore, be it resolved by the board of county commissioners, that Willis W. Oarland, county treasurer, be, and he is hereby, removed from his said office; and that the board do forthwith take possession of the books, papers and moneys, and other property of every kind and description, belonging to the county, which has come to the possession of said treasurer by virtue of his said office.”

On the 10th of April, the board appointed one Stower to fill the vacancy.

In relation to the writ of certiorari, the law provides that, “if the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court shall proceed to hear the parties, or such of them as may attend for that purpose; and may thereupon give judgment, either affirming or annulling or modifying the proceedings below.” E. S. 1879, p. 142, sec. 544. It is not claimed, neither does it appear, but that the return to the writ was a full return of all the proceedings of the board relating to the alleged removal and appointment, and must be taken as conclusive and acted upon as true. People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437.

The laws of the territory provide that “a county treasurer shall be elected in each county for the term of two years, and shall, before entering upon the discharge of his duties, execute to the board of county commissioners of his county a bond, with three or more sufficient sureties, to be approved by the board, and in such penal sum as they may direct, which bond, with the approval of the boai’d indorsed thereon by their clerk, shall be filed in the office of the county clerk; and in case the board of commissioner’s shall not be in session in time for any county treasurer to present his bond for their approval, as above specified, or he shall he unable, fi’om any cause, to present his bond at any regular meeting of the hoax’d, after due notice of his election, then it may be lawful for such treasurer to present his bond to the chairman and clerk of such hoax’d for their approval; and their approval indorsed thex’eon shall have the same effect as if done by the hoax’d of conxmissionei’s. Axxd in such case, when the board shall not have fixed the penal suxn of such bond, it shall not be less than double the amount of all moneys dix’ected by the board to be levied in the couxrty, and to be paid to the treasurer during the year.” R. S. 1879, p. 497, sec. 433.

“Every office shall become vacant on the happening of any of the following events before the expiration of the term of such office: . . . His refusal or neglect to take the oath of office, or to execute his official bond, or to deposit such oath or bond within the time prescribed by law.” R. S. 1879. p. 523, sec. 554.

“If, at any time, upon the examination of the county treasuries herein provided for, it shall appear to the county commissioners that the books of the'county treasux’ers do not correspond with the amount of funds on hand, or that the said books do not show the actual condition of said office and the funds on hand, or if it shall appear to them that any funds of the county have been embezzled, or diverted from their proper channel, or in any way or manner expended or taken from the treasury without authority of law, or that there is or has been any culpable negligence by said treasurer in the keeping of said books, or the care and keeping of the said public moneys, they are hereby empowered, and it is hereby made their duty, to forthwith take possession of the books, moneys and papers, and other property of every kind and description belonging to the county, or which came to the possession of said treasurer by virtue of his said office, and appoint another in his place.” R. S. 18J9, p. 420, sec. 88.

It does not appear from the foregoing proceedings that the bond of the appellant was ever fixed in the sum of $25,000, or that said sum was not less than double the amount of all moneys directed by the board to be levied in the county and to be paid to the treasurer during the year; and when this does not appear affirmatively, it will be presumed not to have been fixed at all till fixed in the sum of $50,000 on the 31st day of March. It does not appear that the bond in the sum of $25,000 was ever accepted by the board; and on the 31st of March it was refused. By the deposit of the bond required by the statute above cited, section 554, is meant the filing of the bond in the office of the county clerk, with the approval of the board indorsed thereon, or the approval of its chairman and clerk when the board had not been in session in time for its approval, or he had been unable from any cause to present it at any regular meeting of the board. The bond never having been approved, there could not have been such a filing with the county clerk as the law requires. And, further, it does not appear that it was ever filed with the county clerk at all. The bond for $50,000, presented on the 6th of April, was disapproved by the board. There never was, therefore, a sufficient official bond executed by the appellant or deposited with the county clerk as required by law. In such a case the board of county commissioners had full power to declare a vacancy in the office of treasurer.

From the proceedings of the board it also appears that the books did not show the actual condition of the office of the treasurer, and that upon a count and inspection, certain funds of the county, viz., $1,J00 claimed to have been paid out to attorneys as retainer fees, without any warrant having been drawn upon him by direction of the board, have been diverted from their proper channel and expended and taken from the treasury of said county without authority of law, and that there has been culpable negligence- by the said treasurer in the care and keeping of the said public moneys. The above state of facts not only empowered but made it the duty of the board of commissioners to forthwith take possession of the books, moneys and papers, and other property of every kind and description belonging to the county, or which came to the possession of said treasurer by virtue of his said office, and appoint another in his place. Where the governor has power to remove an officer for neglect of duty, he is the sole judge whether the duty has been neglected. Cooley on the Constitution, 4th ed. 138, n. 2.

We are, therefore, of opinion that the settling of the treasurer’s accounts, and finding he had not settled and accounted for moneys of the county, as required by law, and that he had been, and then was, in arrears with the county, and removing him from office, was not judicial; and we have no doubt the general assembly had ample power to authorize the board to act, and it is legal and valid. Walker, Justice, in Donahue v. County of Will, 100 Ill. 94.

The mere presentation of the bond for $25,000, on the 8th of March, was not a compliance with the law in relation to the execution and deposit of the bond with the county clerk; even if it was, the proceedings of the board show that there was not, upon that day, a legal session of the board. The law required that the commissioners should convene at their regular March session on the first Monday of that month. On that day but one commissioner was present, and no business was transacted. The same was the case on the day following. The session, therefore, had lapsed; and no notice having been given of an extra session, they were not in lawful session upon the 8th of March, when the bond was presented. E. S. 487, sec. 380.

It also appears that upon the 8th day of March the then incumbents of the offices of county commissioners of Ouster county had been removed and other persons appointed to fill the vacancies. 13th Session Laws, 140.

It is claimed that, by virtue of section 457, E. S. p. 501, the appellant had twenty days in which to execute and deposit his official bond, and that the presentation upon the 8th of March was a compliance with its provisions. We have said that this presentation to the board was not a compliance with the provisions of said section 554. We do not, however, think that said section 457 applies to the treasurer. This section is as follows: “Each county or township officer named in this and succeeding article, shall, before entering upon the duties of his office, and within twenty days after receiving official notice of his election or appointment, or within twenty days after the commencement of the term for which he was elected, execute and deposit his official bond, as provided by law.” The county treasurer is not named in this article. This is a statute whose provisions apply to all, or nearly all, of the officers of a county and townships, and is, therefore, general in its character. Section 433 relates specially to the county treasurer. It will, therefore, control the more general provisions of section 457.

Again, when we consider the provisions of section 433, in connection with the view that it would be opposed to public policy that the treasurer could be twenty days in office without a bond, we do not think that the legislature intended section 457 to apply to the county treasurer. It was not necessary that the appellant should have been notified, or that he should have had an opportunity to be heard before his removal. The statute makés no provision in such cases for a hearing before removal. The record discloses, also, that the appellant was present at the proceedings of the board. People v. Whitlock, 92 N. Y. 191; People v. Fire Commissioners, 73 N. Y. 457.

It is claimed that the order of the court confirming the action of the board was illegal, because upon the 18th of April, when this order was made in the district court of Ouster county, a term of" the district court was being held in Choteau county in the same judicial district. The cases cited, so far as we have examined them, do not sustain this position when applied to the" courts of this territory. They apply to cases such as where there was a statute fixing the times when a term should end, and the cause was tried after that time had expired; and when a term of court was fixed to be held in another county. Bates v. Gage, 40 Cal. 183; Gregg v. Cooke, 7 Peck (Tenn.), 82. Or to a case where the judge of one district, when in another district, composed of but one county, while the judge of the latter district is presiding over and holding his own court, makes an order in relation to a matter pending in the said court. People v. O'Neil, 47 Cal. 109.

Gregg v. Cooke, supra, was overruled in Venable v. White, 39 Head (Tenn.), 582, where it was held that the judgments and decrees of a judge regularly in office are valid when he held his court under color of a law that turned out to be repealed or invalid. The court in that case, by Wright, J., says: “There can be no doubt, whatever, upon reason and authority, that a judgment given by a judge de facto, sitting and holding a court at the proper time and place, is as valid and free of error as a judgment pronounced by a judge rightfully in office.”

■ We know of no law, and there is no order of the supreme court of this territory, fixing the time when a term of court shall terminate. When a court is held in any county ,of the territory by an order of the supreme court, by any of the judges thereof, their proceedings are regular and valid. But however this may be, if the proceedings of either of the courts were invalid, it "would be those in Choteau county and not in Custer county, where the judge of the third judicial district presided. “ Where, by mistake, a law requires court to be held in two places in the circuit on the same day, it is in the discretion of the judge to select which one he will hold, and under this election the proceedings will be valid.” Wells on Juris, of Courts, sec. 134. By holding the court in Custer county, the judge of the third judicial district will be presumed to have elected to hold that court.

The order confirming the action of the board of county commissioners is affirmed, with costs.

Judgment affirmed.