DocketNumber: No. 8902
Citation Numbers: 206 P.2d 166, 122 Mont. 464
Judges: MR. CHIEF JUSTICE ADAIR:
Filed Date: 5/14/1949
Status: Precedential
Modified Date: 1/12/2023
I agree with many of the elementary principles of law announced in the majority opinion but deny that they furnish any assistance in determining the question before us. I do not take issue with what is said in the majority opinion regarding the learning and achievements of Governor Ayers and Governor Bonner. I merely assert that the question before us is not in any manner affected by the experience, qualifications or ability of either. The so-called Hitler Bill (Ch. 5, Laws of 1937) referred *Page 485 to in the majority opinion has nothing to do with the issue before us. It is limited to the appointment and removal of assistants, deputies, agents, attorneys, administrators, engineers, experts, clerks, accountants, stenographers and executive attaches. It has nothing to do with either the appointment or removal of public officers.
The single question presented by this proceeding is whether Barclay Craighead or Carroll Stewart is the chairman of the unemployment Compensation Commission. Craighead was appointed by Governor Roy E. Ayers in 1937 and has acted in that capacity ever since.
On March 31, 1949, Governor John W. Bonner, assuming that Craighead held at the will of the governor, appointed Stewart to the position effective April 1, 1949.
Chapter 137, Laws of Montana 1937, established the unemployment compensation commission. The legislature provided that the commission should cooperate with federal officials and agencies in carrying out the national employment system and expressly accepted the provisions of the Act of Congress and promised to observe and comply with the requirements thereof. Sec. 12(a).
In fact, Chapter 137 did not become effective unless approved by the federal social security board. Sec. 23. The Act of Congress provided in substance that federal funds would not be forthcoming to any states unless the state law for administration included provisions for the establishment and maintenance of personnel standards on a merit basis. Title 42 U.S.C.A., sec. 503. Acting pursuant to the requirements of the federal government the legislature by Chapter 137 provided for the creation of a commission and that it "shall consist of three members who shall be appointed by the governor on a non-partisan merit basis." Two members were to serve on a per diem basis and serve for six year terms. The third member was designated as chairman of the commission and the "executive director." As above noted all were to be appointed on a non-partisan merit basis.
The phrase "non-partisan merit basis" has acquired a distinct *Page 486
and well known meaning. Once an appointment is made under it, removal can be accomplished only for cause and not upon personal considerations. Taylor v. McSwain,
After this decision contempt proceedings were instituted for not complying with the court's mandate. Those proceedings resulted in the decision reported in
After the decision in
We have no later Act than Chapter 137 and it expressly provides that the commissioners shall be appointed on a non-partisan merit basis. The case of Donaldson v. Sisk,
487 P.2d 860, where the merit system is provided for by statute.
The Arizona Supreme Court also pointed out that the federal officials notified the state officials that further federal aid in the administration of the law would be withheld if the state officials insisted upon enforcing the 1941 law which did away with the merit system.
Our legislature in order to insure that at least some of the Montana taxpayers' money should not be transported to the Potomac and points eastward on a one-way ticket readily agreed to the merit system in the selection of personnel.
The Supreme Court of Oklahoma in speaking of the merit system in Burge v. Oklahoma Employment Security Commission, 200 Okla. Supp. 429,
As said in King v. Cole, Ohio App., 62 N.E.2d 650, 652, "The entire purpose of the Civil Service Law is to create a merit system for the determination of the fitness and efficiency of those within the classified service and to prevent discharge therefrom without just grounds."
In Turrill v. Erskine,
Other cases assuming that under the merit system there can be no removal at the mere will of the appointing power are: Ahlgren v. Cromwell,
The court then noted that sections 11 and 12, subd. D were in apparent conflict but concluded that removal at the will of the Governor was permissible only during the probationary period of six months and that thereafter the tenure was permanent and the incumbent then subject to removal only for cause. The court said: "If the Florida State Employment Service unconnected with the Wagner-Peyser Act [29 U.S.C.A., sec. 49 et seq.], was all that was involved, the question would be simple and might be answered by holding that the appointment and tenure were subject to the will of the Governor. But we are confronted instead with a pact on the part of the Federal Government under the Wagner-Peyser Act and the State Government under the Florida Unemployment Compensation Law. * * * Both sovereignties are committed to the merit system as a means of naming personnel to the Workmen's Compensation Division other than the exceptions enumerated.
"We have heretofore pointed out the circumstances under which the United States Employment Service exacted and the Florida Industrial Commission agreed that the Director of the *Page 489 Florida State Employment Service would be appointed under the merit system. The governor at that time was party to this agreement, had knowledge of the provisions of Sections Eleven and Twelve as here quoted but acted pursuant to the latter and named petitioner because he secured the highest mark in the examinations held under the merit system. When this was done and petitioner completed his probationary period as provided under the merit system, we think his tenure became permanent, subject to removal for cause."
Under the foregoing authorities persons appointed on a non-partisan merit basis may not be discharged except for cause. The legislature made it plain that it understood what was meant by the merit system and accordingly undertook to prescribe the causes which would be ground for removal. It provided in paragraph (a) of section 10 that: "The governor may at any time, after notice and hearing, remove any commissioner for inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office."
It cannot be said that this provision for removal for cause applies only to the two commissioners appointed for fixed terms. It says the governor may remove any commissioner for the stated causes.
Where removal is for cause there must be notice and hearing. State ex rel. Nagle v. Sullivan,
Section 422, R.C.M. 1935, which provides that, "Every office of which the duration is not fixed by law is held at the pleasure of the appointing power," can have no application to one appointed under the merit system. Under such an appointment there is written into the contract of employment the condition that the employment is to continue until removal is made for cause or until the employee voluntarily chooses to give up the employment. An appointment under the merit system is not one *Page 490 without a fixed term. The purpose of the merit system was to give permanency to the tenure.
One who is appointed to hold office during good behavior or until removed for cause such as under the merit system holds for a definite and fixed number of years, People ex rel. Akin v. Loeffler,
The merit system places appointees in much the same situation as federal judges. So long as the position is retained the incumbent holds until removed for cause. It establishes a tenure for those appointed under the system. That is the reason why Congress insisted upon the merit system being used in selecting the personnel.
The definition of "merit system" adopted by the majority opinion leaves no basis for holding that any of the employees of the unemployment compensation commission have any tenure or security in their respective positions. I think they have a permanent tenure status by reason of the fact that they are appointed under the merit system. The law requires the commissioners to be appointed under that system and if it gives a permanent tenure to employees it must also do so as to the commissioners, excepting of course the two who are appointed for fixed terms of six years.
Nor is it of any importance that the rules governing the merit system purport to exempt the executive officer of the state agency from the effect of those rules. The rules cannot supplant the Act of the legislature which specifically states that the commissioners shall be appointed on a non-partisan merit basis. Those rules are for the guidance of the agencies making appointments of employees and by their very terms are not made to fit appointments made by the governor. As to appointments made by the governor on a merit basis he can adopt such reasonable method as he sees fit in determining the fitness of applicants. Once he *Page 491 makes an appointment, removal can be accomplished only for cause.
The presumption is that Governor Ayers, when he appointed Mr. Craighead, did his official duty (Subd. 15, sec. 10606), and that the law was obeyed (Subd. 33 id.), and that he satisfied himself of the qualifications of Mr. Craighead, and the same presumptions attach to the action of Governor Bonner in the recent appointment of Mr. Smith as one of the per diem members of the commission.
I think the Hon. George W. Padbury, Jr., was right in holding that Mr. Craighead is the incumbent of the position of chairman of the unemployment compensation commission until and unless removed for cause.
Donaldson v. Sisk , 57 Ariz. 318 ( 1941 )
Taylor v. McSwain , 54 Ariz. 295 ( 1939 )
Welch v. State Board of S.S. W. , 53 Ariz. 167 ( 1939 )
Donaldson v. Sisk , 57 Ariz. 483 ( 1941 )
Turrill v. Erskine , 134 Conn. 16 ( 1947 )
State Ex Rel. Levy v. Pallotti , 133 Conn. 334 ( 1947 )
Ahlgren v. Cromwell , 179 Md. 243 ( 1941 )
Ryan v. Norby , 118 Mont. 283 ( 1946 )
State Ex Rel. Holt v. District Court , 103 Mont. 438 ( 1936 )
State, Ex Rel. v. Hummel , 142 Ohio St. 324 ( 1943 )
State Ex Rel. Hathaway v. Williams , 149 Fla. 48 ( 1941 )
Street Comrs. v. Williams , 96 Md. 232 ( 1903 )
Nat. Contracting Co. v. . Hudson R.W.P. Co. , 170 N.Y. 439 ( 1902 )