State Ex Rel. Matson v. O'Hern , 104 Mont. 126 ( 1937 )

There is much in the majority opinion concerning which I find it unnecessary for me to express either approval or disapproval. On at least some questions I think the majority are in error. It is now settled by the decisions of this court that when the removal of an officer is sought "for cause" there must be notice and hearing. (State ex rel. Nagle v. Sullivan,98 Mont. 425, 40 P.2d 995, 99 A.L.R. 321; State ex rel. Holt v. District Court, 103 Mont. 438, 63 P.2d 1026, 1028.) "For cause" means "for reasons which the law and sound public policy recognize as sufficient warrant for removal * * * that is, `legal cause' * * * and not merely a cause which the appointing power, in the exercise of discretion, may deem sufficient." (State ex rel. Nagle v. Sullivan, supra.) As I read the majority opinion, it is there held that the fees collected for work not performed at a session of the commission were unauthorized and illegal. Reliance is placed largely upon the cases of State ex rel. Payne v. District Court, 53 Mont. 350,165 P. 294, and State v. Story, 53 Mont. 573, 165 P. 748. But those cases dealt with a statute which provided that "each member of the board of county commissioners is entitled to eight dollars per day for each day's attendance on the sessions of the board, and ten cents per mile for the distance necessarily traveled in going to and returning from the county seat and his place of residence, and no other compensation must be allowed." (Rev. Codes 1907, sec. 2893.) Here we have no such statute. The statute involved here reads: "Each commissioner * * * shall receive as compensation to be paid out of the highway fund the sum of ten dollars ($10.00) per diem for each day actually engaged in the duties of his office, including his time of travel between his home and place of employment of such duties, together with his traveling expenses while away from his home in the performance of the duties of his office." (Sec. 1783, Rev. Codes 1935.)

As pointed out in the majority opinion, the highway commission laws as they now stand are somewhat confusing. Many of the provisions refer to the highway commissioner, whereas under existing laws there are three commissioners. In considering the question whether the fees involved here were or are illegal, it is important that we look to the statutes to ascertain the duties of the commission or commissioners as the case may be. The statute, as above noted, authorizes per diem to a highway commissioner for time engaged in the duties of his office including time of travel between his home and the place of employment of such duties, and not, as in the county commissioner statute, allowing per diem only "for each days' attendance on the sessions of the board."

Section 1786 provides: "In addition to his other powers and duties, the state highway commissioner shall compile statistics relative to public highways throughout the state, and shall collect all information in regard thereto deemed expedient. He shall investigate and determine upon various methods of road construction adapted to different sections of the state, and as to the best methods of construction and maintenance of roads, bridges, road markers and shall investigate and determine upon such other information relating thereto as he shall deem appropriate and necessary. He may be consulted at all reasonable times by county officers having care and authority over highways and bridges and shall advise such officers relative to the construction, repair, altering or maintenance of the same, and shall furnish such other information and advice as may be requested by persons interested in the construction, maintenance and marking of public highways, and shall at all times lend his aid in promoting highway improvement throughout the state."

Section 1788 in part provides: "The state highway commission is hereby authorized to, and shall, in conjunction with the board of county commissioners of the several counties in the state, designate such public roads in the state as shall be classed as state highways and subject to improvements under the provisions of said federal aid road Act of Congress, and the state highway commission in conjunction with the board of county commissioners shall also formulate necessary rules and regulations for the construction, repair, maintenance and marking of state highways and bridges, and may provide for local supervision in such cases."

I believe, whether we regard these statutes as prescribing the duties of the commission or of the commissioners, that the rule that they are only to receive per diem when actually attending sessions of the board cannot be applied to the members of this board. Must the highway commission as a body travel about the state in the performance of these duties and multiply by three the cost of obtaining the information required by law? As above noted, the commission or commissioner as the case may be must hold consultation with county officials and must co-operate with boards of county commissioners. Can it be possible that the legislature intended that the highway commission should sit in its office in Helena and there hold consultation with the county commissioners over the state? This court has held otherwise inGuillot v. State Highway Com., 102 Mont. 149,56 P.2d 1072, 1075, where it said: "While the law declares that the `office' of the commission shall be maintained at the State Capitol Building (Rev. Codes 1921, sec. 1783, as amended by Chapter 129, Laws 1925), it is not conceivable that the legislature intended that the administration and supervision of the `construction, reconstruction, betterment and maintenance' of upwards of 5,000 miles of state and federal main highways, and their connections forming a network over the vast area of the state, should be conducted exclusively from that office." Must all of the county commissioners of the state come to Helena to consult the highway commission? Obviously not. This would multiply the cost to the taxpayers several fold. Is it not more reasonable and economical to have one member of the highway commission consult the various county commissioners throughout the state and perform the duties required by the above statutes and thus save to the taxpayers the expense of the entire commission traveling about the state?

Under section 1789, the commission may employ necessary field help and fix their compensation. That section provides: "The highway commission shall employ office and field help as it shall deem necessary and the compensation for all such employees shall be determined by the state highway commission and paid out of the state highway fund in the same manner as other state employees are paid." Can it be that the commission may employ field help at state expense to assemble the necessary information upon which the commission may take official action, but that it is unlawful to have a member of the commission personally assemble the same information? I think it was clearly contemplated by the legislature that the highway commission may, if it sees fit, delegate to one of its members power and authority to collect the necessary information upon which the commission subsequently acts, or otherwise divide such duties among the three commissioners.

It is well settled in this state that when an officer, board, or commission is given certain duties and no definite means are prescribed for carrying them out, he or it may employ any reasonable method. (Morse v. Granite County, 44 Mont. 78,119 P. 286; Fisher v. Stillwater County, 81 Mont. 31,261 P. 607; State ex rel. Blair v. Kuhr, 86 Mont. 377, 283 P. 758;Simpson v. Silver Bow County, 87 Mont. 83, 285 P. 195;Ransom v. Pingel, ante, p. 119, 65 P.2d 616.) The court in speaking of the implied powers of the state highway commission in Guillot v. State Highway Com., 102 Mont. 149,56 P.2d 1072, 1076, said: "Where the legislature sees fit to confer upon a board or commission such broad general powers, the repository of the power is vested with discretion in choosing the means and methods of accomplishing the result expected, and, in the absence of fraud or manifest abuse of that discretion, its determination is conclusive. (State ex rel. Pew v. Porter, 57 Mont. 535,189 P. 618; State ex rel. Pigott v. Porter, 57 Mont. 539,189 P. 619.) The authority vested in the commission to expend millions of dollars per year for the construction, reconstruction, betterment, and maintenance of thousands of miles of highways and roads, imposes upon the commission the duty to expend these vast sums effectively through the use of the 8 per cent. permitted to be used for administrative and engineering purposes. Such broad granted authority confers upon a commission, by implication, all necessary authority and power to render the granted powers fully efficacious and the performance of such duties effectual."

I think the fees involved here were proper and legitimate, and that being so, there was no legal cause existing for the removal of the commissioners on account of the collection of illegal fees. But if we assume that the fees are and were illegal, we are met with the further question whether the commissioners were proceeding in good faith within the meaning of section 11702, which provides in part: "Provided, if the charge be for the charging and collecting of illegal fees or salaries, the trial must be by jury, if the defendant so demands, and conducted in all respects and in the same manner as the trial of an indictment for a misdemeanor, and the defendant shall be entitled, as a matter of defense, to offer evidence of, and the jury under proper instructions shall consider, his good faith or honest mistake, if any be shown, and the value received by the state, county, township, or municipality against whom the charges or fees were made." This court has held that the provisions of section 11702 contain the legislative policy of this state when there is an attempt to remove a public officer on a charge of collecting illegal fees.

In the case of State ex rel. Holt v. District Court,103 Mont. 438, 63 P.2d 1026, 1029, relating to these identical proceedings, this court said: "Under our Constitution and laws a proceeding might, in a proper case, be brought under section 11702 for the removal of a highway commissioner, that being an office created by the legislature and not by the Constitution. In such a proceeding evidence of good faith may be heard in defense. To now say that the same evidence may not be heard in a proceeding before the Governor for the removal of a public officer is to ignore the declaration of the legislature on the question and to substitute the notion of the judge or judges." Did the removed commissioners proceed in good faith or under honest mistake and did the state receive value for the fees collected? As above pointed out, the statutes are, to say the least, ambiguous. That the removed commissioners honestly believed they had a right to the fees in question there can be no doubt.

The record shows that our statutes have been construed by the predecessors in the office of highway commission as authorizing fees for the performance of duties other than those transacted at commission meetings. Thus one of the predecessors presented and received payment for 15 days' service in 1929 and 13 days in 1930 for duties other than those performed at a meeting of the board. In 1926 another presented and received payment for 15 days for like service. In 1927 a claim for 10 days' services was allowed and paid for service aside from those for attending meetings. Another commissioner presented and received payment in 1929 for 14 days and in 1930 for 24 days' similar service. Still another received payment for 3 days in 1933 for services performed without a meeting. This was well known to the legislative assembly and that body acquiesced in that interpretation of the law. It is true that previous commissioners did not charge or receive as much fees in the aggregate as did Mr. Croonenberghs, but the necessity for increased services was shown to have arisen because of added duties occasioned by the establishment of the state patrol which under the law is under the jurisdiction of the highway commission and because of the expansion of the highway program in Montana. Moreover, the state board of examiners, a constitutional board (sec. 20, Article VII, of the Constitution), consisting of the Governor, Secretary of State, and Attorney General, with power to examine all claims against the state, had approved like claims prior to the time that the contract was made with Mr. Croonenberghs. In fact, it approved all the claims here involved and many of them when acting Governor Holt was a member of that board, he joining in their approval. If ever it could be said that officers proceeded in good faith within the meaning of section 11702, then the commissioners here did so. What was said in Miller Ins. Agency v. Porter, 93 Mont. 567,20 P.2d 643, 646, has application here. This court there said: "The practical construction, however, of the statute as adopted by the various boards of examiners of the state over a long period of time has been to the effect that these policies are not within the meaning of the term. It is the settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons. (State ex rel. Public Service Com. v. Brannon, 86 Mont. 200,283 P. 202, 67 A.L.R. 1020; see, also, 25 R.C.L. 1043.) The contemporaneous and long-continued practice of officers required to execute or take special cognizance of a statute, is strong evidence of its true meaning. And if the legislature by its inaction has long sanctioned a certain construction, language apparently unambiguous may be given by the courts such construction, especially if the usage has been public and authoritative." In Guillot v. State Highway Com., supra, this court said: "While administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction, such practice, if consistent and unchallenged, will be overturned only for very cogent reasons, if the scope of the command is indefinite and doubtful, particularly when the practice has received congressional or legislative approval." To the same effect is Murray Hospital v. Angrove, 92 Mont. 101,10 P.2d 577.

It seems to me clear that where, as here, there was no evidence to show that the commissioners acted in bad faith, but all the evidence shows they acted in good faith, then we must say that they are not subject to removal in the face of the legislative policy declared in section 11702 and in consequence that the order of removal was arbitrary and cannot stand. The majority opinion places reliance upon the cases of State ex rel. Rowe v. District Court, 44 Mont. 318, 325,119 P. 1103, Ann. Cas. 1913B, 396, and upon State ex rel. Wynne v.Examining Trial Board, 43 Mont. 389, 399, 117 P. 77, Ann. Cas. 1912C, 143, as sustaining the contention that good faith on the part of the commissioners is no defense. Those cases were decided prior to the amendment of section 11702. It was because of those decisions that the legislature amended section 11702 to permit good faith, honest mistake, and value of the services to be received. Finally the majority take the position that this court has no right to interfere with the discretion of the Governor. The difficulty here is that unless there was some evidence of bad faith or a want of good faith there was nothing to move the discretion of the Governor. It seems that the majority take the view that the Governor can do no wrong, cognizable by the court. They rely strongly upon the case ofWilcox v. People, 90 Ill. 186. This case was before this court in the case of State ex rel. Nagle v. Sullivan, supra. I quoted from it in my dissenting opinion in that case and tried to persuade the court to approve of the doctrine of that case, but instead the court expressly repudiated it by saying: "The decision in Wilcox v. People, 90 Ill. 186, contains language which would justify a holding that the power granted the Governor to remove a member `for the good of the commission,' standing alone, would do away with the necessity for notice and hearing; but a reading of the opinion discloses that the court there held that, because the Constitution (Art. V, sec. 12) provided that `the Governor shall have power to remove any officer whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office; and he may declare his office vacant, and fill the same,' neither the legislature nor the courts may dictate to the Governor in what manner he shall perform his duty. This latter declaration is grounded upon the theory, existing in some jurisdictions but not in this state, that, because the three departments of government are coordinate and independent, the courts cannot, in any case, review or control the action of the Governor."

I agree that the courts should be slow in overturning the actions of the Chief Executive of the state. In the SullivanCase, supra, I went so far as to say, as shown by my dissenting opinion in that case, that when the Governor made an order reciting that he was removing the commissioners "for the good of the commission," the court ought to take the Governor at his word. But a majority of the court in that case held that even though the Governor declared in his order of removal that he was removing the commissioners "for the good of the commission," the court was not bound by this statement and found notwithstanding this order that the removal was "for cause." While I believe that the orders of the Governor are entitled to the highest respect by the courts, I do not believe that the sacrosanctity of an order of removal of an officer by the Governor prevents this court from interfering when the removal is for cause and is without any evidence to support the order.

Here, as above stated, it was shown that similar fees have been allowed and paid to the predecessors in office of the removed commissioners. The board of examiners has approved all these and similar claims, the state has received full value in services for the fees collected, and there was no evidence in the record to contradict this showing. Under such circumstances, I think the order of removal cannot stand, and that this court not only has the right but the duty to set aside the order of removal. It seems to me illogical for this or any other court to say that a hearing is necessary before removal can be accomplished and that evidence of good faith must be heard by the Governor, and then in the next breath to say that the Governor is entitled to disregard all of the evidence in the case and enter an order of removal notwithstanding there is no evidence of a want of good faith. Such a conclusion it seems to me substitutes form for substance. It amounts to a declaration that the Governor must go through the form of a hearing and receive evidence offered by the accused, but when it comes to rendering his decision he may disregard all of the evidence though it is undenied. To permit this to be done is tantamount to a denial of a hearing. (Grant v. Michaels,94 Mont. 452, 23 P.2d 266.) The decided cases give finality to the Governor's order of removal only when there is some evidence to support it. Thus in 52 A.L.R. 9, the author of an exhaustive note said: "It may be said that, in general, if there is evidence to support the decision of the Governor in removing an officer, and the case for removal is one under which the Governor is authorized to act, his decision on disputed facts is conclusive." The correct doctrine has been announced by this court in the case of State ex rel. Griffiths v. Mayor of Butte, 57 Mont. 368,188 P. 367, 369, where it said: "If the charges are unsupported by the evidence, or the findings are contrary to all the substantial evidence, or where the decision below has no evidence to support it, the question then becomes one of law, and the evidence may be reviewed to determine if such is the fact, but the court cannot review the evidence to determine the preponderance thereof. (3 Cyc. 348-362; Somers v. Wescoat,66 N.J. Law, 551, 49 A. 462; Kidder v. Townsend, 3 Johns. (N.Y.) 435.)" To the same general effect is State v. Welford,65 N.D. 522, 260 N.W. 593, particularly on page 601.

Finally the majority think that I cannot consistently advocate the exercise of judicial power in this case because of the dissenting opinions which I have written in certain cases cited in opposition to the action of the majority in reducing jury verdicts. Examination of the cases cited will show that in all of them that related to the question of reducing verdicts in which I participated, the question turned upon an interpretation or construction of the evidence. In all of those cases I thought the evidence, fairly construed, authorized the verdict of the jury. In none of them did I ever concede that the verdicts were "without supporting evidence" as stated in the majority opinion in this case.

For the foregoing reasons, it is my view that the order of removal should be annulled and that Commissioners Brown, Croonenberghs, and McGregor should be declared the legal incumbents of the office of the state highway commission.