No. 12701
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
PERRY S. MELTON,
P l a i n t i f f and Respondent,
H. JAMES OLESON, F l a t h e a d County A t t o r n e y ,
M R Y TABORSKY, F l a t h e a d County C l e r k and
ELN
Recorder, and B A D O TRUSTEES OF FLATHEAD
OR F
VALLEY C M U I Y COLLEGE,
O M NT
Defendants and A p p e l l a n t s .
Appeal from: District Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
Hon. Robert C . Sykes, Judge p r e s i d i n g .
Counsel of Record:
For Appellants :
H . James Oleson, County A t t o r n e y , a r g u e d , K a l i s p e l l ,
Montana
M. Dean J e l l i s o n , Deputy County A t t o r n e y , a r g u e d ,
K a l i s p e l l , Montana
F o r Respondent :
White, Vadala, S p r i n g e r and A s t l e , K a l i s p e l l , Montana
David L. A s t l e a r g u e d , K a l i s p e l l , Montana
P a t r i c k M. S p r i n g e r a p p e a r e d , K a l i s p e l l , Montana
Submitted: September 1 2 , 1974
Decided :
DEC 2 0 1974
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e
Court.
Defendants appeal from a judgment of t h e d i s t r i c t c o u r t , F l a t -
head County, ordering p l a i n t i f f ' s r e g i s t r a t i o n a s a v o t e r , voiding
p l a i n t i f f ' s removal a s a c o l l e g e t r u s t e e , and awarding p l a i n t i f f
$4,500 a t t o r n e y f e e s .
P l a i n t i f f i s Perry S. Melton, a v o t e r r e s i d i n g i n - F l a t h e a d
County, Montana, and a t r u s t e e of Flathead Valley Community College.
Defendants a r e t h e Flathead county a t t o r n e y , t h e county c l e r k and
r e c o r d e r and t h e board of t r u s t e e s of t h e c o l l e g e . The county
a t t o r n e y was subsequently dismissed a s a p a r t y defendant.
The m a t e r i a l f a c t s a r e undisputed. I n 1933, i n t h e United
S t a t e s d i s t r i c t c o u r t i n Montana, Melton plead g u i l t y t o t h r e e vio-
l a t i o n s of f e d e r a l l i q u o r laws. Counts one and two of t h e i n d i c t -
ment involved t h e s a l e of l i q u o r t o Indians; Count t h r e e involved
concealing l i q u o r with i n t e n t t o defraud t h e f e d e r a l government
of t a x e s due thereon.
Melton was sentenced t o 40 days i n j a i l on counts one and two
and f i n e d $500 on count t h r e e . The f i n e was suspended and Melton
was placed on probation f o r f i v e years. A f t e r 40 years i t i s
impossible t o explain t h e s e sentences. The 40 day sentence was
20 days less than t h e minimum sentence set by s t a t u t e . The penalty
f o r t h e s a l e of l i q u o r t o any Indian was, a t t h e time of t h e crime,
a minimum sentence of 60 days i n j a i l o r a $100 f i n e , o r both, with
a maxirmun of not more than 2 years imprisonment and a f i n e of
n o t more than $300 f o r each offense. W can f i n d no a u t h o r i z a t i o n
e
i n t h e f e d e r a l law, a t t h e t i m e , a u t h o r i z i n g probation f o r a period
of 5 y e a r s , some 3 years over t h e maximum sentence.
Forty years l a t e r t h e Flathead county a t t o r n e y ' s o f f i c e f i l e d
a c e r t i f i e d copy of t h e 1933 conviction with t h e county c l e r k and
recorder. I t was accompanied by an opinion t h a t Melton h a d thus
been convicted of a felony. The c l e r k and recorder thereupon s t r u c k
h el ton's name from t h e voting r o l l s .
The county a t t o r n e y ' s o f f i c e then advised t h e board of t r u s t e e s
of Flathead Valley Community College t h a t Melton was no longer a
r e g i s t e r e d v o t e r and t h a t h i s p o s i t i o n a s c o l l e g e t r u s t e e should
t h e r e f o r e be declared vacant. The board subsequently s o declared.
I n t h e meantime Melton had f i l e d s u i t i n t h e d i s t r i c t c o u r t of
Flathead County seeking r e s t o r a t i o n of h i s voting r i g h t s and t o
prevent h i s removal a s c o l l e g e t r u s t e e . This a c t i o n became en-
tangled i n a procedural morass t h a t d e f i e s d e s c r i p t i o n . I n our
view t h e s e procedural complexities a r e n o t germane t o our d e c i s i o n
and may be disregarded except a s h e r e a f t e r discussed i n connection
w i t h a t t o r n e y fees.
The end r e s u l t of t h e d i s t r i c t c o u r t proceedings was a
judgment, (1) ordering t h e c l e r k and recorder t o r e g i s t e r Melton
as a v o t e r , (2) d e c l a r i n g n u l l and void t h e a c t i o n of t h e c o l l e g e
board of t r u s t e e s d e c l a r i n g Melton's s e a t vacant, and (3) ordering
Flathead County t o pay m el ton's $4,500 a t t o r n e y f e e s . A l l de-
fendants appeal from t h i s judgment.
The c o n t r o l l i n g i s s u e s on appeal can be condensed t o t h r e e :
(1) Was Melton convicted of a felony w i t h i n t h e meaning
of ~ o n t a n a ' sv o t e r q u a l i f i c a t i o n laws?
(2) Were permissible l e g a l remedies u t i l i z e d h e r e ?
(3) Was t h e award of a t t o r n e y f e e s c o r r e c t ?
The f i r s t i s s u e i s t h e p r i n c i p a l s u b s t a n t i v e i s s u e i n t h i s case.
el ton's v o t i n g r i g h t s and h i s e l i g i b i l i t y a s c o l l e g e t r u s t e e t u r n
on t h i s i s s u e . The d i f f i c u l t y a r i s e s because of c o n t r a r y d e f i n i -
t i o n s of a felony under f e d e r a l and s t a t e law.
A t a l l m a t e r i a l t i m e s , f e d e r a l law has defined a felony as
I1
Any o f f e n s e punishable by death o r imprisonment f o r a t e r m ex-
ceeding one year ** *." See 18 U.S.C.A., Sec. 1 and i t s predecessors.
Under f e d e r a l law t h e p o s s i b l e punishment t h a t may be imposed
determines whether a given crime i s a felony o r a misdemeanor without
regard t o t h e sentence a c t u a l l y imposed. Ex p a r t e Margrave, 275
F. 200.
A t t h e time of el ton's conviction, t h e crime of s e l l i n g l i q u o r
t o Indians was punishable by a maximum imprisonment of two y e a r s
and a f i n e of n o t more than $300 f o r each offense. Act of March
15, 1864, Ch. 33, 13 Stat. 29. The minimum sentence could have
been a sentence of 60 days in jail or a fine of $100 or both.
29 Stat. 506. This offense is clearly a felony by federal definition
despite the 40 day sentence actually imposed on Melton for both
violations.
A different definition of a felony is prescribed by Montana
law. At the time of elt ton's conviction ~ontana's statute, Section
10723, R.C.M. 1921, declared:
"A felony is a crime which is punishable with death or by
imprisonment in the state prison. Every other crime is a
misdemeanor. II
The same statute further provided:
"When a crime, punishable by imprisonment in the state
prison, is also punishable by fine or imprisonment in
a county jail, in the discretion of the court or jury,
it is a misdemeanor for all purposes after a judgment
imposing a punishment other than imprisonment in the
state prison. 11
Thus in Montana, the sentence actually imposed after conviction
determines whether the defendant has been convicted of a felony.
State v. Atlas, 75 Mont. 547, 244 P. 477. This same definition
and classification of crimes has been preserved in ~ontana'snew
Criminal Code of 1973. Section 94-2-lOl(15) and (31), R.C.M. 1947.
We recognize that Montana's statutory definition of a felony
relates only to crimes under state law and does not apply to
crimes classified by federal statutes. State ex rel. Anderson v.
Fousek, 91 Mont. 448, 8 P.2d 791. Nonetheless a fundamental difference
of approach is apparent in this state's classification of crimes and
the difference of approach between felonies and misdemeanors.
The crux of the problem here is whether state or federal law
determines the definition of a felony mandating cancellation of
voter registration, At the time of cancellation of elt ton's voter
registration state law, section 23-3014, R.C.M. 1947, provided in
ma terial part :
"1
( ) The registrar [county clerk and recorder] shall cancel
any [voter] registration card:
"* * * ( e ) If a certified copy of a final judgment of
conviction of any elector of a felony is filed * * *. I1
(Bracketed words added.)
In construing section 23-3014, R.C.M. 1947, is Montana bound
by the federal felony definition at odds with our own law? In
1932 this Court so held in construing a state statute relating to
forfeiture of a public office. State ex rel. Anderson v. Fousek,
91 Mont. 448, 455, 8 P.2d 791.
In Fousek a city police lieutenant was convicted in federal
court of conspiracy to violate federal liquor laws and sentenced
to pay a fine of $100. The crime involved carried a maximum
punishment of a $10,000 fine and two years imprisonment. This
Court held:
I t * * -he character of an offense, i.e., whether a
a felony or a misdemeanor, must be determined by
the laws of the-jurisdictionwhere the crime was
committed.
As federal law classified the offense as a felony because the
maximum punishment exceeded one year, the police lieutenant's
position was declared vacant because of "His conviction of a
felony" within the meaning of section 511, R.C.M. 1921.
Several weaknesses are apparent in this holding and the
statutory construction supporting it. It is the responsibility
of the Montana legislature to establish qualifications for holding
public office (as in Fousek) and voting qualifications (as in
the instant case). On what basis are we to imply that they dele-
gated this responsibility to another legislative body, be it Congress
or the legislature of another state, absent explicit statutory
language to that effect? Yet that would be the result of the
holding in Fousek--that Montana is bound by foreign classifications
of crimes.
Glaring injustices would result in many cases. For example,
by federal definition the following federal offenses are felonies:
Using profanity in a IIhad'radio transmission, 18 U.S.C.A. 5 1464;
purchasing a field jacket from a member of the Armed Forces, 18
U.S.C.A. 5 1024; attempting to mail a letter using a stamp which
has already been cancelled if committed by a postal employee, 18
USCA
.... 5 1720. Did our Montana legislature intend to deny
its citizens the right to vote for offenses like these?
In the instant case none of the three violations of which
Melton was convicted would constitute a felony under our statutory
definition and classification of crime. The more recent and
persuasive authorities from our sisterstates hold that persons
violating federal liquor laws are not disqualified from voting
or holding public office where, as here, the offenses would not
be felonies under state law. See Elder v. County Election Board,
(Okla. 1958), 326 P.2d 776; Yocham v Horn, 201 Okla. 647, 207 P.
.
2d 919; State ex rel. Arpagaus v Todd, 225 Minn. 91, 29 N.W.2d
. 810.
We hold that in construing state statutes relating to voter
disqualification, a Montana voter cannot be denied the right to
vote because of conviction of an offense in federal court that
would not be a felony by Montana statutory definition. We expressly
overrule the holding in Fousek that "The character of an offense,
i e whether a felony or misdemeanor, must be determined by the
..
laws of the jurisdiction where the crime was committed."
Therefore, Melton was not disqualified from voting rights; and
his position as college trustee was not vacant.
Defendants in their second issue contend that the wrong remedies
were pursued by Melton in seeking restoration of his voting rights
and in seeking to prevent his removal as college trustee.
Melton sought a writ of mandate to compel the county clerk
and recorder to reinstate his voting registration. The judgment of
the district court did not grant such writ of mandate, but simply
ordered the clerk and recorder to "register Melton as a voter and
Flathead County elector". The district court apparently considered
this equivalent to a writ of mandate as it subsequently held a
hearing and awarded attorney fees as damages.
A writ of mandate is a permissible remedy I1to compel the
performance of an act which the law specifically enjoins as a
duty resulting from an officet'. It also is available "to compel the
admission of a party to the use and enjoyment of a right *** to
which he is entitled and from which he is unlawfully precluded."
Section 93-9102, R.C.M. 1947.
The d i f f i c u l t y here i s t h a t t h e r e w a s no c l e a r l e g a l r i g h t
i n Melton t o r e s t o r a t i o n of h i s voting r i g h t s and no c l e a r l e g a l
duty on t h e p a r t of t h e c l e r k and recorder t o r e i n s t a t e him a s
a voter. =sou was t h e law of Montana a t t h e time of t h e events
from which Melton sought r e l i e f . Under Fousek f e d e r a l law and
n o t s t a t e law determined whether Melton had been convicted of a
felony, and under f e d e r a l l a w a t l e a s t two of t h e o f f e n s e s of which
he was convicted were c l e a r l y f e l o n i e s . I t i s only by reason of
our d e c i s i o n h e r e i n s p e c i f i c a l l y o v e r r u l i n g t h e Fousek r u l e t h a t
Melton i s e n t i t l e d t o p r e v a i l .
Nor does a w r i t of mandate l i e t o c o r r e c t o r undo a c t i o n
a l r e a d y taken. S t a t e ex r e l . Thompson v. Babcock, 147 Mont. 46,
409 P.2d 808. The county c l e r k and r e c o r d e r had a l r e a d y determined
t h a t a c e r t i f i e d copy of a f i n a l judgment of el ton's conviction
of a felony had been f i l e d with h e r , which required h e r t o cancel
h i s voting r e g i s t r a t i o n . She thereupon cancelled i t . Her acts
preceded t h e f i l i n g of Melton's s u i t .
W hold t h a t a w r i t of mandate i s n o t a permissible remedy.
e
But f o r every r i g h t t h e r e i s a remedy. Section 49-115, R.C.M.
1947. el ton's a c t i o n i s c l e a r l y a s u i t f o r e q u i t a b l e r e l i e f and
a d j u d i c a t i o n of h i s r i g h t s which he i s c l e a r l y e n t i t l e d t o i n s t i t u t e
and prosecute.
It i s unnecessary t o d i s c u s s t h e a v a i l a b i l i t y of a w r i t of
review t o t e s t t h e v a l i d i t y of t h e a c t i o n of t h e board of t r u s t e e s
of t h e c o l l e g e i n d e c l a r i n g el ton's s e a t vacant. The i s s u e has
become moot by el ton's subsequent e l e c t i o n t o t h e board, and t h e r e
i s no i s s u e concerning a t t o r n e y f e e s on a w r i t of review.
The t h f r d i s s u e of defendants i s t h e l e g a l i t y of t h e award
of $4,500 a t t o r n e y fees. The only b a s i s f o r such award i s t h e
s t a t u t o r y a u t h o r i z a t i o n t o include such award i n judgments g r a n t i n g
writs of mandate. Section 93-9112, R.C.M. 1947, and c a s e s c i t e d
thereunder. Having found t h a t a w r i t of mandate i s n o t a permis-
s i b l e remedy h e r e , t h e award of a t t o r n e y f e e s i s vacated and set
aside.
In summary, we hold t h a t : Melton was not convicted of a felony
within t h e meaning of ~ o n t a n a ' svoter d i s q u a l i f i c a t i o n law; Melton
i s e n t i t l e d t o be r e g i s t e r e d a s a voter and e l e c t o r of Flathead
County, Montana; the award of attorney f e e s against Flathead County
i s vacated and s e t a s i d e ; and, c o s t s a r e awarded t o p l a i n t i f f i n
the d i s t r i c t court and upon appeal.
W remand t h e case t o the d i s t r i c t court of Flathead County
e
f o r en t r y of j udgmen t accordingly .
W e Concur:
.................................
Chief J u s t i c e
Justices.
Chief Justice James T. Harrison concurring in part and dis-
senting in part:
I concur in the holding that Melton is now entitled to be
registered as a voter and elector, and the vacating and setting
aside of the attorney fee award.
I dissent to the holding that Melton was not convicted of a
felony, and the overruling of State ex rel. Anderson v Fousek,
.
91 Mont. 448, 455, 8 P.2d 791.
...............................
Chief Justice