No. 13660
I N THE SUPREME COURT OF THE STATE O F MONTANA
1977
THE STATE O F MONTAEJA, ex r e l .
J U L I O E . MORALES, HELENA C I T Y
JUDGE,
Relator,
THE C I T Y COMMISSION O F THE
C I T Y O F HELENA,
Respondent.
Appeal from: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
H o n . A r n o l d O l s e n , Judge p r e s i d i n g .
C o u n s e l of R e c o r d :
For R e l a t o r :
J u l i o M o r a l e s argued, Missoula, M o n t a n a
For R e s p o n d e n t :
C. W. Leaphart, Jr. argued, H e l e n a , M o n t a n a
p~p
Submitted: May 1 8 , 1 9 7 7
Decided: July 27, 1977
Filed: J u l y 2 7 , 1977
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This case concerns an appeal from a judgment entered
in the district court, Lewis and Clark County, denying appel-
lant's writ of prohibition and dismissing the case.
Appellant, Julio Morales, was appointed to the position
of police judge for the City of Helena on June 25, 1973. The
appointment was made in accordance with the terms of section
11-3271, R.C.M. 1947, by the Helena City commissioners. Res-
pondent City of Helena had adopted and is operating under the
Commission-Manager form of government pursuant to Title 11,
Chapter 32, R.C.M. 1947. Appellant was notified by a letter
dated December 20, 1976, that respondent intended to terminate
his services as police judge on January 31, 1977, at 5:00 p.m.
To this date, no cause has been alleged by respondent for appel-
lant's dismissal.
Appellant filed a petition with this Court on January
11, 1977, seeking to invoke the original jurisdiction of the
Supreme Court. Appellant sought a declaratory judgment and a
writ of prohibition. This Court, by its order dated January 11,
refused to take jurisdiction of the matter and ordered the dis-
trict court of Lewis and Clark County to assume jurisdiction.
The Hon. Arnold Olsen assumed jurisdiction on January 27, and
ordered a writ of prohibition to issue until such time as a hear-
ing could be held on the matter. On February 3, the date set to
show cause why the writ should not be made peremptory, respon-
dent filed motions to dismiss and quash. Oral argument was heard
but an evidentiary hearing was not conducted. Subsequently,
both parties filed briefs and the district court entered a judg-
ment and order on March 2, denying the writ and dismissing the
cause. Appellant appeals from the decision of the district court.
Two issues are before this Court upon appeal:
1) Whether the provision of section 11-3271, R.C.M.
1947, which allows the termination of a police judge at the
will of the city commission is unconstitutional on its face.
2) Whether prohibition lies in the instant case.
Section 11-3271, prior to its amendment by the 45th
Montana Legislature in 1977, read:
"Police Judge--appointment and powers. The
commission shall appoint a police judge who
shall have the pow&% and authority-now con-
ferred by existing laws and shall hold his
office at the will of the commission."
Appellant challenges the constitutionality of the provision
stating that the police judge " * * * shall hold his office at
the will of the commission". The alleged constitutional in-
(Senate Bill 349, Forty-fifth Le islature)
firmity has since been corrected by amendment/effectlve Aprl i!
4, 1977, and now reads:
(1) "In each municipality having a commission-
manager form of government, a city judge shall
be elected every 4 years in a nonpartisan elec-
tion held in conjunction with the regularly
scheduled municipal election. The city judge
shall hold office for a term of 4 years."
(2) "The qualifications to hold the office of
city judge shall be set by ordinance by the
commission. The ordinance shall be consistent
with any rules adopted by the Montana Supreme
Court on city judge qualifications."
(3) "The first election of a city judge under
this act shall be held in conjunction with the
next regularly scheduled municipal election held
30 days or more after the effective date of this
act."
(4) "If a vacancy occurs in the office of city
judge, the commission shall appoint a qualified
individual to serve for the remainder of the
term. "
One of the cornerstones of our system of government is
the separation of powers of the three branches of government.
Each branch is separate and distinct and is immune from the
control of its two branches of government in the absence of
express constitutional authority to the contrary. State ex rel.
Public Service Commission v. District Court, 107 Mont. 240,
84 P.2d 335. This doctrine is found in the 1972 Montana
Constitution, Article 111, Section 1, as follows:
"The power of the government of this state is
divided into three distinct branches--1egis-
lative, executive, and judicial. No person or
persons charged with the exercise of power
properly belonging to one branch shall exer-
cise any power properly belonging to either of
the others, except as in this constitution
expressly directed or permitted."
We have previously stated in State ex rel. Schneider v.
Cunningham, 39 Mont. 165, 168, 101 P.2d 962, in regard to the
predecessor of Article 111, Section 1, found in the 1889 Montana
Constitution:
" * * * It is within the knowledge of every intell-
igent man that its purpose is to constitute each
department an exclusive trustee of the power vested
in it, accountable to the people alone for its
faithful exercise, so that each may act as a check
upon the other, and thus may be prevented the tyranny
and oppression which would be the inevitable result
of a lodgment of all power in the hands of one body.
It is incumbent upon each department to assert and
exercise all its power whenever public necessity
requires it to do so; otherwise, it is recreant to
the trust reposed in it by the people. It is equally
incumbent upon it to refrain from asserting a power
that does not belong to it, for this is equally a
violation of the people's confidence."
We find, therefore, that the provision of section 11-
3271 which allows the removal of the police judge from office
at the will of the city commission is a clear violation of
the mandate of the doctrine of separation of powers. The
city commissioners, acting as the legislative branch of city
government, may not infringe upon the duties of the judicial
branch. The power to remove the police judge following a
ruling adverse to the city commission is an impermissible
infringement upon the duty of each and every judge to render
a fair and impartial decision.
Subsequent to the filing of the instant case, section
11-3271 was amended. This amendment, which became effective
on April 4, 1977, provides in part for a change in name from
police judge to city judge for the position in question and
an elected four year term. The latter provision corrects
the constitutional infirmity found in the unamended version
of section 11-3271. The amended statute further provides
that the initial election of a city judge shall be held in
conjunction with the next regularly scheduled municipal elec-
tion held 30 days or more after the effective date of the act.
Appellant must therefore be restored to his position as city
judge until such time as the next regularly scheduled munici-
pal election is held. Furthermore respondent must pay to
appellant all back pay accrued during the pendency of this
action.
The second issue deals with the propriety of the remedy
of prohibition in the instant case. The writ of prohibition
lies to arrest the proceedings of any tribunal, corporation,
board or person whether exercising functions judicial or mini-
sterial, when such proceedings are without or in excess of the
jurisdiction of such tribunal, corporation, board or person.
Section 93-9201, R.C.M. 1947. It may be issued by the Supreme
Court or district courts in cases where there is no plain,
speedy and adequate remedy in the ordinary course of law.
Section 93-9202, R.C.M. 1947. In addition we have held that
a writ of prohibition lies to arrest only judicial or quasi-
judicial functions. State v. Montana Livestock Sanitary Board,
135 Mont. 202, 339 P.2d 487.
After careful consideration of the applicable law we
hold that prohibition is the proper remedy in the instant
case. The issuance of a writ of prohibition to arrest the
proceedings of a municipal corporation acting in excess of
its jurisdiction is not novel in this jurisdiction. See State
ex rel. Griffin v. Butte, 151 Mont. 546, 445 P.2d 739.
We find no merit in respondent's contention that pro-
hibition is improper because the city commission's action was
ministerial rather than judicial or quasi-judicial. "A mini-
sterial act may perhaps be defined to be one which a person
performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of legal authority, without regard to
or the exercise of his own judgment upon the propriety of the
act done." Montana Livestock Sanitary Board, supra. The dis-
missal involved herein is not a ministerial act done in further-
ance of legal authority. The crux of our holding above is the
city commission's lack of legal authority to infringe upon the
duties of the judiciary.
Respondent, in its oral argument before this Court, al-
leged that appellant had failed to comply with Rule 38, M.R.App.
Civ.P., and therefore the constitutional issue is not properly
before the Court. In substance, Rule 38 provides that the attor-
ney general of the State of Montana must be notified of any
proceeding in the Supreme Court which challenges the constitution-
ality of any act of the Montana Legislature. The record reflects
that such a "notice of existence of constitutional question" was
filed with this Court on January 11, 1977, as a portion of appel-
lant's application for a writ of supervisory control. Apparently
such notice was not refiled prior to this appeal.
While Rule 38 was not strictly complied with in the in-
stant case, we feel the spirit and intent of the rule was met.
We therefore hold that the constitutional issue is properly be-
fore us.
It is ordered that this matter be remanded to the district
court, Lewis and Clark County, with instructions to order the
restoration of appellant to his position as Helena City Judge
until an election may be held pursuant to section 11-3271. In
addition that court is to determine reasonable attorney fees
and costs and award such moneys to appellant. Respondent must
also pay appellant all back pay accrued during this action
and other benefits withheld.
Respondent argues that appellant's proper remedy is
quo warranto and therefore, prohibition does not lie because
appellant has a remedy in the ordinary course of law. Quo
warranto lies to test the authority of a person allegedly
wrongfully holding a public office. Section 93-6401, R.C.M.
1947; State ex rel. Casey v. Brewer, 107 Mont. 550, 88 P.2d
49. A quo warranto proceeding may be commenced by a private
person under certain circumstances. Section 93-6405, R.C.M.
1947. Respondent argues that such circumstances exist in the
instant case. We disagree.
Section 93-6405 states in part:
"A person claiming to be entitled to a public
office unlawfully held and exercised by another,
by himself or by an attorney and counselor at
law, may bring an action therefor in the name
of the state, as provided in this chapter. * * *"
The mandate of the above statute is clear. A private person may
institute a quo warranto proceeding to attempt to prove another
is wrongfully holding a public office. It is clear, therefore,
that quo warranto does not lie in the instant case as appellant
actually held the office of police judge at the time this action
was instituted.
Justice
We concur:
n
Chief Justice 1 '*
Justices
6
'
Justice John.Conway Harrisordid not participate in this cause.
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 13660
THE STATE OF MONTANA, EX REL.
JULIO E. MORALES, Helena City
Judge,
Relator,
VS.
THE CITY COMMISSION OF THE CITY
OF HELENA,
Respondent.
O R D E R
IT IS ORDERED that the following amendment be made
on the above named opinion.
The last two paragraphs on page 7 of the opinion
should be removed from that page and inserted between the
first and second paragraphs on page 6.
DATED this 28th day of July, 1977.
I