                                No. 88-82


               IN THE SUPREME COURT OF THE STATE OF MONTANA


                                   1988




STATE OF MONTANA, ex rel.,
JAMES T. PAUGH,

                Petitioner,
         VS.

DOROTHY BRADLEY,

                Respondent.




ORIGINAI* PROCEEDING :


COUNSEL OF RECORD:

         For Petitioner:

                James T. Pauqh, pro se, Bozeman, Montana

         For Respondent:

                Dorothy Bradley, Bozeman, Montana


                                                       --   - -




                                   Submitted:   February 23, 1988

                                    Decided:    March 3, 1988

Filed:   MAR 3 - 1988'
Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     In this cause, we       determine that the original
proceedings brought in this Court by James T. Paugh, seeking
a writ of quo warranto against Dorothy Bradley, a law clerk
and master for Division I1 of the District Court of the
Eighteenth   Judicial    District,   Gallatin    County,   is
jurisdictionally deficient and therefore we order DISMISSAL
of the same.
     This matter originated on February 8, 1988, when James
T. Paugh filed an instrument entitled "Petition to Montana
Supreme Court" in which instrument James T. Paugh named
himself as petitioner, and Dorothy Bradley as respondent, and
in which petitioner Paugh moved this Court to enter judgment
against Dorothy Bradley as hereafter described.
     The petition was returned to Paugh on February 10, 1988,
by the Clerk of this Court, along with a letter apprising him
that he was required to pay the sum of $75.00 for a filing
fee, that the Clerk of this Court could not by law advise him
as an attorney on how to proceed and that the action in any
event had to be brought in the name of the state under S
27-28-301, MCA.
     On February 18, 1988, Paugh again filed a petition j.n
this Court, captioned "State of Montana ex rel. James T.
Paugh, Petitioner v. Dorothy Bradley, Respondent."  In the
instrument, Paugh moves that this Court enter a judgment
against Dorothy Bradley as such law clerk and master and
"that she immediately cease to be in violation of the
Constitution of the State of Montana."
     The petition states that the motion is made pursuant to
Art. 111, S 1 of the Montana Constitution, which provides:
     Separation of Powers. The power of the government
     in this state is divided into three distinct
     branches--legislative, executive, and judicial. No
     person or persons charged with the exercise of
     power properly belonging to one branch shall
     exercise any power properly belonging to either of
     the others, except as in this constitution as
     expressly directed or permitted.
     In a brief statement of facts, the petitioner recites
that law clerk and master Dorothy Bradley is the same person
as Dorothy Bradley, a legislator from Legislative District
No. 79 of the State of Montana. Attached to the petition is
a copy of a letter dated October 3, 1986 from the Hon. Joseph
B. Gary as district judge of the Eighteenth Judicial District
to the Gallatin County Commissioners, in which letter the
salary of Dorothy Bradley is discussed.    On the letterhead
appears the legend "Dorothy Bradley, J.D., Law Clerk and
Master."   Paughls petition further recites that the copy of
the letter shows that Dorothy Bradley is indeed a law clerk
and master, and that she would be gone from her employment as
a law clerk during the months that the Legislature would be
in session.
     The petitioner requested that the Montana Supreme Court
order Dorothy Bradley removed from her position in the
District Court, or that she show cause within 30 days why the
Constitution of the State of Montana does not have to be
obeyed. The petition itself is designated by Paugh as "Writ
of QUO Warranto."
     The petition is deficient in at least the following
particulars:
     1. The proceedings have not been instituted by the
filing of a complaint. Section 27-28-201, MCA.
     2. The standing of James T. Paugh to bring the action
is not shown;
     3. The petition does not indicate that Paugh himself
seeks to hold the position of law clerk, now held by Dorothy
Bradley, which might entitle him to bring the action;
     4. Otherwise, the petition should be brought for the
State by the Attorney General and not by a private person;
     5. The petition fails to show that Dorothy Bradley, as
a person employed as a Law Clerk and Master in the Eighteenth
Judicial District is a public officer.
     Because of those deficiencies, James T. Paugh has not
shown any right to relief.
     Quo warranto is a common law remedy derived from the
common law of England, 65 Am. Jur. 2d 230-231 Quo Warranto, 5
2, but in Montana is controlled by statutory provisions which
deal with the subject. Title 27, Ch. 28, MCA.
     A quo warranto proceeding may be directed against a
person who usurps or unlawfully holds or exercises a public
office, or a franchise within the state or an office within a
corporation created by the authority of the state (s
27-28-101, MCA).    It is a proceeding that grew up in the
common law of England where the government was personified in
the King.    He was in theory the source from which all
governmental powers or franchises were derived, and so the
exercise by an individual of any such powers or franchises
without grant from the King was necessarily a usurpation of a
regal prerogative. Such being the case, it was required that
the proceeding should be instituted in the King's own right,
in his name, and at the instance of his legal representative,
the Attorney General.      The development of quo warranto
proceedings is described in 65 Am.Jur.2d 279 Quo Warranto, 5
69, as follows:
     ...    Since private individuals frequently had a
     stronger interest in initiating quo warranto
     proceedings than did the government, especially in
     connection with offices in corporate bodies, there
     grew up a class of informations in the nature of
     quo warranto which were in fact initiated by
     private relators, and the proceedings became
     divided into those that were filed by the attorney
     general ex officio on behalf of the Crown and those
     that were exhibited by the master of the Crown
     office on the relation of some private individual
     not named ...
     Under the statutory scheme in our state, therefore, in
light of the origins of quo warranto under the common law, it
is provided that the civil action must be brought in the name
of the state against the person who is usurping or unlawfully
holding or exercising a public office.        It is further
required that the Attorney General is required to commence an
action for the State in quo warranto, either when directed by
the Governor, or when upon complaint or otherwise he has good
reason to believe that a corporation is misusing its business
or franchise. Section 27-28-103, MCA.
     The only provisions enabling a private person to bring
an action in quo warranto are those found in S 27-28-301,
MCA.  It is provided that "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 therefore in the name of the state ...  " It does
not appear from Paugh's petition that he is claiming to be
entitled to the position of Law Clerk and Master in Division
I1 of the District Court of the Eighteenth Judicial District.
He, therefore, does not come within the statutory requirement
which would authorize him to bring this action in the name of
the state. Quo warranto is a prerogative writ (that is it is
a writ that belongs particularly to the state) and as such it
is   administered   cautiously   and   in   accordance   with
well-defined principles. 65 Am.Jur.2d 233 Quo Warranto, 5 5.
Those well-defined principles are set forth for our purposes
in the statutes made and provided.
     In State ex rel. Boyle v. Hall (1917), 53 Mont. 595, 165
P. 757, the action was brought on the relation of Boyle, who
claimed he was entitled to the chairmanship of the Board of
Railroad Commissioners and that the office was being usurped
by Hall. This Court determined that the chairmanship of the
board was not a public office and therefore that Boyle was
not entitled to quo warranto relief.    In passing on the
question, however, this Court stated:
     1. That the chairmanship of the board is not a
     public office.    If this be sustained, the other
     contentions need not be noticed; for though the
     authority of the state (represented by the attorney
     general) to invoke the remedy by quo warranto is
     quite extensive     (citing statutes), a private
     individual is limited in his right to the remedy to
     a single case, viz. , a case in which he claims "to
     he entitled to a public office unlawfully held and
     exercised by another" (citing a statute).       The
     question before us in limine is:            Is the
     chairmanship of the board of railroad commissioners
     a public bffice, with public functions to be
     performed by the occupant independently of his
     duties as a member of the railroad commission?
53 Mont. at 600, 165 P. at 757.
     Although dictum, the foregoing quotation reflects the
opinion of the court that the right of an individual to
proceed in the name of the state in quo warranto is limited
to those cases where the relator claims to be entitled to a
public office.
     The court, in State ex rel. Boyle v. Hall, went on to
define what constitutes a public office:
     The duties attached to the position must concern
     the public directly, and must be imposed by public
     authority--not by contract (citing authority). The
     duties must be public in a sense that they
     comprehend the exercise of some portion of the
     sovereign power and authority of the state either
     in making, administering or executing the laws.
     (Citing authority.)   They must be public also, in
     the sense that they imply the element of personal
     responsibility, as distinguished from the merely
     clerical act of an agent or servant.        (Citing
     authority.)  In other words, a public officer is a
     part of the personal force by which the state
     thinks, acts, determines and administers to the end
     that its Constitution may be effective and its laws
     operative. (Citing authority.) While the elements
     of fixed term and compensation cannot be said to be
     indispensible to a public office, they are indices
     the presence of which points to the existence of
     such a position, and the absence of which indicates
     to some extent the contrary conclusion.
53 Mont. at 600-601, 165 P. at 757-758.
     In State ex rel. Barney v. Hawkins (1927), 79 Mont. 506,
257 P. 411, relator Barney brought an action against Hawkins
and others seeking to enjoin them from approving payment of
compensation to one Grant Reed. Reed was a representative in
the Montana Legislature.     While his term of office was
extant, he was appointed by          the Board of Railroad
Commissioners as an auditor for the Board at a salary of $225
    month.    This Court determined that       auditor    the
Board, Reed in the execution of his duties was subject to the
absolute control of the Board.     Therefore, this Court held
that he was not a public officer.       In passing, the Court
said:
      . . . we hold that five elements are indispensible
      in any position of public employment, in order to
     make it a public office of a civil nature: (1) it
     must be created by the Constitution or by the
      legislature or created by a municipal-ity or other
     body    through   authority   conferred    by   the
     legislature; (2) it must possess a delegation of a
     portion of the sovereign power of government, to be
     exercised for the benefit of the public; (3) the
     powers conferred and the duties to be discharged
     must he defined, directly or impliedly, by the
     legislature or to legislative authority; (4) the
     duties must be performed independently and without
     control of a superior power, other than the law,
     unless they be those of an inferior or subordinate
     office, created or authorized by the legislature
     and by it placed under the general control of a
     superior officer or body; ( 5 ) it must have some
     permanency and continuity and not be only temporary
     or occasional.    In addition, in this state, an
     officer must take and file an official oath, hold a
     commission or other written authority and give an
     official bond, if the latter be required by proper
     authority. (Citing authority.)
79 Mont. at 528-529, 257 P.2d at 418.
     In State ex rel. Running v. Jacobson (1962), 140 Mont.
221, 370 P.2d 483, we find an action quo warranto brought by
Running to test the right of Jacobson to occupy the "office"
of Clerk of the Board of Trustees of Frenchtown, Missoula
County, Montana. The Court held that the office of Clerk of
a school board was not a public office and the occupant
thereof was an employee and not an officer. The writ of quo
warranto was denied.
     Finally, in State ex rel. Nagle v. Page (1934), 98 Mont.
14, 37 P.2d 575, Nagle, as Attorney General brought an action
against Page to remove him from his duties as boiler
inspector for the Industrial Accident Board.      Page was a
regularly elected state senator from Granite County and was
still in his term of office when he was appointed and began
to perform the duties of a boiler inspector. The Attorney
General contended that the respondent as a state boiler
inspector was occupying a state office and that quo warranto
lay against him as an officer. The court held that since the
power to supervise the conduct of the boiler inspector was
vested absolutely in the Industrial Accident Board, he was
not a public officer subject to quo warranto.
     In the case of Dorothy Bradley, the pertinent provision
of the Montana Constitution to be considered is Art. V, S 9 ,
which provides:
     Disqualification.   No member of the legislature
     shall, durinq the term for which he shall have been
     elected, be appointed to any civil office under the
     state .. .
     In State ex rel. Barney v. Hawkins, supra, it was held
that a "civil" office was the equivalent of a "public"
office.
     A Law Clerk, it is clear, acting as an employee of the
court, is not exercising the sovereign power of the state,
since he or she is subject to the supervision and control of
the judge or justice who is the employer.       The question
remains whether a Master exercises a portion of the sovereign
judicial authority. Again, it is clear that a Master is not
a public officer:
     Although having duties and obligations of a
     judicial officer, a master does not sit as a court.
     The master's function is to perform the duties
     imposed upon him by the order of reference and,
     when so provided by the reference, to report his
     findings of fact and conclusions of law to the
     court that appointed him for action by that court
     upon his report. Although the district court is to
     accept the master's findings of fact unless clearly
     erroneous, the master's report is advisory. It is
     the district court that makes an adjudication upon
     the facts and law and enters judgment.      A mere
     order confirming the master's report is not a
     Gudgment within the meaning of Rule 54.
5a   Moore's   Federal   Practice   at       53-134   (19841, Masters   §

53.12181.
      Accordingly, the proceedings herein brought by James T.
Pauqh are by the Court DISMISSED.
     DATED ;his        3e
                        day of March, 1988.
                                         ,-\




                                         i    /       Justice
We Concur:




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            Justices
