                                       No. 13263

          I N THE SUPREME COURT OF THE STATE OF M N A A
                                                 OTN

                                           1976



DALLAS D. ERICKSON,

                               P e t i t i o n e r and A p p e l l a n t ,

          -vs   -
J O H N D. FISHER,

                              Respondent and Respondent.



A p p e a l from:     District Court of t h e Eleventh J u d i c i a l District
                      Honorable LeRoy L. McKinnon, J u d g e p r e s i d i n g

Counsel o f Record :

       For Appellant :

                H. James Oleson a r g u e d , K a l i s p e l l , Montana

       F o r Respondent:

                l J i l l i a m A. Douglas a r g u e d , L i b b y , Montana



                                                Submitted:          August 30, 1976

                                                   Decided :
                                                                     ooR4
                                                                        1976
Filed:   fJC-1 5 1976
Mr.Chief J u s t i c e James T . H a r r i s o n d e l i v e r e d t h e Opinion o f
t h e Court.

             T h i s i s a n a p p e a l by p e t i t i o n e r D a l l a s D . E r i c k s o n ,

from a n a d v e r s e judgment e n t e r e d f o l l o w i n g a t r i a l b e f o r e t h e

c o u r t w i t h o u t a j u r y i n L i n c o l n County, Montana.

             From t h e r e c o r d it a p p e a r s t h a t on March 1 4 , 1975,

a p p e l l a n t , t h e n employed a s a d e p u t y s h e r i f f of L i n c o l n County,

was g i v e n a w r i t t e n o r d e r from t h e r e s p o n d e n t , t h e n s h e r i f f o f

L i n c o l n County.       The o r d e r was concerned w i t h t h e e s t a b l i s h m e n t

of a c e n t r a l i z e d f i l i n g system, and d i r e c t e d t h e a p p e l l a n t :

             "Any c r i m i n a l f i l e s o r c a s e s t h a t you a r e p r e s e n t l y
             working, o r i n v o l v e d w i t h , s h a l l be immediately
             t u r n e d o v e r t o O f f i c e r Michael McMeekin of t h e
             Investigation Division."

Appellant d i d n o t t u r n i n c e r t a i n f i l e s containing unsolved c a s e s

and c a s e s s c h e d u l e d f o r t r i a l .    O A p r i l 21, 1975, r e s p o n d e n t
                                                      n

gave w r i t t e n n o t i c e t o a p p e l l a n t of h i s t e r m i n a t i o n s p e c i f y i n g

" t h a t under s e c t i o n 16-3705,          R.C.M.     1947, you have w i l f u l l y d i s -

obeyed a n o r d e r g i v e n by m e t o you", a l l e g i n g t h e above s t a t e d

circumstances.            Appellant f i l e d a timely p e t i t i o n f o r r e i n s t a t e -

ment, which was d e n i e d by t h e d i s t r i c t c o u r t .

             Two i s s u e s a r e p r e s e n t e d by t h i s a p p e a l :

             (1) Did a p p e l l a n t ' s a c t i o n c o n s t i t u t e l e g a l c a u s e f o r

h i s termination?

             (2)     A r e t h e f i n d i n g s of f a c t incomplete because t h e

d i s t r i c t c o u r t f a i l e d t o i n c l u d e , a s a f i n d i n g of f a c t , t h a t

a p p e l l a n t r e l i e d on U n d e r s h e r i f f Shawls i n t e r p r e t a t i o n of t h e

written order?

             F i r s t , t h e l e g i s l a t u r e h a s s e t f o r t h t h e r e a s o n s f o r , and

t h e p r o c e d u r e i n v o l v e d i n , t e r m i n a t i o n of a d e p u t y by a s h e r i f f .

S e c t i o n 16-3705, R.C.M.          1947, s t a t e s :

            " ( 5 ) Any d e p u t y s h e r i f f now employed o r               that
            may h e r e a f t e r be employed s h a l l c o n t i n u e          in
            s e r v i c e u n t i l r e l i e v e d o f h i s employment         in
            t h e manner h e r e i n a f t e r p r o v i d e d and o n l y       for
            one o r more of t h e f o l l o w i n g c a u s e s :
        "(b) willful disobedience of an order or orders
        given by the sheriff * * *".  (Emphasis added.)
        Appellant cites a number of cases for the proposition
the sheriff must show more than a willful disobedience of an
order to suffice as "cause". However, the statutes construed
by the cases cited merely state that an officer may be removed
"for cause".     Such a vague phrase would require a specific show-
ing of an adverse effect on the administration of the office and
the rights and interests of the public.      Montana's legislature
has gone one step further using the phrase "     * * *   only for one
or more of the following causes    * * *",   followed by an enumera-
tion of specific causes.    Thus, the legislature has specified
what is required to be proven for termination.      Using these spec-
ific causes does not conflict with the general requirement for
terminating a public officer, since these enumerated causes would
necessarily hinder the administration of the office and impair
the rights and interests of the public.      As in the instant case,
a sheriff could not run an efficient office and adequately en-
force the laws of this state, if deputy sheriffs did not adhere
to his orders.    All that need be shown for the termination of a
deputy sheriff is one of the causes enumerated by section 16-
3705 (5), R.C.M. 1947.
        Appellant next alleges that his action was not "willful".
We do not agree with the definition proposed by appellant, which
he insists requires a malicious intent.      Section 19-103(15), R.C.M.
1947, states:
        "The word 'willfully' when applied to the intent
        with which an act is done or omitted, implies
        simply a purpose or willingness to commit the
        act, or make the omission referred to. It does
        not require any intent to violate law, or to
        injure another, or to acquire an advantage."
Appellant did have a willingness to retain those files not turned
over to Officer McMeekin, even though no malicious motive
may have been behind such action.    As such, his action was
willful.
           Appellant's last attack on the cause of his termination
is that the order given was ambiguous and his reliance upon
Undersheriff Shawls interpretation constituted a justifiable
excuse.    We do not agree for a number of reasons.    The order
directed appellant to turn over all files he was "presently
working on or involved with".     Some of the files not turned in
were cases scheduled for trial.    Certainly appellant was "involved"
with these cases, since they would require his testimony.      Fur-
thermore, appellant was aware that the purpose behind the order
was to create a central filing system, which purpose would be
defeated if each deputy retained files in his possession.      Another
interesting point is that all deputies, with the exception of
appellant, had turned in all files in their possession to Officer
McMeekin as ordered.    We cannot ignore the fact this was a small
office in terms of personnel and not a gigantic corporate enter-
prise.    Appellant had daily access to respondent and could have
easily cleared up any doubts he had concerning the order by direct-
ing them to respondent.    In light of these factors we agree with
the district court that the order was wilfully disobeyed without
justifiable excuse.
          Appellant's second issue questions the sufficiency of the
findings of fact rendered by the district court.      Certain rules of
construction regarding findings of fact are set forth in Ballenger
v. Tillman, 133 Mont. 369, 378, 379, 324 P.2d 1045:
          "'Ultimate facts as distinguished from eviden-
          tiary ones, are the findings a trial court
          should make.'


          "'It is an established rule of law that the
          findings of fact are to receive such a con-
          struction as will uphold rather than defeat the
             judgment t h e r e o n . '



             "If t h e f i n d i n g s a r e i n exact accord with i s s u e s
             framed by t h e p l e a d i n g s and e v e r y u l t i m a t e
             f a c t i s covered t h a t i s a l l t h a t i s required."

I n f i n d i n g of f a c t No. 5 t h e d i s t r i c t c o u r t s t a t e s a n u l t i m a t e

f a c t t h a t appellant " f a i l e d t o t u r n i n t h e f i l e s a s ordered."

The proposed f i n d i n g of f a c t o f f e r e d by a p p e l l a n t , namely t h a t

he r e l i e d on U n d e r s h e r i f f Shaw's i n t e r p r e t a t i o n , i s m e r e l y a n

e v i d e n t i a r y f a c t r e l a t e d t o whether o r n o t h e obeyed t h e o r d e r .

A s s u c h , t h e proposed f i n d i n g o f f a c t i s n o t r e q u i r e d t o be

included i n t h e d i s t r i c t c o u r t ' s findings.

            A s t h i s C o u r t s t a t e d i n Montana Mobile Home T o u r i s t

C o u r t , I n c . v . F i n l e y , 163 Mont. 7 , 514 P.2d 762, t h e f i n d i n g s

of f a c t and c o n c l u s i o n s of law a r e t o be c o n s i d e r e d i n t o t o ,

and viewed i n t h a t l i g h t t h e y s u p p o r t t h e judgment o f t h e d i s -

t r i c t court.      The judgment i


                                                        ----------
                                           I,"      /         Chief J u s t i c e




Justices              \I
