No. 13821 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

ROBERT DEWARI Plaintiff and Appellant,

-vsCITY OF GREAT FALLS et al., Defendants and Respondents.

Appeal from: District Court of the Eighth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: John M. McCarvel arqued, Great Falls,Montana For Respondents: Larsen and Gliko, Great Falls, Kontana David V. Gliko argued, Great Falls, Montana

Submitted: December 7, 1977Mr. JusticeGene B. Daly delivered the Opinion of the Court: Plaintiff, a police officerwith the City of Great Falls, Montana, was char&eu~ith the theft of LVJObicycles from che Great Falls Police Department storage area during October 1974. Charges were initiatedbefore the Police Commission of the City of Great Falls and the officer suspended December 26, 1974. Hearing was commenced before the Police Commission on February 19, 1975. An imbroglio ensued concerning the authority of the Commission tocompel testimony. This matter reached the Montana Supreme Court, Cause 1113115, decided April 6, 1976, In the Matter of Charges Against Robert DeWar, Police Officer, 

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# . , 548 P.2d 149, 33 St. Rep. 353. On February 19, 1975, the Commission was comprised of Joseph R. Marra, Chairman, who was appointed for an unexpired term and reappointed May 11, 1970 fora three year term, which expiredMay 1, 1973. He was reappointed September 21, 1973 for

a three year termbut no evidence of confirmation appears inthe record. D. S. Harris, member, appointed 1968, reappointed May 15, 1972, confirmed, expiredMay 1975, reappointed May 4, 1976. Marion C. Heffern, member, appointed 1971to fillvancancy, reappointed May 15, 1972 and confirmed. D. S. Harriswas serving as a member

on an expired term; Joseph Marra's termwould expireMay 1, 1976 and Marion Heffern's termwould expireMay 

### 1, 1975. The cityadministrationupon expiration of terms appointed two new members tothe Commission, Maurice Clark, Jr. and Charles C. Abernathy, Jr., and reappointed D. S. Harris, as Chairman. The appointments were confirmed May 4, 1976. The interrupted hearingwas recommenced 

### on May 25, 1976, with thenew Commission.Plaintiff objected to thejurisdiction of the Commission (1) because the original commission had not been properly appointed in that there was a failure tocomply with section 11-180&,

### R.C.M. 1947 and it lackedjurisdiction to consider the case; (2) that the appointment of two new commissioners constituted "prosecutorial manipulation1';and 

### (3) that inproceeding plaintiff-appellant was denied due process. Plaintiff was offered a new hearing but agreed tocertify the record of the old Commission and proceed from that point, reserving his rights of challenge tojurisdiction and lack of due process. After an adverse ruling, plaintiff commenced an action inthe District Court, Eighth Judicial District, County of Cascade, Hon. B. W. Thomas from the Twelfth Judicial District, presiding. Summary judgment was entered against plaintiff by the court on January 20, 1977: "The motion of defendants for summary judgment came on forhearing before this Court on the 27th day of December, 1976. Plaintiff was represented by his counsel, Mr. John M. McCarvel, and defendants were represented by their counsel, David V. Gliko. After hearing oralarguments, the Court granted counsel time tofilebriefs. Now, after considering the briefs and the oral statements made atthe hearing, and also the pleadings and affidavits on file, the Court finds that there 

### isno genuine issue as to any material fact; that the only issues tobe determined involve questions of law, and as to them the Court concludes:

"(1) The members of the Police Commission of the City of Great Falls during the period from January 2, 1975 toMay 

### 4, 1976, were validly holding over in their offices after expiration of their terms and before appointment and qualification of their successors. As defactomembers of the commission, they validly exercised the functions and powers thereof during that period and had jurisdiction to receive and tohear the complaint against the plaintiff. "(2) The members of the Police Commission of the City of Great Falls who were appointed and confirmed on May 

### 4, 1976, were validly and legally appointed and confirmed as successors to the members who had beenholding over, and from and after that date constituted the Police Commission of the City of Great Falls, with the right to exercise the functions and powers thereof and thereafter had jurisdiction of the complaint filedagainst plaintiff. "(3) The change inthe membership of the Police Commission of the City of Great Falls on May 4, 1977, under the circumstances shown, didnot constitute tprosecutorial manipulation' and did not deprive plaintiff of due process. "(4) The proceedings against plaintiff before the Poliqe Commission were not criminal innature, and the resumption of those proceedings after the change inmembership of the Commission, didnot subjectplaintiff todoublejeopardy. 

### "(5) Defendants areentitledtojudgment as a matter of law. "It 

### is, therefore, hereby ORDERED that the motion of defendants for summary judgment be and it ishereby granted, and thatjudgment be entered accordingly." Plaintiff appeals the questions of law enunciated inthe summary judgment. The Court, aftera review of the record and the law, affirms the summary judgment asentered on the 5 questions of law: (1) We do not agree with plaintiff's contention that State

f . I. 

### v. Swanberg, (1956),130 Mont. 202, 299 P.2d M&, turns on the statutory language

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# * the term of office of the appointed member of theboard shallbe four (4) years and until his

successor shallhave been appointed and confirmed.",(Section 92-104, R.C.M. 1947), insofar as authority tohold over beyond the statutory term. Swanberg itself directsus to Stateex rel. Sandquist v. Rogers, (1933), 93.Mont. 355, 362,918P.2d 617, wherein it is plainly stated'thatevery officermust continue to discharge the duties of his officealthough his termhas expired, until his successor has quali5ied. It is a right and a duty. This right 

### is qualified onlyby express or clear implication of prohibition inthe language of t)ie statute. We find no such expressor implied language claimed inthe instant cause. See: 

### 3 McQuillin

on Municipal Corp. 3d ed., 

### 5 12.110, p. 472; 

### 63Am Jur 2d, Public Officers and Employees, 5157; Section 59-406, R.C.M. 1947. (2) The holding under question of law No.(l), renders No. (2) moot. 

### (3) We do not recommend the proceeding here asprecedent for any kind of administrativehearing. Yet, thejudgment of the District Court is entitledtoa presumption of correctness and willonly be overcome by a preponderance of the evidence. Aswe have stated, there have been procedures indulged inhere that shouldnotbe repeated, but froin allof that one can draw only an inference of misconduct and not sufficient showing toovercome the statutory presumption. 

### (4)and (5). These questions of law were not seriously argued on any factsnot included inNos. 1, 

### 2 and 3 above, therefore they must fallto the same conclusions. The judgment of the trialcourt s affirmed. 

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Justice #

We Concur:

Chief Justice 

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