No. 13821 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

ROBERT DEWAR I 

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, 1977 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

Plaintiff, a police officer with the City of Great Falls, 

Montana, was char&eu ~ith the theft of LVJO bicycles from che 

Great Falls Police Department storage area during October 1974. 

Charges were initiated before 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 to compel testimony. This matter reached the 

Montana Supreme Court, Cause 1113115, decided April 6, 1976, In 

the Matter of Charges Against Robert DeWar, Police Officer, - 

Mont . , 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 for a three year term, which 

expired May 1, 1973. He was reappointed September 21, 1973 for 

a three year term but no evidence of confirmation appears in the 

record. D. S. Harris, member, appointed 1968, reappointed May 15, 

1972, confirmed, expired May 1975, reappointed May 4, 1976. Marion 

C. Heffern, member, appointed 1971 to fill vancancy, reappointed 

May 15, 1972 and confirmed. D. S. Harris was serving as a member 

on an expired term; Joseph Marra's term would expire May 1, 1976 and 

Marion Heffern's term would expire May 1, 1975. 

The city administration upon expiration of terms appointed 

two new members to the 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 hearing was recommenced on May 25, 1976, 

with the new Commission. 
Plaintiff objected to the jurisdiction of the Commission 

(1) because the original commission had not been properly appointed 

in that there was a failure to comply with section 11-180&, R.C.M. 

1947 and it lacked jurisdiction to consider the case; (2) that the 

appointment of two new commissioners constituted "prosecutorial 

manipulation1' ; and (3) that in proceeding plaintiff-appellant was 

denied due process. 

Plaintiff was offered a new hearing but agreed to certify 

the record of the old Commission and proceed from that point, 

reserving his rights of challenge to jurisdiction and lack of 

due process. After an adverse ruling, plaintiff commenced an action 

in the 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 for hearing 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 oral arguments, the Court granted counsel time 

to file briefs. Now, after considering the briefs and 

the oral statements made at the hearing, and also the 

pleadings and affidavits on file, the Court finds that 

there is no genuine issue as to any material fact; 

that the only issues to be 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 to May 4, 1976, were validly holding over in 

their offices after expiration of their terms and before 

appointment and qualification of their successors. As 

defacto members of the commission, they validly exercised 

the functions and powers thereof during that period and 

had jurisdiction to receive and to hear 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 been 
holding 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 filed against plaintiff. 

"(3) The change in the membership of the Police 

Commission of the City of Great Falls on May 4, 1977, 

under the circumstances shown, did not constitute 

t prosecutorial manipulation' and did not deprive plaintiff of due process. 

"(4) The proceedings against plaintiff before 

the Poliqe Commission were not criminal in nature, and 

the resumption of those proceedings after the change 

in membership of the Commission, did not subject plaintiff to double jeopardy. 

"(5) Defendants are entitled to judgment as a 

matter of law. 

"It is, therefore, hereby ORDERED that the motion 

of defendants for summary judgment be and it is hereby 

granted, and that judgment be entered accordingly." 

Plaintiff appeals the questions of law enunciated in the 

summary judgment. 

The Court, after a review of the record and the law, affirms 

the summary judgment as entered 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 "* * * the term of office of the appointed 

member of the board shall be four (4) years and until his 

successor shall have been appointed and confirmed.",(Section 

92-104, R.C.M. 1947), insofar as authority to hold over beyond 

the statutory term. Swanberg itself directs us to State ex rel. 

Sandquist v. Rogers, (1933), 93. Mont. 355, 362,918 P.2d 617, 

wherein it is plainly stated'that every officer must continue to 

discharge the duties of his office although his term has expired, 

until his successor has quali5ied. It is a right and a duty. 

This right is qualified only by express or clear implication of 

prohibition in the language of t)ie statute. We find no such express 
or implied language claimed in the instant cause. See: 3 McQuillin 

on Municipal Corp. 3d ed., 5 12.110, p. 472; 63 Am 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 as precedent 

for any kind of administrative hearing. Yet, the judgment of the 

District Court is entitled to a presumption of correctness and 

will only be overcome by a preponderance of the evidence. As we 

have stated, there have been procedures indulged in here that 

should not be repeated, but froin all of that one can draw only an 

inference of misconduct and not sufficient showing to overcome 

the statutory presumption. 

(4) and (5). These questions of law were not seriously 

argued on any facts not included in Nos. 1, 2 and 3 above, therefore 

they must fall to the same conclusions. 

The judgment of the trial court s affirmed. 2 

Justice # 

We Concur: 

Chief Justice 

n ,"