No. 13562 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiffs and Respondent, 

ED DeGEORGE, WILLIAM KENNEDY 

and E. J. HOLMAN, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Hon. James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellants : 

Mark P. Sullivan argued, Butte, Montana 

For Respondent : 

John G. Winston argued, County Attorney, Butte, 

Montana 

Jack Parker argued, Deputy County Attorney, Butte, 

Montana 

For Amicus Curiae: 

Luxan and Murfitt, Helena, Montana 

Terence Be Cosgrove argued, Helena, Montana 

Submitted : October 20, 1976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an original proceeding wherein defendantsappellants petitioned for a stay of execution of a judgment 

of conviction and forfeiture of public office. Counsel was 

heard ex parte and the matter taken under advisement. Thereafter the Court ordered an adversary hearing and stayed execution 

of the judgment until the further order of the Court. 

The adversary hearing was held, briefs filed, oral argument had and the cause submitted. 

It appears that defendants were charged with official 

misconduct, a misdemeanor, in the district court of Silver Bow 

County. A jury trial resulted in a unanimous verdict of guilty 

and a judgment of conviction was entered. The gist of the charge 

was that defendants, who were the members of the board of county 

commissioners, had entered into two contracts for county road 

construction, one for $2,898 and the other for $9,901, without 

first advertising for bids. 

The judgment did not contain any order of forfeiture 

of office as specified in section 94-7-401(4), R.C.M. 1947, as 

amended, but the presiding district judge advised defendants at 

the time the judgment was entered that they would no longer be 

able to perform any official duties as county commissioners because of the application of such section. 

Defendants applied to the district court for an order 

staying execution which was denied. The application to this 

Court followed. Defendants have appealed their convictions. 

It is agreed that the only questions now before this 

Court are whether or not the appeal stayed the forfeiture of office, 

and, if not, can such forfeiture be stayed by this Court in 

view of the provisions of the statutory law? 

Section 94-7-401 (4) , R.C.M. 1947, as amended, insofar as 
herein pertinent, provides: 

"(4) A public servant who has been charged as 

provided in subsection (3) may be suspended from 

his office without pay pending final judgment. 

Upon final judgment of conviction he shall permanently forfeit his office. Upon acquittal he 

shall be reinstated in his office and shall receive all back pay." 

This paragraph is not a portion of the penalty section, 

which is section 94-7-401(2), R.C.M. 1947, and reads: 

"(2) A public servant convicted of the offense 

of official misconduct shall be fined not to 

exceed five hundred dollars ($500) or be imprisoned in the county jail for a term not to 

exceed six (6) months, or both." 

Counsel admit that a review of the cases involving like 

situations show a split of authority. We are impressed with 

the reasoning of the Arizona Supreme Court in State vs. Sullivan, 

66 Ariz. 348, 188 P.2d 592,599, from which we quote: 

" * * * It is our opinion that a vacancy is created 

the moment a judgment of conviction is entered 

against a public officer. No appeal or certificate of probable cause can avoid the vacancy or 

the necessity for appointment. We cite with approval 

the case of McKannay v. Horton, 151 Cal. 711, 91 

P. 598, 601, 13 L.R.A., N.S., 661, 121 Arn.St.Rep. 

146, in which the court said: 

"' * * * The only effect of an appeal and certificate of probable cause is to stay the execution of 

the judgment. Removal from office is not part of 

the judgment of conviction in cases of felony, 

though a consequence which flows from it, and the 

statute in express terms defines and thereby limits 

the effect of the appeal and certificate of probable 

cause. * * *' 

"To like effect see State v. Chapmen, 187 Wash. 

327, 60 P.2d 245, 106 A.L.R. 640; In re Obergfell, 

239 N.Y. 48, 145 N.E. 323. 

"The object of the removal of a public officer 

for official misconduct is not to punish the 

officer, but to improve the public service. The 

public interest demands that public affairs be 

administered by officers upon whom rests no stigma 

of conviction of a felony, or of any offense involving a violation of their official duties." 

The Annotation in 71 ALR2d 593, 600, discusses many cases 

and the annotator states: 

"A majority of the cases, where there were provisions 
declaring, in substance, that a public 

office shall become vacant upon the incumbent's 

conviction of a felony or certain other crimes, 

have held that, notwithstanding an appeal, there 

was a conviction within the meaning of the provisions and that such conviction caused an immediate vacancy, despite the appeal, the courts in 

most instances reasoning, to one degree or another, 

along the following lines: that the vacancy in, 

or removal from, office resulting from the conviction was not a punishment and did not constitute part of the judgment of conviction, but was 

a consequence imposed in the interest of the 

public and of sound government, and that it would 

be against this public interest to retain in office, 

pending an appeal, one who, upon a verdict of guilty 

or judgment and sentence by the court, was no longer 

presumed to be innocent, but who thereafter, during 

the pendency of the appeal, was presumed to be 

guilty, even though he might ultimately succeed 

in establishing his innocence. Thus, an appeal, 

or certificate of reasonable doubt or probable 

cause, has been held to have no effect on, and not 

to avoid the vacancy in office of-- * * *". 

See, also, People v. McGuane, 13 I11.2d 520, 150 N.E.2d 

In State ex rel. Anderson v. Fousek, 91 Mont. 448, 456, 457, 

8 P.2d 791, this Court stated: 

" * * * It may be said in passing that the proceedings before the police commission, under the circumstances, were idle and useless. * * * The action 

of the mayor in permanently discharging relator 

was also unnecessary to his effective removal. By 

force of the statute, his office became vacant upon 

his conviction of the felony. * * *" 

This case was later overruled in part in Melton v. Oleson, 

165 Mont. 424, 530 P.2d 466, as to the holding that the classification of the offense as to felony or misdemeanor was to be interpreted by the law of the jurisdiction where the conviction was 

had was controlling, not the law of Montana. The Court in the 

latter case held that it was the law of Montana which controls 

and not the law of the jurisdiction where the conviction was had. 

This portion of the Anderson opinion is not involved in this cause. 

It is our holding that the appeal does not stay the 

forfeiture of the office. 

Turning now to the matter of whether or not this Court 
can stay such forfeiture. Defendants assert that they are 

entitled to a stay of the forfeiture of office by virtue of 

section 95-2406, R.C.M. 1947. While this section provides that 

a stay may be granted pending an appeal in cases of death 

sentence, imprisonment, fine and probation, it contains no such 

provision with respect to forfeiture of office. 

Defendants contend that we should adopt a strict construction of the words "final judgment" contained in section 

94-7-401(4), as amended, and that a public officer should not 

be compelled to vacate his office until the "final judgment" 

on his appeal. We do not accept such contention. 

Rule 1, M.R.App.Civ.P., provides in part: 

"A party aggrieved may appeal from a judgment 

or order, except when expressly made final by 

law, in the following cases: 

"(a) From a final judgment entered in an action 

or special proceeding commenced in a district 

court, or brought into a district court from 

another court or administrative body." 

(Emphasis supplied.) 

Rule 7, M.R.App.Civ.P., in part provides: 

"(c) No stay of proceedings shall be allowed 

upon a judgment or order which adjudges the 

defendant guilty of usurping, or intruding into, 

or unlawfully holding public office, civil or 

military, within this state; or which grants a 

writ of mandamus, or of prohibition, against a 

tribunal, corporation, public officer, or board, 

commanding certain acts to be done which ought 

to be done by such tribunal, corporation, public 

officer, or board, and not involving the payment 

or allowance of money or its equivalent." 

Section 95-2404, R.C.M. 1947, in part provides: 

"(a) An appeal may be taken by the defendant only 

from a final judgment of conviction, and orders 

after judgment which affect the substantial rights 

of the defendant." (Emphasis supplied.) 

These sections of our statutory law spell out the public 

policy of the state and only in extraordinary circumstances 

should this Court invoke the authority granted by Rule 62(g), 

M.R.Civ.P. Such circumstances do not exist in this matter. 
Nor should we suspend the rules as provided in section 95-2402, 

R.C.M. 1947. 

In view of what has been heretofore stated it is our 

considered opinion that the forfeiture is automatic upon conviction and in this cause it should not be stayed. 

The relief sought by the defendants is therefore denied. 

Let remittitur issue forthwit 

rn 

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' / Chief Justice i i 

/ J 

h We concur: , 

,Bone Jack Green, District Judge, 

sitting in place of Mr. Justice 

Wesley Castles.