### No. 13562 INTHE 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. Sullivanargued, 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, 1976Mr. Chief JusticeJames T. Harrison delivered the Opinion of the Court. This isan 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 thematter taken under advisement. Thereafterthe 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, inthe district court of Silver Bow County. A jury trial resulted in a unanimous verdict of guilty and a judgment of conviction was entered. The gistof the charge

was that defendants, who were the members of theboard of county commissioners, had entered into two contracts for county road construction, one for $2,898 and the other for $9,901, without firstadvertising 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 districtjudge advised defendants at the time thejudgment was entered that they would no longer be able toperform any officialduties ascounty commissioners because of the application of such section. Defendants applied tothe district court for an order staying execution which was denied. The application tothis Court followed. Defendants have appealed their convictions. It is agreed that the only questions now before this Court arewhether or not the appeal stayed the forfeiture of office, and, if not, can such forfeiture be stayed by thisCourt in view of the provisions of the statutory law? Section 94-7-401 (4)

## , R.C.M. 1947, as amended, insofar asherein pertinent, provides: "(4) A public servant who has been charged as provided in subsection (3) may be suspended from his office without pay pending finaljudgment. Upon finaljudgment of conviction he shall permanently forfeit his office. Upon acquittal he shall be reinstated inhis office and shall

### receive allback 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 officialmisconduct shall be fined not to exceed fivehundred dollars ($500) or be 

### imprisoned in the county jail for a 

### termnot to exceed six (6) months, or both." Counsel admit that a review of the cases involving like situations show a splitof authority. Weare impressed with the reasoning of the Arizona Supreme Court in Statevs. 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 certificateof probable cause can avoid the vacancy or the necessity for appointment. Wecite with approval the case of McKannay v. Horton, 151Cal. 711, 91 P. 598, 601, 13L.R.A., N.S., 661, 121Arn.St.Rep. 146, inwhich 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 isnot part of thejudgment of conviction incases of felony, though a consequence which flows from it, and the statute inexpress termsdefines and thereby 

### limits the effect of the appeal and certificateof probable cause. 

## * * 

## *' "To like effect see Statev. 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 officialmisconduct is not topunish the officer, but to improve the public service. The public interest demands that public affairsbe administered by officersupon 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, discussesmany cases and the annotator states: "A majority of the cases, where there

### were provisionsdeclaring, in substance, that a public office shallbecome vacant upon the incumbent's conviction of a felony or certain other crimes, have held that, notwithstanding an appeal, there was a conviction within themeaning of the provisions and that such conviction caused an immediatevacancy, despite the appeal, the courts in most instancesreasoning, toone degree or another, along the following lines: that the vacancy in, or removal from, officeresulting from the convictionwas not a punishment and did not constitutepart of thejudgment of conviction, but 

### was a consequence imposed inthe interest of the public and of sound government, and that it would be against thispublic interest toretain inoffice, pending an appeal, one who, upon a verdict of guilty orjudgment and sentence by the court, was no longer presumed tobe innocent, but who thereafter, during the pendency of the appeal, 

### was presumed tobe guilty, even though he might ultimately succeed inestablishinghis innocence. Thus, an appeal, or certificate of reasonable doubt or probable cause, has been held tohave no effect on, and not toavoid the vacancy inofficeof-- 

## * 

## * 

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

In Stateex rel. Anderson v. Fousek, 91 Mont. 448, 456, 457, 8 P.2d 791, thisCourt stated: 

### " 

## * * * Itmay be said in passing that the proceedings before the police commission, under the circumstances, were idle and useless. 

## * * * The action of themayor inpermanently discharging relator was alsounnecessary tohis effectiveremoval. By force of the statute, his officebecame vacant upon his conviction of the felony. 

## * * *" This case

### was later overruled inpart inMelton v. Oleson, 165Mont. 424, 530 P.2d 466, as tothe holding that the classification of the offense as to felony ormisdemeanor was tobe interpreted by the law of thejurisdiction where the conviction 

### was had was controlling, not the law of Montana. The Court inthe 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 theAnderson opinion isnot involved inthiscause. It is our holding that the appeal does not stay the forfeitureof the office. Turning now tothematter of whether or not this Courtcan 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 staymay be granted pending an appeal incases 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 "finaljudgment" contained in section 94-7-401(4), asamended, and that a public officer should not be compelled tovacate his officeuntil the "finaljudgment"

on his appeal. We do not accept such contention. Rule 1, M.R.App.Civ.P., provides inpart: "A party aggrieved may appeal from a judgment ororder, except when expresslymade final by law, inthe following cases: "(a) From a final judgment entered in an action or special proceeding commenced ina district court, or brought into a district court from another court or administrative body." (Emphasis supplied.) Rule 7, M.R.App.Civ.P., inpart provides: "(c) No stayof 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 writof mandamus, or of prohibition, against a tribunal, corporation, public officer, or board, commanding certain acts tobe done which ought tobe 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, inpart provides: "(a) An appeal may be taken by the defendant only from a finaljudgment 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 stateand only inextraordinary circumstances should this Court invoke the authority granted by Rule 62(g), M.R.Civ.P. Such circumstances do not exist inthismatter.Nor should we suspend the rules asprovided in section 95-2402, R.C.M. 1947. Inview 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 hWeconcur: ,

,BoneJack Green, DistrictJudge, sittinginplace of Mr. Justice Wesley Castles.