No. 12701 INTHE SUPREME COURT OF THE STATE OF MONTANA

PERRY S. MELTON, Plaintiff and Respondent,

H. JAMES OLESON, Flathead County Attorney, MERLYN TABORSKY, Flathead County Clerk and Recorder, and BOARD OF TRUSTEES OF 

### FLATHEAD VALLEY COMMUNITY COLLEGE, Defendants and Appellants.

Appeal from: District Court of the Eleventh Judicial District, Hon. Robert C. Sykes, Judge presiding. Counsel of Record: For Appellants: H. James Oleson, County Attorney, argued, Kalispell,

Montana M. Dean Jellison, Deputy County Attorney, argued,

Kalispell, Montana For Respondent: White, Vadala, Springer and Astle, Kalispell, Montana David L. Astle argued, Kalispell, Montana PatrickM. Springer appeared, Kalispell, Montana

Submitted: September 12, 1974 Decided:

### DEC2

### 0

## 1974Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendants appeal from a judgment of the district court, Flathead County, ordering plaintiff's registration as a voter, voiding plaintiff's removal asa college trustee, and awarding plaintiff $4,500 attorney fees. Plaintiff 

### is Perry S. Melton, a voter residing in-Flathead County, Montana, and a trustee of Flathead Valley Community College. Defendants are the Flathead county attorney, the county clerk and recorder and the board of trustees of the college. The county attorneywas subsequently dismissed asa party defendant. The material facts areundisputed. In 1933, in the United Statesdistrictcourt inMontana, Melton plead guilty to three violations of federal liquor laws. Counts one and two of the indictment involved the sale of liquor to Indians; Count three involved concealing liquor with intent to defraud the federal government of taxes due thereon. Melton was sentenced to40 days injail on counts one and two and fined $500 on count three. The finewas suspended and Melton
was placed on probation for fiveyears. After 40 years it 

### is impossible to explain these sentences. The 40 day sentence was 20 days 

### less than the minimum sentence 

### set by statute. The penalty for the sale of liquor to any Indian was, at the time of the crime,
a minimum sentence of 60 days injail or a $100 fine, or both, with
a maxirmun of not more than 

### 2 years imprisonment and a fine of not more than $300 for each offense. We can find no authorization in the federal law, atthe time, authorizing probation for a period of 

### 5 years, some 3 years over the maximum sentence. Forty years later the Flathead county attorney's office filed
a certified copy of the 1933 conviction with the county clerk and recorder. It was accompanied by an opinion that Melton hadthus been convicted of a felony. The clerk and recorder thereupon struck 

### h el ton's name from the voting rolls.The county attorney's office then advised theboard of trustees of Flathead Valley Community College that Melton was no longer a registered voter and that his position as college trustee should thereforebe declared vacant. The board subsequently so declared. In the meantime Melton had filed suit in the district court of Flathead County seekingrestoration of his voting rights and to prevent hisremoval as college trustee. This actionbecame entangled ina procedural morass that defies description. In our view these procedural complexities arenot germane to our decision and may be disregarded except ashereafter discussed inconnection with attorney fees. The end result of the district court proceedings was a judgment, (1) ordering the clerk and recorder toregister Melton


### as a voter, 

### (2) declaringnull and void the action of the college board of trustees declaringMelton's seat vacant, and (3) ordering Flathead County to pay 

### m el ton's $4,500 attorney fees. Alldefendants appeal from thisjudgment. The controlling issues on appeal can be condensed to three: (1) Was Melton convicted of a felonywithin the meaning of ~ontana's voter qualification laws? (2) Were permissible legalremedies utilized here? (3) Was the award of attorney fees correct? The first issue 

### isthe principal substantive issue in this case. 

### el ton's voting rights and his eligibilityas college trustee turn
on this issue. The difficulty arisesbecause of contrary definitions of 

### a felony under federal and statelaw. At

### allmaterial 

### times, federal law has defined a felony 

### as
I1

Any offense punishable by death or imprisonment for a term

### exceeding one year

# * * *." See 18U.S.C.A., Sec. 

### 1and 

### itspredecessors. Under federal law the possible punishment that may be imposed determines whether a given crime is a felony ora misdemeanor without regard to the sentence actually imposed. Ex parte Margrave, 

### 275 F. 200. At the time of 

### el ton's conviction, the crime of selling liquor to Indians was punishable by a maximum imprisonment of two years and a fine of not more than $300 for each offense. Act 

### of March

### 15, 1864, Ch. 33, 13 Stat. 29. Theminimum sentence could have been a sentence of 

### 60 days in jail or a fine of $100 or both. 29 Stat. 506. This offense is clearly a felonyby federaldefinition despite the 

### 40 day sentence actually imposed on Melton forboth violations. A different definition of a felony is prescribed by Montana law. At the time of

## elt ton's conviction ~ontana'sstatute, Section 10723,R.C.M. 1921,declared: 

### "A felony is a crime which is punishablewith death or by imprisonment in the state prison. Every other crime is a misdemeanor.II 

### The same statute further provided: "When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court or jury, it is a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. 11 

### Thus in Montana, the sentence actually imposed after conviction determines whether the defendant has been convicted of a felony. State v. Atlas, 75 Mont. 547, 244 

### P. 477. This same definition and classification of crimeshas been preserved in ~ontana'snew Criminal Code of 1973. Section 94-2-lOl(15) and (31), R.C.M. 1947. We recognize that Montana's statutory definition of a felony relates only to crimes under state law and does not apply to crimes classifiedby federal statutes. State ex rel. Anderson v. Fousek, 91Mont. 448, 

### 8P.2d 791. Nonetheless a fundamental difference of approach is apparent in this state's classification of crimes and the difference of approach between felonies and misdemeanors. The crux of the problem here iswhether state or federal law determines the definition of a felonymandating cancellation of voter registration, At the time of cancellation of 

### elt ton's voter registration state law, section 23-3014,R.C.M. 1947,provided in
ma

### terial part: 

### "(1) The registrar [countyclerk and recorder] shall cancel any [voter]registration card: 

# "*** (e) 

### If a certified copy of a final judgment of conviction of any elector of a felony is filed

# *

# **. I1



### (Bracketedwords added.)

### In construing section 23-3014,R.C.M. 1947, isMontana bound by the federal felonydefinition at oddswith our own 

### law? In 1932 this Court so held in construing a state statute relating to forfeiture of a public office. State ex rel. Anderson v. 

### Fousek, 91Mont. 448, 

### 455, 8

### P.2d 791. In Fousek a city police lieutenantwas convicted in federal court of conspiracy to violate federal liquor laws and sentenced to pay a fine of $100. The crime involved carried a maximum punishment of 

### a $10,000 fine and two years imprisonment. This Court held:

It*

# * -he character of an offense, i.e., whether a a felony or a misdemeanor,must be determined by the laws of the-jurisdiction where the crimewas committed. As federal law classified the offense as a felonybecause the maximum punishment exceeded one year, the police lieutenant's positionwas declared vacant because of "His conviction of 

### a felony"within the meaning of section 511,R.C.M. 1921. Several weaknesses are apparent in this holding and the statutory construction supporting it. It is the responsibility of the Montana legislature to establish qualifications for holding public office (as in Fousek) and voting qualifications (as in the instant case). On

### what basis arewe to imply that they delegated this responsibility to another legislative body, be it Congress
or the legislature of another state,absent explicit statutory language to that effect? Yet that would be the result of the holding in Fousek--thatMontana is bound by foreign classifications of crimes. Glaring injusticeswould result inmany cases. For example, by federaldefinition the following federal offenses are felonies:

II 

### Using profanity in a had'radio transmission, 18U.S.C.A. 5 

### 1464; purchasing a field jacket from a

### member of the Armed Forces, 18 U.S.C.A. 5 

### 1024; attempting to mail a letter using a stampwhich has alreadybeen cancelled if committed by a postal employee, 18 U.S.C.A. 5 

### 1720. Did our Montana legislature intend to deny its citizens the right to vote for offenses like these?

### In the instant casenone of the three violations ofwhich Meltonwas convictedwould constitute a felony under our statutory definition and classification of crime. The more recent and 

### persuasive authorities from our sisterstateshold that persons violating federal liquor laws are not disqualified fromvoting
or holding public officewhere, as here, the offenseswould not be felonies under state law. See Elder v. County Election Board,

(Okla. 1958), 326 P.2d 776;Yochamv. Horn, 201 Okla. 647, 207 P. 2d 919; State ex rel. Arpagaus 

### v. Todd, 225 Minn. 91, 29 N.W.2d 

### 810. We hold that in construing state statutes relating to voter disqualification, 

### a Montana voter cannot be denied the right to vote because of conviction of an offense in federal court that would not be a felonyby Montana statutory definition. We expressly overrule the holding in Fousek that "The character of an offense, i.e. whether a 

### felony or misdemeanor, must be determined by the laws of the jurisdictionwhere the crimewas committed." Therefore,Melton was not disqualified fromvoting rights;and his position as 

### college trusteewas not vacant. Defendants in their second issue contend that thewrong remedies
were pursued by Melton in seeking restorationof his voting rights and in seeking to prevent his removal as college trustee. Melton sought a writ of mandate to compel the county clerk and recorder to reinstate his voting registration. The judgment of the district court did not grant such writ of mandate,but simply ordered the clerk and recorder to "register Melton as a voter and Flathead County elector". The district court apparently considered this equivalent to a writ of mandate as it subsequentlyheld a hearing and awarded attorney fees as damages.
I1 

### A writ of mandate is a permissible remedy to compel the performance of an act which the law specificallyenjoins as a duty resulting froman officet'. It also is available "to compel the admission of a party to the use and enjoyment of a right

# *** to which he is entitled and fromwhich he is unlawfullyprecluded." Section 93-9102,R.C.M. 1947.The difficultyhere 

### is that there

### was no clear legalright inMelton torestoration of hisvoting rights and no clear legal duty on the part of the clerk and recorder to reinstatehim as
a voter. 

# =souwas the law of Montana atthe time of the events from which Melton sought relief. Under Fousek federal law and not state law determined whether Melton had been convicted of a felony, and under federal 

### lawatleast two of the offenses of which he was convictedwere clearly felonies. It 

### is only by reason of
our decision herein specificallyoverruling the Fousek rule that Melton 

### isentitled to prevail. Nor does a 

### writof mandate lie tocorrect orundo action already taken. Stateex rel. Thompson v. Babcock, 147Mont. 46, 409 P.2d 808. The county clerk and recorder had already determined that a certifiedcopy of a finaljudgment of 

### el ton's conviction of 

### a felony had been filedwith her, which required her tocancel his voting registration. She thereupon cancelled it. Her acts preceded the filingof Melton's suit. We hold that a writ of mandate 

### isnot a permissible remedy. But for every right there 

### is a remedy. Section 49-115, R.C.M. 1947. 

### el ton's action 

### is clearly a suit for equitable relief and adjudication of his rights which he 

### isclearly entitled to institute and prosecute. 

### It 

### isunnecessary todiscuss the availability of a 

### writ of review to test the validity of the action of the board of trustees of the college in declaring

### el ton's seat vacant. The issuehas become moot by 

### el ton's subsequent election to the board, and there isno issue concerning attorney fees on a writ of review. The thfrd issue of defendants 

### is the legality of the award of $4,500 attorney fees. The only basis for such award 

### isthe statutory authorization to include such award injudgments granting 

### writs of mandate. Section 93-9112, R.C.M. 1947, and cases cited thereunder. Having found that a 

### writof mandate 

### isnot a permissibleremedy here, the award of attorney fees 

### isvacated and 

### set aside.In summary, we hold that: Melton was not convicted of a felony within the meaning of ~ontana's voter disqualification law; Melton 

### isentitled tobe registered as a voter and elector of Flathead County, Montana; the award of attorney fees against Flathead County 

### isvacated and set aside; and, costs are awarded to plaintiff in the district court and upon appeal. We remand the case to the district court of Flathead County for entry of judgment accordingly

# .

WeConcur:



# ................................. Chief Justice

Justices.

### Chief Justice James 

### T. Harrison concurring in part and dissenting in part:


### Iconcur in the holding that Melton is now entitled to be registered as a voter and elector,and the vacating and setting aside of the attorney fee award. 

### Idissent to the holding that Melton was not convicted of a felony, and the overruling of State ex rel. Anderson v. Fousek, 91Mont. 

### 448,455, 8 P.2d 

### 791.



# ............................... Chief Justice