No. 12701 

IN THE 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 

Patrick M. Springer appeared, Kalispell, Montana 

Submitted: September 12, 1974 

Decided : 

DEC 2 0 1974 
Mr. 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 as a 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 

attorney was subsequently dismissed as a party defendant. 

The material facts are undisputed. In 1933, in the United 

States district court in Montana, 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 to 40 days in jail on counts one and two 

and fined $500 on count three. The fine was suspended and Melton 

was placed on probation for five years. 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 in jail 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, at the 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 had thus 

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 the board of trustees 

of Flathead Valley Community College that Melton was no longer a 

registered voter and that his position as college trustee should 

therefore be declared vacant. The board subsequently so declared. 

In the meantime Melton had filed suit in the district court of 

Flathead County seeking restoration of his voting rights and to 

prevent his removal as college trustee. This action became entangled in a procedural morass that defies description. In our 

view these procedural complexities are not germane to our decision 

and may be disregarded except as hereafter discussed in connection 

with attorney fees. 

The end result of the district court proceedings was a 

judgment, (1) ordering the clerk and recorder to register Melton 

as a voter, (2) declaring null and void the action of the college 

board of trustees declaring Melton's seat vacant, and (3) ordering 

Flathead County to pay m el ton's $4,500 attorney fees. All defendants appeal from this judgment. 

The controlling issues on appeal can be condensed to three: 

(1) Was Melton convicted of a felony within the meaning 

of ~ontana's voter qualification laws? 

(2) Were permissible legal remedies utilized here? 

(3) Was the award of attorney fees correct? 

The first issue is the principal substantive issue in this case. 

 el ton's voting rights and his eligibility as college trustee turn 

on this issue. The difficulty arises because of contrary definitions of a felony under federal and state law. 

At all material times, federal law has defined a felony as 

I1 Any offense punishable by death or imprisonment for a term exceeding one year * * *." See 18 U.S.C.A., Sec. 1 and its predecessors. 

Under federal law the possible punishment that may be imposed 

determines whether a given crime is a felony or a 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. The minimum 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 felony by federal definition 

despite the 40 day sentence actually imposed on Melton for both 

violations. 

A different definition of a felony is prescribed by Montana 

law. At the time of elt ton's conviction ~ontana's statute, Section 

10723, R.C.M. 1921, declared: 

"A felony is a crime which is punishable with death or by 

imprisonment in the state prison. Every other crime is a 

misdemeanor. I I 

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 crimes has been preserved in ~ontana's new 

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 classified by federal statutes. State ex rel. Anderson v. 

Fousek, 91 Mont. 448, 8 P.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 is whether state or federal law 

determines the definition of a felony mandating 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 [county clerk 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 

(Bracketed words added.) 
In construing section 23-3014, R.C.M. 1947, is Montana bound 

by the federal felony definition at odds with 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, 

91 Mont. 448, 455, 8 P.2d 791. 

In Fousek a city police lieutenant was 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 crime was 

committed. 

As federal law classified the offense as a felony because the 

maximum punishment exceeded one year, the police lieutenant's 

position was 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 are we 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--that Montana is bound by foreign classifications 

of crimes. 

Glaring injustices would result in many cases. For example, 

by federal definition the following federal offenses are felonies: 

I I Using profanity in a had'radio transmission, 18 U.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 stamp which 

has already been 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 case none of the three violations of which 

Melton was convicted would constitute a felony under our statutory 

definition and classification of crime. The more recent and 

persuasive authorities from our sisterstates hold that persons 

violating federal liquor laws are not disqualified from voting 

or holding public office where, as here, the offenses would not 

be felonies under state law. See Elder v. County Election Board, 

(Okla. 1958), 326 P.2d 776; Yocham v. 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 felony by 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 jurisdiction where the crime was committed." 

Therefore, Melton was not disqualified from voting rights; and 

his position as college trustee was not vacant. 

Defendants in their second issue contend that the wrong remedies 

were pursued by Melton in seeking restoration of 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 subsequently held 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 specifically enjoins as a 

duty resulting from an 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 from which he is unlawfully precluded." 

Section 93-9102, R.C.M. 1947. 
The difficulty here is that there was no clear legal right 

in Melton to restoration of his voting rights and no clear legal 

duty on the part of the clerk and recorder to reinstate him as 

a voter. =sou was the law of Montana at the 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 law at least two of the offenses of which 

he was convicted were clearly felonies. It is only by reason of 

our decision herein specifically overruling the Fousek rule that 

Melton is entitled to prevail. 

Nor does a writ of mandate lie to correct or undo action 

already taken. State ex rel. Thompson v. Babcock, 147 Mont. 46, 

409 P.2d 808. The county clerk and recorder had already determined 

that a certified copy of a final judgment of el ton's conviction 

of a felony had been filed with her, which required her to cancel 

his voting registration. She thereupon cancelled it. Her acts 

preceded the filing of Melton's suit. 

We hold that a writ of mandate is not 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 is clearly entitled to institute 

and prosecute. 

It is unnecessary to discuss 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 issue has 

become moot by el ton's subsequent election to the board, and there 

is no 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 is the 

statutory authorization to include such award in judgments granting 

writs of mandate. Section 93-9112, R.C.M. 1947, and cases cited 

thereunder. Having found that a writ of mandate is not a permissible remedy here, the award of attorney fees is vacated 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 

is entitled to be registered as a voter and elector of Flathead 

County, Montana; the award of attorney fees against Flathead County 

is vacated 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 en try of j udgmen t accordingly . 

We Concur: 

................................. Chief Justice 

Justices. 
Chief Justice James T. Harrison concurring in part and dissenting in part: 

I concur 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. 

I dissent to the holding that Melton was not convicted of a 

felony, and the overruling of State ex rel. Anderson v. Fousek, 

91 Mont. 448, 455, 8 P.2d 791. 

............................... Chief Justice