*1 MULHOLLAND, AYERS, Governor, al., et Respondent,
Appellants.
(No. 8,048.) (Submitted January 1940.) 1939. Decided December (2d) [99 234.] *2 counsel. submitted on briefs of Cause Attorney General, and Mr. Lee Freetown, Mr. J. Harrison Attorney General, Appellants. for Metcalf, Assistant Wertz, Respondent. Wesley Mr. for W. opinion
MR. JUSTICE ANGSTMAN delivered the court. county
Plaintiff was elected senator of on Novem- Silver Bow four-year commencing 2, January ber term on mayor February 17, 1939, 1939. On filed as candidate *3 city Butte, waged campaign. of He unsuccessful brought did file He not as state senator. this ac- enjoin taking necessary steps tion to defendants the to from vacancy fill supposed to exist provisions because of the Chapter sought judgment Laws and a declaratory meaning, scope application declaring Chapter. and of that complaint Defendants’ demurrer they to the was overruled; Judgment to answer. declined was entered declaring Chap- 116 is unconstitutional effect, ter force plain- no or county tiff still the state senator from Silver Bow and has right at the next election to become any candidate for elec- tive office under laws of Montana for legally which he is and that he need qualified, resign present from his officeto such candidate, that, become if he does become such candi- date, there will be in vacancy no the officeof ipso state senator appealed Defendants have facto. judgment. from the 1 Section 116 of the Laws of 1937 provides, substance, any person that whenever holding any office under
561 years, longer than two state, which is the laws term of any office,other shall elective become a candidate for election to by him, shall than for reelection held to by shall him, and if he so the office office held fails to do ipso provides nnoccnpied become vacant and facto. Section provides: “This Act shall filling such vacancies. Section apply any office,position place, electivo, appointive or or prohibited by (a) the incumbent of which is law succeed- ing position place, himself in (b) said or or the incumbent of which is prohibited enjoying (2) law from more than two office,position place, (e) any successive terms said or or office,position place salary, per diem, or for which there is no prescribed accruing (d) fees or emoluments by law, or or senator, of state representative, the office or to the officeof state candidacy unless the of the incumbent a different office vacancy result the office of state senator in which provisions apply, case of this Act shall or in- (e) to the any cumbent of term expires (70) whose of office within seventy days ensuing after general election.” provides:
Section the Act “This act shall be construed subsequent holding condition any office, tenure or appointment, position place under Montana, the State of aforesaid; and it imposing pro- shall not be construed as viding any qualifications additional for officein case where qualifications prescribed such are now the constitution of United States or the constitution of Montana to the exclusion prescription qualifications of additional legislative ’’ assembly. separability Section is the usual general clause to the effect invalidity part of a statute will not affect the re- mainder. question presented is whether vacancy there is now a
in the office of state senator for county. Silver Bow In question considering this we object must look first to the purpose sought of the Act and the evil by to be remedied it. Chapter 116 plain purpose is to encourage the fill-
562 by by re- ing election, appointment, of vacancies rather than per- ducing appointments discourage the duration of and to two-year already holding carrying than a son one office more expire term and term of would until more than which retaining days general seventy ensuing election, after endeavoring that officewhile obtain another at such election. Chapter vacancy The 116 effect of is to cause a to exist time so that it can be filled election at the same election vacancy, making appointment causes the the interim of short duration. question Chapter ap-
The 116 arises whether was intended to ply person holding to a an office the incumbent which is regular general chosen at the election where he seeks the mayor city, taking place, election does, not at the general election, (sec. Monday April 5003, on the first Codes). Rev.
Section 1 of applicable the Act makes it when the incumbent
of an officefiles as a any “primary candidate at special general municipal election.” provided election for in 5003 section primary not a election. It is not general election as defined in 531, section Codes; Revised nor is it a special election within the definition of that term in section 532. special If it is a election within meaning Chapter 116, and if that was intended to cover such a situation, it would come in conflict with the Fourteenth Amendment to the federal Constitution, as denying equal protec tion of the laws. It would amount an arbitrary classifica-
tion. While we realize that some discriminations are for
the best interests
society (Heisler
Thomas
260
Colliery Co.,
245,
Sup.
U.
83,
S.
Ct.
563 different make one class really which stantial distinctions (State Sunburst fall. extent another, Act must to that the 428.) Co., Refining Mont. justification between for a distinction no reasonable
We see holder years, two and with a term of the holder of an office treat- years different warrant for four or six that would of one a for is a candidate an office ment when holder of such April. place in municipal office, which takes the election for municipal sought applied at a Chapter 116, if to offices Under six-year term would election, here, or as the holder a four municipal obliged give up run for a his office to .be applied two-year would not. As of a term whereas holder justification general can see election, we an officefilled at incumbent Without for this classification. two-year running term, by accepting for and a different a term, general year in last filled at the held election vacancy by be filled in him which must causes no the term held by the him filled appointment. officeheld would be regular general election, at and whether electorate this candidate for reelection or whether he runs for some a passage Chapter 116, hand, before office. On the other six-year general at the holder of a four or term filled election during became a candidate for another office the second who year term, during year six- of his the fourth the case of a year term, vacancy would cause him in the officeheld which by appointment general filled would have to be until the next appointment election, approximately which would continue years. Chapter requires such two a candidate to vacancy so that the would be filled at the time same election gives vacancy, making appointment rise to the con- few months. tinue but a object purpose considered,
When of the Act is we can justification reasonable for a different see a classification be- two-year against holder term tween the as the holder of term, six-year when the incumbent seeks four an officewhich regular general justifica- election. is filled at the We can see no tion, however, for such a classification when the incumbent of office regúlarly general filled at
an seeks another election municipal election, officewhich is filled Hence, at as here. Chapter 116, attempts so far vacancy declare regularly expiring Monday on the first in January be- cause the incumbent seeks an officeat a election held municipal in April, is being unconstitutional void conflict with equal protection clause the federal Constitution.
It follows, therefore, plaintiff is still the senator from *6 county. Silver Bow part may
The fact does that the Act be unconstitutional prevent upholding (Dunn not us from it in respects. City Falls, 1017; v. Great 13 rel. 58, Mont. 31 Pac. State ex of Bray Long, 26, 645.) 21 Mont. 52 5 the Act Section of invalid, in effect be part declares that if of the Act is found to finding such shall Act. the remainder of the not affect As above our stated, we are a decree under asked to render Declaratory seq., Judgment (secs. 9835.1 Act et
Uniform Codes), declaring plaintiff’s Rev. a candidate right to become for brings up question some other office. This whether applies Act to a state senator at all.
As noted, above 3 ex- section of the Act enumerates certain ceptions and provisions takes certain officeswithout the provides Act. That in part: ap- section “This Act shall * ** ply (d) representative, officeof state toor senator, candidacy officeof state unless the incumbent of for may result in vacancy state different office office of provisions senator in which case the apply.” this Act shall of Obviously, the apply Act does not to the office represen- of state longer tative because term of office is not years. than two exempts Therefore section the Act regardless that office original section 3. When the bill was introduced it did not portion contain the italicized (d). section subdivision That by way was added of amendment. plain, It is therefore, apply Act does to a state senator if he becomes a candidate for a different officewhich result in vacancy in the office of state senator. “No provides: V state Constitution 7, Article of our
Section he during for shall, the term representative senator or under office any civil elected, appointed shall have been holding person congress, or other state, and no member of militia) under the in the notary public, or (except an office dur- house member of either shall be a state, United or this States ” to conceive It is difficult ing office. his continuance general election is chosen at a of which the incumbent office senator, would accepted by officeof state holding the which, if one senatorship this section of the vacancy in under cause a another of- candidacy plaintiff for Constitution. active that, if carry implication elected to the fice would accept required so when he files for he it. state He is would Codes). Hence we conclude that his (sec. Rev. office which is chosen candidacy another the incumbent of vacancy in a in the general election, at result meaning of senator within the section Act. state being so, application, exception 116 has and the That plaintiff in section the Act does not relieve contained provided consequences Act, candi- should become a general at prohibition date election for an within the *7 7, Y section Article of our Constitution. contained question suggests is Chapter The next itself whether 116 IX with Article conflicts section of the Montana Con reading: “Any qualified stitution, person general to vote at eligible elections and for state officers this State shall be to except provided officetherein as otherwise in this constitu subject qualifications tion, pre additional to such be legislative assembly by the for city scribed offices and offices hereafter created.” Chapter expressly 4 of states that
Section the Act is not to adding qualifications eligibility be considered additional for public legislative This declaration inis office. accordance with requirement public The that the holder facts. a officemust resignation upon becoming a tender candidate for another resigna- for another office that his would work qualifications prescribe does facto, not additional ipso tion for be eligible means, qualified to To “Fitted or the office. be Dictionary.) International (Webster’s elected.” New chosen or may be possess requisite qualifications person may A requirement, how- legal eligible The many different offices. time does not at a ever, hold more than one that he not hand, the On the other them all. eligibility to hold affect his becomes a candidate who requirement an officeheld one eligibility to hold goes not to another becomes vacated hold legal in the sense to qualified office. He is still either right to upon the Chapter limitation simply either. is not seeking It is already another. held when the office retain incum- office. The right to seek another upon the limitation retain under the statute to the choice of an office has bent give up seek another. unmolested, or Chapter 116 the effect of shorten has Plaintiff contends to sec runs counter ing term of and therefore term of Constitution, which fixes the V the tion Article Chapter purport years. The does at four state senator before. remains as term The term office of office. shorten right That the office alone affected. right to hold the incumbent of the office. only by act of affected in shortening the term of an Chapter 116, instead of Hence shortening his term to dissuade him from cumbent, endeavors noted, It should seeking a different office. own act of by his plaintiff was Chapter effect at the time too, 116 was accepted hence, senator, and when he officeof state to the elected subject dealing existing with the laws took the office forfeiture. abandonment or question itsof that, provides since the Constitution for the Plaintiff contends (sec. 17, impeachment of for certain causes certain officers proper for the certain to add V), it Art. by plaintiff. The rule is as contended for removal. grounds for 563.) and is not measure (22 was add L. R. C. public provides simply removal of officers. ing causes *8 public may voluntarily officer abandon by method one office.
567 already acceptance incompatible We have an held that the already holding operates resignation office one as a (State Wittmer, first. ex rel. Klick v. 50 Mont. 648.) Chapter simply extends rule of of an abandonment officeto become candidates for of those who they already fice when hold one the term of which exceeds years two expire days seventy and does not within after the general ensuing election. The situation is similar where changes officerleaves the state or his residence from the terri jurisdiction torial of the office. In such a situation he is held to have (22 abandoned his 560.) office. R. C. L. We know of provision no legislature constitutional prohibiting the from de claring filing mere for a second office the holder one under by Chapter circumstances covered operates as an abandonment of the first.
The contention is made that the act of for office is in legal itself a act, and innocent legislature and that the de- cannot ground clare it a or cause for forfeiture or of an abandonment already noted, held. As above there are reasons enactment impelled law sufficient to have affirmative action legislature. pronounce We cannot arbitrary it as and un- applied warranted as general to offices filled at the election. legislation not appear arbitrary does capricious. to be say cannot that it is We reasonable method of treatment of what the was warranted in concluding was an evil. There is some basis, pointed as above out, for different by Chapter treatment of different ap- officesas made 116, when plied general officesfilled at elections. We see no reason condemning Chapter ground on than that hereinabove set out. considering question
In of the constitutionality of the keep we oft-repeated
statute mind the rule that it presumed valid and we will will be not condemn it unless it is beyond a reasonable doubt shown to be in conflict with some provisions. keep We also that, constitutional mind unlike the of the United grant power, Constitution States which is power, limitation of ours the state *9 except save and as limited power pleases, to do it has the pro- expressly by necessary constitutional implication some vision. candidate plaintiff become a
Hence follows that in 1940 general election in 1940 for office at the to be filled an candidacy working or abandonment without such of his officeof state senator. it holds appealed from affirmed so far as judgment
The is county, the from Silver Bow plaintiff that is still senator respects. in other reversed Morris Johnson Justices
Mr. Chief Justice and Associate and Arnold concur.
Mr. Erickson: Justice agree opinion majority which de- portion
I that with county. Bow relator is still senator from Silver termines the However, constitu- agree with is said as the I cannot what Chapter applied event he tionality relator in the the mayor than forthcoming the election for office other files at municipality. of some by filing theory majority that Mulholland is
It resigns from the first or abandons it. for the second officeeither say that, under Act he retain office re- They since filing second, fraining for the act shows a from position relinquishment also their that the of the office. is filing for the shall legislature not said that his second office has legisla- him but that the operate to remove from the first provided, effect, for has the event he files ture conclusively presumed it will that he intended second office be resign it, abandon the first or to since act filing make the effect of that intention to either must show resignation. abandonment provide place, did not what
In the first majority has, language is says and no found to indicate pertinent part The it has. has heretofore emphasize point repeated quoted, but to here been In substance: certain file for a second event incumbents they shall resign first, from the “and the event ipso failure same shall facto become so to said officethe wholly unoccupied.” language, then, vacant and resigna filing that his be deemed a second office shall first, legislature expressly negatives tion of the instead the idea resignation, as otherwise there would provision be no necessity resign,” and cer “he shall tainly negative language resign” “in the event he shall not clearly contemplate shows that the did not *10 filing resign after resignation, failure to either should constitute express implied. language The could not be clearer to show legislature that thought says the Act did. The Act that office, the event he fails to shall the same become ipso facto vacant. That mean thing, can but one is and that operate filing his shall to end tenure office, his of the without regard to his intention or desire as to the retention of the office. language The plain is and clear and admits of no other con struction. It matters not what the termination of his tenure of called, officebe fact upon filing remains that for the second out of first, though officehe is filing and that was act of voluntary part, relinquishment on his of the officewas not. relinquishment The accomplished by is resignation a of the any provision officeor legislature pro that indicates the was viding filing ipso that resigna should facto constitute a presumption tion a conclusive resignation. of The act of filing resignation. alone contains none of the elements of a The ordinary resignations rule as to in 22 Ruling is stated Law, Case * * # page 556, at “to constitute a resignation public office, there must be relinquish an part intention term, accompanied by relinquishment.” the act of searching upon
In theories which to sustain the Act, the majority upon then hits the idea that it is an abandonment of Again the office. it is clear that the did not con- template filing for the second office would reach that resignation I concerning result. What have said applicable is contemplated here. The thing, one and that filing was that his for the would terminate second office by operation upon of the law tenure of and that filing for the removed from his office. second office would be Under any definition of abandonment the second be declared abandonment of the office cannot first. handicapped study
We are our matter for the reason comparable no other the Union statute. To state has my significant mind this either no other is to indicate that states provisions qualifications public with as to of- constitutional grounds ficers, such their terms and of removal as ours—and provisions most aware here of them have such of the evils —are sought cured, legislatures in other to be or else states they provisions. feel that are bound constitutional however, term been has, “abandonment office” defined sev- examples eral courts, specific aban- Acts constitute donment be found. 980,
In 46 C. said: species J. “Abandonment resignation resignation, but differs relinquishment, formal while abandonment is a relin- quishment (Italics supplied.) through non-user.” Wittmer,
Reference is State made to ex rel. Klick 50 Mont. majority opinion, many in the which is one acceptance cases which be found that hold that the of an *11 operates incompatible resignation a from the first office. accepts These cases hold in effect that if the officer the second knowing his first office, that officeand the second office in are compatible, that is conclusive of intention resign first. the Thus, doing if the declares that the of a law certain act shall resignation, abandonment or and if constitute fact does present resign, intent show an abandonment, show or does power declare, it is within the to so and the doing give conclusive of the up office, of the act is intent to the might say court be the Mulholland that, he had mayor officethan the other at last filed for some election, with statute Chapter books, 116 on the the fact that it was there proof of his resign be intention to would conclusive or abandon here saying question arise, as he That Ms office. does not he does he tells us that future, and that he wants to file the Chap- effect of resign in advance what the not want to and asks ter 116 is. filing second from the for the inference be drawn
What could this, Chapter Merely 116? before the enactment of the second event Mulholland were elected to the acceptance of accepted consider the it, he he would the event holds: that resignation from the one now officea the second acceptance incompatibility of the two offices in view of the incompatibility of knowledge of the with the of the second office acceptance denying him from two, the would conclude resignation from first. Before of the second was not a filing for the second office not be said that the the Act could resign first from it at the time operated or to abandon resign abandon any indicate intention to from or filing, or to statute, filing. Without at time of the office any indicated intention to say that the courts could not it is true presently resign or abandon from examples cited. The most that could be said was that future, things way, if went a certain he would in the some time authority points resign. Every on these the effect express resign, either declara- to abandon or intention implied, must from which abandonment acts tion or unqualified resign, intention to or that present there have be a already shown which have an abandonment been acts office. majority, provides theory of the
Under resignation abandonment, inferring which grounds question the Act. The sufficient before have been would not prevent declaring What is to then arises: include non-user or intention to does not action ordinary understanding abandon, does not under up giving voluntary relinquishment, indicates necessarily ? That or an abandonment officeeither to term study provisions relative constitutional requires our majority admitted officers. removal of officeand *12 removal of legislature grounds of that cannot add V, sec- officers, provided in Article by impeachment either as provided Arti- Constitution, tion in 17, of the or otherwise opinion majority V, cle 18. in the section It is also stated provisions are may the term These of office not be shortened. may stated exclusive, legislature not add to them. is and the majority for the enactment opinion that the reasons Mulholland election these. The successful are vacancy in the assumption result in a and his of office could by appointment, and that senator which must be filled nearly years; while, if he re- appointment run for two would signs filing, run for his office at the time of someone else would election, appointed takes his at the and the officer who same words, appointed In other place only will be for a few months. evil, is legislature seeking has his the second office said that acceptance it, and election and his as it result his longer purpose The appointment. will necessitate majority laudable, assumes. legislature be The thing theory majority, important is that under any part on mind, desire of Mulhol- had part resign any act his that would constitute land nor on doing of his rather that he was abandonment some- wrong, and that as a result he should be removed thing that was Their intention take from him office reason from office. his clear, my his mind possible effect of providing removal, it statute is cannot one agile reasoning anything made if sophistry or else. But we be sense, in the grant not a removal statute limited is it vacancy? power of the to create the within the might fixed the term for which Mulholland hold Constitution it, performed if he office, if he did abandon guilty and if he was not of the offenses defined duties his office interpretation 18 Article V. No other 17 and can sections provisions this, given they than to the constitutional are true, effect. Term measures time it is without but includes man term, that once a is elected to a idea within long hold it for right period, the Constitution to so under *13 voluntarily relinquish die, insane, as he does not not become does resignation abandonment, guilty by it and is not of mis- or 18, supra. in specified conduct sections The Constitu- specifies wrongful tion in loss acts which result his right term, I he and, indicated, to hold the officefor the as have may resign it, legislature or abandon and the and the courts may determine what abandonment or is within cer- says long tain limitations. The in Constitution effect that so performs he guilty as functions is not of tres- passes specified, and does not or abandon the specifies hold it penalties for the term. result which in accepted removal. The universally rule of construction expressed Cooley’s Limitations, eighth this situation is edition, page 139, follows:
“Another is, rule of construction that when the Constitution right may defines the circumstances under which a be exercised implied penalty imposed, specification prohibition or a is an against legislative condition, interference to add to the or to penalty ground extend the to other cases. On this has been supreme by held court Maryland, that where the Con- qualifications officer, stitution defines the an not legislature power change superadd them, or unless power expressly implication or necessary do so is con- ferred the Constitution Other recognizing itself. cases ’’ principal same referred to in the are note. Officers, Mechem on say Public Offices has this to on page 254: “Where the term the fixed by the Con- officer stitution, abridge neither extend nor can it.” page provides And on Id.: “Where Constitution given cause, defining be removed for a officers terms legal which have a definite and well understood meaning, it is competent scope for the by adding to extend its incorporating or offenses which do fall meaning. within that implied prohibition The statement one cause is legis- to the adding extending lature’s to it it to causes.” And on “ page Id.: Where the tenure and term of office are fixed *** of the Constitu- Constitution, provisions such by the ’’ destroy. legislature to alter beyond power are tion provisions abridge the constitutional legislature may not enacting serve which statutes tenure of office as to term and voluntary relinquish his officewithout to take from the officer Commonwealth, 3 Metc. Thus in Lowe ment the office. pro which dealing a statute (Ky.) 237, with 241, the court was constitutional officers circumstances under certain vided that provisions Their constitutional suspended from office. could be said: as ours. The court are the same term and removal question, this but one view of there can be “It seems to us that has created an office is, wherever the constitution grounds and upon what term, *14 declared fixed its and has also and before may be removed office in an incumbent of such what mode legisla beyond power the of the term, it is expiration of his the suspend any him office for or from remove such officer ture to any the Constitution itself in other mode than reason or furnished.” has take from the officer serves to any statute which
The effect of voluntary full for term without a hold the office the right to the only removal, as that is the must be a giving up the office of whereby reasonably proceedings said to define term which can voluntarily giving deprived of office it is without an officer legislature provided of New an Act the up. York So police where townships there were certain justices peace any legal fees for receive the service of magistrates, should deprive pay them for this to of The effect of was papers. justices argued the peace. the was of services as their economy one, and not one which shortened was an measure term, the or removed them office. abolished office their said, People the matter the New York court disposing of In 775, 778, 155 Y. N. E. L. R. 838: Howland, N. A. v. altogether, abolishing between any difference office “Is there discharging preventing the incumbent from the practically and positive im ‘Every direction contains an thereof! functions it, anything contrary to frus or would against plication provision.’ purpose (People of that ex the disappoint or trate ** * Draper, 543.) rel. N. When the [532], Wood Y. statute, part purpose statute, to evade main a or a a effecting the be done indirectly which cannot constitution void, the directly, act to that because violates the extent (Italics spirit supplied.) the law.” fundamental my if for filing To mind seems clear that another voluntary resignation first at does show the filing second, said time cannot be to con- show relinquish clusively the vol- intention of officer the first untarily by present past abandonment the element of voluntary giving up present. of the office is not It is true e., filling an act voluntarily, he does i. second so, too, illegal fees, guilty does officer who collects or is misfeasance, yet say some other misconduct or no one would action, voluntary, though giving indicated up of the office. That for the second office cannot be legislature declared to show fact abandonment, my clear, mind is under any since definition required. of the terms it does not indicate the intent legislature may say part when acts on the incum- present give bent show the conclusive and up intent to the office. voluntary resignation may Thus a be said con- clusively up shows intent the office holder give they have so declared section Revised Codes. So, too, non-user of officeunder certain circumstances shows voluntarily give the intent up office and applied that it does. The test to be declare not whether *15 particular voluntary, the act but rather does it volun- show a present. tary giving up is, by of the office the That his act voluntarily given that he up has he indicated has office. the legislature can an Before the declare act to be abandonment office, appear it the must that there has been a non-user showing be a office; the there must is not incumbent performing the functions of his office that doing the of the act, accepting second impossible like makes it him perform to office. duties the first These acts would show voluntary relinquishment by the office its abandonment. Juris, Corpus supra, must be true. Under definition in this to or of failure non-user But here no element of office appear. The perform of the office incumbent the functions impossi- office; made performing his he has not the duties of it perform ble for the second officeto functions may spending time candidacy His less first. result formerly, in the but that is true of other officeholders officethan expire they do not come within whose terms so that own or for some other run for reelection who to-their neglected that a completely office. their office If the others so might proven resulted, statutes, without it then, non-user even be. their say would that but no one abandonment, there was an Chapter 116 ex- candidacy in an abandonment. mere results says not within negatives they do come pressly that idea when certainly not provisions legislature does Act, and of the coming within so as apply officers presume to the Act to the compaigning from their offices will declare that their absence say abandonment, time ipso in an and at same facto result performing expire the same duties and whose terms that officers by doing the time, at not abandon their offices some other do voluntary, thing. The must be giving up same act what show conclusively declare acts and the manifestly which that, declare acts not show do relinquishment resignation, voluntary to be abandonment requirements or it circumvents the constitutional removal. declaration a court or a white The mere so, not make it nor will a declaration an act will black voluntary relinquishment it a one. is not a make then, may proof be filing, act of said of the If the pro- of the voluntary resignation of loss office as involuntary and the effect Chapter 116 is of the Act is vided in ways pro- than provide removal those for the officer’s Constitution. vided for opinion clearly of the that the result of legislature was apparent very him as is clear to remove
the Act was It may be said in what has- statute. addition to language language Chapter, said of that had been heretofore *16 filing for the second act of make the intended to very simple first, have been it would resignation of the office a something by simple statement provide be, that it should a file for a second shall enumerated officers like this: “If resigna- shall constitute a office,their for the second ’’ ipso facto vacant. become tion from their first and it shall theory of the results legislature’s To further show Act, “This language Chapter 116, found section subsequent to tenure shall a condition act be construed as language significant. holding any office,” etc., or This is negatives majority Act theory by the advanced conclusively provides merely certain acts shall show voluntary relinquishment of the office. The words “condi- subsequent” contemplate voluntary act, but the result tion “ any voluntary omission, definition of a con- act or under voluntary giving up of subsequent,” dition does result right, right penalty for not meet- but rather a loss of the as ing the condition. language be said end certainly
It cannot found at the resigna- theory section of the Act is consistent with the language vacancy tion or abandonment. That “and said operative deprive supplied] any shall person become [Italics any office,position, employment place of the emoluments of held,” provision then necessary etc. This would not be if it resigned had could be said that the incumbent or abandoned the certainly entitled, then he would not be without a statu- tory provision, of the emoluments of the office. The lan- only guage is consistent with the idea removal. up, then,
To sum the matter it seems me that there are but ways by two which an incumbent can lose office before his up: by term giving up first of the office, they includes or abandonment have been discussed; by involuntary giving up herein the other subject removal. which is covered the Con- legislature may stitution, not add to abridge manifestly provisions as to it. This Act is a removal statute. so written and it It was so was intended. adds either grounds provided removal than those Y, section 17 or 18 Article and it is for reason uncon- *17 stitutional.
BLACKFORD, v. JUDITH BASIN Respondent, Trustee, Appellants.
COUNTY al., et (No. 7,963.) (Submitted January 17, 1940.) December 1939. Decided (2d)
[98 872.]