Lead Opinion
prepared tbe following opinion for tbe court:
Tbis аction was brought by tbe state of Montana, on tbe relation of Fannie E. Cbenowetb, against Rebecca Acton, to try title to tbe office of county superintendent of schools for Teton county, tbe relator claiming that tbe defendant bad intruded into and usurped tbe office, and asking that she be ousted and excluded therefrom. Tbe defendant answered, denying tbe material allegations of tbe complaint; pleaded affirmatively her own right to tbe office, tbe relator’s lack оf right and ineligibility thereto, and prayed that she (tbe defendant) be decreed entitled thereto.
The first question presented is, was there a vacancy when the county commissioners made the order apрointing the defendant ? One of the provisions of Section 5, Article XVI, of the Constitution, is that there shall be elected in each county one county-superintendent of schools. It also declares: “Persons elected to the different officеs named in this section shall hold their respective offices for the term of two years, and until their successors are elected and qualified. Vacancies in all county, township and precinct offices, except that of county commissioners, shall be filled by appointment by the board of county commissioners, and the appointee shall hold his office until the next general election.”
Section 1101 of the Political Code provides that an office becomes vacant on the happening of certain events therein enumerated, neither of which relates to the contingency of a tie vote. In construing a section identical with 1101, supra, the court said in Rosborough v. Boardman,
In appointing the defendant, the county commissioners assumed to act under the provisiоns of Section 1171, Political Code, which reads, in part, as follows: “In case of a tie vote for clerk of the district court, county attorney, or for any county officer except county commissioner, and for any township officer, the board of county commissioners must appoint some eligible person, as in case of other vacancies in such offices; and in case of a tie vote for county commissioner, the district judge of the county must appoint an eligible person to fill the office, as in other cases of vacancy.” Section 1171 does not in terms declare that a vacancy in office shall occur when there has been no election to the office by reason of a tie vote. Section 1101, as we have seen, defines “vacancies,” and .is exclusive. But in view of the constitutional provision it would not make any difference if the legislature had provided that a failure of -election by reason of a tie vote should сause a vacancy at the expiration of the two years for which the county officers are elected, for, by the terms of the Constitution, they “shall hold their offices for the term of two years, and until their successors are elected and quаlified.” (Constitution, Article XVI, Section 5.) Under this section, it is clear that the relator in this case was entitled to hold her office for the term of two years, and it is equally
Under the provision of the Constitution which we are considering, the right of a duly elected and qualified officer to hold his office until his successor is elected and qualified is as much a part of his term as are the two years sрecifically mentioned. (People v. Green,
In Kimberlin v. State,
All elections by the people shall be by ballot. (Constitution, Article IX, Section 1.)
The policy of the provision that certain elective officers shall hold their offices until their successors are elected and qualified rests upon the theory, that in case the electoral body fails to discharge its functions, it is wiser and more prudent to authorize the incumbent to hold over rather than that a vacancy should occur, to be filled by the appointing power. (State v. Harrison,
It is significant that Section 5 of Article XYI, supra, provides that an еlective officer shall hold until his successor is elected and qualified, while one appointed to fill a vacancy holds
peachment shall be subject to removal in such manner as may be prоvided by law. (Constitution, Article V, Section 18.) But whatever may or may not be vacancies, it is plain that there was none in the office of county superintendent of schools for Teton county when the county commissioners attempted to apрoint the defendant to succeed the relator. (People v. Lord,
The case of Adams v. Doyle,
It may not be amiss to say that the invalidity of Section 1171, Political Code, becomes more apparent when it is analyzed with reference to other constitutional provisions. (See Seсtions 1, 2, Article VII; Section 9, Article VIII; Section 4, Article XVI.)
We now come to the second point in the case. It is asserted that relator is not eligible to hold the office of county superintendent of schools, because when she was eleсted she did not possess the qualifications required by the statute, in this: She was the holder of only a second-grade certificate, whereas the statute prescribes that “no person shall be deemed legally qualified for
Section 2, Article IX, of the Constitution, declares that “every male person of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all general elections and for all officers that now are or hereafter may be elеctive by the people and upon all questions which may be submitted to the vote of the people: First, he shall be a citizen of the United States; second, he shall have resided in this state one year immediately preceding the- eleсtion at which he offers to vote, and in the town, county or precinct such time as may be prescribed by law.” Section 10 of Article IX declares: “Women shall be eligible to hold the office of county superintendent of schools or any school district office, and shall have the right to vote at any school district election.” Section 11 of Article IX declares: “Any person qualified to vote at general elections and for state officers in this state, shall be eligible to any office therein except as otherwise provided in this Constitution, and subject to such additional qualification as may be prescribed by the legislative assembly for city offices and offices hereafter created.”
An examination of the Constitutiоn discloses that it prescribes no other qualifications for a county superintendent of schools than those provided for in Sections 10 and 11; that is, the person must be either a woman, or a “person qualified to vote at general eleсtions and for state officers in this state.” Additional qualifications are prescribed by the Constitution for certain other officers. The latter part of Section 11 cannot apply, because the office of county superintendent of sсhools is a
It is earnestly argued that a person who holds the office of county superintendent should be one of learning and experience —one possessing especial professional attainments; that the statute is salutary and in accоrdance with the best interests of the public schools. All this is doiibtless true, but this argument should be addressed to the legislature, which has the power to submit constitutional amendments to the people, and not to a court. If there be unwisdom in the law, the courts hаve not the power to correct it. They must declare the law as they find it. The people have reserved to themselves the right to select their county superintendents from women and the general body of voters. If they desire to change the fundamental law, the way is open to them to do so conformably to their will.
It follows that the judgment and order should be affirmed.
Per Curiam. — For the reasons stated in the foregoing opinion, the judgment and order are affirmed.
Concurrence Opinion
I concur. If it were not for the fact that the defendant interposed a counterclaim demanding ouster of the plaintiff, and if the court had not adjudicated the defendant’s claim to the office upon her said counterclaim, I would not concur, but would hold that the action should have been dismissed for the reason that the record, outside of the complaint of plaintiff, clearly shows that plaintiff never was interfered with by the defendant in the performance of her (the plaintiff’s) duties as superintendent of schools. She swears in her testimony, ££I was not interferеd with by Miss Acton in the conduct of my office at all.” Her cause of action, if she have any, is as it appears from the evidence, against the commission