163 P. 784 | Mont. | 1917
delivered the opinion of the court.
Quo warranto by Edward W. Dunne, claiming to be the duly appointed and qualified county assessor of Yellowstone county, against Carrie Gr. Smith, also asserting a similar claim. The agreed facts' are these: At the general election held November 7, 1916, A. P. Smith, then, by previous election, the lawful incumbent of the office of county assessor of Yellowstone county, was elected to succeed himself. He qualified by filing the requisite oath and bond and on December 3, 1916, died. Four days later the board of county commissioners of said county, then composed of Messrs. Sorenson, Todd and Rademaker, appointed Carrie Gr. Smith to fill the vacancy “for the term ending on the first Monday in January, 1917.” Mrs. Smith qualified by filing the requisite oath and bond, her bond reciting that it was executed to assure the faithful performance of her official duties during the term “beginning December 7, 1916, and expiring on the first day of January, 1917”; she entered upon the discharge and ever since has discharged the duties of such office. On the first Monday of January, 1917, which was the first day of that month, the personnel of the board was changed by the succession of Mr. Phelan in place of Mr. Sorenson, and on the following day, the new board being in session, these proceedings were had: “It was moved by Phelan .that Edward W. Dunne be appointed county assessor to fill the vacancy beginning the first Monday in January, 1917, and ending the first Monday in January, 1919; Commissioner Todd stated that he did not believe a vacancy now existed in said office of county assessor; Chairman Rademaker then seconded the motion of Commissioner Phelan, and instructed the clerk to poll the board, with the following result: Phelan, aye, Rademaker, aye, Todd, nay.”
The solution of the matter lies, we think, in the correlation of the last with the other clauses of the section, in holding the vacancies referred to in that clause to be those occurring after the fixed term has commenced, but before a general election, and in realizing its meaning to be that no appointment shall hold
The subject has been illuminated by several California decisions, among which People ex rel. Sweet v. Ward, cited above, is particularly interesting. The facts in that case were: That at the general election in November, 1894, William Darby was elected district attorney of San Diego county to succeed M. L. Ward, then the incumbent by previous election. Darby qualified, and on December 15, 1894, died. By the law of California the elective terms of county officers began at noon on the first Monday after the first day of January in each odd-numbered year, and this, in the year 1895, happened to be the seventh day of the month. On January 2, 1895, the board of supervisors, as then constituted, appointed Ward to fill the vacancy caused by Darby’s death, and on the same day Ward qualified under the appointment. At 3 o’clock P. M., on January 7, 1895, the board, its personnel having been changed, declared a vacancy to exist in the office of district attorney, and appointed A. H. Sweet to fill it during the term for which Darby had been elected. Sweet qualified, demanded possession and, being refused, brought proceedings to try the title to the office. Ward contended that no vacancy in the office resulted from Darby’s death prior to the time Darby was entitled to take possession, because he (Ward) was then entitled to the office, with the right to hold until divested by a duly elected or appointed and qualified successor, or, if there was a vacancy, he was entitled to the office because of his appointment to serve out Darby’s term. Disposing of these contentions the court said: “It is not to be questioned but that if Darby had lived, and at noon of the seventh day of January, 1895, had demanded the office of Ward, he would have been entitled to enter it, and Ward’s term would thus and then have ceased and determined. But was a demand by Darby necessary to determine Ward’s tenure? The answer is found in the language of the statute. Ward,
Again, in People ex rel. Mattison v. Nye, 9 Cal. App. 148, 98 Pae. 241, the subject was considered' from a slightly different angle, the facts being that at the general election of 1906, one Colgan, state controller by previous election, was re-elected. A few days later he died, and the governor (then J. C. Pardee) appointed Nye “to fill the unexpired term.” Nye qualified, took possession, and carried on the work of the office. On Monday the seventh day of January, 1907, Governor Pardee issued a second commission to Nye “for the term prescribed by law,' vice self and E. P. Colgan, deceased,” and Nye immediately qualified thereunder. On April 29, J. N. Gillett, Pardee’s successor as governor, appointed one Mattison to the office, who qualified, demanded possession, and, being refused, brought proceedings. Nye advanced the contention that, under section 8, Article Y, of the California Constitution, which provides that vacancies in certain state offices, including that of controller, shall be filled by commission from the governor, which commission “shall expire * * * at the next election by the people, ’ ’ he was entitled to hold under the first appointment until the general election of 1908, or else there was a vacancy on the seventh day of January, 1907, and he was entitled to hold under the second commission. The court, overruling the first and sustaining the second of these alternatives, said: “Two distinct terms are involved in this controversy. Mr. Colgan was serving one term as controller when in November, 1906, he was elected for another term. If the first term did not come to an end, there could be no beginning of the second term. It is impossible to conceive of the beginning of one without the ending of the other. But the term for which he was elected in November, 1906, according to the provisions of the Constitution, began either January 7 or 8, 1907. * * * Therefore * * *
So here, we may repeat: Two terms are involved, the term for which Mr. Smith was the incumbent of the office of county assessor of Yellowstone county when he died, and the term for which he was elected in November, 1916. Only the first of these became vacant when he died, and it alone could be filled by the board which appointed Mrs. Smith; the second did not become and could not be vacant until the first Monday in January, 1917, at which time a new board came into office. On that board was cast the duty to fill the vacancy by appointment, and this it did by the selection of Mr. Dunne. He therefore is entitled to hold until the next general election, unless it must be held that his appointment, depending as it did on the vote of Mr. Rademaker, was invalid on that account.
2. It is a fact established by the agreed statement that at the time Dunne was appointed, Rademaker was acting as a member of the board of county commissioners of Yellowstone county. He had theretofore and for some months been acting without challenge or question pursuant to an appointment; but he was then claiming the office by virtue of election in November, 1916, to fill the unexpired term of W. C. Renwick, who had been elected in 1914, and who had resigned. The contention is that Rademaker is a mere intruder, whose acts are void, because he
It is therefore adjudged that the relator, Edward W. Dunne, is, and since January 3, 1917, has been, entitled to the office of county assessor of Yellowstone county, Montana, and he is entitled to recover his costs herein incurred; that the respondent, Carrie G. Smith, is not entitled to said office; that she ought to be, and is, ousted therefrom and charged with the costs of this proceeding.