111 P. 720 | Mont. | 1910
delivered the opinion of the court.
The relator filed his petition for an alternative writ of mandate, reciting therein that he has heretofore filed with the respondent, as county clerk and recorder, a certificate in due form, nominating him as an independent or nonpartisan candidate for the office of state senator for Silver Bow county; that the Democratic, Republican, Labor, and Socialist parties in that county have made nominations for the same office by and through political conventions, which nominations have all been certified to the respondent clerk and recorder, who declares his intention of placing the names so certified upon the official ballot for the election to be held on November 8th next, in the columns wherein will appear the names of the candidates of the respective political parties under their proper headings; that the office of state senator is a judicial office, and, under and by virtue of Chapter 113 of the Session Laws of 1909, nominations for that office can only be made by petition in the manner provided by section 524, Revised Codes; that none of the other candidates for senator have been so nominated, and their names should not appear upon the official ballot; that the district court of Silver Bow county has refused the relief which he seeks; and he therefore prays that a writ of mandate issue
The contention of the relator is that a nomination for state senator is a nomination for a “judicial office,” within the meaning of sections 1 and 2 of Chapter 113 of the Laws of 1909, which read as follows:
“Section 1. Hereafter all nominations for judicial offices shall be made only in the manner provided by section 1313 of the Political Code of the state of Montana.
“Section 2. No officer, authorized or required by any statute of this state to file any papers or certificates reciting the nomination of candidates for public office, shall receive for filing, or place on file, any certificate or paper reciting the nomination of any candidate for any judicial office except such nomination be made pursuant to the provisions of said section 1313 of the Political Code.”
Section 1313 of the Political Code of 1895 is now section 524, Revised Codes, and reads as follows: “Candidates for public office may be nominated otherwise than by convention or primary meeting in the manner following:
“A certificate of nomination, containing the name of a candidate for the office to be filled, with such information as is required to be given in certificates provided for in section 522 (1311) of this chapter, must be signed by electors residing within the state and district, or political division in and for •which the officer or officers are to be elected, in the following required numbers:
“The number of signatures must not be less in number than five per cent of the number of votes cast for the successful candidate for the same office at the next preceding election whether
To quote the language of the learned counsel for the relator, ■“the. meaning of the term ‘judicial office,’ as used in the Act of 1909, is the crucial question to be determined.”
The supreme court of Washington, in State v. Womack, 4 Wash. 19, 29 Pac. 942, said: “The departments of the government provided for in our state Constitution, like most state constitutions, are divided1 into three general classifications, viz., the .executive, judicial, and legislative; and, when an officer is appointed or elected under our system of government, he comes within one of these classes. Judicial offices are those which relate to the administration of justice, and the term has a meaning so well and so universally understood that a technical definition is entirely unnecessary. The legislative offices are as well understood as relating to the enactment of laws. ’ ’
Mr. Justice Clifford, of the supreme court of the United States, in the case of Fitzpatrick v. United States, 7 Ct. of Cl. 290, 13 Wall. 568, 20 L. Ed. 707, said: “Offices may be and usually are divided into two classes—civil -and military. Civil offices are also usually divided into three classes—political, judicial, and ministerial. Political offices are such as are not immediately connected with the administration of justice, or with the execution of the mandates of a superior. Judicial offices are those which relate to the administration of justice. 0 *' * ”
Chief Justice Hawley of Nevada, in Esmeraldo County v. District Court, 18 Nev. 438, 5 Pac. 64, said: “The duties [relating to the division of a county] performed by the district judge in pursuance of the statute did not become judicial acts
Section 1, Article IV, of the state Constitution reads: “The powers of the government of this state are divided intp three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this Constitution expressly directed or permitted.” Section 1, Article VIII, reads: “The judicial power of the state shall be vested in the senate sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, and such other inferior courts as the legislative assembly may establish in any incorporated city or town.”
Section 17 of Article V provides that' the governor and other, state -and judicial officers, except justices of the peace, shall be liable to impeachment for high crimes and misdemeanors, or malfeasance in office, and designates that judgment of removal from office and disqualification to hold office may be given.
Section 1 of Article V provides that the legislative authority of the state shall be vested in a legislative assembly consisting of a senate and a house of representatives.
Section 9, Article V, provides that each house shall judge of the election, returns, and qualifications of its members. Section 11 provides that each house shall have power, with the concurrence of two-thirds, to expel a member.
In the case of State v. Kenney, 9 Mont. 223, 23 Pac. 733, it was said: “This court is mindful of the constitutional provision which places the power to try the ultimate right to the office [of representative] in another forum, i. e., in the legislative house wherein the person claims a seat; that body, and that alone, having the plenary jurisdiction to try the ultimate right to the office. * * * ”
But the solution of the question may be found in the Constitution itself. That “revered document” provides that the governor and other state and judicial officers shall be liable to impeachment, and if found guilty may be removed from office. The words “state officers,” as therein employed, do not include members of the legislative assembly. (Hiss v. Bartlett, 3 Gray (Mass.), 468, 63 Am. Dec. 768; 29 Cyc. 1414.) Members of the legislative assembly are not liable to impeachment. (In re Speakership of House of Representatives, 15 Colo. 520, 25 Pac. 707, 11 L. R. A. 241; see, also, State ex rel. v. Gilmore, 20 Kan. 551, 27 Am. Rep. 189.) The reasoning in the latter
If, then, as provided in our Constitution, each house is the sole judge of the qualifications of its own members to hold office, and a senator cannot be removed by impeachment, but may be expelled by the senate, it must follow that the framers-of the Constitution did not regard a senator as either a state or judicial officer, within the meaning of those terms as employed in section 17 of Article Y, supra,. He cannot be a judicial officer because the Constitution expressly provides that a judicial officer may be removed by impeachment, and a senator cannot be so removed. The governor and other state and judicial officers can be removed only by impeachment. The constitutional provision is exclusive. Therefore the term “judicial officers,” found in the Constitution, does not include senators. Any other construction of the constitutional words would result in a conflict between the provisions of section 9 and section 17 of Article Y, and the legislative assembly undoubtedly so understood when section 8972, Revised Codes, was enacted. In this section the exact words of section 17, Article V, of the Constitution are repeated. This being so, it must be presumed that the legislative assembly of 1909 employed the phrase “judicial officers” in the same sense as that in which it was used in section 17 of Article V of the Constitution, and section 8972, Revised Codes.
And there is another view of the ease which appeals strongly to us as having an important bearing upon the question. Article Y- of the Constitution is entitled: “Legislative Department.” Section 16 of that Article provides that the sole power of im
This disposes of the question presented. But there is a general consideration which may, we think, be properly adverted to. It is not to be doubted that the legislature of 1909, in enacting the law we have been discussing, was actuated by a desire to remove the judges of our courts from the realm of partisan polities. The office of senator is necessarily a political office. No such consideration has any force as applied to a senator, although, perchance, he may be called upon to sit in the high court of impeachment.
"We think the conclusion we have reached, by limiting the words “judicial officers” to judges of the supreme court, district courts, justices of the peace, and judges of other inferior courts, carries into effect the exact intention of the legislature.
The motion to quash is sustained, and the proceedings are dismissed, with costs to the relator.
Dismissed.