127 P. 94 | Mont. | 1912
delivered the opinion of the court.
■ E. M. Kennedy and Thomas Dowen were duly elected county commissioners of Chouteau county for the terms expiring, respectively, on the first Monday in January, 1915, and 1917. They qualified as such and entered upon the discharge of their duties; but upon the creation of Blaine and Hill counties these men resigned, and the judge of the district court of the twelfth judicial district in and for Chouteau county appointed H. J. Wackerlin “to fill the unexpired term of E. M. Kennedy,” and John Y. Carroll “to fill the unexpired term of Thomas Dowen,” and each of these appointees duly qualified and entered upon the discharge of his duties, and is now serving as county commissioner of Chouteau county. At a regular county convention of the Democratic party of Chouteau county, called to nominate candidates for the various county offices to be filled at the ensuing general election in November of this year, relator McGowan was duly nominated a candidate for the office of county commissioner to fill the unexpired term of Thomas Dowen, and at a like convention of the Progressive party relator Lewis was nominated a candidate to fill the unexpired term of E. M. Kennedy. Each of these- nominees is qualified to hold the office to which he aspires in ease of his election. When the certificate of nomination for each of these nominees was presented to the county clerk of Chouteau county, he refused to file it, and announced his determination not to print the name of either upon the official ballot; proceeding upon the theory that each of the persons appointed by the district judge held-for the residue of the term of the person whom he succeeded. An original application for mandate was made to this court.The alternative writ issued, and upon the return the respondent clerk appeared by general demurrer and motion to quash, and the cause was submitted for final determination; it being an
The question presented is: Does the person appointed to fill a vacancy in the office of county commissioner hold during the
While the policy of the law is not a controlling factor in determining the meaning of constitutional or statutory provisions, it is persuasive. A reference to the several provisions of the Constitution above discloses that in every instance of a vacancy in an elective office, where the vacancy is to be filled by appointment, the appointee shall hold only until the people who elected his predecessor have the first opportunity to fill the office with a person of their own choice; and this rule is general, applies to' every state, district and county office, unless an exception is made in favor of one appointed to a vacancy in the office of county commissioner. There is not any reason apparent or suggested why an exception in his favor should be made, and that there is not any express exception is conceded. But it is argued that the tenure of such an appointee is not specifically fixed, and therefore the authority given the district judge to fill the vacancy implies the power to fill the office for the residue of the term.
Whether our Constitution fails to define the tenure of one appointed to fill a vacancy in the office of county commissioner depends upon the construction to be given to the language of section 5 of Article XVI above. Counsel for respondent insist
It is an elementary rule that Constitutions are to be construed
“Sec. 1589. Whenever any vacancy shall occur in any county or precinct office, except county commissioners, the county commissioners of the county where such vacancy occurs shall appoint*192 some suitable person to perform the duties thereof, until the next general election.
“Sec. 1590. Whenever a vacancy shall occur at any time in the office of territorial treasurer, auditor, superintendent of public instruction, or district attorney, the Governor, by and with the advice and consent of the legislative council shall appoint some suitable person to perform the duties of such office; and when a vacancy shall occur in the office of county commissioner the probate judge shall appoint some suitable person to perform the duties of such office; such officers, so appointed, shall hold their respective offices until the general election next following such appointment.”
It will be seen that there was not any exception whatever to the rule that one appointed to fill a vacancy in an elective office should hold the office only until the next general election; and, in the absence of express exception and of any reason which can bé suggested for an exception in favor of one appointed to fill a vacancy in the office of county commissioner, we think it quite apparent that the framers of the Constitution intended to reserve to the people the right, which they theretofore possessed, of electing the person who should fill that office, which of all offices most directly concerns the average voter, particularly the taxpaying voter; for the boárd of county commissioners is the business agent of the people in the management of county affairs. Apparently the people of the state were unwilling to permit an appointee to hold beyond the next general election, that is, beyond the time when opportunity would be first presented to fill the vacancy by an election. But, if respondent’s position is tenable, they made an exception, and that, too, by mere implication and without any apparent reason, in favor of one appointed to fill a vacancy in the office' of county commissioner, and by implication consented that, as to that particular office, an appointee might hold over one or even two general elections, as in the instances now before us.
We think the court would be derelict in holding that merely by implication the people surrendered a right so valuable to them that they expressed their intention in plain and vigorous terms
A peremptory writ of mandate will issue forthwith, commanding the county clerk of Chouteau county, immediately upon receipt of the writ, to file the certificate of nomination for each of these relators, and print, or cause to be printed, the name of each relator in its appropriate place upon the official ballot to be used at the general election to be held on November 5 of this year.