State ex rel. Patterson v. LentzState ex rel. Patterson v. Lentz
- Reporters:
- , ,
- Before:
- Brantlt
delivered the opinion of the court.
This is an original proceeding, in the nature of quo warranto to determine the title of respondent to the office of judge of the fourth judicial district. After the issues had been made up, the parties entered into a stipulation as to the facts, and settled them in a formal written statement. The controversy was submitted on this statement, which discloses the following: By an Act approved February 11, 1913 (Laws 1913, Chap. 14, p. 14), a third judgeship was created in the fourth judicial district. Section 2 of the Act provides: “The governor shall appoint some fit and qualified person as additional judge of the said fourth judicial *333district to bold his office until the first” Monday of January, 1917, or until his successor is duly elected and qualified.” On February 21, in pursuance of the Act, the governor appointed the relator to the office, the commission issued to him stating that he was to hold the same until the first Monday in January, 1917. “The relator qualified at once and entered upon and continued in the discharge of the duties appertaining to the office, until this controversy arose. Prior to the general election held on November 3, 1914, no party nominations were made for the election of a successor to the relator; but more than thirty days prior to the election the relator, the respondent, and Welling Nap ton, Esq., all possessing the necessary qualifications for the office, circulated petitions and secured the number of signatures required to nominate themselves as independent candidates. In due time these petitions were filed with the secretary of state, and thereafter the names of all the nominees were by him duly certified to the clerks of the counties composing the district, viz., Missoula, Ravalli, Sanders and Mineral, to be printed upon the official ballots in the appropriate column with other independent candidates. Theretofore, and on August 6, the governor had issued his proclamation calling for the general election for November 3. The proclamation enumerated all the officers to be elected throughout the state, including state, district and county officers, but contained no reference to the office of district judge, other than the following: “Also a district judge in any judicial district where a vacancy may exist.” Within the time required by law, the proclamation was published, and notice of the election was posted in the voting precincts in the several counties, by authority of their respective boards of commissioners. In Ravalli and Mineral counties the notices informed the electors that one judge was to be elected in the district. This information was omitted from those published and posted in Sanders’ and Missoula counties. In all the counties the official ballots had printed upon them a separate column headed “Independent,” except that in Mineral county the heading was “Independent Party.” The names of the candidates appeared *334therein under the designation, “For Judge of the Fourth Judicial District.” During the thirty days preceding the election, the several candidates were active in bringing their respective claims to the attention of the electors throughout the district, by advertisements and notices published at the various county seats and at other towns in the district. These publications were made at the instance of the candidates themselves or of friendly advocates of their respective claims. The statement published at the instance of the relator called the attention of the electors to the fact (which it was suggested many of them did not know) that the office of district judge then held by him was put in issue at that time. It also stated, in substance, that while the relator was of the opinion that his tenure under his appointment would not expire until the first Monday in January, 1917, since a question had arisen on the subject too late to permit him to present himself for nomination on the Democratic ticket, in order to avoid all future question as to his right he was seeking an election on the Independent ticket to succeed himself. The relaior also caused to be distributed among the electors 7,500 cards, announcing his candidacy. These cards had printed upon them the substance of the statement referred to above. The respondent had distributed in the same way 8,000 cards, announcing his candidacy, and he also caused to be posted, in prominent places in every precinct in the district, placards upon which were printed his portrait and the announcement of his candidacy. Napton caused to be distributed 6,000 candidate’s cards. The relator and the respondent each wrote and mailed to individual electors in the district many hundreds of personal letters, announcing their respective candidacies and urging their claims, In addition to these means of publicity, the several candidates visited a great number of the precincts in the district; the respondent visiting all, except five small ones in remote localities. Candidates for other offices, as well as party speakers, who participated in the campaign for state and local offices, on many occasions • and in different places called the attention of the electors to the necessity of voting for some one of the candidates *335for tbe office of district judge. The numbers of registered voters in the counties were: In Missoula county, 4,198; Ravalli county, 2,344; Sanders county, 1,353; Mineral county, 720 — a total of 8,615. The votes cast for the office of district judge were: In Missoula county, 1,749; Ravalli county, 582; Sanders county, 221; Mineral county, 537 — a total of 2,889, or an average of 33% per cent of the whole number of registered votes. The votes cast for the candidates in each county were:
For the office of associate justice of the supreme court, three candidates, whose names appeared on the party tickets, received, in Missoula county, 3,698; Ravalli county, 1,735; Sanders county, 1,135; Mineral county, 487 — a total of 7,055, or an average of about 82 per cent of the whole number of registered votes. Upon the ascertainment by the state board of canvassers of the result, the governor issued a certificate of election to the respondent. He thereafter took the oath of office, and on January 4 of this year assumed possession of and began to discharge the duties appertaining to it.
The claim is made that by his appointment by the governor under authority of the statute, supra, the relator became entitled to hold until the first Monday in January, 1917, and that the respondent has unlawfully intruded himself into and usurped the office. The claim is also made that the admitted facts disclose that, in so far as the election included candidates for the office of district “judge, it was invalid, in that it had not been proclaimed by the governor, and hence that the right of the relator to retain the office under his appointment was not affected by it.
As we understand counsel for the relator, they concede, at least do not controvert, the proposition that, upon the approval
There can be no doubt, we think that by the Act, supra, creating the additional judgeship, the legislature intended that the appointment made by the governor should hold good until the first Monday in January, 1917, and until a successor should be elected and qualified. The person who drafted the Act doubtless inadvertently used the disjunctive “or” instead of the conjunctive “.and,” as found in the Constitution, where the clause following the conjunctive is used in fixing the tenure of persons appointed to vacancies in elective offices. The two other alternatives are either to attach no meaning at all to this clause, or else *337to hold that the legislature intended to provide by implication that a successor to the first appointee should be chosen by the people at the next general election following the appointment. The first of these latter alternatives we cannot accept, because every word in a statute must be given some meaning, if it is possible to do so (State ex rel. Anaconda C. Min. Co. v. District
The provisions of the Constitution pertinent here are the following: “The state shall be divided into judicial districts, in *338each of which there shall be elected by the electors thereof one
“Vacancies in the office of justice of the supreme court, or judge of the district court, or clerk of the supreme court, shall be filled by appointment, by the governor of the state, and vacancies in the offices of county attorneys, clerk of the district court, and justices of the peace, shall be filled by appointment, by the board of county commissioners of the county where such vacancy occurs. A person appointed to fill any such vacancy shall hold his office until the next general election and until his successor is elected and qualified. A person elected to fill a vacancy shall hold office until the expiration of the term for which the person he succeeds was elected.” (Art. VIII, sec. 34.)
The sections of the Revised Codes enacted to give effect to these provisions are: “The term of office of judges of the district court begins on the first Monday of January next succeeding their election.” (Rev. Codes, sec. 6267.)
“If a vacancy occur in the office of judge of a district court, the governor must appoint an eligible person to hold the office until the election and qualification of a judge to fill the vacancy, which election must take place at the next succeeding general .election, and the judge so elected holds office for the remainder of the unexpired term.” (Sec. 6269.)
Section 450 declares what is a general election, and fixes the time for holding it, viz.: ‘ ‘ The first Tuesday after the first Monday of November, in the year 1894, and in every second year thereafter. ’ ’
Section 451 defines a special election as one held to supply a vacancy in an office.
*339Section 12 of Article VIII, supra, was considered in connection with other provisions of the Constitution, in State ex rel. Jones v. Foster, cited above. It was there said: “In adopting it the convention had three purposes in view: (1) To provide for the division of the state into districts; (2) to provide for district judges and to fix their term of office; and (3) by way of exception, to fix the term of office of those first elected, so that they would hold until the general election in 1892, and until their successors should be elected and qualified. But for the exception, those first elected would also have held for the term of four years. The purpose of it was to so adjust the term of those first elected that thereafter the election would fall regularly upon presidential years, and be uniform throughout the state.” It was also held that the clause, “and until their successors are elected and qualified,” is a part of the exception, and does not modify the clause definitely fixing the term of the judges to be subsequently elected. The result is that, upon the expiration of the four-year term, the office of district judge becomes vacant by operation of law. In State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94, the court considered at length the several provisions of the Constitution, including section 34 of Article VIII, supra, relating to vacancies in office, to the tenure of persons appointed to fill them, and to the time when their successors are to be chosen by the people. Speaking through Mr. Justice Holloway the court said: “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.”
*340The personal view of the writer, as expressed in State ex rel. Rowe v. Kehoe, 49 Mont. 582, 144 Pac. 162, is that the rule includes also county offices, the term of which is only two years. However this may be, the general policy of our government, as
There is a conflict in the decisions as to the meaning of the phrase, “until the next general election,” as used in section 34, supra, and elsewhere in the Constitution, one view being that it means the next general élection in point of time, and the other that it means the next general election for the particular office. A number of cases illustrating these divergent views are cited in the note to Wendorff v. Dill, 50 L. R. A. (n. s.) 359, (83 Kan. 782, 112 Pac. 588), among them State ex rel. Livesay v. Smith, supra. In this ease it was definitely held that the ■ expression refers to the next general election for the particular office; in that instance; clerk of the district court. That the court in so holding fell into error becomes apparent when we recognize and give force to the general theory of the Constitution on the subject of how vacancies in office are to be fllled, and realize that *341the rule adopted in that ease renders it impossible ever to hold an election to fill a vacancy in any of the offices enumerated in section 34, supra. Obviously, if an appointee to fill a vacancy in any of the offices enumerated is entitled to hold until the general election for that office at which is chosen an incumbent for the ensuing regular term, a vacancy in any one of them can never be filled by election as distinguished from appointment, with the result that the last sentence in the section is entirely without meaning. The preceding sentence would then be read: “A person appointed to fill any such vacancy shall hold his office until the expiration of the current term, and until his successor shall be elected and qualified.” And the last sentence would be disregarded as entirely without meaning. This may not be done, for it would violate the fundamental rule of construction applicable, viz., that effect must be given, if possible, to the whole instrument under consideration and to every section and clause of it. (State ex rel. Anaconda C. Min. Co. v. District Court, supra; Montana Coal & C. Co. v. Livingston, 21 Mont. 59, 52 Pac. 780; Cooley’s Const. Limitations, p. 72.) The conclusion announced in State ex rel. Livesay v. Smith was the result of oversight, in failing to notice the import of the last sentence in the section. For this reason it was erroneous, and the decision must be overruled.
It will be noted that the provision mentions vacancies generally, without regard to what may be the cause of them. Hence, as was stated above, it must include a vacancy which exists in a newly created office for which no incumbent is named. If the legislature had merely created the office and said nothing as to the appointment, or, besides creating the office, had added that the incumbent appointed by the governor to fill it should hold until the next general election and until his successor should be elected and qualified, the Act would not only have been in conformity with the evident intention of the provision of the Constitution, but also in entire harmony with the interpretation given it by the legislature itself in enacting section 6269 of the Revised Codes, supra. Interpreted, as it must be, to mean that the gov*342ernor was to fill tbe office for the remainder of the term, it is to this extent invalid, though it must be conceded that the relator was entitled by virtue of his appointment, under the terms of the Constitution, to hold until he had been displaced by a successor legally elected by the people. The clause, “and until his successor is elected and qualified,” is an express guaranty of this right. (Board of Election Commrs. v. Wayne Circuit Judges, 172 Mich. 430, 137 N. W. 1089; People v. Mathewson, 47 Cal. 442; State v. Collins, 2 Nev. 351; People v. Hardy, 8 Utah, 68, 29 Pac. 1118.)
. In this connection it may be remarked that the relator is not
One basis of the contention that the election was void is the assumption that, in so far as it included a district judge, it was without authority of law, because the phrase, “until the next general election,” means the next election at which district judges are to be elected throughout the state. This contention has been disposed of by the foregoing discussion.
Under the interpretation we have given the provision of the Constitution, the people were entitled to elect some person to fill *343the office at tbe election in November, 1914. The legislature, in enacting section 6269, supra, which was left unchanged by the invalid provision of the Act of 1913, specifically required that it should be held. Whether or not the result was effective to vest the respondent with title depends upon the answers which must
(1) Is an election to fill a vacancy a special election?
(2) Has the legislature sufficiently prescribed the mode for holding such an election?
(3) Was this mode substantially pursued by the election officers, in the making of proclamation and giving notice? And
(4) Even though the formalities of proclamation and notice were omitted, must we, now that the election is over, accept the result as an authoritative declaration of their wishes by the people ?
The first of these inquiries is answered in the affirmative by the statute (Rev. Codes, sec. 451), which declares: “Special elections are such as are held to supply vacancies in any office, and are held at such times as may be designated by the proper officer or authority. ’ ’
The second must also be answered in the affirmative. In State ex rel. Rowe v. Kehoe, supra, the various provisions of the Codes
The third inquiry must be answered in the negative. The language of the proclamation, ‘ ‘ also a district judge in any judicial
The answer to the last inquiry involves some difficulty. In State ex rel. Rowe v. Kehoe, supra, this court adopted the view that, since the statute requires official proclamation and notice of the election, in the absence of them the election would be invalid. The question in the ease was whether, in the absence of official proclamation and notice of any kind, the clerk was authorized to print upon the ballot the names of two candidates to fill a vacancy in the office of sheriff. It was determined that he could not. The notice the electors would have in such case would depend entirely upon the disposition of the candidates themselves to give publicity to their candidacies. In that case the question at issue arose out of the proceedings of the clerk prior to the election. After the election has been held, however, the rule as to the
In two of the counties of the fourth district the notice posted
On the wfyole, we think the evidence discloses such an actual notice as to require us to adopt the conclusion that the election of the respondent must be upheld as valid, and that he is entitled to the office.
It is so adjudged.
Mr. Justice Sanner and Mr. Justice Holloway concur.