146 P. 932 | Mont. | 1915
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
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
The provisions of the Constitution pertinent here are the following: “The state shall be divided into judicial districts, in
“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.
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
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
. 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
(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.