144 P. 162 | Mont. | 1914
delivered the opinion of the court.
Original application for an injunction. On September 10, 1914, Timothy Driscoll, who had theretofore been elected to the office of sheriff of Silver Bow county for the regular term of two years ending on the first Monday of January, 1915, was by a judgment of the district court of that county removed from office on the ground.that he had been guilty of neglect in the performance of his official duty. On October 6 it was brought to the attention of the board of commissioners of the eounty, then sitting in regular session, that a vacancy existed in the office. Thereupon the board made an order appointing one John Berkin to fill the vacancy until his successor should be elected and qualified. Berkin at once qualified and entered upon the. performance of the duties pertaining to the office, and was holding the office at the time this proceeding was instituted. On October 3 3, more than twenty days prior to the general elec
The following provisions of the Constitution are pertinent:
“Sec. 34. 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.” (Article VIII.)
[1] “Sec. 5. Vacancies in all county, township and precinct offices, except that of county commissioners, shall be filled by appointment, and the appointee shall hold his office until the next general election.” (Article XVI.)
Section 2966 of the Revised Codes reads as follows: “All vacancies in county and township offices, except county commissioner, are filled by appointment made by the county commissioners. Appointees hold until the vacancies are filled by; election.”
The first Monday in January is the date at which the term of all county officers chosen by the electors begins, except that of treasurer. (Const., Art. XVI, sec. 5; Ord. II, sec. 9.)
It will be noted that the offices of clerk of the district court, county attorney and justice of the peace are enumerated among judicial offices, and are to be excluded from the enumeration of the offices referred to in section 5 of Article XVI of the Constitution, supra. Though a vacancy in any of them must be filled by appointment by the board of- county commissioners, the tenure of the appointees to them is not in question in this ease, section 34, Article VIII, supra, being specifically applicable to them. Excluding these from the list of county offices, section 5 of Article XVI, supra, refers only to the offices of sheriff, treasurer, county clerk, assessor, auditor, superintendent of common schools, county surveyor, coroner and public administrator.
1. The provision of the Act of 1913 was evidently intended to supplant wholly the provision of the Code. This is apparent from the fact that while under the latter the appointee held only until the vacancy could be filled by election, the former extends the tenure until the first Monday in January following the date of the general election. In effect, therefore, it declares that the appointee to a vacancy shall hold until the expiration of the remainder of the current term, without reference to when the vacancy occurs, thus precluding the idea that there may ever be an election to fill a vacancy in a county office of the class referred to in section 5 of Article XVI, supra. Doubtless, the legislature, in enacting this provision, proceeded upon the theory that the words of the Constitution, “Until the next general election,” ought to be ignored as wholly without meaning, or must be construed as meaning, “until the person elected at the
In the interpretation of constitutions the cardinal rule to be
Upon referring to the provision applicable to state, executive and judicial offices, it will be observed that the appointee to a vacancy in any of them holds until his successor is elected and qualified. Here the same restriction is imposed upon the tenure, though the date to which the limit extends is not definitely fixed. That the length of tenure in ease of these offices is left indefinite and is made dependent somewhat upon the disposition of the newly elected incumbent to assume his duties, is not any reason why the tenure of the appointee to fill a vacancy in a county office eo nomine, should be held to be other than what the convention declared in plain terms it shall be. It is not for the courts to inquire what the purpose of the convention was in making different provisions for these different classes of offices, and by a process of construction undertake to declare that the convention intended to convey a meaning which its words do not express. When the courts have ascertained what the convention said and its language is clear and unambiguous, and not limited or qualified in meaning by context or by other provisions on the
Accordingly, since the convention declared that one appointed to fill a vacancy in a county office shall hold until the next general election, it is our duty to so declare. It was, therefore, out of the power of the legislature to ignore the provision in question and provide that appointees to fill vacancies should hold for the remainder of the regular term. Hence it follows that the Act of 1913, supra, is invalid, because it undertakes to extend the tenure beyond the limit fixed by the Constitution. (Mechem on Public Officers, sec. 386.) As to the office of county treasurer, it is wholly inoperative, because, since the term of this office begins on the first Monday in March, to apply the statute to it would create an interregnum for the two months following the beginning of the regular term of other offices. In enacting it, the legisláture evidently entirely overlooked this office.
The provision in question does not declare that an election shall be held to fill the vacancy for the remainder of the term.
2. In his brief, and also in his oral argument, counsel for the relator made the contention that upon the assumption that the electors had a right to elect a successor to Berkin, they could not lawfully exercise it because (1) no provision has been made by the legislature for holding a special election to fill a vacancy in a county office, and (2) because, assuming that such provision has been made, the board of commissioners failed fo order and proclaim an election. Counsel for defendant contend that, since the Constitution authorizes the electors to choose their officers at a time designated by law, they were entitled to select Berkin’s successor without the formalities of a proclamation and notice.
When all these provisions are read together, the conclusion seems necessary that the legislature intended that special elections to fill vacancies in county offices should be proclaimed and notice thereof given by the board of county commissioners. Apparently, proclamation by the governor' is necessary only when an election is to be held to fill offices for the regular ensuing term, except to fill vacancies in the offices of state senator and member of the house of representatives. This is suggested by the fact that section 452 does not impose upon the governor
If it be conceded, however, that these provisions, because of their indefiniteness and lack of directness of statement, fail of their evident purpose to confer the power, the relator was entitled to the relief sought on the ground that, though
The defendant, therefore, from either point of view, had no authority to put upon the ballot the names of any candidates other than those from among whom the electors were to choose officers for the regular ensuing term to begin on the first Monday in January, 1915.
There is some conflict in the decisions upon the question whether an election to fill a vacancy is valid in the absence of notice by the proper officer or authority. Some courts hold that where the Constitution or statute provides that a vacancy in an office must be filled at the next general election, an election held to fill such vacancy is valid though notice has not been given to the electors. (People v. Cowles, 13 N. Y. 350; People ex rel. Speed v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70.) Others adhere to the doctrine that if the proper notice is not given, the election is void. (Beal v. Ray, 17 Ind. 554; People ex rel. McKune v. Weller, supra; State ex rel. Sampson v. Superior Court, 71 Wash. 484, Ann. Cas. 1914C, 591, 128 Pac. 1054.)
In the consideration of this case, the court reached the
Mr. Justice Sanneb: While it is my belief that all questions fairly and properly raised in a cause presented to this court should, as a general rule, be considered and settled, there is always the consideration that an Act of the legislature ought not to be declared unconstitutional unless such conclusion is necessary to the decision. Fully appreciating the objections stated by the Chief Justice to the validity of section 1, Chapter 5, Laws of 1913, I nevertheless feel that the question should be reserved, because the failure of the county commissioners to call and notice the election in question would be fatal, whether a vacancy to be filled was demonstrated or assumed. I therefore place my concurrence in the foregoing opinion upon the ground last treated therein.