Bailey v. Knight

168 P.2d 843, 118 Mont. 594, 1946 Mont. LEXIS 31

• Court: Montana Supreme Court
• Decided: May 3, 1946
• Docket: 8664
• Status: Published

Opinions

MR. JUSTICE ANGSTMAN

delivered the opinion of the Court.

At the general election held in November, 1942, Dan Stephenson was elected sheriff of Yellowstone County for a four year term beginning the first Monday in January, 1943. He qualified and entered upon the dischárge of the duties of his office. On May 26, 1943, he died. On June 1st plaintiff was appointed by the board of county commissioners to fill the vacancy until the next general election. Plaintiff qualified for the office and entered upon the discharge of the duties thereof.

At the next general election in .November, 1944, plaintiff was the Republican nominee for the office and was elected. The ballot at both the primary and general election contained no limitation or restriction regarding the length of the term for which the respective candidates sought election but the notice of the primary election which was posted and published throughout the county stated that candidates would be chosen 'for the office of sheriff for a two year term.

This proceeding seeks to have adjudicated the question whether plaintiff was elected in November, 1944, for á full four year term or whether he was elected only for the unexpired term of Dan Stephenson.

Since section 5 of Article XVI of the Montana Constitution was amended by Chapter 93, Laws of 1937, which became effective on December 2, 1938 (Session Laws of 1939, page 727), the term of office of sheriff has been four years. This is statu-' tory also. Chapter 134, Laws of 1939. By the Constitution and statute, vacancies in the office of sheriff are filled by appointment by the board of county commissioners, and “the appointee shall hold his office until the next general election. ’ ’

Other statutory provisions that bear upon the question before us are section 423, Revised Codes, which provides that “Every officer must continue to discharge the duties of his ■office, athough his term has expired, until his successor has •qualified” and section 4734, which provides that “All vacancies in county or township offices, except county commissioner, are filled by appointment made by the county commissioners. Appointees hold until the vacancies are filled by 'election.’ ’

The concluding sentence of section 34, Article VIII of our Constitution is also important. It provides: “A person elected to fill a vacancy shall hold office until the expiration of the term for which the person he succeeds was elected. ’ ’ While the first' part of section 34 is restricted to offices other than sheriff, the quoted part is not thus restricted.

The policy uf our law, expressed not only in the Constitution but by statute, is that an appointee to an elective ■office “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.” State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94. In that case the court declared section 2883, Revised Codes 1907, which authorized- the district judge to fill vacancies in the office of county commissioners “by appointing for the unexpired term,” unconstitutional and issued a writ of mandate requiring the necessary things to be done to cause the unexpired term to be filled by election at the ensuing general election.

The case of State ex rel. Rowe v. Kehoe, 49 Mont. 582, 144 Pac. 162, involved the office of sheriff when the term was of but two years’ duration. The proceeding was to enjoin the county clerk from placing the names of certain candidates on the ballot at the general election to fill out the term from the general election in November until the first Monday in January following. The injunction was granted because the court took the view that the election would be a nullity because the remainder of the term should be filled by special election even though held at the same time as the general election and that the county commissioners had failed to call and notice such an election. The opinion was participated in by only two justices. One of the two concurred in only that part of the opinion holding that there must be a called and noticed special election in order to have a valid election. The balance of the opinion was but thé opinion of the individual justice who wrote it and while it is entitled to respectful consideration it is not stare decisis in any respect further than above noted.

Both the McGowan and the Rowe cases in effect held that the term of office of one appointed to.fill a vacancy is for a part of the term for which the person he succeeds was elected. Likewise after appointment when the remainder of the term is filled by election, it means for the remainder of the term of the person originally elected and whose death or other disqualification caused the vacancy. Those eases also support the view that where the term of the one originally elected expires on the first Monday in January following the general election in November, it is proper to elect someone to fill that portion of the term from the general election until the first Monday in January.

It remains then to determine whether plaintiff was elected in November, 1944, to fill the unexpired term of Dan Stephenson or whether he was elected for a four year term commencing on the first Monday in January, 1945.

The latter claim cannot be sustained because there was no .such term to be filled by election at that time. The only term to be filled at that time, so far as the office of sheriff was concerned, was the unexpired term of Dan Stephenson.

Plaintiff contends that the case of LaBorde v. McGrath, Mont. 149 Pac. (2d) 913 takes the contrary view. This contention cannot be sustained. The only question in the LaBorde case was whether resort to our primary election laws was permissible to nominate candidates to fill an unexpired term in the office of county treasurer at a general election. The contention was made that since section 632 in fixing the date of the primary nominating election provides that it should be “on the third Tuesday of July preceding any general election (not including special elections to fill vacancies, * * *) ” and since a special election is one to supply vacancies in office (sec. 532, Rev. Codes), the primary election method could not be used to select candidates to fill the unexpired term in question. The court held that the primary election laws were applicable and that there was no occasion for a special election since the machinery of the general election laws was available and applicable. The court followed the holding in the McGowan case where the unexpired term was ordered to be filled at the general election rather than the holding in the Rowe case that a special election was necessary. In effect the LaBorde case holds that the vacancy caused by the death of the duly elected county treasurer was completely filled by the appointment and that at the election there was no purpose to fill a vacancy but merely to elect an officer for the unexpired term. It was the remainder of the term, and that only, that was actually filled by the election.

To the extent that the LaBorde case holds that the vacancy was completely filled by the appointment it was dictum and unnecessary to the decision. The election for the unexpired term is still one to fill a vacancy and is so regarded by the Constitution, section 34, Article VII, which says: “A person elected to fill a vacancy shall hold office until the expiration of the term for which the person he succeeds was elected.”

We think it of no consequence that the ballot did not specify the length of time for which the candidates sought the office in the instant case. The successful candidate could not have been elected for a longer term than was then remaining to be filled, which was the unexpired term of Dan Stephenson.’

It follows that plaintiff’s term of office expires on the day before the first Monday in January, 1947, that being the expiration date of the term of office of Dan Stephenson, and in consequence a sheriff must be elected for Yellowstone County at the coming general election in November, 1946, to serve for a four year term commencing on the first Monday of January, 1947.

Mr. Chief Justice Lindquist and Associate Justices Morris and Cheadle, concur.