Opinion:
PER CURIAM.
This proceeding seeks a declaratory judgment determining that sections 631 to 670, Revised Codes (the direct primary laws) are applicable to nominations of candidates for a special election to fill a vacancy in the office of Representative in the Congress of the United States.
The facts are that in the general election in Montana in November 1944 James F. O’Connor was elected Representative in Congress in the Second Congressional District for the term commencing on January 3, 1945, and ending on January 3, 1947. After qualifying and taking the office, he died. There is now a vacancy in the office.
Governor Sam C. Ford, who takes the position that because of statutes and prior decisions of this court, the primary law has no application to special elections to fill vacancies, issued a writ of election on March 7, 1945, designating Tuesday, the fifth day of June, 1945, as the day for holding a special election in the several counties comprising the Second Congressional District, at which the electors of that district shall elect a representative in Congress to fill the vacancy.
The question before us is: Shall candidates of the respective political parties be chosen in a special primary election? In considering this point our province is but to determine the-legislative intent on the subject. In other words, we must declare what appears to be the legislative intent as gathered
from legislative Acts and not what we might prefer were we sitting as members of the Legislature.
The direct primary law was enacted by the people in 1912 as an initiative measure. We point out that notwithstanding the direct primary law, vacancies in most public offices are filled without any election at all but by the power of appointment. In the case of a vacancy in the United States Senate the Seventeenth Amendment to the United States Constitution provides in part: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.”
Pursuant to this constitutional amendment, and after the adoption of our primary law, what is now section 825, Revised Codes, was enacted, reading: “When a vacancy happens in the office of one or more senators from the state of Montana in the Congress of the United States, the governor of this state shall issue, under the seal of the state, a writ or writs of election, to be held at the next succeeding general state election, to fill such vacancy or vacancies by vote of the electors of the state: provided, however, that the governor shall have power to make temporary appointments to fill such vacancy or vacancies until the electors shall have filled them. ’ ’ Hence, as to vacancies in the office of United States Senator, there is no such thing as selecting nominees at a special primary election.
During the oral argument it was conceded that Montana has no express legislative authorization for the holding of a special primary election, but it was contended that neither has it any such authority for the holding of a special election to fill vacancies and that therefore both authorizations must be sought in federal authority. It is not true that Montana has no statutory authority for holding a special election to fill vacancies. Section 532, Revised Codes, provides: “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. ’ ’
. Upon adoption of that statute in 1895 the United States Constitution provided, and still provides, (Article 1, section 2): ‘ ‘ When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Section 532 therefore authorizes the special election in question and the fixing of the time thereof by the Governor. But no such authority can be found for a special primary election to name the candidates. It is argued that since the United States Constitution provides that the executive shall issue writs of election, it contemplates two writs, one for a special primary election, and the other for the special election. Since, when the Constitution was drafted and adopted primaries were unheard of, the argument is unsound. Furthermore, if the provision were that “When a vacancy happens * * * the executive * * * shall issue writs of election to fill such vacancy,” the argument might have force; but having started with the plural, — vacancies, it could not possibly have followed with the singular, — a writ of election; the failure to use the singular cannot, therefore, be interpreted as an authorization of writs of election for the filling of a-single vacancy. Moreover the statute concludes with the statement that the writs of election are for the filling of vacancies and not of a vacancy.
Section 632 is the section providing for the holding of primary elections and fixing the time of holding such elections. As originally enacted it provided: “On the seventieth day preceding any general election (not including special elections to fill vacancies, municipal elections in towns and cities, irrigation district and school elections) at which public officers in this state and in any district or county are to be elected a primary nominating election shall be held in accordance with this law in the several election precincts comprised within the territory for which such officers are to be elected at the ensuing election, which shall be known as the primary nom
inating election, for the purpose of choosing candidates by the political parties, subject to the provisions of this law, for senator in congress, and all other elective state, district and county officers, and delegates to any constitutional convention or conventions that may hereafter be called, who are to be' chosen at the ensuing election wholly by electors within this state, or any subdivision of this state, and also for choosing and electing county central committeemen by the several parties subject to the provisions of this law.” (Rev. Codes 1921, sec. 632.) It was later amended and now fixes the date as of the third Tuesday in July preceding any general election.
Plaintiff contends, however, that because of section 639 the party nominees for this vacancy must be chosen at a special primary election. Section 639 in part provides: ‘ ‘Every political party which has cast three per centum (3 %) or more of the total vote east for Representative in Congress at the next preceding general election in the county, district or state for which nominations are proposed to be made, shall nominate its candidates for public office in such county, district, or state, under the provisions of this law, and not in any other manner; and it shall not be allowed to nominate any candidate in the manner provided by section 612 of this code.”
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Opinion:
PER CURIAM.
This proceeding seeks a declaratory judgment determining that sections 631 to 670, Revised Codes (the direct primary laws) are applicable to nominations of candidates for a special election to fill a vacancy in the office of Representative in the Congress of the United States.
The facts are that in the general election in Montana in November 1944 James F. O’Connor was elected Representative in Congress in the Second Congressional District for the term commencing on January 3, 1945, and ending on January 3, 1947. After qualifying and taking the office, he died. There is now a vacancy in the office.
Governor Sam C. Ford, who takes the position that because of statutes and prior decisions of this court, the primary law has no application to special elections to fill vacancies, issued a writ of election on March 7, 1945, designating Tuesday, the fifth day of June, 1945, as the day for holding a special election in the several counties comprising the Second Congressional District, at which the electors of that district shall elect a representative in Congress to fill the vacancy.
The question before us is: Shall candidates of the respective political parties be chosen in a special primary election? In considering this point our province is but to determine the-legislative intent on the subject. In other words, we must declare what appears to be the legislative intent as gathered
from legislative Acts and not what we might prefer were we sitting as members of the Legislature.
The direct primary law was enacted by the people in 1912 as an initiative measure. We point out that notwithstanding the direct primary law, vacancies in most public offices are filled without any election at all but by the power of appointment. In the case of a vacancy in the United States Senate the Seventeenth Amendment to the United States Constitution provides in part: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.”
Pursuant to this constitutional amendment, and after the adoption of our primary law, what is now section 825, Revised Codes, was enacted, reading: “When a vacancy happens in the office of one or more senators from the state of Montana in the Congress of the United States, the governor of this state shall issue, under the seal of the state, a writ or writs of election, to be held at the next succeeding general state election, to fill such vacancy or vacancies by vote of the electors of the state: provided, however, that the governor shall have power to make temporary appointments to fill such vacancy or vacancies until the electors shall have filled them. ’ ’ Hence, as to vacancies in the office of United States Senator, there is no such thing as selecting nominees at a special primary election.
During the oral argument it was conceded that Montana has no express legislative authorization for the holding of a special primary election, but it was contended that neither has it any such authority for the holding of a special election to fill vacancies and that therefore both authorizations must be sought in federal authority. It is not true that Montana has no statutory authority for holding a special election to fill vacancies. Section 532, Revised Codes, provides: “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. ’ ’
. Upon adoption of that statute in 1895 the United States Constitution provided, and still provides, (Article 1, section 2): ‘ ‘ When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Section 532 therefore authorizes the special election in question and the fixing of the time thereof by the Governor. But no such authority can be found for a special primary election to name the candidates. It is argued that since the United States Constitution provides that the executive shall issue writs of election, it contemplates two writs, one for a special primary election, and the other for the special election. Since, when the Constitution was drafted and adopted primaries were unheard of, the argument is unsound. Furthermore, if the provision were that “When a vacancy happens * * * the executive * * * shall issue writs of election to fill such vacancy,” the argument might have force; but having started with the plural, — vacancies, it could not possibly have followed with the singular, — a writ of election; the failure to use the singular cannot, therefore, be interpreted as an authorization of writs of election for the filling of a-single vacancy. Moreover the statute concludes with the statement that the writs of election are for the filling of vacancies and not of a vacancy.
Section 632 is the section providing for the holding of primary elections and fixing the time of holding such elections. As originally enacted it provided: “On the seventieth day preceding any general election (not including special elections to fill vacancies, municipal elections in towns and cities, irrigation district and school elections) at which public officers in this state and in any district or county are to be elected a primary nominating election shall be held in accordance with this law in the several election precincts comprised within the territory for which such officers are to be elected at the ensuing election, which shall be known as the primary nom
inating election, for the purpose of choosing candidates by the political parties, subject to the provisions of this law, for senator in congress, and all other elective state, district and county officers, and delegates to any constitutional convention or conventions that may hereafter be called, who are to be' chosen at the ensuing election wholly by electors within this state, or any subdivision of this state, and also for choosing and electing county central committeemen by the several parties subject to the provisions of this law.” (Rev. Codes 1921, sec. 632.) It was later amended and now fixes the date as of the third Tuesday in July preceding any general election.
Plaintiff contends, however, that because of section 639 the party nominees for this vacancy must be chosen at a special primary election. Section 639 in part provides: ‘ ‘Every political party which has cast three per centum (3 %) or more of the total vote east for Representative in Congress at the next preceding general election in the county, district or state for which nominations are proposed to be made, shall nominate its candidates for public office in such county, district, or state, under the provisions of this law, and not in any other manner; and it shall not be allowed to nominate any candidate in the manner provided by section 612 of this code.”
Plaintiff further relies upon that part of section 631 reading: “Whenever the provisions of this law in operation prove to be of doubtful or uncertain meaning, or not sufficiently explicit in directions and details, the general laws of Montana, and especially the election and registration laws, and the customs, practice, usage, and forms thereunder, in the same circumstances or under like conditions, shall be followed in the construction and operation of this law, to the end that the protection of the spirit and intention of said laws shall be extended so far as possible to all primary elections, and especially to all primary nominating elections provided for by this law.” But the effect of that section is to apply the general election laws to primary elections, and not to supersede those general laws.
In State ex rel. Reibold v. Duncan, 55 Mont. 380, 177 Pac.
250, the precise question before us was decided by this court. In that case the court stated the question before it as follows:
1 ‘ There is involved the' single question: Did the adoption of the General Primary Law (Laws 1913, p. 570) operate to repeal in their entirety all prior existing laws which governed the nomination of candidates for public office?” In holding that all prior laws were not repealed by the primary law and that the primary laws are limited to the nomination of candidates to be voted for at general elections and are not applicable to nominations of candidates to be voted for at special elections, the court, speaking through Mr. Justice Holloway, said:
“But no provision is made for a primary election to nominate candidates to be voted upon at special elections; on the contrary, the terms of the Act are made applicable to nominations to be voted on at general elections only. Section 2 [which with the amendment above noted is now section 632] declares: ‘On the seventieth (70) day preceding any general election (not including special elections to fill vacancies, municipal elections in towns and cities, irrigation district and school elections) at which public officers in this state and in any district or county are to be elected, a primary nominating election shall be held in accordance with this law, ’ etc.
‘ ‘ Since the primary election under public control is the very essence of the Act, it must follow that, in failing to make provision for such election to nominate candidates to be voted upon at special elections, the lawmakers intended that the Act in its entirety should be construed as limited in its operations to the nominations of candidates to be voted, for at general elections, and that every section should be read with this construction in mind. * * *
“We do not agree with counsel that the primary election law was designed to furnish the exclusive means by which all candidates for public office shall be nominated, and that the failure of that Act to provide for nominations of candidates to be voted for at special elections was a mere oversight. The
references in sections 2 and 7 [8 now Sec. 639] indicate clearly that the subject ivas not overlooked, but for some sufficient reason it ivas evidently considered that the provisions of the direct primary law are inapplicable to the nomination of candidates to be Amted for at special elections, and that subject was reserved for control by existing laws or future legislation. No subsequent enactments dealing Avith the matter have been passed, and the authority to make such nominations must be sought in prior statutes.”
This court in the Duncan case concluded by holding that Avhat are noAV sections 612 and 615 Avere the statutes applicable to nominations of candidates to be voted upon at a special election to fill a vacancy. It is contended that this decision Avas merely dictum and not a binding precedent. That which is Avithin the issue, fully argued by counsel and deliberately considered by the court in its opinion, is not dictum. (Helena Power Transmission Co. v. Spratt, 37 Mont. 60, 94 Pac. 631; Montana Horse Products Co. v. Great Northern Ry. Co., 91 Mont. 194, 7 Pac. (2d) 919; First Nat. Bank of Kalispell v. Perrine, 97 Mont. 262, 33 Pac. (2d) 997.) Nor does the decision lose its ATalue as a precedent because the case might have been decided on some other ground. (21 C. J. S„ Courts, sec. 190, p. 314 et seq.; 14 Am. Jur., Courts, see. 83. pp. 297, 298.) It was not regarded by the court as dictum for in the later case of State ex rel. Mills v. Stewart, 64 Mont. 453, 210 Pac. 465, 470, the court said: “The court has held in the case of State ex rel. Reibold v. Duncan, supra, that the initiative laAv has no application to special elections, and that it was-not designed to furnish the exelusiAm means by Avhich all candidates for public office shall be nominated.” Likewise it is contended that the Duncan case Avas wrong and we are noAV asked to 0Arerrule it. That ease has now stood for tAventy-seven years. Many sessions of the legislative assembly have been held since the decision Avas rendered. The legislature has seen fit to make no change in the laAv on this subject until in 1945 which change Ave will hereafter allude to further. Generally, of course, legislative
intent is indicated by its action rather than by its failure to act. “On the other hand, it has-been declared that the -silence of the legislature, when it has authority to speak, may sometimes give rise to an implication as to the legislative purpose, the nature and extent of that implication depending on the nature of the legislative power -and the effect of its exercise. The fact that the Legislature has not seen fit by amendment to express disapproval of a contemporaneous or judicial interpretation of a particular statute, has been referred to as bolstering such construction of the statute, or as persuasive evidence of the adoption of the judicial construction. In this respect, it has been declared that where a judicial construction has been placed upon the language of a statute for a long period of time, so that there has been abundant opportunity for the laAvmaking power to giAre further expression to its will, the failure to do so amounts to legislative approval and ratification of the construction placed upon the statute by the courts, and that such construction should generally be adhered to, leaving it to the legislature to amend the laAv should a change be deemed necessary. These rules are particularly applicable where an amendment is presented to the legislature and fails of enactment, or where the statute is amended in other particulars.” (50 Am. Jur., Statutes, sec. 326, pp. 318, 319. To the same effect see 59 C. J. 1037, notes 44 - 48.)
Those Avho argue that the Reibold decision is dictum except upon the point that the direct primary law did not repeal section 615 relating to independent candidates, seem to approve the holding upon that point.-Yet they seem also to consider that the direct primary law is controlled by the statement, submitted in advocacy of the measure, that “the purpose of the direct primary law is to place the nominations of all candidates for public office directly in the.hands of the voters.” If they really believe that the statement governs, rather than the words of the statute itself,-they should be consistent; for that statement Avould-abolish section-615 as fully, as section 612. The fact is that the statute abolishes neither, as the court directly
held in the Reibold ease, and the statement cannot control the statute.
Were we convinced that the Duncan decision was and is erroneous, a declaration to that effect would not be helpful now because of the action of the legislative assembly of 1945. That assembly was asked in effect to change the rule of the Duncan case by Senate Bill 67 and House Bill 168 by making provision for a special primary election to select nominees for the office of Representative in Congress, to care for the very matter which we are asked to provide for. The Legislature declined to do so, and defeated both measures. Not only did it decline to change the rule stated in the Duncan ease, and affirmed four years later in the Mills case, but by adopting Senate Bill 11 it amended section 612, Revised Codes of 1935, to read as follows: “Convention or primary meeting defined. Vacancies. Any Convention or primary meeting held for the purpose of making nominations for public office, or the number of electors required in this Chapter, may nominate candidates for public office to be filled by election in the State. A convention or primary meeting within the meaning of this Chapter is an organized assemblage of electors or delegates representing a political party or principle,
and in the event a vacancy shall happen by death or resignation in the representation from any Congressional District of the State of Montana in the Souse of Representatives of the Congress of the United States, only the electors residing within such Congressional District shall vote at any such convention or primary meeting held for the purpose of malting nominations to fill such
vacancyThe italicized portion was added by the amendment. There is no logical way of interpreting the actions of the Twenty-ninth Legislative Assembly otherwise than as an approval and confirmation of the holding of the court in the Duncan case.
It is, of course, well established that initiative Acts may be repealed, amended or changed by the legislative assembly. (State ex rel. Goodman v. Stewart, 57 Mont. 144, 187 Pac. 641; State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 Pac. 841; State
ex rel. Jones v. Erickson, 75 Mont. 429, 244 Pac. 287.) Section 612, as now amended, relating as it does to political parties, is in conflict with the command of section 639 and both cannot stand. Under familiar rules of statutory construction the latest in point of time must control, which in this case is section 612 as amended.
The case of LaBorde v. McGrath, Mont., 149 Pac. (2d) 913, has been given consideration but that case was one where the vacancy had been filled by appointment to hold until the next ensuing general election. There it was held that no special election was involved in the case because the appointee held until the next general election at which time a successor would be elected to fill out the term and that the primary election should be resorted to for the purpose of nominating candidates to be voted upon at the general election. There is nothing in that case that departs from the Duncan case or that aids in the determination of this case.
Hence it follows that the nominees to be placed upon the ballot at the special election to be held pursuant to the call of the Governor on June 5, 1945, must be chosen pursuant to section 612 as amended by Chapter 26, Laws of 1945, or by section 615, and not by a special primary nominating election.