Marcellus v. Wright

202 P. 381, 61 Mont. 274, 1921 Mont. LEXIS 34

• Court: Montana Supreme Court
• Decided: November 14, 1921
• Docket: No. 4,878
• Status: Published

Opinion

MB. JUSTICE' COOPEB

delivered the opinion of the court.

This action was commenced in the district court of Fergus county in and for the tenth judicial district. It was tried by the court without a jury. Upon findings of fact and conclusions of law, the court entered judgment in favor of the [1] defendants. On March 23, 1920, respondent filed her motion for a new trial, which was later argued, submitted, and by the court taken under advisement. By a writing entitled “Opinion on Motion for a New Trial” the court stated its reasons for refusing the motion, and ended with the declaration that a new trial was denied. While the memorandum bears date December 31, 1920, it was not filed by the clerk nor entered in the minutes until 9:15 o’clock Monday morning, January 3, 1921. On January 10 motion was made to strike the document from the files and to cancel its recordation on the ground that it was an attempt upon the part of the former judge to make judicial pronouncement of an order after his term of office had expired. On the same day there was filed, in support of the motion, an affidavit of the clerk of the court, setting forth the following facts: That on January 3, 1921, at 9:15 A'. M., Honorable Jack Briscoe handed to him an order denying plaintiff’s motion for a new trial, directed Mm to enter and file the same as of the date of December 31, 1920, and to make a minute entry on the records of Department No. 2 of the court denying the motion for a new trial as of the date of December 31, 1920; that pursuant to such direction, affiant made the entry as of date of December 31, and filed and entered the order denying the motion for new trial as of the date stated. On January 18, 1921, an affidavit of Honorable Jack Briscoe was filed, reading as follows: “That as one of the judges of the tenth judicial district of the state of Montana, in and for the county of Fergus, and the judge of Department 2 thereof, he tried the above-entitled action on its merits, and made findings of fact and conclusions of law therein in favor of the defendants and against the plaintiff; that the plaintiff then presented her motion for a new trial of said cause, and after argument of the respective counsel the motion for new trial was taken under advisement by the court; that on the thirty-first day of December, 1920, affiant as' such judge determined the said motion by overruling the same, and the court dictated and signed a memorandum opinion to that effect, which concludes, ‘The motion for a new trial is overruled’; that on a memorandum sheet among other matters requiring disposition at the hands of the court, affiant had set down the title of court or some reference to the above-entitled case and had written thereon a notation to hand to the clerk of the court to the same effect; that about the hour of 5 o’clock (5) P. M., or shortly after that time, affiant took the said opinion and the said memorandum to the office of the clerk of court, but, finding the office locked and the clerk gone, concluded it would be just as well to hand it to the clerk the following day, January 1, 1921; that on the following day and on the second day of January, 1921, affiant did not find the clerk of court at his office, and he then handed the same to the clerk of court shortly after the office of the clerk of court had opened on the morning of the third day of January, 1921.” On February 10, 1921, upon the record thus made, the court, presided over by Honorable Rudolph Yon Tobel, elected to take the place of Honorable Jack Briscoe, and annulled the purported order. The defendants appeal from the order thus made.

We shall treat the proceeding as one to correct and purge the record by amendment of the order of Judge Briscoe refusing plaintiff a new trial. Was the direction to the clerk to enter the order the personal act of Judge Briscoe after he had lost judicial power by the lapse of his term as judge, or was it the judicial pronouncement of the court?

On the fifteenth day of February, 1917, there was but one district judge of the tenth judicial district. On that day an Act passed by the legislative assembly authorized the governor to appoint an additional judge for that district “to hold his office until the first Monday of January, 1919, or until his successor is duly elected and qualified.” (Laws 1917, Chap. 35.) Pursuant thereto, on March 2 of that year, the governor appointed Honorable H. L. De Kalb to fill the office thus created! He resigned May 18, 1918. On November 5, 1918, Honorable Jack Briscoe was elected to serve until the next general election. On November 9, 1918, he was appointed by the governor to serve until the term for which he was elected commenced.

In State ex rel. Patterson v. Lentz, 50 Mont. 322, 146 Pac. 932, the relator was appointed an additional judge for the fourth judicial district under the Act approved February 11, 1913. He claimed, among other things, that inasmuch as the commission issued to him stated that he was to hold the office until the first Monday in January, 1917, he was entitled to hold until that date, regardless of the fact that a general election, at which he was defeated for election by Honorable Theo. Lentz, had intervened between the two dates mentioned. The provisions of the Constitution and the law upon the subject are there given critical and exhaustive analysis by Chief Justice Brantly in behalf of this court. He proceeds: “Section 12 of Article VIII [of the Constitution] was considered in connection with other provisions of the Constitution, in State ex rel. Jones v. Foster, cited above [39 Mont. 583, 104 Pac. 860]. 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.”

A provision in the Constitution of California reading, “The terms of such officers [district.judges] shall commence on the first Monday of January next following their election,” was given a like interpretation by the supreme court of that state, in People ex rel. Bledsoe v. Campbell, 138 Cal. 11, 70 Pac. 918, Merced Bank v. Rosenthal, 99 Cal. 39, 31 Pac. 849, 33 Pac. 732, Broder v. Conklin, 98 Cal. 360, 33 Pac. 211, and Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60. The first case is cited with approval in both the Poster and the Lentz Cases, and all of them are in complete accord upon the proposition. The two cases last cited hold emphatically that an act performed by a person whose term of office as district judge has expired is void and should be set aside.

From these authorities it is clear that the term for which Judge Briscoe was elected was definitely fixed, and as definitely limited to the last minute of the day next preceding the first Monday in January following the general election at which his successor was elected. This is so because the law will not tolerate the thought that the tenure of office can begin or end at a time other than that fixed by the authority creating the office, or in any manner other than that so provided. When [2] . the duration of the term is specified in the statute, and an officer is elected to serve out the term, his power and authority thereupon ipso facto cease, unless he is authorized by some specific provision of organic law to hold over. (See People v. Tieman, 30 Barb. (N. Y.) 193; Badger v. United States, 93 U. S. 599, 23 L. Ed. 991 [see, also, Rose’s U. S. Notes] ; Meehem on Public Officers, sec. 396, and cases cited.)

Where the latter words are omitted, there is no right by which the incumbent can hold over the next general election, because the law favors the requirement that all officers, whenever possible, shall be elected by the people. (State ex rel. Patterson v. Lentz, supra.) This is evinced by the care exercised by all legislative bodies to guard against lapses, where holding over is not deemed necessary or desirable for the public good. “Hence the provisions fixing the terms of judicial officers must be held to be exclusive, with the result that vacancies occur by operation of law upon the expiration of the terms designated.” (State ex rel. Jones v. Foster, supra; State ex rel. McGowan v. Sedgwick, 46 Mont. 187, 127 Pac. 94.) If the language employed were of doubtful meaning, that interpretation [3] which limits the term to the shortest time should be adopted. (Mechem on Public Offices and Officers, see. 390; Wright v. Adams, 45 Tex. 134; Smith v. Bryan, 100 Va. 199, 40 S. E. 652.)

A careful reading of the entire Constitution reveals the remarkable fact that the declaration found in section 12 of Article VIII,- prescribing that “the terms of district judges shall be four years” is all that is said in that instrument upon the subject. To reach a conclusion which satisfies the judicial mind and responds directly to the will of the convention, the Constitution and the ordinances attached to the former must be carefully examined for words best fitted to furnish the needed light. The provisions of section 7 of the same Article, fixing the terms of the members of this court, present an analogy of some service in solving the problem. It reads: “The term of office of the justices of the supreme court, except in this Constitution otherwise provided, shall be six years.” -Then, in the next section, which provides the time to choose those first to be elected, will be found these words: “At [the] first election the Chief Justice shall be elected to hold his office until the general election in the year one thousand eight hundred and ninety-two (1892), and one of the associate justices to hold office until the general election in the year one thousand eight hundred and ninety-four (1894); and the other associate justice to hold his office until the general election in the year one thousand eight hundred and ninety-six (1896), and each shall hold until his successor is elected and qualified.”

It will be noted that in each of the instances above, the word [4] “until” is used with the evident purpose of limiting each term "to a definite period of time; and, bearing in mind the exigencies always to be apprehended from defective election machinery, and public inconvenience attending vacancies in public office, there was added the following: “And each shall hold until his successor is elected and qualified.” In section 9 of the same Article, too, we find the same exactness of expression in fixing the term- of the clerk of this court, and the point in time and circumstance to which he should hold office. As further evidence plainly visible, the terms for which all state officers, except judicial officers, shall hold are limited in section 1 of the same Article VIII to four years, “beginning on the first Monday in January next succeeding” the general election following. While that section does not affect judicial officers, the language does serve to make all the other elective officers of the state begin their official duties at the same instant. So that, the words employed in section 6 of Ordinance No. 2, that “the terms of officers so elected shall begin when the state is admitted into the Union, and shall end on the first Monday in January, 1893,” affect neither the intent nor object apparent throughout the Constitution and the ordinances to bring to a close the terms of district judges at 12 o’clock midnight preceding the first Monday in January following the election in presidential years. This construction makes complete harmony in the matter of the beginning and ending of the terms of all the state officers, without in the least shading the meaning of any of the language contained in either enactment.

The statute providing for an additional district judge in the tenth judicial district, and declaring that the appointee of the governor shall hold “until the first Monday in January, 1919,” is entitled to respectful consideration by the courts. (Northern Pac. Ry. Co. v. Mjelde, 48 Mont. 287, 137 Pac. 386; State ex rel. Patterson v. Lentz, supra.) And unless the time fixed by statute is so plainly at odds with that prescribed in the Constitution as to be wholly inconsistent with it, it is the duty of the court to give it such a construction as will enable it to have effect. Or to go a little further, when the conflict between the Act and the Constitution is not clear, the implication must always be that no excess of authority has been intended by the legislature, and that the seeming differences can be reconciled. The court will not go beyond the face of the law to seek grounds for holding it unconstitutional. (Cooley’s Constitutional Limitations, p. 225; Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, 14 L. R. A. 459, 27 Pac. 1089.) Thus, it seems, if we are at liberty to rely with any degree of confidence upon the legislative intent, the consideration is by no means all upon the side of the appellant. The word “until” is a restrictive word, and is of limitation, in its ordinary and usual sense; and this is the meaning which should now be ascribed to it. “Its office is to fix some point of time or some event upon the arrival or - occurrence of which what precedes will cease to exist.” (State ex rel. Rowe v. Kehoe, 49 Mont. 582, 588, 144 Pac. 162.)

Counsel for appellant earnestly insist that the affidavits [5, 6] should not be considered for the reason that the minutes of the court furnish the only competent evidence respecting the regularity and validity of the order appealed from. With this we cannot agree, for reasons which we will now proceed to give. In the first place, it was competent for the court to correct the minutes to speak the truth; and it was competent for it to consider the affidavits disclosing the actual facts. Second, upon appeals to this court the presumption must always be indulged that the action of the district court proceeded, not only according to law, but that it was done in the regular mode. Section 7962 of the Revised Codes provides that all presumptions, other than those expressly made conclusive by statute, are satisfactory if uneontradicted; that they are denominated disputable presumptions which may be controverted by evidence. By subdivision 15 it is presumed “that official duty has been regularly performed, and, 16, that a court or judge, acting as such, whether in this state, or any other state or county, was acting in the lawful exercise of his jurisdiction.” If we are to ascribe any force at all to these statutory presumptions, we may assume that Judge Von Tobel knew, both personally and judicially, when he took office on the morning of January 3, 1921, that no entry denying the new trial was then in the minutes of Department No. 2 of the court, and that he had a right to base his ruling upon information so acquired. In this situation, therefore, we may not assume that the district court relied solely upon the affidavits in making the order in question. (Ming v. Truett, 1 Mont. 322.)

The affidavits are proof conclusive that the direction to the clerk was the personal act of Honorable Jack Briscoe because the lapse of his term of office had divested him of all judicial authority. (Dalton v. Loughlin, 4 Abb. N. C. (N. Y.) 187; Connolly v. Ashworth, supra; Broder v. Conklin, supra.)

Taking another- step, counsel insist that the order to the clerk was the act of a judge de facto, and the absence of a showing [7] upon the record that Judge Von Tobel was actually present and performing the duties of judge of the court at 9 :15 on the morning of January 3, 1921, is enough to render the act valid and unimpeachable. The fault in this argument lies in the fact that it ignores the usual presumption that Judge Von Tobel rightfully assumed that there could be no judge de facto while he was a judge de jure.

In Throop on Public Officers and Offices, section 641, the law is stated thus: “If the officer de jure is in possession — if he is officer de jure and also officer de facto — no other person can be an officer de facto with respect to that office; nor can two persons be officers de facto at the same time. There cannot be two incumbents at once; if one is in, the other is not.” (Hamline v. Kassafer, 15 Or. 458, 3 Am. St. Rep. 176, 15 Pac. 778; McCahon v. Commissioners, 8 Kan. 442; Boardman v. Halliday, 10 Paige (N. Y.), 223; Morgan v. Quackenbush, 22 Barb. (N. Y.) 80; Jewett v. McConnell, 112 Ark. 291, 165 S. W. 954; United States v. Alexander (D. C.), 46 Fed. 728.)

The last cited case involved the validity of an order identical with the one before us. In reaching a conclusion fatal to its validity, the court made use of the following remarks: “Courts have sustained the acts of de facto officers only as a matter of necessity, to avoid serious damage to those not at fault; but tbe encouragement of a careless practice on this subject would result in far greater injury than benefit. Rather is it better that it be understood that the acts and orders of those without the legal right to exercise official trust pass the ordeal of the closest scrutiny, and be ratified only so far as justified by public policy and necessity.”

For these reasons, the order appealed from is affirmed.

Affirmed.

Mr. Chief 'Justice Brantly and Associate Justices Reynolds, Holloway and Galen concur in’the result.