Gullickson v. Mitchell

• Decision Date: 06 June 1942
• Docket Number: 8330.
• Parties: GULLICKSON v. MITCHELL, Secretary of State.
• Court: Montana Supreme Court

126 P.2d 1106

113 Mont. 359

GULLICKSON v. MITCHELL, Secretary of State.

No. 8330.

Supreme Court of Montana

June 6, 1942

Original proceedings by Howard M. Gullickson against Sam W. Mitchell Secretary of State of the State of Montana, for a judicial determination under the Declaratory Judgment Act, Rev.Codes 1935, § 9835.1 et seq., of plaintiff's status as "acting" Attorney General of the State of Montana.

Judgment in accordance with opinion.

MORRIS J., dissenting.

Howard M. Gullickson, of Helena, for plaintiff.

Harold G. Dean, of Helena, for defendant.

Ralph J. Anderson, Wesley W. Wertz, George Niewoehner, Sherman Smith, Floyd O. Small, C. N. Davidson, William A. Brown, and J. Miller Smith, all of Helena, Mark Derr, of Polson, William R. Taylor, of Anaconda, and M. J. Thomas, of Helena, amici curiae.

JOHNSON Chief Justice.

By original proceeding in this court plaintiff seeks a judicial determination, under the Declaratory Judgment Act, Rev.Codes 1935, § 9835.1 et seq., of his status as "acting" attorney general of the state of Montana.

At the general election of 1940, John W. Bonner was elected to the office of attorney general for the regular four-year term beginning the first Monday of January, 1941, and entered upon the duties of his office. Prior to his election he had become a United States Reserve officer, subject to military service and now holds a commission as Major in the Judge Advocate General's Department. On April 20, 1942, he was ordered to report for active military service at Washington, D. C., on May 1, 1942. He immediately gave written notice thereof to the Governor, who thereupon, under the authority of Chapter 47 of the Session Laws of 1941, appointed the plaintiff, Howard M. Gullickson, as "acting" attorney general to serve in the attorney general's absence during the balance of his term.

The plaintiff, first assistant attorney general under John W. Bonner, has assumed to accept the appointment, and to enter upon duty thereunder as of May 1, 1942, and purposes to exercise all the powers and perform all the duties of the attorney general's office under the latter appointment.

The attorney general is made a member of several constitutional state boards, the most important of which is the State Board of Examiners, one of the fundamental agencies of state government. The defendant, Sam W. Mitchell, as secretary of state and as a member of those several boards, questions the right and authority of the plaintiff to serve on these boards in the capacity of attorney general, and further refuses, as secretary of state, to attest the signature of Mr. Gullickson as "acting" attorney general in connection with any official act required to be performed by the attorney general. He attacks the validity of Chapter 47, Session Laws of 1941, with reference to the office in question, and of plaintiff's assumed status thereunder.

This court has accepted original jurisdiction as necessary and proper to the complete exercise of its appellate jurisdiction, since the importance and urgency of the questions presented are apparent.

Section 414, R.C.M.1935, provides that no state officer mentioned in section 413 (including the attorney general) "must absent himself from the state for more than sixty consecutive days, unless upon business of the state or with the consent of the legislative assembly;" and section 511, R.C.M., provides that an office becomes vacant upon certain contingencies, including the officer's absence from the state for more than sixty days without the permission of the legislative assembly, or by his ceasing to discharge the duty of his office for the period of three consecutive months, subject to certain exceptions. With reference to executive and judicial, but not to legislative officers, Chapter 47 expressly purports to remove the application of sections 414 and 511, and also of section 4739, relating to county officers, upon absences caused by military service of the United States; the chapter further specifically declares that such an officer's absence so caused shall not create a vacancy.

The only comparable provision we find in the state Constitution is Article VIII, section 37, which provides: "Any judicial officer who shall absent himself from the state for more than sixty consecutive days shall be deemed to have forfeited his office."

Article VII, section 7, of the Constitution provides for appointment by the Governor to fill certain state offices, including that of the attorney general, if the office "shall be vacated by death, resignation or otherwise;" but the Constitution does not define nor specify how offices are vacated otherwise than by death or resignation, and therefore necessarily leaves the matter for definition by the legislative power. However, it does follow under the well settled doctrine of ejusdem generis (Mid-Northern Oil Co. v. Walker, 268 U.S. 45, 45 S.Ct. 440, 69 L.Ed. 841, affirming 68 Mont. 550, 219 P. 1119; Thaanum v. Bynum Irr. District, 72 Mont. 221, 232 P. 528; State ex rel. Bowler v. Board of Commissioners, 106 Mont. 251, 76 P.2d 648), which is applicable to constitutional as well as statutory provisions (Newton v. Weiler, 87 Mont. 164, 286 P. 133), that the words "or otherwise" must import circumstances of the same permanent nature as "death" and "resignation," with which they are associated. While the rule is not to be invoked where it would result in the disregard of plain language ( Burk v. Montana Power Co., 79 Mont. 52, 255 P. 337), there would be here no such result, since the words "by death, resignation or otherwise" constitute a prepositional adverbial phrase modifying the word "vacated," and that word also imports finality or permanency, the usually accepted meaning of "vacate" being to yield up possession (Polich v. Severson, 68 Mont. 225, 216 P. 785), and not merely to leave temporarily.

The same thing is true of section 511, which provides that an office "becomes vacant" upon ten stated contingencies; the nature of each contingency is such as to indicate that the office shall become permanently vacant, and no provision is made for any restoration to office.

Thus Article VII, section 7, and section 511, R.C.M., both relate to conditions resulting in permanent vacancies, and not to situations in the nature of leave of absence, suspension, or relief from duty resulting in temporary vacancies.

The chief contentions of the defendant are that Chapter 47 contravenes Article VII, section 7; and that even if it does not, the legislature is without authority to entrust to an acting attorney general the duties imposed upon the attorney general by the Constitution.

As noted above, the Act, if valid, amends, so far as executive and judicial but not legislative officers are concerned, certain prior statutes providing for offices becoming vacant upon more than sixty days unauthorized absence from the state. It makes such absence result, not in a permanent vacancy of office, but with the officer's concurrence, in something of the nature of his leave of absence, or his suspension or relief from duty, with a right, under certain conditions, to resume his office, thus resulting in a temporary vacancy in the office. Instead of that right's being contingent upon the outcome of litigation, like that of a county treasurer suspended under section 4768, it is contingent upon his complying with section 3 of Chapter 47. While, in section 5, it is said that such officer "shall be considered as having been on leave of absence during his period of active military service," thus tending to indicate that he has during his absence continued to hold the position and to be the officer, it also speaks of his being "restored to his official position," indicating that he has not continued to hold the office or to be the officer, but rather that he has been suspended therefrom. Throughout the Act, reference is to his restoration, not merely to the duties and emoluments of the office, but to the office itself. We must not permit the reference to "leave of absence" to annul the overwhelmingly expressed intent that what the officer retains during his absence, is not the office, nor even the title of it, but the mere right to be "restored to his official position" (section 5) upon complying with the provisions of section 3 of the Act.

Therefore, although the Act authorizes the appointment of an "'acting' officer to temporarily replace" the elected officer, the legislative intent was not to establish a new class of officers for the state, from top to bottom, under the title of "acting officers," but merely to provide for the naming of officers "to temporarily replace any elected officer" (section 7). In other words, what is authorized is the appointment of an attorney general of indefinite tenure within the elected term, and not the existence of two officers, one who is the "attorney general" although detached from duty and another who is "acting attorney general." He is appointed "to temporarily replace" the elected officer. Used in that sense "to replace" is "to take the place of; to serve as a substitute for, or successor of; supplant; ***." Webster's New International Dictionary; Webster-Merriam 2d Ed. Thus the appointee, although spoken of as an "acting" officer, takes the place of the elected officer and supplants him, although temporarily and indefinitely. During the period of his service under the appointment he is the attorney general for all purposes, which would be apparent if the legislature had used the word "temporary" instead of "acting" to express the status logically resulting from his appointment "to temporarily replace" the attorney general.

Section 3 of the Act clearly expresses the same intent. It does not speak of the officer's seeking...