Marcellus v. Wright

• Decision Date: 14 November 1921
• Docket Number: 4878.
• Citation: 202 P. 381,61 Mont. 274
• Parties: MARCELLUS v. WRIGHT ET AL.
• Court: Montana Supreme Court

202 P. 381

61 Mont. 274

MARCELLUS v. WRIGHT ET AL.

No. 4878.

Supreme Court of Montana

November 14, 1921

Appeal from District Court, Fergus County; Rudolph Von Tobel, Judge.

Action by Mary A. Marcellus against Frank E. Wright and others. From an order annulling purported order overruling motion for new trial, the defendants appeals. Affirmed.

Sydney Sanner, of Butte, and Belden & De Kalb, of Lewistown, for appellants.

Ralph J. Anderson, of Lewistown, and Wheeler & Baldwin, of Butte for respondent.

COOPER J.

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 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., Hon. Jack Briscoe handed to him an order denying plaintiff's motion for a new trial, directed him 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 Hon. 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 31st 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 2d 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 3d day of January, 1921."

On February 10, 1921, upon the record thus made, the court, presided over by Hon. Rudolph Von Tobel, elected to take the place of Hon. 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 15th 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, c. 35. Pursuant thereto, on March 2d of that year, the Governor appointed Hon. H. L. De Kalb to fill the office thus created. He resigned May 18, 1918. On November 5, 1918, Hon. 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 P. 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 Hon. 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 8 [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 P. 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 of 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 P. 918, Merced Bank v. Rosenthal, 99 Cal. 39, 31 P. 849, 33 P. 732, Broder v. Conklin, 98 Cal. 360, 33 P. 211, and Connolly v. Ashworth, 98 Cal. 205, 33 P. 60. The first case is cited with approval in both the Foster 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 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. 193; Badger v. United States, 93 U.S. 599, 23 L.Ed. 991; Mechem on Public Officers, § 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 P. 94.

If the language employed were of doubtful meaning, that interpretation which limits the term to the shortest time should be adopted. Mechem on Public Offices and Officers, § 390; Wright v. Adams...