Mulholland v. Ayers

• Decision Date: 16 January 1940
• Docket Number: 8048.
• Parties: MULHOLLAND v. AYERS, Governor, et al.
• Court: Montana Supreme Court

99 P.2d 234

109 Mont. 558

MULHOLLAND v. AYERS, Governor, et al.

No. 8048.

Supreme Court of Montana

January 16, 1940

Appeal from District Court, Lewis and Clark County; George W Padbury, Jr., Judge.

Suit by M. J. Mulholland against Roy E. Ayers as Governor of the State of Montana, and others for a declaratory judgment. From a judgment for the plaintiff, defendants appeal.

Affirmed.

ERICKSON J., dissenting.

Harrison J. Freebourn and Lee Metcalf, both of Helena, for appellants.

Wesley W. Wertz, of Helena, for respondent.

ANGSTMAN Justice.

Plaintiff was elected senator of Silver Bow county on November 8, 1938 for a four-year term commencing on January 2, 1939. On February 17, 1939, he filed as a candidate for mayor of the city of Butte, but waged an unsuccessful campaign. He did not file a resignation as state senator. He brought this action to enjoin defendants from taking the necessary steps to fill the vacancy supposed to exist because of the provisions of Chapter 116, Laws of 1937, and sought a declaratory judgment declaring the meaning, scope and application of that chapter.

Defendants' demurrer to the complaint was overruled; they declined to answer. Judgment was entered declaring that Chapter 116 is unconstitutional and of no force or effect, that plaintiff is still the state senator from Silver Bow county and has the right at the next election to become a candidate for any elective office under the laws of Montana for which he is legally qualified, and that he need not resign from his present office to become such candidate, and that, if he does become such candidate, there will be no vacancy in the office of state senator ipso facto. Defendants have appealed from the judgment.

Section 1 of Chapter 116 of the Laws of 1937 provides, in substance, that whenever any person holding any office under the laws of the state, the term of which is longer than two years, shall become a candidate for election to any elective office, other than for reelection to the office held by him, he shall resign the office held by him, and if he fails to do so the office shall become vacant and unoccupied ipso facto. Section 2 provides for filling such vacancies. Section 3 provides: "This act shall not apply to any office, position or place, appointive or elective, the incumbent of which is prohibited by law (a) from succeeding himself in said office, position or place, or (b) the incumbent of which is prohibited by law from enjoying more than two (2) successive terms in said office, position or place, or (c) to any office, position or place for which there is no salary, per diem, fees or emoluments prescribed or accruing by law, or (d) to the office of state representative, or to the office of state senator, unless the candidacy of the incumbent for a different office may result in a vacancy in the office of state senator in which case the provisions of this act shall apply, or (e) to the incumbent of any office whose term of office expires within (70) seventy days after the ensuing general election."

Section 4 of the Act provides: "This act shall be construed as a condition subsequent to the tenure or holding of any office, appointment, position or place under the State of Montana, as aforesaid; and it shall not be construed as imposing or providing any additional qualifications for office in any case where such qualifications are now prescribed by the constitution of the United States or the constitution of Montana to the exclusion of the prescription of additional qualifications by the legislative assembly."

Section 5 is the usual separability clause to the general effect that invalidity of a part of the statute will not affect the remainder.

The question presented is whether there is now a vacancy in the office of state senator for Silver Bow county. In considering this question we must look first to the object and purpose of the Act and the evil sought to be remedied by it. It is plain that the purpose of Chapter 116 is to encourage the filling of vacancies by election, rather than by appointment, by reducing the duration of appointments and to discourage a person already holding one office carrying more than a two-year term and the term of which would not expire until more than seventy days after the ensuing general election, from retaining that office while endeavoring to obtain another at such election. The effect of Chapter 116 is to cause a vacancy to exist in time so that it can be filled by election at the same election which causes the vacancy, and making the interim appointment of short duration.

The question arises whether Chapter 116 was intended to apply to a person holding an office the incumbent of which is chosen at the regular general election where he seeks the office of mayor of a city, the election taking place, as it does, not at the general election, but on the first Monday of April (sec. 5003, Rev.Codes).

Section 1 of the Act makes it applicable when the incumbent of an office files as a candidate at any "primary or special or general election." The municipal election provided for in section 5003 is not a primary election. It is not the general election as defined in section 531, Revised Codes; nor is it a special election within the definition of that term in section 532. If it is a special election within the meaning of Chapter 116, and if that chapter was intended to cover such a situation, it would come in conflict with the 14th Amendment to the federal Constitution, U.S.C.A., as denying the equal protection of the laws. It would amount to an arbitrary classification. While we realize that some discriminations are for the best interests of society ( Heisler v. Thomas Colliery Co., 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237), and that a classification will not be condemned by the courts unless it precludes the assumption that it was made in the exercise of legislative judgment and discretion (Bank of Miles City v. Custer County, 93 Mont. 291, 19 P.2d 885; State v. Safeway Stores, 106 Mont. 182, 76 P.2d 81), yet it is the settled rule that unless there be some reasonable basis for the classification resting upon substantial distinctions which really make one class different from another, the Act must to that extent fall. State v. Sunburst Refining Co., 73 Mont. 68, 235 P. 428.

We see no reasonable justification for a distinction between the holder of an office with a term of two years, and the holder of one for four or six years that would warrant different treatment when the holder of such an office is a candidate for a municipal office, the election for which takes place in April. Under Chapter 116, if applied to offices sought at a municipal election, as here, the holder of a four or six-year term would be obliged to give up his office to run for a municipal office, whereas the holder of a two-year term would not. As applied to an office filled at the general election, we can see justification for this classification. Without Chapter 116, the incumbent of a two-year term, by running for and accepting a different office filled at the general election held in the last year of his term, causes no vacancy in the term held by him which must be filled by appointment. The office held by him would be filled by the electorate at the regular general election, and this whether he is a candidate for reelection or whether he runs for some other office. On the other hand, before the passage of Chapter 116, the holder of a four or six-year term filled at the general election who became a candidate for another office during the second year of his term, or during the fourth year in the case of a six-year term, would cause a vacancy in the office held by him which would have to be filled by appointment until the next general election, which appointment would continue for approximately two years. Chapter 116 requires such a candidate to resign in time so that the vacancy would be filled at the same election which gives rise to the vacancy, making the appointment continue for but a few months.

When the object and purpose of the Act is considered, we can see a reasonable justification for a different classification between the holder of a two-year term as against the holder of a four or six-year term, when the incumbent seeks an office which is filled at the regular general election. We can see no justification, however, for such a classification when the incumbent of an office regularly filled at the general election seeks another office which is filled at the municipal election, as here. Hence, Chapter 116, so far as it attempts to declare a vacancy in an office regularly expiring on the first Monday in January because the incumbent seeks an office at a municipal election held in April, is unconstitutional and void as being in conflict with the equal protection clause of the federal Constitution.

It follows, therefore, that the plaintiff is still the senator in Silver Bow county.

The fact that the Act may be unconstitutional in part does not prevent us from upholding it in other respects. Dunn v. City of Great Falls, 13 Mont. 58, 31 P. 1017; State ex rel. Bray v. Long, 21 Mont. 26, 52 P. 645. Section 5 of the Act in effect declares that if part of the Act is found to be invalid, such finding shall not affect the remainder of the Act.

As above stated, we are asked to render a decree under our uniform declaratory judgment act (secs. 9835.1 et seq., Rev. Codes), declaring plaintiff's right to become a candidate for some other office. This brings up the question whether the Act applies to a state senator at all.

As above noted, section 3 of the Act enumerates certain exceptions and takes certain offices without the provisions of the Act. That section provides in part: "This act shall not apply *** (...