State ex rel. O'Connell v. Duncan

• Decision Date: 21 March 1939
• Docket Number: 7938.
• Citation: 88 P.2d 73,108 Mont. 141
• Parties: STATE ex rel. O'CONNELL v. DUNCAN, Clerk and Recorder.
• Court: Montana Supreme Court

88 P.2d 73

108 Mont. 141

STATE ex rel. O'CONNELL v. DUNCAN, Clerk and Recorder.

No. 7938.

Supreme Court of Montana

March 21, 1939

Mandamus proceeding by the State of Montana, on the relation of Brian D. O'Connell, to compel A. J. Duncan, Clerk and Recorder of Lewis and Clark County, Montana, and ex officio clerk of the Board of County Commissioners of said County, to issue to relator a certificate showing his term of office to be for a period of four years.

Writ issued.

Wellington D. Rankin, of Helena, for relator.

Harold K. Anderson, of Helena, for respondent.

MORRIS Justice.

This is an original proceeding by Brian D. O'Connell, who was re-elected sheriff of Lewis and Clark county November 8 1938, and who now seeks a writ of mandamus to compel the respondent to issue to him a certificate showing his term of office to be for a period of four years, the respondent having issued to relator a certificate of election showing him to have been elected sheriff of Lewis and Clark county for a term of but two years.

By Chapter 93 of the 1937 Session Laws, the Legislative Assembly of the State of Montana provided that the question be submitted to the qualified electors of the state at the general election to be held in November, 1938, as to whether or not section 5 of Article 16 of the Constitution should be amended. The purpose of the amendment was to change the section so as to provide that all county officers whose term of office is therein provided for should be changed from a term of two to four years.

Section 4 of Chapter 93 provides as follows: "The votes cast for and against the amendment herein proposed shall be counted canvassed and determined by such officials and in such manner as provided by law, and if a majority of all votes cast at such election for and against such amendment shall be in favor of such amendment, the governor of the State shall so declare by public proclamation, and the amendment shall be in full force and effect as a part of the constitution from and after the date of such proclamation."

The important part of this section of Chapter 93 involved is the provision that if adopted by the voters, the amendment shall become effective on the date of the governor's proclamation.

The Constitution itself provides for the manner in which it may be amended by section 9 of Article 19, and after providing the manner in which proposals for amendment shall be adopted by the respective houses of the assembly, and outlining the instructions to the Secretary of State as to the manner of publishing notice of the proposed amendments, it provides "and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection and such as are approved by a majority of those voting thereon shall become part of the constitution ***." It will be noted that no mention is made in the Constitution itself about the necessity of any proclamation by the governor before an amendment shall become a part of the Constitution.

It is contended, in effect, by the relator that notwithstanding Chapter 93 provides that the amendment clearly appears to require the proclamation of the governor before the amendment shall become effective, that relator's term of office, beginning on the first Monday of January, 1939, is for four years, and by reason of the fact that not only the relator but all other county officers elected at the general election in November, 1938, are in doubt as to the terms for which they were elected; that for that reason it has become expedient that the matter be judicially determined, and that this proceeding is instituted on behalf of relator and all other county officers similarly situated. Relator prayed that an alternative writ of mandamus issue, which was duly granted by this court.

On its return oral arguments were had, briefs submitted and the matter was taken under consideration by this court in order to determine whether the writ should be made permanent.

The respondent appeared by counsel in opposition to the contentions of relator, and grounds his opposition upon the argument, (1) that the amendment voted on on November 8, 1938, was not effective until the proclamation of the governor, which was published December 2, 1938; (2) that in the construction of a constitutional and statutory provision relating to terms of office there is a presumption under the law that where there is a doubt as to the length of the term, the shortest shall prevail; and (3) that the intention of the legislature and practical operation of the law compel the conclusion that the amendment does not become effective, or apply to county officers mentioned until the general election of 1940. The authorities cited in support of these contentions are not in our opinion directly pertinent, but have to do with controversies arising where one had been appointed to fill an unexpired term, or where a new office had been created by law and the incumbent contended for the right to hold beyond the next general election.

The matter is presented by counsel for relator under the following headings: (1) The term of a constitutional office can be changed or the office abolished at any time by constitutional amendment; (2) the constitutional amendment under consideration went into effect November 8, 1938; (3) that a constitutional provision, such as that under consideration, is self-executing; and (4) that the new constitutional amendment applies to county officers elected at the same election at which the amendment was adopted.

In support of the first proposition, State ex rel. Corry v. Cooney, 70 Mont. 355, 367, 225 P. 1007, 1012, is quoted from as follows: "As to interference with the terms of the officers of the county, it is of course clear that even a constitutional office may be abolished by a new Constitution or by an amendment to an existing one. Eckerson v. Des Moines, 137 Iowa 452, 115 N.W. 177; Reals v. Smith, 8 Wyo. 159, 56 P. 690; State v. Evans, 166 Mo. 347, 66 S.W. 355; Mial v. Ellington, 134 N.C. 131, 46 S.E. 961, 65 L.R.A. 697; Mayor v. State, 102 Miss. 663, 59 So. 873, Ann.Cas.1915A, 1213." See, also, State ex rel. Teague v. Board of County Com'rs, 34 Mont. 426, 87 P. 450.

It is clear from the authorities generally, and from the Constitution itself, that public offices may be created, abolished or the term shortened or lengthened by constitutional amendment at any time the sovereign power, in our government the people, choose to express their will to that effect in the manner provided in the Constitution.

At the general election in 1900 the voters of all of the counties elected county commissioners for four-year terms as then provided in the Constitution. The legislative assembly in its session of 1901 submitted a constitutional amendment whereby the existing plan was abolished and a new one provided. The new plan contemplated the election of one commissioner every two years for a six-year term. In order that the change might be more satisfactorily inaugurated the amendment provided that the commissioners in office remain therein until the first Monday in January, 1907, whereas, without the amendment, the terms would have expired on the first Monday of January, 1905. Every county commissioner in the state was given an additional two years in office. This court approved the plan. State ex rel. Teague v. Board of County Com'rs, supra. It will thus be observed that the right to extend the terms of officers after their election resides in the people.

The next contention, that the amendment went into effect on November 8, the date of the last election, is supported by numerous authorities, among which are the following: State v. Anderson, 35 Del. 407, 5 W.W.Harr. 407, 166 A. 662; Seneca Mining Co. v. Secretary of State, 82 Mich. 573, 47 N.W. 25, 9 L.R.A. 770; In re Senate File No. 31, 25 Neb. 864, 41 N.W. 981; Dillon v. Gloss, 256 U.S. 368, 41 S.Ct. 510, 65 L.Ed. 994; Matheny v. Independence County, 169 Ark. 925, 277 S.W. 22; State ex rel. McNamara v. Campbell, 94 Ohio St. 403, 115 N.E. 29; Perry v. Consolidated Special Tax School District No. 4, 89 Fla. 271, 103 So. 639; In re Advisory Opinion to the Governor, 34 Fla. 500, 16 So. 410.

In Dillon v. Gloss, supra, it was said: "The provisions of the Act which the petitioner was charged with violating and under which he was arrested (title 2, §§ 3, 26) were by the terms of the act (title 3, § 21) to be in force from and after the date of the Eighteenth Amendment should go into effect, and the latter by its own terms was to go into effect one year after being ratified. Its ratification, of which we take judicial notice, was consummated January 16, 1919. That the Secretary of State did not proclaim its ratification until January 29, 1919, is not material, for the date of its consummation, and not that on which it is proclaimed, controls. It follows that the provisions of the act with which the petitioner is concerned went into effect January 16, 1920." [256 U.S. 368, 41 S.Ct. 513.]

In the case of Matheny v. Independence County, supra, quoting from a provision of the Arkansas Constitution similar to ours, it is said: "It will be noted that the Constitution itself provides that, if a majority of the electors voting at the election at which the amendment is submitted adopt it, the amendment shall become a part of the Constitution. Hence its adoption does not depend upon the declaration of the speaker of the House of Representatives, or the publication by the Governor of his proclamation to that effect as provided in section 1482 of the Digest....