State ex rel. Lamey v. Mitchell

• Decision Date: 13 June 1934
• Docket Number: 7306-7311,,7313.
• Citation: 34 P.2d 369,97 Mont. 252
• Parties: STATE ex rel. LAMEY v. MITCHELL, Secretary of State, and six other cases.
• Court: Montana Supreme Court

34 P.2d 369

97 Mont. 252

STATE ex rel. LAMEY v. MITCHELL, Secretary of State, and six other cases.

Nos. 7306-7311,, 7313.

Supreme Court of Montana

June 13, 1934

Original separate mandamus proceedings by the State, on the relation of Arthur F. Lamey, J. W. Speer, Hugh R. Adair, W. R. Church and Howard A. Johnson, and original separate mandamus proceedings by Frank A. Hazelbaker and H. R. Eickemeyer against Sam W. Mitchell, Secretary of State.

Writs denied, and proceedings dismissed.

Albert J. Galen, of Helena (Brown & Jones, of Billings, J. A. Poore of Butte, W. J. Paul, of Deer Lodge, Earle Genzberger, of Butte, John L. Campbell, of Missoula, T. C. Busha, of Great Falls, Marron & Foor, of Wolf Point, Gilbert, Gilbert & McFadden, of Dillon, C. A. Linn, of White Sulphur Springs Robert A. O'Hara, of Hamilton, and Loud & Choate and George W. Farr, all of Miles City, of counsel), for plaintiff Hazelbaker.

J. R. Wine, of Helena, for relator Church.

P. G. Greenan and La Rue Smith, both of Great Falls, for plaintiff Eickemeyer.

S. C. Ford, of Helena, Lloyd I. Wallace, of Polson, Clarence E. Wohl, of Hysham, Benjamin P. Harwood, of Billings, C. F. Holt, of Great Falls, and George W. Padbury, Jr., of Helena, for relator Johnson.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen., for Mitchell, Secretary of State, in each of the cases.

McKINNON District Judge (sitting in place of ANGSTMAN, Justice).

Relators ask for writs of mandate to compel the Secretary of State to file their primary nominating petitions and to print their names on the ballot for the primary election to be held July, 1934.

At the general election in 1932, Hon. J. E. Erickson and Hon. Frank H. Cooney were elected Governor and Lieutenant Governor, respectively, of the state of Montana. On the 13th day of March, 1933, Erickson resigned. On the 6th day of June, 1934, the relators tendered to the Secretary of State their primary nominating petitions for the primary election to be held July 17, 1934, for the following offices, namely, for Governor, J. W. Speer, as Republican candidate; A. F. Lamey, as Democratic candidate. For Lieutenant Governor on the Republican ticket, Frank A. Hazelbaker and Howard A. Johnson; and on the Democratic ticket, Hugh R. Adair, W. Ray Church, and H. Eickemeyer. All these petitions were refused by the Secretary of State, and each candidate has asked that the Secretary of State be compelled to file his petition, and that his name appear on the ballot at the primary nominating election for the particular office above mentioned.

These six applications for writs of mandate were consolidated for the purpose of argument, and will be so treated in this opinion. One question is presented for decision, namely: Is there a vacancy in either the office of Governor or Lieutenant Governor?

Section 1 of article 7 of the Constitution provides: "The executive department shall consist of a governor, lieutenant-governor, secretary of state, attorney general, state treasurer, state auditor and superintendent of public instruction, each of whom shall hold his office for four years, or until his successor is elected and qualified. *** They shall perform such duties as are prescribed in this constitution and by the laws of the state. ***"

It will be noted by the foregoing provision that the term of the Governor and the Lieutenant Governor is four years, or until their successor is elected and qualified. The word "term" applies to the office and not to the person. State ex rel. Kuhl v. Kaiser, 95 Mont. 550, 27 P.2d 1113; State ex rel. Morgan v. Knight, 76 Mont. 71, 245 P. 267.

Section 14 of article 7 reads: "In case of the failure to qualify, the impeachment or conviction of felony or infamous crime of the governor, or his death, removal from office, resignation, absence from the state, or inability to discharge the powers and duties of his office, the powers, duties and emoluments of the office, for the residue of the term, or until the disability shall cease, shall devolve upon the lieutenant-governor."

It will thus be seen that when the Governor resigns or is permanently removed from office, there is no vacancy in the office of Governor in the sense that there is no one left with power to discharge the duties imposed upon the Governor. The same situation exists where the Governor is absent from the state or physically unable to discharge the duties of his office. The framers of the Constitution never intended that there should be any interim in which the affairs of the state should not be executed, for they said in explicit language that on the happening of any of the contingencies mentioned in section 14, supra, the powers, duties, and emoluments of the office were to be immediately transferred to the Lieutenant Governor, who is then given a mandate to discharge the duties of the office for the residue of the term for which the Governor was elected. He, as Lieutenant Governor, acts as Governor and is empowered to perform the duties of that office.

While the legislative interpretation is not binding on us, it is nevertheless entitled to respectful consideration. We find that as early as 1895 the Legislature of this state treated the Lieutenant Governor, when he performed the duties of Governor, as acting Governor. This is disclosed in section 132, Revised Codes of 1921, as follows: "When the lieutenant-governor acts as governor, he is entitled to receive during the time he so acts, the compensation which the governor, if acting, would be entitled to receive for such time; but during such time he is not entitled, as lieutenant-governor, to any other compensation or mileage."

There can be no vacancy in an office when there is a person clothed with authority to perform its duties. In State ex rel. Chenoweth v. Acton, 31 Mont. 37, 77 P. 299, 300, the court, speaking through Mr. Commissioner Callaway, said: "The word 'vacancy,' as applied to an office, has no technical meaning. An office is not vacant so long as it is supplied, in the manner provided by the Constitution or law, with an incumbent who is legally qualified to exercise the powers and perform the duties which pertain to it; and, conversely, it is vacant, in the eye of the law, whenever it is unoccupied by a legally qualified incumbent, who has a lawful right to continue therein until the happening of some future event."

In State ex rel. Murphy v. McBride, 29 Wash. 335, 70 P. 25 26, a Governor and a Lieutenant Governor were elected at the general election in November, 1900, for the term of four years. On December 26, 1901, the Governor died, and it was urged that there was a vacancy in the office of Governor and also in the office of Lieutenant Governor. The constitutional provision (art. 3, § 10) which was under consideration read as follows: "In case of the removal, resignation, death, or disability of the governor, the...