State v. Acton

• Decision Date: 27 June 1904
• Citation: 77 P. 299,31 Mont. 37
• Parties: STATE ex rel. CHENOWETH v. ACTION.
• Court: Montana Supreme Court

77 P. 299

31 Mont. 37

STATE ex rel. CHENOWETH v. ACTION.

Supreme Court of Montana

June 27, 1904

Commissioners' Opinion. Appeal from District Court, Teton County; D. F Smith, Judge.

Action by the state, on relation of Fannie E. Chenoweth, against Rebecca Action. From a decree in favor of plaintiff defendant appeals. Affirmed.

Jas. W Freeman, for appellant.

Geo. H. Station, for respondent.

CALLAWAY C.

This action was brought by the state of Montana, on the relation of Fannie E. Chenoweth, against Rebecca Action, to try title to the office of county superintendent of schools for Teton county; the relator claiming that the defendant had intruded into and usurped the office, and asking that she be ousted and excluded therefrom. The defendant answered, denying the material allegations of the complaint; pleaded affirmatively her own right to the office, and the relator's lack of right and ineligibility thereto; and prayed that she (the defendant) be decreed entitled thereto. The relator, Chenoweth, was elected at the general election in the year 1900, and within the time allowed by law qualified and entered upon her office, which she has continued to hold ever since. At the general election held in the year 1902 the defendant, Acton, and one Brown were opposing candidates for the office. Both received an equal number of votes therefor. There being no election, the county commissioners of Teton county appointed the defendant to the office, whereupon she assumed to qualify and discharge the duties thereof. The lower court rendered a judgment for relator. Defendant moved for a new trial, which was denied, whereupon she appealed from the judgment and the order denying her a new trial.

The first question presented is, was there a vacancy when the county commissioners made the order appointing the defendant? One of the provisions of section 5, art. 16, of the Constitution, is that there shall be elected in each county one county superintendent of schools. It also declares: "Persons elected to the different offices named in this section shall hold their respective offices for the term of two years, and until their successors are elected and qualified. Vacancies in all county, township and precinct offices, except that of county commissioners, shall be filled by appointment by the board of county commissioners, and the appointee shall hold his office until the next general election." Section 1101 of the Political Code provides that an office becomes vacant on the happening of certain events therein enumerated, neither of which relates to the contingency of a tie vote. In construing a section identical with 1101, supra, the court said in Rosborough v. Boardman, 67 Cal. 116, 7 P. 261: "An office becomes vacant on the happening of any of the events enumerated in section 996 of the Political Code, among which the event relied on in this case is not mentioned. The enumeration in the statute must be held to be exclusive." Citing People v. Tilton, 37 Cal. 621; Stratton v. Oulton, 28 Cal. 45; and People v. Bissell, 49 Cal. 411. "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. Stocking v. State, 7 Ind. 326; Collins v. State, 8 Ind. 344; Akers v. State, 8 Ind. 484; State v. Bemenderfer, 96 Ind. 374; Gosman v. State, supra [106 Ind. 203, 6 N.E. 349]; Butler v. State, 20 Ind. 169; People v. Tilton, 37 Cal. 614; State v. Lusk, 18 Mo. 333; Commonwealth v. Hanley, 9 Pa. 613." State v. Harrison, 113 Ind. 434, 16 N.E. 384, 3 Am. St. Rep. 663.

In appointing the defendant, the county commissioners assumed to act under the provisions of section 1171, Pol. Code, which reads, in part, as follows: "In case of a tie vote for clerk of the district court, county attorney, or for any county officer except county commissioner, and for any township officer, the board of county commissioners must appoint some eligible person, as in case of other vacancies in such offices; and in case of a tie vote for county commissioner, the district judge of the county must appoint an eligible person to fill the office, as in other cases of vacancy." Section 1171 does not in terms declare that a vacancy in office shall occur when there has been no election to the office by reason of a tie vote. Section 1101, as we have seen, defines "vacancies," and is exclusive. But in view of the constitutional provision it would not make any difference if the Legislature had provided that a failure of election by reason of a tie vote should cause a vacancy at the expiration of the two years for which the county officers are elected, for, by the terms of the Constitution, they "shall hold their offices for the term of two years, and until their successors are elected and qualified." Const. art. 16, § 5. Under this section, it is clear that the relator in this case was entitled to hold her office for the term of two years, and it is equally clear that she is entitled to hold it until her successor is elected and qualified. Indeed, it is not only her right, but it is her duty, to do so. State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739, 51 N.W. 602; People v. Hardy (Utah) 29 P. 1118.

Under the provision of the Constitution which we are considering, the right of a duly elected and qualified officer to hold his office until his successor is elected and qualified is as much a part of his term as are the two years specifically mentioned. People v. Green, 1 Idaho, 235. In Kimberlin v. State, 130 Ind. 120, 29 N.E. 773, 14 L. R. A. 858, 30 Am. St. Rep. 208, the court said: "The adjudicated cases seem to be harmonious in holding that, where one is lawfully in the possession of an office under a constitutional or statutory provision to the effect that he shall hold until his successor is elected and qualified, his right to hold over continues until a qualified successor has been elected by the same electoral body as that to which such incumbent owes his election, or which by law is entitled to elect a successor. Gosman v. State, 106 Ind. 203 ; State v. Lusk, 18 Mo. 333; People v. Tilton, 37 Cal. 614; Ex parte Lawhorne, 18 Grat. 85; Johnson v. Mann, 77 Va. 265; State v. Jenkins, 43 Mo. 261; State v. Harrison, 113 Ind. 434 , 3 Am. St. Rep. 663."

All elections by the people shall be by ballot. Const. art. 9, § 1.

The policy of the provision that certain elective officers shall hold their offices until their successors are elected and qualified rests upon the theory, that in case the electoral body fails to discharge its functions, it is wiser and more prudent to authorize the incumbent to hold over rather than that a vacancy should occur, to be filled by the appointing power. State v. Harrison, 113 Ind. 434, 16 N.E. 384 3 Am. St. Rep. 663. It is significant that section 5 of article 16, supra, provides that an elective officer shall hold until his successor is elected and qualified, while one appointed to fill a vacancy holds only until the next general election. The Constitution recognizes that vacancies will inevitably occur, and provides how they shall be filled. What are vacancies, within the meaning of the constitutional words, is not clear. It was, of course, not necessary to provide expressly that vacancies may occur through the processes of nature. It was contemplated that vacancies might occur because of misconduct or malfeasance in office. For such causes all officers not liable to impeachment shall be subject to removal in such manner as may be provided by law. Const. art. 5, § 18. But whatever may or not be vacancies, it is plain that there was none in the office of county superintendent of schools for Teton county when the county commissioners attempted to appoint the defendant to succeed the relator. People v. Lord, 9 Mich. 227; Lawrence v. Hanley, 84 Mich. 399, 47 N.W. 753; State ex rel. Everding v. Simon, 20 Or. 365, 26 P. 170; Eddy v. Kincaid, 28 Or. 537, 41 P. 156, 655; State ex rel. Henderson v. Burdick, 4 Wyo. 272, 33 P. 125, 24 L. R. A. 266; People v. Osborne, 7 Colo. 605, 4 P. 1074; People v. Whitman, 10 Cal. 38; People v. Tilton, 37 Cal. 614; People v. Hammond, 66 Cal. 654, 6 P. 741; People v. Edwards, 93 Cal. 153, 28 P....