State v. Sedgwick

• Decision Date: 09 October 1912
• Citation: 127 P. 94,46 Mont. 187
• Parties: STATE EX REL. MCGOWAN ET AL. v. SEDGWICK, COUNTY CLERK.
• Court: Montana Supreme Court

127 P. 94

46 Mont. 187

STATE EX REL. MCGOWAN ET AL. v. SEDGWICK, COUNTY CLERK.

Supreme Court of Montana

October 9, 1912

Mandamus by the State, on the relation of Francis H. McGowan and another, against J. Lee Sedgwick, county clerk of Chouteau county, to compel respondent to file certificates of nominations for public offices, and to print the names of the candidates on the official ballot. Peremptory writ granted.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen for respondent.

HOLLOWAY J.

E. M Kennedy and Thomas Dowen were duly elected county commissioners of Chouteau county for the terms expiring respectively, on the first Monday in January, 1915, and 1917. They qualified as such and entered upon the discharge of their duties; but upon the creation of Blaine and Hill counties these men resigned, and the judge of the district court of the Twelfth judicial district in and for Chouteau county appointed H. J. Wackerlin "to fill the unexpired term of E. M. Kennedy," and John V. Carroll "to fill the unexpired term of Thomas Dowen," and each of these appointees duly qualified and entered upon the discharge of his duties, and is now serving as county commissioner of Chouteau county. At a regular county convention of the Democratic party of Chouteau county, called to nominate candidates for the various county offices to be filled at the ensuing general election in November of this year, relator McGowan was duly nominated a candidate for the office of county commissioner to fill the unexpired term of Thomas Dowen, and at a like convention of the Progressive party relator Lewis was nominated a candidate to fill the unexpired term of E. M. Kennedy. Each of these nominees is qualified to hold the office to which he aspires in case of his election. When the certificate of nomination for each of these nominees was presented to the county clerk of Chouteau county, he refused to file it, and announced his determination not to print the name of either upon the official ballot; proceeding upon the theory that each of the persons appointed by the district judge held for the residue of the term of the person whom he succeeded. An original application for mandate was made to this court. The alternative writ issued, and upon the return the respondent clerk appeared by general demurrer and motion to quash, and the cause was submitted for final determination; it being announced in open court that the affidavit for the writ correctly states the facts.

The question presented is: Does the person appointed to fill a vacancy in the office of county commissioner hold during the remainder of the unexpired term of the man whose position he is appointed to fill, when such unexpired term extends beyond the first Monday in January next succeeding a general election? The several provisions of our state Constitution covering the tenure in office of one appointed to fill a vacancy in an elective office are: Section 7, art. 7 "If the office of Secretary of State, State Auditor, State Treasurer, Attorney General, or Superintendent of Public Instruction shall be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified." Section 34, art. 8: "Vacancies in the office of Justice of the Supreme Court, or judge of the district court, or clerk of the Supreme Court, shall be filled by appointment, by the Governor of the state, and vacancies in the offices of county attorneys, clerk of the district court, and justices of the peace shall be filled by appointment by the board of county commissioners of the county where such vacancy occurs. A person appointed to fill any such vacancy shall hold his office until his successor is elected and qualified." Section 4, art. 16: "A vacancy in the board of county commissioners shall be filled by appointment by the judge of the judicial district in which the vacancy occurs." Section 5, art. 16: "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." In case the Governor resigns, "the duties and emoluments of the office for the residue of the term" devolve upon the Lieutenant Governor. Article 7, § 14. It will be seen that the only instance in which authority is given to one called upon to fill a vacancy to hold for the residue of the term is in case of a vacancy in the office of Governor, and in that instance the Lieutenant Governor becomes Governor by right of succession, and not of appointment. In every instance of appointment to fill a vacancy in an elective office, unless an exception be made in the office of county commissioner, the Constitution specifically limits the tenure of the appointee to the next general election or until his successor is elected and qualified; and the phrase "until his successor is elected and qualified" is literally construed by the Constitution itself, in the concluding sentence of section 34 of article 8, "A person elected to fill a vacancy shall hold office until the expiration of the term for which the person he succeeds was elected";...