State v. Tooker

• Decision Date: 24 September 1894
• Citation: 37 P. 840,15 Mont. 8
• Parties: STATE ex rel. WOODS et al. v. TOOKER, County Clerk.
• Court: Montana Supreme Court

37 P. 840

15 Mont. 8

STATE ex rel. WOODS et al. v. TOOKER, County Clerk.

Supreme Court of Montana

September 24, 1894

Mandamus by T. G. Woods, Nickolas Kessler, and Sherwood Wheaton against John S. Tooker, clerk and recorder of Lewis and Clarke county, to compel the filing of certific ates of nomination as commissioners. Denied.

The relators ask a writ of mandamus, directed to the respondent as county clerk and recorder of Lewis and Clarke county requiring him, in pursuance to the ballot law (Acts 16th Leg Sess. Laws 1889, p. 135), to file in his office the certificate of the relators' nomination for the office of county commissioner of said county. The petitioners set forth that on September 4, 1894, an assemblage of delegates of the Republican party was duly held, and that at such assemblage the three relators were duly nominated for such office of county commissioner. The formal acts of making the certificate of nomination by the proper officers of the convention are set forth in the petition. It is then alleged that said certificate was duly presented to the respondent for filing, and that he refused, and still refuses, to file the same. The respondent's answer admits all the matter alleged in the petition, and gives his reason for refusing to file the certificate, based upon the following facts: The nominations for said office of county commissioner were for the purpose of electing persons to that office, under the provisions of an alleged amendment to the constitution; and that there is, in fact, no such amendment, and, there being no such amendment, there will be no vacancy in the office of county commissioner, in said county, to be filled at the ensuing election; and that, therefore, there is no duty enjoined by law upon the county clerk and recorder to file any certificate of nomination for such office by any political party.

The question presented to this court is whether the constitutional amendment proposed by the legislative assembly by act approved February 23, 1891, and voted upon by the electors at the general election in November, 1892, became and now is, a part of the constitution. The facts in relation to the alleged adoption of the proposed amendment are as follows: The state constitution, adopted October 1, 1889 contains the following: "In each county there shall be elected three county commissioners, whose term of office shall be four years. A vacancy in the board of county commissioners shall be filled by appointment by the district judge of the district in which the vacancy occurs." Article 16, § 4. The act of the legislative assembly referred to, approved February 23, 1891, provides as follows: "Section 1. There shall be submitted to the qualified electors of the state, at the next general election, the following amendment to the state constitution: Section 4, art. 16, shall be amended so as to read as follows: Sec. 4. In each county there shall be elected three county commissioners, whose term of office shall be four years; provided, that the term of office of those elected to succeed those elected October 1, 1889, shall expire on the first Monday in January, 1895; and, provided further, that at the general election to be held in November, 1894, one commissioner shall be elected for a term of two years, and two commisstoners for a term of four years. A vacancy in the board of county commissioners shall be filled by appointment by the district judge of the district in which the vacancy occurs." The constitution provides, as to amendments of that instrument, as follows: "Amendments to this constitution may be proposed in either house of the legislative assembly; and if the same shall be voted for by two thirds of the members elected to each house, such proposed amendment, together with the ayes and nays of each house thereon, shall be entered in full on their respective journals; and the secretary of state shall cause the said amendment or amendments to be published in full in at least one newspaper in each county (if such there be), for three months previous to the next general election for members to the legislative assembly; 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 ma jority of those voting thereon shall become part of the constitution. Should more amendments than one be submitted at the same election, they shall be so prepared, and distinguished by numbers, or otherwise, that each can be voted upon separately; provided, however, that not more than three amendments to this constitution shall be submitted at the same election." Article 19, § 9. The fact as to the publication of the amendment proposed by the act of February 23, 1891, is that it was published by the secretary of state in the newspapers as required, but for two weeks before the election of 1892 only, and for no longer period. The question now presented is whether the publication of the proposed amendment for only two weeks caused the attempt to adopt the amendment to be wholly a failure.

C. B. Nolan, for respondent.

DE WITT, J. (after stating the facts).

Counsel for relators has presented to us the general rules as to when statutes should be construed to be mandatory and when directory, and has argued, upon their analogies, that the provision of our constitution which requires a proposed amendment to that instrument to be published for three months is directory only, and that a disregard of the provision is not fatal to the adoption of the amendment. The reports are full of decisions which have applied these principles as to the construction of certain provisions of statutes, but we need not enter upon an elaborate examination of these principles, for we believe that in considering the provisions of the constitution for amending that instrument we are entering upon a somewhat different field. We cannot better introduce this consideration than by quoting from Judge Cooley, whose language we find cited, and his doctrine largely followed, by the courts which have treated the subject of the construction of constitutional provisions. Judge Cooley says: "But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people, in adopting it have not regarded as of high importance and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication. There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions; but they are so plainly at variance with the weight of authorit y upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the application." Pages 94. 95. "And we concur fully in what was said by Mr. Justice Emmot in speaking of this very provision, that 'It will be found, upon full consideration, to be difficult to treat any constitutional provision as merely directory, and not imperative."' Cooley, Const. Lim. (4th Ed.) p. 99. At another place in the same work this distinguished authority on constitutional law says: "But the will of the people to this end [that is, amending a constitution] can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the state, which alone would be authorized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself." Page 39, § 60. In another place in the same work we find the following language: "The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be, therefore, habitually disregarded. To say that a provision is directory, seems, with many persons, to be equivalent to saying that it is not law...