State Ex Rel. Morgan v. Knight , 76 Mont. 71 ( 1926 )

When the relator entered upon the duties of his office on the twenty-fourth day of March, 1924, he was entitled to hold the office of city attorney of the city of Anaconda for a full term of two years from the beginning of his term, March 24, 1924. Section 5038, Revised Codes of 1921, does not fix any time when the term of office of city attorney begins to run, therefore it commences to run from the date of the appointment of Mr. Morgan and continues for two full years thereafter. It was said in the case of People ex rel. Dibelka v. Reinberg, 263 Ill. 536, Ann. Cas. 1915C, 343, L.R.A. 1915E, 401, 105 N.E. 715, at 717: "When the law does not fix any time for the commencement of a term of office to be filled by appointment, the term will begin to run from the date of appointment." (See, also, AttorneyGeneral v. Love, 39 N.J.L. 476, 23 Am. Rep. 234; 23 Am. Eng. Ency. of Law, 411, 415; State v. Wentworth, 55 Kan. 298,40 P. 648; State ex rel. Dawes v. Breidenthal, 55 Kan. 308,40 P. 651; Smith v. Cosgrove, 71 Vt. 196, 44 A. 73; Wilson v. McCarron, 112 Me. 181, 91 A. 839; People v. Green, 2 Wend. (N.Y.) 266; Crowell v. Lambert, 9 Minn. 283; People v. Burbank, 12 Cal. 378; People v. Townsend, 102 N.Y. 430,7 N.E. 360; State ex rel. Little v. Wentworth, 55 Kan. 298,40 P. 648, 649.)

Relator Morgan being in the office, there could be no actual vacancy as long as he is the rightful occupant. He continues to hold office until his death, resignation, removal or some legal disability occurs. (People v. Osborne, 7 Colo. 605, 4 P. 1074; State v. Elliott, 13 Utah, 471, 45 P. 346;People v. Lord, 9 Mich. 227; People v. Bissell, 49 Cal. 407. ) Citing: Hoke v. Richie, 100 Ky. 66, 37 S.W. 255, 38 S.W. 132; Hale v. Bischoff, 53 Kan. 301, 36 P. 752; Sheen v.Hughes, 4 Ariz. 337, 40 P. 679; French v. Cowan, 79 Me. 426,10 A. 335; Silver v. McGruder, 32 Md. 387; Burgan v.New Jersey Civil Service Com., 84 N.J.L. 219, 86 A. 929;Castleman v. Meglemry, 138 Ky. 313, 137 S.W. 1010; State v.Williams, 222 Mo. 268, 17 Ann. Cas. 1006, 121 S.W. 64; Peopleex rel. Saunders v. Stockwell, 66 Misc. Rep. 2,121 N.Y. Supp. 6; 28 Cyc. 424; 29 Cyc. 1398; State v. Severance, 49 Mo. 401;State v. Cook, 20 Ohio St. 259; Sherwin v. Bugbee, 16 Vt. 444. This proceeding was instituted by the relator against the defendant to try title to the office of city attorney of Anaconda. After the issues had been made up the parties entered into a written stipulation as to the facts. The controversy was decided in favor of the defendant and judgment was entered in his favor, from which relator has appealed.

The facts, as stipulated, are that the city of Anaconda is a municipal corporation organized under the laws of this state, having a population of more than ten thousand people. The city has executive and legislative departments, the chief executive officer being the mayor. The office of city attorney of Anaconda was created under the laws of this state, and is filled by the appointment of the mayor and confirmation by the city council.

A municipal election has been held in Anaconda in each odd-numbered year commencing with 1895, at which the mayor and one-half of the aldermen have been elected, the other half of the aldermen having been elected on the even-numbered years. The term of office of the elective officers of the city commences on the first Monday of May after their election, the term being two years.

Prior to 1895, the office of city attorney was an elective one; in 1895 the office was made appointive. Mr. Timothy O'Leary, the first city attorney of Anaconda under appointment, was appointed on May 6, 1895, for a term of two years, and on the first Monday of each odd year thereafter a city attorney has been appointed by the mayor and confirmed by the council.

Pursuant to election Jas. B. McCavitt became mayor on the first Monday of May, 1923, and on the same day appointed W.H. Trippet, Esq., city attorney for the term beginning on that day, and the council promptly confirmed the appointment. Mr. Trippett qualified, entered upon and continued in the discharge of the duties of the office until March 18, 1924, when he departed this life. On that day Mayor McCavitt appointed the relator city attorney. The appointment was in writing and reads as follows: "I hereby nominate, and with the approval of the council, appoint D.H. Morgan city attorney for the city of Anaconda, Montana, to fill the vacancy occasioned in the office by the death of W.H. Trippet. J.B. McCavitt, Mayor." On the same day the appointment was confirmed by the city council, whose minute entry reads as follows: "March 24th, 1924. The Mayor appointed D.H. Morgan city attorney to fill the unexpired term of W.H. Trippet, deceased." Mr. Morgan, relator, qualified immediately and entered upon the performance of the duties of the office.

On May 4, 1925, pursuant to election, Mr. C.W. Smith succeeded Mr. McCavitt as mayor of Anaconda. On that day he assumed to appoint J.B.C. Knight, the defendant, to the office of city attorney and the appointment was immediately confirmed by the council. The defendant thereupon qualified and ever since May 4, 1925, has occupied the office and performed the duties thereof.

The relator was present at the meeting of the city council when the appointment of the defendant came before it for confirmation and he orally protested the appointment of the defendant to the office, asserting that his own appointment on March 24, 1924, was for a full term of two years, which would not expire until the twenty-fourth day of March, 1926. The relator was not suspended or removed from his office as provided by the laws of this state, unless the action of Mayor Smith and the city council in appointing the defendant to the office terminated the relator's right thereto. Relator and defendant each possess the necessary qualifications for the office.

The question for decision then is, notwithstanding the fact that the mayor intended to appoint and the council to confirm relator to fill the unexpired term of W.H. Trippet, was he, as a matter of law, entitled to hold the office for two years?

Section 6 of Article VI of our state Constitution declares in part that the legislative assembly may provide for the election or appointment of such municipal officers "as public convenience may require and their terms of office shall be as prescribed by law, not in any case to exceed two years, except as in this Constitution otherwise provided."

Section 5038, Revised Codes of 1921, applicable here, provides that the city attorney "shall hold his office for two years, unless suspended or removed as provided in this Act." The quoted language has appeared substantially as above since the parent statute was enacted in 1887. (Sec. 358, 5th Div., Comp. Stats. 1887.) That section provided for the election of a city attorney and the term prescribed was one year. The term was made two years in 1889. (Laws 1889, p. 182.) The office was made appointive by an Act of the legislative assembly approved March 7, 1895 (Pol. Code, sec. 4787), which has continued to the present time without change. (Sec. 5038, supra.)

The phrase "two years" mentioned in the statute means a term of office of two years' duration. "The expression, term of[1] office, uniformly designates a fixed and definite period of time," say the authorities. (State v. Stonestreet,99 Mo. 361, 12 S.W. 895; State v. Williams, 222 Mo. 268, 17 Ann. Cas. 1006, 121 S.W. 64.)

"Term of office" is a phrase used to describe the period of time during which one regularly chosen by election or appointment and inducted into office is entitled to hold the same, perform its functions, and enjoy its privileges and emoluments. The time when a term of office commences is usually fixed by law. (28 Cyc. 423.)

Where the law creates an office and prescribes the length of[2] the term, omitting to fix the date when the term shall begin, but designates the power which is vested with authority to fill the office by appointment, it follows necessarily that the appointive power has the right to fix the commencement of the term. (State v. Williams, supra; Attorney General ex rel.Haight v. Love, 39 N.J.L. 476, 23 Am. Rep. 234; Rightmire v.Camden, 50 N.J.L. 43, 13 A. 30; Hale v. Bischoff,53 Kan. 301, 36 P. 752.)

When, pursuant to the Act of March 7, 1895, the mayor appointed and the city council confirmed Timothy O'Leary as city attorney for a term of two years, beginning on the first Monday of May, 1895, that was the inception of the term. When the first period or term of two years ended, another immediately began. Each term followed the other in regular succession, each one commencing where the other ended. (People ex rel. Mason v.McClave, 99 N.Y. 83, 1 N.E. 235; State v. Smiley,304 Mo. 549, 263 S.W. 825; Hale v. Bischoff, supra.)

In such case "the law does not contemplate that there is a new beginning and ending of the term by each appointment, but the term becomes fixed by the first appointment under the Act." (State v. Williams, supra.) This construction not only is correct as a matter of law, but is fortified by the uniform practice of the city authorities of Anaconda from the beginning; such practice in doubtful cases is entitled to the respectful consideration of the courts. (Sherwin v. Bugbee, 16 Vt. 444;State v. Severance, 49 Mo. 401; State v. Cook, 20 Ohio St. 259. )

The foregoing propositions seem to be generally admitted. Divergence of opinion arises when a vacancy occurs. The[3, 4] authorities are in conflict. Many declare that where the term of a public officer is fixed by the Constitution or statutes of a state for a definite period, but no beginning or ending of the term is established, then whenever there is an election or appointment to the office to fill a vacancy the person elected or appointed holds the office for the full term and not merely for the unexpired term of the former incumbent. (Boynton v. Heartt, 158 N.C. 488, Ann. Cas. 1913d 616, and note, 74 S.E. 470.) This holding seems to be predicated upon the common-law theory that the king was the source of all power and incidentally the dispenser of all offices, from which it resulted that there were no vacancies in the terms of public officers (note to Boynton v. Heartt, supra), or upon the theory that the word "term" applies to the person holding it and not to the office. Neither of these ideas appeals to us. A critical review of the decisions will not serve any useful purpose. Most of them turn upon the Constitutions and legislative enactments of the respective states, and we have concluded that this case should be decided in accordance with a view of the law which seems in harmony with the general tenor of our own state policy.

That vacancies in public offices are certain to occur is recognized frequently in our Constitution and statutes. Under section 511, Revised Codes of 1921, "an office becomes vacant on the happening of either of the following events before the expiration of the term of the incumbent." Ten events are named, the first being the death of the incumbent. Usually provision is made for filling the vacancy but none is made as to those in appointive municipal offices. The statute creating the office of city attorney is not clear and explicit. Undoubtedly it created a term, but it did not provide a time for its commencement, that being left to the appointing power, as we have seen, and it did not make any provision for filling a vacancy caused by death, resignation or removal. The length of the term, however, is definite, — two years. The beginning and ending of the term have become established by operation of law.

While no especial provision has been made for filling a vacancy in an appointive municipal office, that power is included in the authority of the mayor and city council. The law does not purpose an interregnum beyond the time necessary to fill a vacancy. Section 5030, Revised Codes of 1921, gives the mayor power to nominate, and, with the consent of the council, to appoint all nonelective officers of the city, except as otherwise provided. That relator was appointed properly is conceded. The word "term" applies to the office and not to the person holding it. (Parmater v. State, 102 Ind. 90, 3 N.E. 382; see, also, dissenting opinion by Mr. Justice Hurly in State ex rel.Jackson v. Porter, 57 Mont. 343, 188 P. 375.)

In Monash v. Rhodes, 11 Colo. App. 404, 53 P. 236, the court said that the word vacancy, as used in modern times, relates not only to the office to be filled but to the term for which the appointment is to be made; it is consistently used in Constitutions and statutes with reference to both office and tenure. "The proper interpretation of the word, when power is given to an executive or board to fill a vacancy, is, a power to fill the office designated for the unexpired term which may remain after the death, removal or resignation of the antecedent incumbent. In other words, when the incumbent dies, is removed, or resigns, there is a vacancy not only in the office but in the term for which he was appointed, if that was for a definite period."

"As a general rule one appointed to fill a vacant office holds only until the expiration of the regular term." (28 Cyc. 425.) An examination of the cases cited to sustain the foregoing text shows that most of them have reference to elective offices. But where the term of an appointive office and the commencement and ending of the term have been made definite, it seems to us the same rule of construction necessarily follows. Where the length of the term and its beginning — and consequently its ending — are definite, and successive terms have followed each other in regular order, the one beginning where the other ended, and an incumbent has died, thus creating a vacancy, it logically must be held that he who is appointed to succeed the incumbent may hold only for the unexpired term for which he is appointed. A number of recent, well-reasoned, decisions are to this effect. (See Hoke v. Richie, 100 Ky. 66, 37 S.W. 255, 38 S.W. 132;Castleman v. Meglemry, 138 Ky. 313, 137 S.W. 1010; State v.Stonestreet, supra; State v. Williams, supra; State v.Smiley, supra.)

Our constitutional provisions and statutes respecting elective officers do not leave the subject in doubt. Clearly one who is appointed to fill a vacancy in an elective office fills out the unexpired term only, unless by virtue of the express wording of the Constitution or statute he may hold over until his successor is elected and qualified. (State ex rel. McGowan v. Sedgwick,46 Mont. 187, 127 P. 94; State ex rel. Bennetts v. Duncan,47 Mont. 447, 133 P. 109; State ex rel. Rowe v. Kehoe,49 Mont. 582, 144 P. 162; State ex rel. Patterson v. Lentz,50 Mont. 322, 146 P. 932; State ex rel. Dunne v. Smith,53 Mont. 341, 163 P. 784.)

It would be an anomaly if the legislature had provided an exception in the case of the city attorney. That office, as we have seen, was elective formerly. Had it continued so, the language of the Act respecting tenure being the same, there can be no doubt that in case of a vacancy the appointee could hold only for the unexpired term. We are convinced that the legislature by making the office appointive did not intend to adopt a different rule with respect to vacancies.

If the theory of relator were to prevail it would permit a mayor and city council to extend the term of a city attorney practically throughout the entire term of the mayor's immediate successor by the simple expedient of having the city attorney resign on the last day of the term of the mayor (and one-half of the council) and thereupon reappointing and confirming the city attorney for a term of two years. (Hoke v. Richie, supra.) The mayor, with the help of the "old" council, could thus keep in office a city attorney of his own selection for a period of practically four years. And this might happen even if the policies of the appointing mayor and his city attorney had been repudiated at the polls. The new mayor would be compelled to retain a city attorney who might be entirely out of harmony with the policies of the new administration. When we consider the importance of a city attorney in the administration of civic affairs, it is apparent that relator's theory of the law should not be sustained unless it is supported by very cogent reasons. In the light of our Constitution and legislative policy we do not find it with such support. The interpretation contended for cannot be sustained.

Mr. Trippet was appointed for a two-year term, which began on the first Monday of May, 1923. The mayor appointed the relator "to fill the vacancy occasioned in the office by the death of W.H. Trippet." The council confirmed the appointment of relator "to fill the unexpired term of W.H. Trippet, deceased." The relator accepted the office under the terms of the appointment, and while no principle of estoppel is here invoked in view of the conditions obtaining we think he has no cause to complain.

The judgment is affirmed.

Affirmed.

ASSOCIATE JUSTICES HOLLOWAY, GALEN, STARK and MATTHEWS concur.