The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-05-02
SIXTEEN COUNTIES.
Commissioners to Be Elected in
All Of Them Next
Fall.
The Attorney General Clears up
the Fog About the
Matter.

Il was Thought They would Hold Over
Because Of q Legal Teoh-
nicality.
Attorney General Haskell writes the fol-
boards of county commissioners are to be
elected at this next general ele ctlen in this
state: &
The determination OF this Question ta-
ouires at least a cursory review OF tha
statutes relative to the slsotion3and term
of office of the county commissioners, and
the mode and manner OF filling vacancies
in such offices.
The codifed statutes of 1872 provide
that, %tannually thereafter one commits
sioner shall be elected and shall ontinu
In office three years." At that time GEM
ersl elections were annually held in the
territory for the election of all county
eNicers AZ we'll as for the election of
members OF the legislature, and this rule
oentinued in force until February IL, 1876.
when the legislature enacted that thereafter
biennial elections should be held in the tor
ritory OF Montana. In ssid act, there BIS
ing no special provision made for the cleo
tion and term Of the term of the county
commissioners, the Legislature on the 10Th
day Of February, 1877, provided that ''blen-
nially thereafter n commissioner shall %
elected and continue in office six years:
provided, that the county commissioners
whose term Of office shall expire in 1877
shall continue in office until their success
anra are elected and Oualihed.'
On Feb. 10, 1881, the legislature again
enacted that 'the beard OF county com
nissionsrs OF each county shall DO elected
according to Law, and shall hold office for
the term OF four years, ana until their sue
cessors are elected and qualified; that thers
shall be elected in cash Of the said counties
At the general election held in tho year
1882, one county commissioner; g. the gen
eral election to be held every fourth year
thereafter, two county commissioners ana
at the general election to be held in the
wear 1884, and on every fourth year there
after, one county commissioner who shall
hold Office as provided in the preceding
asicc Of county commissioner IN SAID
county shall proceed with the discharge
Of the duties of said Office and shall hold
the same until the close of the to ms for
which they have been elected or appointed
The last foregoing provision of the gan-
Il HAM IN IL MAY ! WAA
it MAJ be modified by the terms of the con-
stltution, and the proposed amendments TO
the constitution which have a direct bear
ing and control upon the legal dstermina-
ton of this question now at issue. !.
Ii may be we'll to note as this time that
the provisions OF the statutes relative ito
the term Of office Of the county commits
sioners heretofore noted, enacted that each
county commissioner 80 elected and aua!l-
fad. should hold his Office until his suc-
cessor was elected and qualltled; and ne
further notation to the provision OF the
statute, that great care was taken by ths
legislation to make special provision fo]
the continuing in efioe Of the then inoura-
bents whose terms would expire prior ts
the election Of their SUCCESSORS.
We have called your attention at Thu
time to the continuing commissioner II
office after the term for which they were
elected as an evidential fact, that while TIM
Legislature had in each instance crowded
that all officers elected and qualified sheulc
hold their Office until their Successors wer.
elected and qualified; it did not, by such
special provision thereafter enacted con-
tinuing them in Office, place any great de
psndance upon such general provisions.
That the tsrm of Office for which Il peraoI
il elected covers and Limits them to it's en-
joyment, and not the fact OF the. election
thereto and qualification thereof by another
isa proposition which we maintain to b'
cettlad in law too we'll to omit of doubt
In a subsequent portion of this opinion VS.
will site authorities in support thereof.
That the adoption Of the constitution De.
termined the term of office of the count.
commissioner is q proposition that soei
without question. section 4, article 16. and
as well whom the term of tho present lncuna
bent commences. section 8 of ordinance 2
but when their tsrms expire and whsths
their successors are to be elected or ap
pointed is q problem that is eonjeoturs.
wherein rsaaon must be the arbitrator il
the absence of any well defined rule of law
It ia set out in section 4 of article 16 o
the constitution that, in each county thor
shall be elected three county commissioner
whose term of ofies shall be four years.
That stereotype phrase, land shall holt
office until their successors are elected au'
qualified" ls conspicuous by Its absence.
It id a safe rule to follow az o guide j
this matter, that unless the statutes upo
this subject, which arc continued in tore
bv tho terms and conditions OF sectio
one OF article twenty, will supply til
phrase and thereby eentinus the present!ir
cumbents III Office in case OF a failure t
elect thoir successors at the next genera
election, that a vacancy Will occur In TT
office of the county commissioners In ever
county in this state at the expiration
four years from the day of thu state in
the union: viz, Nov. 8, 1889.
II we are permitted to apply the conelut
ing portion of section 752, OF the first dl'
1SlOU, general 1--WE, 1905 W SsGSioH 1ouf
article sixteen, of the constitution. the d.
feet would be cured and one OF the hume
ous ve1ed question: that arise and is il
eidental TO the main ones would be solve
If this action of the lcgislaturs III sag.il
laws to continue in office tina commission
ers then in Office, when a general law W
passed changing the time Of the sleotio
or the terra of Office of such officers, shou
be accepted as our guide in determinll
whether the present county commission
hold Office until their Successors are elect
and qualified, the inevitable %conelusl
would be against their holding over.
The constitution gives the county cor
missioners a term of four years and
more. Even though the courts should d
termine that section 1852 general laws, 10
force. and the words land until their 81
SCISSORS are elected and qualified' may
used to carry out the nne1pressed INTENT
of the people, then ws aassrt these wot
could not have so far reaching effect. as
continue any person in office after the {
plration of the term for which he WAS Gle,
ed, and that suoh words are intended
govern the ti1no between tho election q
the qualification, and mo longer.
This time prescribed for the auccessor
A. --- - H."