The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-02-19

day OF March succeeding his election
and continued for two years and until
his successor is elected and qualified.
I'm the particular case under consd-
Grafton and by virtue uf section ll0l ~
the political code. supra. under the
facts In this ease The office of county
treasurer would suffer vacancy be-
fore the term of the present incumbent
expired. This, OF course, would not De
possible for the constitution provides
that except as otherwise provided in
the constitution, no law shall extend
the term of any public officer or in
crease or diminish his salary or emolu-
ment after his election or appointment.
The reasonable construction. then, of
this section would not justify the pre-
sumption that vacancy existed In the
office oefore the term of the present in
Cumbent expired. The constitutional
provision above referred To that the IN
cumbent should hold his office for the
term of two years and until his sue
cessor is elected and qualified makes II
impossible for a vacancy To exist until
AT least the expiration uf the term OF
the present incumbent, which would be
next March
The attorney general then defines at
length the term vacancy and holds
that an Office Is not vacant So long as
II is occupied 10y an incumbent
The commissioners then. AT the
meeting AZ which they declared this Of
flee vacant. did something which. un-
der the law. they We're not authorized
10 do. There could possibly De no va
cancy of the office at the time that the
board of county commissioners met, for
Mr. Bowling. the duly elected and
qualified incumbent uf the office, was
discharging the duties. and his term.
by limitation. did not expire until
March. 1897. 1t might he said In this
connection that the commissioners an
ticipatcd n vacancy. hut the law does
not authuriZ" the commissioners Ia an
ticipate vacancies. their powers and
duties are defined by law, and antiCl-
pating vacancy Is not one of them.
~ is my Judgment then that the action
of the board Of county commissioners IN
Il, ,cIaring vacancy In the Office OF coun-
ty treasurer of RRvalli county WAS IN
valid, and the appointment made upon
the assumption that such 4 vacancy "N-
isted is of course equally Invalid. " IN"
code provisions above referred To instead
of using the hnguuT" which they did.
provided that IL a person elected to AN
office failed To qualify within the time
specified he would forfeit his right to
the office, there would he no question hut
that the commissioners IN the cours"
pursued would have authority To act. hut
this Is not the language used. and In ihls
instance We hav" to do with "A ease where
the will OF the people In the selection OF
AN officer Is 10 bc disrrgardcd. and IN or
der to set aside that will expressed ~
the polls the authority to do 80 must he
clear uueuulvocal and unamhtguous. On
the other hand II is not to he assumed
that this proposition OF tn" code provid-
ing for "a vacancy is meaningless. and II
becomes the duty of one having TO do with
II To place such "A construction upon II IN
the light of the constitutional provision
above referred To as will make II opera
tive. | think that II would bc within the
power of the county commissioners to
meet after the term commences, which
would bc on the ith OF March. and II the
bond had not been filed M To that time,
II, clare the ofiic" vacant, although "A
great many authorities hold that even
then. with the constitution providing that
the incumbent should hold over. II would
not he within the power OF the Commis-
sioncrs tn declare a vacancy. ! am dis
posed to disagree with the reasoning my
self for with such constructional pro-
vision u person elected to AN ofiic" could
hold the same indefinitely. although at
the polls tn" people decisiV"ly expressed
themselves that such should not br the
case \ person once elected to office could
ut the next ensuing election sccur" "A nom
inatlon. run for office. get defeated enter
into an arrangement with his opponent,
and by virtue of this provision OF the con-
stitutiou hold over becnus" his successor
would not qualify, and repeat that at
each succeeding election.
Il am of the opinion that the cOmmis-
sloncrs would have the right after the
term commenced 10 have vacancy de-
clared and TO select somebody other than
the incumbent to I'LL the vacancy, not
withstluding the constitution provides
that the incumbent should hold the Of
nre for the term OF two years and until
his successor is elected and qualiticd. |
am also OF the opinion that the provision
OF the code requiring the hling of the
bond within 10 DAYS after notification Of
aud that the ming Of the bond at any
time before the office * legally declared
vacant would be n sufficient ana sub
stantlal compliance with the law.
II am OF the opinion. then. that the ac-
ton OF the board of county commission
crS In declaring - vacancy In the manner
appearing II Unauthorized. that the law
providing for III" fling Of the bond il di-
rectory. and that Mr. Suuircs having
qualified before the time when the board
OF county commissioners could have le-
gally declared a vacancy. hr is entitled to
the possession Of the Office