The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-10-26

evidence of his appointment. II never
theless appears that Page had never
been formally commissioned: hut
whether he was Or not In immateriai
Just now. for this reason. IL being con-
ceded thai he was appointed by the
governor In 1893. and that he was con-
fTmed and duly qualified. for the pur-
poses of rendering his resignation he
at least stood in the attitude u one
not commissioned, yet Of one whom the
governor had appointed and who there
fore legally rendered his resignation.
(under subsection ), section 100. supra)
to the officer who appointed him. IL
may possibly be that the Office became
vacant by force II the approval of the
act Of 1897. heretofore cited. and that
Page was Ousted at once; " such was
the case Page had no standing before
the court. sut we Ind IL unnecessary
o. inquire at length into that phase ot
the matter. Neill not having qualified
or assumed to enter upon the dis
charge Of the duties ~ the office prior
10 Aug ., two days after Pages resig-
nation was accepted. Pages rights be-
fore Aug. are not 81 interest to Neill
unless they affect his title To the office.
We huld. though. that Page was not
thruWn out and hence that no vacancy
was created as above Indicated. and
that Page held rlghffully until his res
ignation was accepted. but that by a
complete voluntary resignation before
another person was appointed va
cancy was created IN the Office. by a
resignation before the expiration Of q
term. as provided in section ile1. supra.
Is M ant 4 resignation before The end
nf fixed time or before the expiration
~ the time during which an official
has right To serve"
Having decided that vacancy exist
ed In the Office II state land agent. the
court. in the following language. holds
that the governor had the right to
fill il:
We next inquire who had the power
90 MI the vacancy? The statute tseC-
tion 40. supra,p gives the governor
power To- appoint n state land agent.
The governor must appoint. The ap-
pointmsnt is with the consent ~ the
board. hut an appointment Is a separate
act from CO nsent To the appointment.
Consent Is in certain cases nee assary
to give effect to the appointment and
Is obtained from the board by confir-
nation: while an appointment comes
from the governor. But IN the case Of
Vacancy occurring in an office. the
law has made special provision for fiIl-
ing II. Section 47o makes no reference
whatever Ia vacancies. We. therefore.
turn To Other statutes To see what pro-
vision. VI any. has been made for such
contingencies and find that section l104
exactly covers the case by providing
that when any office becomes vacant.
and no mode is provided by law for
filling such vacancy the governor
without the consent of any board or
person. must fiil the vacancy by grant,
ing commission tn expire at the end
of the next legislative embly. OF at
the next popular election. This section
certainly applies 10 all cases of vacan-
cies. where NO mode Is provided by law
for filling the same. We are. therefore,
forced 10 conclude that while the con-
sent of rhr ward to the appointment
by the governor is necessary where a
person Is appointed to succeed one
whose term has expired. where a va
cancy is to he filled the special pro-
vision relating To vacancies obtains,
and the governor alone must appoint
by granting a commission until the end
of the next session Of the legislature.
The attorney general asks US to
consider the general purposes Of the
law In providing for the confirmation
~ the state land agent by the state
land board and argues that that ofIi-
board. and that II II be the law that
the governor may appoint without the
consent OF The board. a. situation may
arise where the board would direct a
certain policy to bc pursued and yet be
unable Ia carry out that policy by rea-
sou of the refusal OF the agent to exc
cute the orders Of the board.
Serious differences do occasionally
arise between the executive officers OF
government. They are often over
come by the exercise of discretion and
a spirit 0f fairness and liberation
among the officers involved and thus
the courts are spared the disasreeable
duty Of settling such d.sagreements.
But however that may 5e So far as the
case before us l. concerned in the alb
scncc OF legislation which provides an
other mode OF appointment OF state
land agent, or which otherwise will
render complications impossible. the
court can only interpret the laws that
do exist and leave the remedy OF de-
fects To the appropriate branch ~ the
government Besides, In our minds
much of the force ~ the comments
upon possible complications of the situ-
alton Is met and Oyerthrown by the
cOuntrr-argument that the dangers
that might result from inharmonious
tfldi4tlr nftNffn tue cCNtiai tlllclais
OF the state land board are apt TO be
far less signircaLl than might be con-
sequences of having no officer at all to
select lands and personally watch over
the vast land interests of the state.
Doubtless II was 10 meet this very
/ danger VI having no incumbent at all
that the legislature has given the gov
ernor power t. appoint in case VI a
vacancy.
section s9i. providing thai every
officer must continue To discharge the
duties of his office although his term
has expired until his successor has
qualified is applicable only To a case
Nhrr. tn term of office OF am incum-
beut has expired. VI does not refer to
"A case ~ vacancy caused by resigna-
tion. such Is tn. decision upon a SIM
liar statute OF New York. and We think
II the proper construction OF the Ian
guagc OF our statute. tOlmstead VS..
Dennis. - y. Y. 321)
believing that the governor had the
power tu un the vacancy caused by
Pages resignation. we are easily led TO
a further conclusion that Neill was le-
gally appointed TO thr office and IL
qualified To hold the same until the end
uf the next legislative session. His
commission was issued by the COVER
nor and properly prescribed the time
during whirh he could serve. Toe COM
mission ought 10 have been counter
signed by the secretary 0t state under
section n. article Vii. of the constitu-
tion heretofore quoted. and been
sc0l.d with the great seal OF the state.
. l..,r Hh. ,.f,saI ..f tN. f.tr..Y nffief.l ~,