The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-10-26
The Supreme Court Hands Down
an Important Opinion.
HE IS STATE LAND AGENT
Associate Justice Hunt Wrote the Opin-
ion But All the justices Concurrsd
With Him An Exhaustive Re-
view OF the Case.

/ of his appointment rom the governor
and h,ld that James N. Page former
land agent, had no rightful authority
to continue To act as such officer since
his resignation was accepted by the
executive Aug last
The court holds that a vacancy cy-
listed in the Office OF state land agent
the moment that Governor Smith ac-
! cepted his resignation. and that where
"A vacancy exists the governor has the
right To appoint an officer to MI II
without that officer being confirmed by
the board. but had there been no va
cancy. confirmation by the board would
have been necessary. In other words.
had Mt. Page refused To resign. the
person designated by the governor as
his successor could not have taken the
office unless the board OF land coumis-
| sioners confirmed the appointment. The
| opinion Of the court was unanimous.
| In stating the case the court said:
The defendant Page on July 81, 1895.
was appointed state land agent by the
governor of Montana, and On the same
day was confirmed by the state board
of land commissioners. and although
no commission was ever issued Ia him
by the said board or by the governor.
! he duly qualified and entered upon the
discharge of his duties. ON March !,
1897. the governor requested the rcsig
nation of said defendant, and In pur-
suancc OF said request on March !.
1897. the defendant rendered his resig-
nation In writing to take effect AT the
governors discretion. on March 81.
1897. the governor presented to the
board of land commissioners the name
of Henry N-ill. the relator. as state
la... Al.
| confirmation of said Neill the board
were evenly divided. Thereafter. ON
July %. 1885,, the governor again nomi-
mated Henry Neill for said office. but
the board were again evenly divided on
his confirmation. Thereafter. on July
20. 1897. the governor in writing accept
ed the resignation Of defendant Page
as state land agent to take effect Aug.
Z. 1885,. The board af laAa- commission
efs did not consent to the request for
or the acceptance 90 the resignation OF
Page. on Aug. ?. 1897. the governor
appointed the relator Neiil as state
land agent. claiming there was n VA
cancy In said ofiice and th.reupon
signed and issued To him a commission
but the said commission did not and
does not bear the seal of the state by
reason OF the refusal Of the secretary
Of statc Ia attach the same shcreto.
The said commission 10 the rclaior
Nell authorizes him To- hold the said
office until the end OF the next iegisla-
tive assembly. ON the same day the
governor notified the SECRETARY OF the
board of land commissioners that he
had accepted the resignation of Page
and had appointed Neill. The board
has never consented Ia the appoint
mcnt Of Neili and has never confirmed
his appointment. ON the day OF his
appointment Neill. the rclator. exc
cuted his bond and assumed. and still
assumes. Ia perform the duties of the
office Of state land agent so far as per-
mitted Ia do 50 by the state board -
land commissioners and the said de-
fendant Page.
ION Aug rs. 1897. at a meeting of the
board or land commissioners the gov
ernor's communication respecting the
acceptance of the resignation Of Page
and the appointment of Ncill was read.
and motion was made and seconded
to consider the appointment of Neill as
to confirmation or rejection. but the
governor declined to entertain the mo-
tion for the reason that the appoint
mcnt ~ NELL 81 made by him was not
intended 10 b. considered by the board
or Ia be acted upon by H. ncverthc-
less two members Of the board had
lil inf NltUutfN OF
the proceedings as voting against the
confirmation ~ Neill. At the same
meeting resolution was offered To- the
effect that Page should be recognized
as state land agent until II was deter
mined by the courts who was uualifei
Ia perform the duties of that office.
The governor declared this motion Gut
OF order whereupon AN appeal was
taken from this ruling and upon said
appeal said resolution was declared In
order and was carried
Page notwithstanding his resigna-
tion has continued To- perform the du-
ties OF the office and refuses to turn
over possession OF the books. etc. OF
said Office 10 the relatnr Ncill
The defendant admitted that the re-
lator Ncill was appointed state land
agent but denied that he was duly ap-
pointed because the governor had no
right 10 appoint and defendant further
RVerrrd that hs Is disCharging thH
duties ~ the office until his successor
is legally appointed and qualified. and
denied that Nelli ever had the right to
the incumbency ~ said Office
After the sections OF the statute hav-
INK a bearing On the .ssuc Involved had
been discussed the questions OF vacan-
cy was discussed by the court as fol-
lows:
An office. says the statute 1ssc. ll0l.
supraD becomes vacant by the resigna
tion of the incumbent before the expifa-
tion of the term. Dn March !. 1891. the
defendant. Page rendered his resi,yua-
tion IN writing 20 the governor. 20 be
/ effective at ths governors discretion. II
A. too plain for argument tP1t Pages
] ! llberate intention as manifested by
his letter. was - retire from the Office
whenever a." governor saH In 20 h1,r
him go So III" governor exercised the
discretion So expressly givr1 hiw tg
Parr, and in writing accepted 4 his reslg
nation To take .ftect Aur tp.H
that date, therefore, Page ceased u b.
state land agent unless his resignation
was invalid ur Ineffective. The attorney
general argues that the secretary Ni
state and not the governor was tho
proper person 10 whom Page should
have rendered his resignation. GDd-,
/ section luo2. supra. the state land agent
should properly he commissioned by the
governor iir Is state Official appoint-
"a by the governor. ordinarily with the
consent of the state land board. and
IL is IN accord with the splrit OF the
Law that such an official should bear a
! cummlssiUn signed by the gONetnur as