The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1897-08-12

ne nad not the opportunity TO lnvesti-
gate whether, under the law this right
TO demand a resignation was vested
In him. Ii certainly must have arisen
from mistaken conception OF his
authority and power in the premises
for am thoroughly convinced that no
official In high or low station would
knowingly or willingly usurp functions
which did not rightfully belong to his
Office.
Section 3il. as will be noticed. ex-
pressly provided that the state land
agent should hold his Office during the
pleasure OF the board. Lest that this
was not explicit enough. We have again
section 470. reiterating the language Of
section 34l. that the state land
agent should hold his Office at
the pleasure of the board. IL
now here appears that this officer
should hold his office at the pleasure
of the governor and yet on the lst Of
March communication is addressed
TO you. politely requesting your resig-
nation. emanating exclusively from
the office of the executive, and In re-
spect to which the board Is In total
ignorance. IL would seem tO me that
the law as IL is would require the
consideration of the termination Of
this Office by the board of land COM
missioners before "A communication ot
this kind could be addressed to you.
Al any rate. consequent upon that re-
arrest. improperly made, your resigna-
ton has been rendered and II IN this
resignation thus obtained that Is the
basis of the action Of the governor in
the appointment of Mr. Nell. ! do
not. however. deem II necessary TO
pass upon the proposition as to
whether vacancy has been created
by reason OF the rendering OF the resig-
nation secured i'm this way. for. as
will be seen further on. IL Is imma-
terial whether vacancy does or does
not exist as affecting the rights Of
Mr.. Neill 20 perform any duties con-
nected with the Office and your right
to discharge the same.
ION the 4th of March and three days
after the sending OF the communica-
ton OF the governor above referred TO-
a bill passed by the legislative as
sembly became q law. which amended
sections 40 and f72 Of the political
code. nowhere referring to section %l.
and leaving intact sections al and
473 supra. This bill. known as SEN
ate bill number As, reads as follows:
Section I. That sections 40 and
412. article .. chapter 3. title l, part J,
OF the political code Of Montana. be
|
numbered as follows Section $40.
The governor, with the consent OF the
board of land commissioners. must ap-
point state land agent. who shall
hold his Office for the term OF four
years, or until his successor snail De
appointed and qualified.
Section Az: The annual salary OF
the state land agent Is the sum OF
81. 500
BY the enactment of senate bill No.
Is. the intention OF the legislature is
clearly evidenced TO give this ONCE
stability of character as term not
Heretofore possessed by II, but the
manner Of appointment continues the
same The incumbent no longer holds
at the caprice Of the board OF land
commissioners. but as is providcd for
in the amendment. he shall hold his
office for the terin of four years, or un-
I'll his successor shall be appointed and
qualified
THE vacancies provided for by the
code of provisions supra have no ap-
plication to the case under considera-
| ton. The appointments also provided
for do not include the present one SO
far as the incumbency OF this Office Is
concerned, IL matters little whether the
Legislature is In session or out OF ses-
sion, and the incumbent made so by
appointment under the provisions OF
the new law has no unexpired term to
fill. There Is no vacancy In the term
of office, Two things are made essen
| tial In connection with the appointment
for this office. There must be a selec-
ton by the governor OF an incumbent.
and this selection must be ratified by
the board of land commissioners. There
is no such thing i'm connection with this
Office as intervening time before
meeting OF the board. The board Is
| composed Of state officers entrusted
with the duty of transacting business
properly appertaining to the board.
| There Is no fixed time for meeting un-
der the law and the consequence is that
whenever any business arises which
needs consideration by the board. the
board should be convened in session to
transact such business. In this par
ticular instance the governor. as the
president OF the board. certainly knew
at the time that he made the selection
of Mr.. Neill for this office that it was
necessary such a selection should be
assented to by the board. and II be-
came his duty to convene the board In
session to consider this matter.
There Is no analogy between case
of this kind and case expressly pro-
vided for by the constitution and the
laws. Where an appointment is made
by the governor with the advice and
consent of the senate, express provi-
sions regulate the conduct of the gov
ernor in the making of an appoint-
ment under these circumstances. and
II Is expressly provided that an ap-
pointment thus made should continue
until the legislature mot. IL could not
be reasoned that by reason of such
provisions. in this instance the law
expressly providing that the state land
agent should be selected by the COVER
nor. with the advice and consent Of
the board of land commissioners. that
a selection could be made by the gov
ernor of man In direct opposition TO
the wishes of the board. and with the
board constantly on hand to attend TO
business belonging to the land depart
ment that such officer could rightfully
enter upon the discharge OF his du-
ties. and rightfully claim the emolu-
ments belonging TO the office. H9 Is
neither a de facto nor de jure Off
Ger. he is simply and purely an in
truder and usurper. and has no claim
whatsoever 70 the office until confirm
alton follows his appointment
would say then that Mr.. Neill is not
legally entitled to perform any duty
devolving upon that office. and is not
properly accredited to receive from
you books and papers.
AS TO your right to discharge the
duties OF the office. | said heretofore
that II was immaterial whether the
xraa valid moi. There