The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-02-24
Judge Woody's Decision in the
County Commissioners Case.
THEY WERE ONLY DEFACTO
Are Not Entitled TO Hold ONCE Against
the Commissioners Elected in 1896.
Demurrer to Realtors Com
plant Overruled.


county. at Stevensville, in the county
on account of the prominence given tbs
case by the appearance of Attorney
/ General Nolan for the old board:
| I'm the district court of the Fourth
! judicial district of the state of Mon.
tana. in and for the county of IA.
vali.
THE state of Montana ex rel. John
| T. Williams. Samuel Lucas and ]. ID
| Watts, plaintiffs. vs.. John W. May
| hew. John r. Hendricks and Fred
| Weir. defendants.
This is an action of quo warranto
| brought by the REALTORS against the
defendants. to determine the rights Of
the respective parties to the Office OF
county commissioners of Ravalii coun-
~. Montana, praying that the defend
ants be declared not entitled to hold
said office. and that they be ousted and
excluded therefrom, and that the re-
lators be adjudged to be entitled to
said office. and that they, each of them.
be admitted to the same, and TO all of
the rights and emoiuments thereof.
THE case came before the court on
general demurrer filed to the com
plant.
THE facts upon which this contro-
versy is based are as follows:
THE county of Ravafli was created
by an act of the legislative assembly
of Montana, approved Feb. 49, 1893.
said act to take effect and be in force
on and after the 1st day of April, 1898;
and said county was. by said act at
tached to, and became a part of the
Fourth judicial district of Montana for
judicial purposes. tSession laws of
1888, page 209) This act also filled all
of the offices in said county by naming
ban ffS..l ri
commissioners. The persons named for
county commissioners for said county
by said act We're ]. M. Johnson, b. s.
Chafiin and Abe Mittower. These per-
sons served in this office until Jan T.
1895. AT the general election held in
said county and state on the Sth day
of November. 1894, the defendants
Mayhem, Hendricks and Weir, claim
TO have been elected to succeed the
commissioners originally provided for
and named by said act of the legisla-
ture. The said Mayhew. Hendricks and
Weir qualified and took Office on the
ath day of January 1895, and are now
holding their respective offices, and ex-
efciSing the functions thereof under the
claim that they were elected for term
of four years, and that their term does
not expire until Nov, s. 1898. They re-
fuse to allow the REALTORS to assume the
office, or perform the duties thereof
The REALTORS claim to have been elected
at the general election held in said
county and state on the I'D day of No
yember, 1896. for a term of four years.
They qualified by taking the oath of
office and filing their official bonds re-
CURED by law, and within the time re-
CURED by law. and claim that they
have been, ever since the Sd of Novem-
Der. 1897, and now are entitled to as
sumo the said office for term of four
from bp a In CT
All the parties hereto are electors of
said Ravalli county. and otherwise
qualified To hold said office
Upon the argument of the demurrer
in the case, the question was raised
whether the legislative assembly had
the power to fill the offices in Rayalli
county at the time ii was created. and
If SO. for what term did the county
commissioners So named hold their Of
flee. Whether the Legislature had such
power, | believe to be wholly imma-
terial to proper decision of this ease.
If the legislature had such power, then
the filling Of such offices would have
been appointiNe, and if ii did not pos
sess such power. then the persons so
named IN the act creating said county,
having qualified az required by law
and having assumed said office and dis
charged the duties thereof. became and
We're commissioners de facto For this
I1dSbH tIit QUESTION OF the power OF the
legislature to fill said officer will be
eliminated from this ease. As To the
term which said commissioners so
named should have held will be fur
Their considered in this opinion.
The case as 1t now stands requires
answers 10 two auestons
"First-Was there any authority of
law for the election of county commits
sioners at the general election In
1894?
'Second-Was the election Of the re-
lators to this office in 1896 authorized +
by law
These questions will be answered in
the order in which they are stated. /
Section of article is OF the constitu- /
tion provides that In each county
there shall be elected three county COM
mlssioners. whose term of Office shall +
be four vars. A vacancy in the board +
of county commissioners shall be filed /
by appointment by the district Judge
of the district In which the vacancy I
occurs
The sixth subdivision of ordinance, /
two % provides for holding an cleo
tion on the first Tuesday in October.
1879, for the election of certain state
officers. and the ninth subdivision of I
the same ordinance provides that there f
shall be elected at the same time three
county commissioners and other county I
%
office of the county officers 10 he SO
elected shall begin upon the admission /
of the state and end upon the first Mon
day of January. 1893. except the county
treasurer. and also as to county COM
missioners, whose terms are otherwise
provided for in this constitution The /
terms of the commissioners being ex-
nressly fixed at four years by section
of article 16.
From the fact that the constitution
fixes the term of office of county COM
missioners at four years. and then pro-
Nsdes that the terms of all other county
officers elected on the first Tuesday in
Oct ober, 1889. shall expire on the first
Monday of January. 1893. except the
county treasurer. whose term is fixed
and then excerpts county commissioners
by saying, except as TO county COM
whose terms are otherwise
provided for In this constitution | am
to believe that the trainers
or the constitution intended that the