The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1904-04-08
PROBLEM is
KNOTTY One
QUESTION HAS ARIs-
EN- IN WILLIAMS CASE.
AUTHORITY NOT PLACED
No Statutory Provision for Enforcing
Constitutional Clause Relative
to Forfeiture Of Office.

Although the constitution, the high
est law OF the state, declares the office
OF clerk of the district court Of Vel
lowstone county to be vacant, by
reason of forfeiture of his tenure by
the man elected to fill the position,
there appears to be no legal way by
which the constitutional provision may
be carried out to give it the effect
OF formally vacating the Office and
taking steps to fill it by the appoint
ment of successor. In other words,
the plain mandate of the constitution
stands unsupported by any legislative
enactment by which it can be made
effective
Of the many lawmakers who have
been sent to the state capitol none
seems to have ever given the subject
sufficient thought to secure passage OF
a law giving some tribunal or btdy
authority to try and determine the
question of fact of the absence OF any
judicial officer who may absent him
self from the state for period long
enough to make operative the constitu-
tional declaration of forfeiture. In
the organic law it is provided that
any judicial officer who shall absent
himself from the state for period Of
60 days forfeits his office. Nothing
further is said about the matter and
no mode of procedure is outlined for
enforcing the provisions.
Commissioners Are PowerIess.
When it was generally accepted
that T. A. Williams would not return,
and after the limit OF the time dur
ing which he could legally absent
himself from the state had expired,
it was believed that all that remained
to be done was for the county commits
sioners to meet and declare his office
vacant. This, however, has been
proved to be a mistake. AS yet none
of the lawyers who has considered the
matter or whose advice has been
sought has been able to tnd any
law by which the board is vested with
the authority and Jurisdiction to de-
clare the office OF clerk of the court
vacant under existing circumstances.
1t has also been discovered that be-
cause of the absence of legislative
enactment authority to do this is vest
ed in no other tribunal Reeause OF
this absence of authority the commits
sioners have been unable to do more
than wait further developments, al
though it is understood all hope OF
finding way out of the difficulty has
not been abandoned
Is Held Unconstitutional.
1t was thought that provision in
the political code covered the situa-
tion that had arisen, but upon fur
ther research it was found that this
provision has been declared unconstl-
titional by at least one court of the
state.
The law in question provides that
the Office of clerk of the district court
shall be regarded as a county Office.
Section 1929 of the same code pres
cribes how county office may be
declared vacant, on certain grounds.
This is the section that has been held
to be unconstitutional and consequent-
ly void.
The opinion was rendered by Judge
Loud of this district. In making his
ruling the Judge held the law to be
invalid because it does not require
any notice whatever to be given to
the Office holder, and for that reason
dispossesses him of his property with
out due process of law.
In the absence of any law by which
he may govern himself or advise the
commissioners, the county attorney
finds himself unable to give advice or u
or counsel the board as to the proper
steps to be taken. The attorney gem
eral still remains as the states CHIEF
law advisor and he may be able to
devise some way by which the matter
may be brought in proper form before
some tribunal competent to act. in
the opinion of some lawyers quo war
ranto proceedings offer a method out
of the dilemma, but whether such an
action should be brought in the dis
trict or supreme court is e question
that none cares to decide offhAnd.