Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-03-01
Fred Hathorn Will Not be the judge
Of the Thirteenth judicial
District.
HOUSE sUsrAINs THE GOVERNOR
Executive Makes Reference to Other
duced-Grounds Of the Veto.

veto message, and tnat BODY by vote
of SO to 33 failed to overcome that
veto, and thereby house bill So, ere.
ating the Thirteenth judicial district,
and naming Fred H. Hathorn as judge,
was consigned to it's grave.
The message, which was of great
length, was read by Assistant Clerk
Blake in voice and with an empha-
sis that would have done credit to
the governors own delivery, and it
commanded the utmost attention from
beginning to end.
The governor had remained in his
office to learn the fate OF the bill,
and when Speaker Hedges announced,
This bill having been vetoed by the
governor, and the house having fail
ed to pass it over that veto by the
necessary two-thirds vote, the bill is
defeated" there was rush to the
governors handsome quarters, where
he was the recipient of many hearty
congratulations
Another significant feature OF the
message is found in the fact that it
outlines the governors probable
course when the governors railroad
commission bin and the one increas-
ing the number of justices of the su-
preme court reach him. The Hathorn
bill was vetoed, it is true, for two
reasons-the insufficient amount OF
business that would come before the
judge thereof. and on constitutional
grounds. This latter reason would
Apply equally as well to the two meas
ureS referred to, as both contain nom
nations for vacancies created there
in. and to which the governor takes
decided exceptions as TO the authority
of the legislature to fill. Therefore,
il does not require much of prophet
TO predict that neither of these pro-
posed laws will receive his approval,
and they are in far worse position
than the Hathorn bill was, in that
the governor may retain them for five
days or until after it is too late for
the legislature TO pass them over his
veto The governors message was
as follows:
After saying that the creation OF
the new judicial district would entail
an unnecessary expense Governor
Toole said:
Il will not stop however, to farther
argue the question whether the legis
lative assembly may appoint per
son to an office Of its own creation
where the constitution is silent as
to the manner of appointment, fol-
the manifest reason that the office OF
district Judge is created by the con
stitution and not by the legislature
The legislature does not create the
Office. II has authority under the
constitution to increase or decrease
the number of judges and divide the
state or any part thereof into new dis
tricts' This is the express limit o.
its authority 50 far as district judge
is concerned
The moment new district IS eS
tablished and provision is made fol
an increase IN the judiciary, that mo
nen1 a vacanacy exists in the office o
judge.
How is that vacancy filled unde
the constitution?
Section 81 of article VII of the con
stitution points the way. 1t is as FOL
lows:
of the supreme court or Judge Of tn
district court, or clerk of the supreme
court shall be filed by appointment
by the governor of the state
But whether an office is create
by the constitution or by law, if
be a state office, the appointing powe
resides in the governor. Section
Of article VII is as follows
".rhe governor shall nominate an
by and with the consent of the ser
ate, appoint all officers whose office
are established by this constitution. o
which may be created by law, an
whose appointment or election is nc
Otherwise provided for
1T is evident that this section
dealing exclusively with state OFF
GERS. The manifest meaning OF til
clause or which may be created b
law, ard whose appointment or ele'
ton is not otherwise provided TO
shall be appointed by the governor b
and with the consent of the senate.
Recurring to section "a, of articl
VII SUPRA it will be observed that tn
appointment of Judge OF a distrit
court is otherwise provided for an
that the consent of the senate
that case is not required.
Calling your attention 10 the we
known provision of our constitute
by which the powers of SOvernmel
are divided, and one department
prohibited from the exercise OF tho!
powers which belong to another, ar
protesting against any encroachme
upon the executive by the legislati'
department, | affirm that if the po
er to appoint a district judge by Il
legislature can be sustained by al
strained construction of our cons
tuition, the policy of exercising tn
power is inherently bad and DANCE
Gus in the extreme.
Mr.. Story, in his great work
the federal constitution, which is ali
applicable to our fundamental la
furnishes ample reasons for conden
ing such policy.
''ThOse who are accustomed to p
found reflection upon the human CHI;
acter and human experience will ref
lily adopt the opinion that one man
discernment is better fitted to analy
and assume the peculiar quaint
adapted to particular offices than a
body of men of equal or even OF
periOr discernment; his sole and
divided responsibility will natura
peget a livelier sense OF duty and
more exact regard to reputation.
will inquire with more earnestne
and deicde with more impartiality;
will have fewer personal attachmeI
to crafty than a body of men a
will be less liable to Re misled by