Montana Attorney General Opinion 15-2

Opinion No. 2 Legislatum-House of Representatives -Election Contests-Salaties. HELD: The House of Representa- th'es is the sole judge of the qualifica- tions of its members and its decision as to the law and the facts in a contest before it is final, not subject to review by any court, The rule of law that if a plurality or a majority of the votes are cast for an ineligihle candidate at a popular elec- tion the candidate receiving the next highest numuer of \'otes is not entitled to be declared electNl is not binding upon the House of Representatives if it chooses to disregard it, Quaere: If the House of Hepresenta- th'es seats a contestant who did not re- ('eh'e the highest l1umuer of votes, will the courts assist the appointee in col- lecting his salary in a mandamus pro- ceeding against the State Auditor? Jan, 4, 1933, Re: Relation to the Contest of David Murphy, Jr" v, J, E. Sadring. You haye requested my opinion on the following questions: First, has the House of Representu- tiYes the sole power to determine this contest, and, second, in case it was found that J. E. Sad ring was lacking the necessary qualifications to hold the office of Hepresentath'e from Mussel- shell County has the petitioner, Dayid Murphy, Jr., the right to this seat or would there be a \'acancy in the posi- tion of such representath'e? I would conclude as follows; 1. That the House of Hepresenta- tiYes is the sole judge of the qualifica- tions of its members and that its deci- sion as to the law and facts in this case is final, not subject to review by any court. (Constitution of Montana, Ar- ticle Y, Sec. 9). As to the second question, Section 13, Article IX, of the Montana Constitu- tion, proyides: "In all elections held by the people under this constitution the person or persons who shall receiye the highest number of legal yotes shall be declared elected," This provision has been construed by the Supreme Court of the State of Mon- tana in the case of Cadle v. Town of Bakel', 51 Mont. 176. On page 185 of this decision the following quotation is found: "While a successful candidate may be deprived of the fruits of his vic- tory by being required to forfeit his of- fice as punishment for wrong doing, we undertake to say that it is beyond the la wmaking power to declare elected to an office anyone who has not received the highest number of legal votes there- fol'." This case is declaratory of the general rule. lit is cited in L. R. A. 1918C, 1158. This rule is also approved in 20 C. J. 207, as follows: "It is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried, unless he or it re- ceives a majority or a plurality of the legal votes cast in the election. The fact that a plurality or a majority of the yotes are cast for an ineligible candi- date at a popular elpction does not en- title the candidate receh'ing the next highest number of yotes to be declared elected; in such case the electors haye failed to make a choice and the election is a nulity." See also: 13 L. R. A. (NS) 1013; 34 L. R. A. (NS) 240. While I have cited a decision of the f'lupreme Court of this state and set forth what is called the inajoIity rule in similar cases, it is undouhtedly true that the House of Representatives is the sole judge of the law as well as of the facts in determining the qualifica- tions and eligihility of its members and tha t no court will upset the findings of this committee. Despite the general rule, the House might seat the contestant and he would be legally a member. He might pos- sibly haye some difficulty if the auditor declined to pay his salary. In the case of State ex reI Cutts v. Halo(;, 56 Mont. 571, the office of a mem- ber of the State Legislature was filled by the Governor. The Goyernor had no power to make the appointment, but the Legislature recognized the appoint- lIlent and seated the appointee. The AudHor would not draw a warrant for his pay and an action was brought to compel him to do so. The court said that it could not review the act of the Legislature, but that the court would OPIXIOXS OF ~'HE A'ITORXEY GEXERAL 1{l not assist the appointee in collecting his salary in a mandamus proceeding. It is possible that the court might take a different view of the filling of an office by the loegislature itself and mi/.;ht hold that a finding of the legis- lature in favor of the contestant was a conclusive finding that he receh'ed the highest number of legal votes. On the subject of procedure, the leg- islature is not bound to follow any par- ticular plan. 'Ve would recommend a "ery simple and informal procedure, but one which will give both the contestant and the contestec full opportunity to present C\·idence. On account of the "cry short period of time within which -,"ou havc to act no Yery long notice can be prescribed. Opinion No. 2-A Legislatm'e-House of Representatives -Election Contests-COITUpt Practices Act. HELD: The decision as to whether or not any person not a member of the House of Representatives may contest one holding a certificate of election, rests solely with the House of Repre- sentatives. The authority of the House is complete and conclusiye. And while o the Corrupt Practices Act is not bind- ing upon the Legislature in the judging of the qualifications of its members, yet the public policy has been expressed therein by the people that "any elector may contest the right of any person to any nomina tion or office. " January {l, U)33. You ha "e requested a further opinion III connection with the contest against seating John A. &'ldring of Musselshell County. This office has fully covered this rna tter in an opinion heretofore rendered. The questions to be determined in ac- conlance with your letter are of a some- what technical nature. In our former letter we attempted to set forth such rules of the Supreme Court of this State as are pertinent. Above and beyond all questions of procedure is the coustitutional provi- sion "Each House shall choose its other officers and shall judge of the elec- tions, returns and qualifications of its members." Article V, Section {l, Consti- tution. State ,s. Kenney, !) :\Iontana 223 (232). Your authority is so complete in this matter that we would call your atten- tion to a quotMion from the case of State ex reI. Boulware ys. Porter, 55 Montana. 471, page 474: "Upon the ques- tion of the election and qualifica tion of a member there cannot be such a thing as a finnl decision in the sense of a decision conclusive upon the House until final adjournment for the term for which the members. in this instance. were elected. The authority to pass upon the membership is a continuing one and runil throughout the term. It it so complete and conclusive, relator may be sen ted today after a hearing and deprived of his office tomorrow upon the same facts." You are the sole judges of the law and the facts. As to whether or not any person not a member of your body may contest one holding a certificate of election, your decision would be likewise final. If either part~· to this contest has any le- gal authorities on this question we sug- gest that ther submit such authorities direct to your committee. In plain language the Supreme Court of this State hns said that at this time it is without authority to determine the law which must goye'rn you in this de- cision, certainly the Attorney General's office has no greater authority. As a matter of publiC policy we think that every citizen has an interest in the memhersllip of the legislature. By the constitution lie has the right to peti- tion. Whether his petition be granted is a matter for the legislath'e dis- cretion. While the Corrupt Practices Act (In- itiative Act Nov. 11)12, Section HY77?. R. C. 1\1. lfl21, et seq.) is not binding upon the Legislature in the judging of the qualificn tions of its members (Sta-te ys. District Court, 50 Montana 134, 145 Pacific 721), yet in that act the people expressed their idea of what consti- tutes good public policy when they pro- vided (Section 10810, R. C. M. 1ro1) that "any elector of the state, ·or of any political or municipal subdivision thereof may contest the right of any person to any nomination or office for which such elector has the right to vote .... n 'Ye regret our inability to render a more definite decision in this matter.