Montana Attorney General Opinion 15-341

Opinion No. 341 Legislative Assembly- Senator- Vac- anci~Tenn of Successor. HELD: The term of a State Sena- • OPINIO:\'S OF THE ATTORNEY GENERAL 281 tor, elected to fill a vacancy caused by death of incumbent, in accordance with GO\'ernor's Proclamation, is for the term of the Senator he was elected to succeed (Art. YIII, Section 84 of Con- stitution) and failure of clerk to recite in certificate of election that the per- son was elected to fill a vacancy is immfi.terial. September 19, 1933. You have submitted the 'question of whether or not you hold office for four years or for the unexpired term of Mr. ;l'eagarden. 1'111'. Teagarden was elected Senator from Fergus County in No\·em· bel', 1930. He died in December, 1930. No special election was held to fill the vacancy. At the election in November, 1HB2, you were duly elected and the cer- tificate of election issued to you. Upon the death of Senator Teagar- den a vacancy occurred. (Section 511, n. C. 1'11. 1!)21). No special election WIIS held to fill the vacancy. On the :!8th day of July, 1932, the Gm'ernor of the State of Montana issued a proc- Illma tion for a genera 1 election of a state senator of Fergus County to fill a vacancy. 'l'he certificate of election signed by the county clerk recited that you were duly elected State Senator without specifying that it was to fill a vacancy. The last sentence of Section 34, Arti- cle VIII of the Constitution provides: •. A person elected to fill a vacancy shall hold office until the expiration of the term for which the person he succeeds was elected." Section 2, Article V, of the lJonstitution provides that senators shall be elected for four years, while Section 4 id., provides that one-half of the senators elected to the First Legis- lative Assembly shall hold office for one year and the other half for three years, to be determined by lot. The plan was to have half of the senators thel'eafter hold over for two years, while the other half were required to suiJmit to an election. If in filling a mcancy the person elected held for four years instead of the expiration of the term for which the person he suc- ceeds was elected, this plan would be disregarded. In my opinion the omission by the county clerk in the certificate of elec- tion, is immaterial as the clerk could not, by his certificate, remove the plain requirements of the Constitution. It is therefore my opinion that you hold of- fice only for the unexpired term of Mr. Teagarden.