Montana Attorney General Opinion 15-472

Opinion No. 472. Salary-Wan"ants-Commissioner of Agricnltnre--State Officers, Appointive. HELD: Under Section 1, Article XVIII of the Constitution and Sections 3555, 3556, and 3557, R. C. M., 1921, Stafford has the right to hold office as Commissioner of Agriculture until l!'ebruary 2, 1934 and, having dis- charged the duties of his office to that date, he is entitled to his salary for the month of January, 1934. February 24, 1934. Your letter to us of recent date is as follows: "Herewith attached copy of letter this date received from A. H. Stafford as Commissioner of Agricul- ture for the State of Montana. It is apparent from this letter Mr. Stafford is making a written demand upon me, as Auditor, to execute and deliver to him a warrant co'-ering his January, 1934, salary. I hereby respectfully re- quest an opinion as to whether or not, as State Auditor, I may legally cause this warrant to be executed and de- livered." It appears that on April 5, 1929, J. E. Erickson, then Governor of Montana, made an order, effective June 1, 1929, appointing A. H. Stafford Commission- er of Agriculture until April 1, 1933. 326 OPIXIOXS OJ!' THE A'fTOHXEY GENEHAL On or about Juue 1, 1929, he qualified as such commissionel". At the legis- lath-e session of 1931 the Senate con- firmed the appointment so made. Staf- ford performed the duties of the office without interruption, interference or question from June 1, 1929, or there- abouts, to February 2, 1934, when A. P. Bmce laid claim to the same by vir- tue of his appointment thereto bv F. H. Cooney, Goyernor of Montana-, on the previous day. Other facts which lllay materially affect the right of one or other of them to the office on and after February 2, 1934, exist, hut we think they have no particular bearing on the situation hefore us and so re- frain from setting them forth. Section 1, Article XVIII, of the Oon- stitution, reads as follows: "The legislath-e assembl)' may pro- vide for a bureau of agriculture. labor and industry, to be located at the capi- tal lind he under the control of a com- missioner appointed by the governor suhject to the confirmation of the sen- ate. The commissioner shall hold his office for four )'ears, and until bis successor is appointed and qualified: his compensation shall be as provided hy law." Sections 3555, 3556 and 3557, Revised Codes 1921, prol'ide: "3555. There is hereby created a department of the government of the l-itate of Montana to be known as the 'Department of Agriculture, Labor, aud Industry.' .. * .. "3556. The chief executh-e officer of the department of agriculture, la- 1101', and industry, hereinafter referred to as the commissioner of agriculture, l-ihall be a commissioner of agricul- ture, to be appointed by the governor, hy and with the consent of the senate, and such commissioner. shall bold of- fice for a term of four years or until his successor is appointed and quali- fied. "3557. Before entering upon the duties of his office, the commissioner of agriculture shall take and sub- scrihe the constitutional oath of of- fice. and shall give a surety company boutl in' the sum of five thousand dol- lars, conditioned for the faithful per- formance of his duties, the cost of said bond to he paid by the state. The eommissioner shall receive an annual salary of five thousand dollars, pay- ahle in the same manner as the sal- aries of other state officers, .... *." Under the constitutional provision and the statute in pursuance thereof. eited aho,-e, Stafford had the right, apart altogether from other considera- tions, if any, to hold the office of Oom- missioner of Agriculture until Febru- a 1'.1' 2, 1934, (Whether he had the right to hold it thereafter on any valid I-(round or grounds is now before the district court and is a matter exclusive- ly for its determination.) and havinl-( discharged the duties of the office to that date he is entitled to receive the emoluments thereof for the month of January, 1934. (State ex reI. Sandquist Y. Hogers, 93 Mont. 355; 46 O .. T. 1016) unless some extraneous circumstances stand in the way. Therefore, it is our opinion that yon may lawfnlly draw and deliver to Mr. Stafford a warrant in payment of his l-ialary for the Month of January.