Montana Attorney General Opinion 15-626

Opinion No. 626 Elections-Vacancies-DistIict Judge -Com-ts-CeI1ificates of Nomi- nation-Ballots. HELD: The names of candidates to fill vacancy in the office of district judge at a special election held at the time of the general election should be printed on a special ballot and not on the general ballot. Certificates of nomination to fill va- cancies may be filed at any time, and are not restricted by Section 618, R C. :M., 1921, as amended by Chapter 04, La ws of 1925. October 10, 1934. You have submitted the question whether the names of candidates for District Judge to fill a yucancy shall be printed on the general ballot or on a special ballot. This question came before former Attorney General Foot who held, in the case of a county commissioner where the special election was held at the time of the general election, that the names of the candidates should be printed upon separate ballots. (Vol. 12, Opinions of the Attorney General, p. 363.) Section 618, It C. ~1., IH21. as amend- ed by Chapter 64, Laws of 1925, pro- \'ides for the time of filing certificates of nomina tion with the secretary of state, the county clerks and the clerks of municipal corporations. This sec- tion, however, specificall.," provides: ·'But the proYisions of this section shall not be held to apply to nomin- tions for speCial elections to fill vacan- cies." ~o doubt the reason for this ex- ception was to give the people the op- portunity and pri ,·ilege of choosing their public officers whenever it is pos- sillie to do so, so that if a vacancy occurred within the thirty day period before which· certificates of nomination in other cases must be filed with the secretary of state or county clerk, the people would not be deprived of the right to select their public officials. It was said by the late and dis- tinguished Mr. Chief Justice Brantley, in State ex reI. Patterson y. Lentz, 50 )font. 322, 339; 146 Pac. 932: '·The gen- eral policy of our government as indi- cated by these provisions is that elec- tion to office by the people, when it may be conveniently done, is the gen- eral rule, and that apPOintments to fill vacancies made to meet the require- ments of public business shall be ef- fective only until the people may act." The Court cited State ex reI. McGowan ". Sedgwick, 46 Mont. 187, 127 Pac. 94. In that case Mr, .Justice Holloway, speaking for the Court, quoted with approval the language used in Rice v. Stevens, 25 Kans. 302: "The theory of our law is, that officers shall be elected whenever it can be conveniently done; OPIXIQXS OF TI-m ATTORXEY GEXERAL 431 and that appointments to office will be tolerate(] only in exceptional cases." This policy of the law was no (]oubt in the minds of the legislators when they enacte(] Section 618, as amended, containing the exception above noted. Ha\'ing in mind this specific exception. as well as the policy of the law, it is my opinion that a certificate of nomi- nation to fill a vacancy may be filed at any time, but if the candidate de- sires his name to appear upon the printed ballot it should be filed in time to permit the clerk to print it upon the ballot, which should be a special ballot. Although the election to fill a vacancy in this instance coinchles with the date of the general election, it is still a special election and the names should not al}pear upon the ballot for the genel'lll election. Moreover, since it is the policy of the law to fill Yacan- cies by election rather than by appoint- ment, candidates should have the right and privilege of having their names upon the priuted ballots. Such special ballots should be withheld from the printer by the county clerk as long as he can safely and conveniently do so. We call attention to the language of former Attorney General Foot, in the opinion above cited, with which we agree. "It is therefore my opinion that cer- tificates of nomination to fill a va- cancy where a special election is called may be filed at any time prior to the date of election, but if the candidate desires his name to appear upon the printed ballot it should be filed in time to permit the clerk to make up, print, and distribute them to the dif- ferent precincts of the county prior to the opening of the polls on election day. "It is further my opinion that. the names of the candidates should be printed upon a sepa rate ballot in the same manuel' as though the election was held at a separate time from the general election." In arridng at this conclusion I alii not unmindful of Section 619, R. C. M., 1!)21, as amended by Chapter 58, Laws of 11)25. It is my opinion, however, that this section applies to other cer- tificates of nomination and not to the exception in case of vacancy, as pro- yided in Section 618, and that, there- fore, the secretary of state should cer- tify to the county clerk of each county within which any of the electors may by In w vote for candidates. the name and description of each person nomi- nated to fill vacancies, whene\'er such certificates of nomination have been filed with him. To hohl otherwise would nulilfy the specific. exCel)tion contained in Section 618.