Montana Attorney General Opinion 15-628

Opinion No. 628 Elections-Var-ancy-County Commis- sioners-Appointee, Tel'lll of Office -County ,Central Committee. HELD: 1. The term of a COUllt~· ('ommissioner. apPOinted to fill a ya- cancy, expires at the time of the next election and a per~on duly elected may qualify and serve the remainder of the term. 2. When one person receh'es the hi~hest number of votes cast for a cer- tain office on a certain ticket at a primary election such person is nomi- nated, and if he fails to accept the nomination his action constitntes a "a- caney which may he filled by the county central committee. October 10, 1\)34. You advise that II county commis- sioner has heen appointed amI that it is your opinion that a commissioner should be elected to fill his term from the date of the election until the first Monllay of next .January. 'Ve agree with yonr conclusion. The Constitntion of the Sta te of Mon- tana. Article XVI. Section 4. as amenll- ed b~' Laws of 11)2\), l)llge 497. provides : '."rhen a \'acanc~' occurs in the Board of County Commissioners the .Judge or .Iudges of the .Iudicial District in which the vacanc~' occurs, shall ap- point someone residing in such Com- miSSioner Districts where the "acallc~' occurs, to fill the office until the next ~eneral election when a Commissioner shall be elected to fill the unexpired term." Therefore, the term of the ap- pointed commissioner expires at the time of the general election amI a per- son duly elected for that short period of about two moriths may qualify and serve in such office. '.rhe second question propounded by you is as follows: 'V here the names of candidatcs were written in on the pri- 432 OPIXIONS OF THE ATTORNEY GENERAL mary ballot as candidates for county commissioner for this short term and one of such persons receh'ed the high- est number of \'otes and failed to qualify as a nominee, does a vacancy exist which may he filled by the polit- ical party county central committee? Prior to 192!) this situation was gov- erned by Sections 620, 621. 647 and 662, H. C. M., 1921. The earlier cases, such as Stackpole Y. Hallahan, 16 Mont. 40, held that vacancies could be filled b~' the parties "ithout a technical in'- terpretation of what. constituted a va- cancy. Sections 647 and 002, supra, formerly permitted county committees to fill yacancies caused by death or remoYlll from the electoral districts. but not otherwise. By Chapter 34 of the Session Laws of 192!), and again by Chapter 6 of the Session Laws of 1933, Section 662. supra, was amended so that committees were authorized to fill vacancies among candidates ;;where such yacancy is caused by death or removal from the electoral district or otherwise." The rule is established in this State that a county central committee can- not make an original nomination. (State ex reI. Smith Y. Duncan, 55 ~Iont. 376.) 'Vhen the legislature changed the law in 1929 and in 1933 to permit the filling of vacancies in party tickets by party committees, which vacancies were caused not. only by death or resigna- tion by reason of removal from the clectoral district but. as in those laws provided, "or otherwise," it appears to me that the legislature intended to CO\'er a case where the person receh'- ing the highest number of votes failed to accept the nomination, and that the question of a vacancy in the nomina- tion is not dependent upon the ques- tion of whether or not, prior to the election, he had filed as a nominee. In the famous case of ~farbury v. ~Iadison, 1 Cranch at page 161, ~fr. Chief .Justice Marshall said: "The ap- pOintment is the sole act of the Presi- den t; the acceptance is the sole act of the officer and, in plain common sense, posterior to the appointment." In an opinion written by Mr. Chief .Justice Brantly, speaking for the Court, it is said: ;;Giving to Section 3234, supra, the force and effect which the legislature e\'idently intended it should have, we think it should be construed to mean that the failure of a person elected or appointed to an office to qualify within the time prescribed cre- ates a vacancy in the office which may he filled by the appointing power." (Sta te ex reI. Bennetts Y. Duncan, 47 Mont. 447.) The quotation is approved in the case of State ex reI. \Vallace v. Callow, 78 ~Iont. 308, at page 327. Section 640. R. C. 1\1., 1921, as amend- ed by Cha ptei' 125 of the Session Laws of 1927, expressly pro\'ides that a per- son may be nominated by hfl\'ing his name written in on the primary ballot. In order to accept such nomination he must pay the filing fee and file a written acceptance of the nomination within ten days. From this sta tute it is plain that the nomination is com- plete when he receives the highest num- ber of votes and that his acceptancc is not a part of the nomination .. The authority of political committees to fill vacancies under these conditions is Hllid. (Stnte ex reI. Sayer Y .• Junkin. 128 N. W. 630.) This office has pre\'iously held that II cnndidate who has filed for a nomi- nation and hns been nominated cannot resign nnd thereby crente n vacancy, this by reason of the fact thnt he ngrees wben he files that he will not resign. (Opinion No. 610, this volume.) I would conclude thnt, when one per- son receives the highest number of \'otes cast for a certain office on a certain ticket nt a primary election, such person is llominnted and that, if he fails to accept such nomination, such nction constitutes a "acnncy which may be filled by the county central cOlllllli ttee.