Montana Attorney General Opinion 16-350

Opinion No. 350. Elections-Candidates-Nominations, Defeated Candidate Not Nominee In Another County. A candidate filed for office of coun- ty attorney on the republican ticket in Custer County and was not nomi- nated; but his name was written in and he received the highest number of votes for County Attorney on the democratic ticket in Powder River County at the same election. HELD: Under Section 651, R. C. M. 1935, his name may not be printed on the ballot as democratic candidate for County Attorney of Powder River County. September 11, 1936. Mr. R. D. McCurdy Clerk and Recorder Broadus, Montana This will acknowledge receipt of your letter of September 8, and while it is not usual for this office to render official opinions to county officers other than the county attorney and the board of county commiSSioners, because of the nature of your inquiry we make an exception in this in- stance. According to the information you submit, at the last primary election a person who filed his petition for nomination for the office of county attorney in Custer County, on the Republican ticket, failed to receive the nomination in said county but, at the same election in Powder River County, his name was written in by thirteen electors on the Democratic ticket for the office of county at- torney of said Powder River County. You ask us to advise you if you should cause his name to be printed as the nominee on the Democratic ticket for the office of county attor- ney in Powder River County at the general election next November. You also state that the Republican nomi- nee for this office is the incumbent county attorney, and, under such cir- cumstances he dislikes to give you an opinion on this particular question. Section 651, R. C. M. 1935, provides inter alia: "that in the event a candi- date whose name has been printed up- on the party ticket for which his nomination petition shall have been first filed shall fail of nomination up- on the ticket upon which his name is so printed, his name shall not be printed upon any ballot under any party designation." We think that under the plain, un- ambiguous and comprehensive lan- guage used in the above quotation that the name of the party referred to should not be printed on the Demo- cratic ticket. As was said by our Supreme Court in the case of Clark v. Olson, 96 Mont. 417, 431, 31 Pac. (2d) 283: "The in- tention of any legislation must be in- ferred in the first place from the plain meaning of the words used. If this intention can Le so arrived at, the courts may not go further and apply other means of interpretation. (State v. Cudahy Packing Co., 33 Mont. 179, 82 Pac. 833, 144 Am. St. Rep. 804, 8 Ann. Cas. 717; State ex reI. Rankin v. Wibaux County Bank, 85 Mont. 532, 281 Pac. 341; Great Northern Utilities Co. v. Public Service Com- miSSion, 88 Mont. 180, 293 Pac. 294.) 'If the legislature did not intend that the courts should accept and act up- OPINIONS OF THE ATTORNEY GENERAL 347 on this statute as it is written, then the legislature, and not the courts, should amend the Act and make it clearly express the legislative will'. (Johnson v. Butte & Superior Copper Co., 41 Mont. 158, 108 Pac. 1057, 1061, 48 L. R. A (n.s.) 938.) In the con- struction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in sub- stance contained therein, not to in- sert what has been omitted or to omit what has been inserted. (Section 10519, Revised Codes 1921.) 'Our duty is not to enact, but to expound, the law, not to legislate, but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the state government. (Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N. W. 1013, L. R. A. 1918E, 552.)' (Chmielewska v. Butte & Superior Min. Co., 81 Mont. 36, 261 Pac. 616, 617.)"