Montana Attorney General Opinion 16-368

Opinion No. 368. County Assessor-Vacancies-County Commissioners, Duties Of. HELD: Where the County Asses- sor was holding office by appoint- ment before the general election and no special election was called to fill the vacancy, a second vacancy exists after the general election and it is the duty of the county commissioners to fill that vacancy by appointment for the remainder of the term. Mr. G. R. Taylor Terry, Montana November 12, 1936. We are in receipt of your letter of November 7, in which you advise that you have been elected county asses- sor; that the present county assessor is holding office by appointment; that the county attorney is absent from the state. You inquire whether you are entitled to immediately take possession of your office, or whether a vacancy now exists which the coun- ty commissioners shall fill until the first Monday in January. The law upon this subject is to be found in the case of State ex reI. Rowe v. Kehoe, 49 Mont. 582, which interprets Section 5 of Article XVI, of the Constitution. From such 0pin- ion it would appear that an election might have been called to fill the un- expired term from the date of elec- tion to the first Monday in January, 1937. Apparently that has not been done. Referring to the case in ques- tion, we would quote as follows: "Ac- cordingly, since the convention de- clared that one appointed to fill a vacancy in a county office shall hold office until the next general election, it is our duty to so declare. It was, therefore, out of the power of the legislature to ignore the provision in question and provide that appointees to fill vacancies should hold for the remainder of the regular term. * * *" (page 589.) Further in the opinion we find the following: "* * * It may happen that if the officers vested with the au- thority to order and give notice of an election, fail in their duty, a second vacancy will arise upon the occurrence of the election. '" '" *" (page 589.) Therefore, a vacancy now exists in the office of county assessor in your county. "* * * Upon the happening of any of these contingencies it would be the manifest duty of the board of commissioners to fill the vacancy. * " *." (page 590.) Therefore, it is the duty of the county commissioners of your county to fill the vacancy in the office by appointment until the first Monday of January, 1937. In the meantime, the present coun- ty assessor will continue to hold of- fice until such vDcancy is so filled by new appointment.