Gullickson v. Mitchell , 113 Mont. 359 ( 1942 )

I dissent. I approach consideration of the validity of Chapter 47 of the 1941 Session Laws in full accord with the rule applied in a long line of cases by this court to the effect that in construing a statute every doubt should be resolved in favor of its validity.

In my opinion Chapter 47 conflicts with express provisions of the Constitution in some particulars and with the tenor and spirit of that instrument in a number of others as follows:

1. It attempts to create a state office and vest in the incumbent by legislative Act power to perform the duties imposed exclusively upon a constitutional officer.

2. It attempts to create an office, the incumbent of which is charged with all of the duties and vested with all of the powers of an officer created by the Constitution, but who by reason of holding under a legislative Act is not liable to impeachment under section 17 of Article V of the Constitution, nor may such an official be otherwise removed from office.

3. It exalts the military at the expense of the civil power contrary to the provisions of section 22 of Article III, which commands that the military shall always be in strict subordination to the civil power.

4. It is not an Act in the interest of the general welfare of all the people of the state, but solely in the interest of a handful of office-holders who may desire to serve in the military forces of the United States in preference to continuing in the civil office of the state to which they have been elected. The Act is also open to attack as class legislation.

5. It violates the spirit and tenor of our laws, both constitutional and statutory, in inviting an invasion of the reserved rights of the state guaranteed by the Tenth Amendment to the Constitution of the United States.

6. It violates section 1 of Article VII by granting a state constitutional officer a furlough, authorizing him to be absent from the seat of government for an indefinite period for purposes not relating to the duties of his office. The provisions of that section requiring all officers of the executive department to reside at the seat of government, mean actual not legal residence at the place where the officer is required to perform his official duties. The provisions of the Constitution are mandatory and prohibitory. (Article III, Sec. 29.) In recognition of that rule, the conclusion cannot be avoided that the requirement that state officials shall reside at the seat of government is a command or mandatory provision. The meaning of "residence" as used in that section has no relation to the use of that word when it is used in a law having reference to one's voting place, or where one shall be taxed under certain revenue laws. Requirement of residence at the seat of government is essential to the efficient performance of official duties.

7. It violates section 4 of Article VII, which prohibits state constitutional officers from holding any other public office.

8. It assumes to create acting officers vested with constitutional powers but who are not required to seek or receive the approval of the electorate and with the right to hold beyond the next election. A legislative Act authorizing an appointment for a term longer than that contemplated by the Constitution is ineffective. (State ex rel. Patterson v. Lentz, 50 Mont. 322,146 P. 932.)

Taking up the majority opinion it is therein said that "the defendant has not cited any constitutional provision, and we have found none, which forbids the enactment of statutes providing for the suspension of officers and temporary appointments effective during such suspension."

It clearly appears that the majority have not carefully analyzed sections 17 and 18 of Article V of our Constitution. Section 17 enumerates certain state constitutional officers, including the attorney general, who are liable to impeachment. In State exrel. Working v. Mayor, 43 Mont. 61, 114 P. 777, this court said that the Governor and other state and judicial officers can be removed only by impeachment and further said that the constitutional provision is exclusive. The only constitutional power to suspend any of the officers enumerated in section 17 of Article V is found in section 20 of Article VII, which provides that the legislature may by law empower the Governor to temporarily suspend the state treasurer when the state board of examiners deem such action necessary to protect the moneys of the state. Section 18 of Article V provides that "all officers not liable to impeachment shall be subject to removal * * * in such manner as may be provided by law."

In State ex rel. Payne v. District Court, 53 Mont. 350,165 P. 294, 296, the line of distinction between constitutional and legislative officers as to supervision and control by legislative power is clearly drawn. It was there said: "Section 17, Art. V, of the Constitution, provides for the removal of certain officers by impeachment, and section 18 of the same Article declares that officers not liable to impeachment are subject to removal * * * in such manner as may be provided by law. Recalling that our Constitution is a limitation and not a grant of power, it will be seen at once that the provisions of section 18, above, added nothing to the power which the Legislature would have had in the absence of such provisions. In other words, the Legislature was left entirely free to enact such statutes as it might see fit providing for the removal of officers other than those enumerated in section 17."

These constitutional provisions and court decisions summarized clearly appear to me to impel these conclusions: None of the constitutional officers mentioned in section 17, Article V, except the state treasurer, may be suspended under any constitutional provision, and the suspension of the treasurer can be done only in the precautious manner therein prescribed, and none of the officers mentioned in the section can be removedfrom office except by impeachment, while all others, including county, municipal and school district officers, are subject to removal "in such manner as may be provided by law." This means that the legislature may by appropriate legislation provide for the removal of all officers except those mentioned in section 17 of Article V. How then can it be said that no constitutional provision can be found that "forbids the enactment of statutes providing for the suspension of officers and temporary appointments"? Was it not the obvious intent of the framers of the Constitution when they drafted sections 17 and 18 of Article V, to say to the legislature: "We, in framing the Constitution, will leave you free to exercise your inherent power and suspend or remove in such manner as you shall provide by law any and all officers except such as we shall mention in section 17 of Article V, but as to those officers you shall provide for the suspension of none except the state treasurer and him only as provided by section 20 of Article VII. And the officers enumerated in section 17, including the state treasurer, may be removed from office only by impeachment for cause?" Section 11684, Revised Codes, relative to all officers subject to impeachment, being suspended during trial, will be adverted to later.

It appears that in order to bring Chapter 47 within the bounds of the Constitution it was found necessary to discover an ambiguity in section 7 of Article VII of the Constitution. Let us see of what that ambiguity consists. That Article is in these words: "The governor shall nominate, and by and with the consent of the senate, appoint all officers whose offices are established by this Constitution, or which may be created by law, and whose appointment or election is not otherwise provided for. If during a recess of the senate a vacancy occur in any such office, the governor shall appoint some fit person to discharge the duties thereof until the next meeting of the senate, when he shall nominate some person to fill such office. If the office of secretary of state, state auditor, state treasurer, attorney-general or superintendent of public instruction shall be vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, and the appointee shall hold his office until his successor shall be elected and qualified."

It will be noted that the last sentence provides that if a vacancy occurs "by death, resignation or otherwise" in any one of the offices mentioned, the Governor shall appoint some person to fill the vacancy. The ambiguity was discovered in the phrase "or otherwise." The majority concede that if the vacancy occur by death or resignation the Governor shall appoint, but if the vacancy occur from any other cause, that is under the "or otherwise" clause, then the Governor has not the power to appoint to fill the vacancy but the legislature shall provide how the vacancy shall be filled. I think this is a strained, absurd and illogical construction of the "or otherwise" clause.

I desire to call particular attention to the wording of the majority on this point and to that end repeat it here: "Article VII, section 7 of the Constitution provides for appointment by the Governor to fill certain state offices, including that of the attorney general, if the office `shall be vacated by death, resignation or otherwise;' but the Constitution does not define nor specify how offices are vacated otherwise than by death or resignation, and therefore necessarily leaves the matter for definition by the legislative power."

It is a fundamental rule of statutory construction that rules of construction shall not be resorted to unless the matter under consideration is ambiguous. This rule applies to construction of constitutional provisions as well as to construction of statutes. (State ex rel. Gleason v. Stewart, 57 Mont. 397,188 P. 904; State ex rel. Du Fresne v. Leslie, 100 Mont. 449,50 P.2d 959, 101 A.L.R. 1329.) In my judgment there is not the slightest ground for the assumption that there is an ambiguity in the provisions quoted above from Article VII, section 7. The meaning of that section is as clear and precise as it is possible to fit words of the English language together to express the intention of such men as the framers of our Constitution. They expressly provide that the Governor shall fill vacancies caused by death or resignation, and then employed the blanket phrase "or otherwise" to provide for the filling of vacancies from any other cause in addition to the two causes expressly mentioned. To say that the framers of the Constitution intended that only vacancies occurring by death or resignation should be filled by appointment by the executive, but that when a vacancy occurs under the "or otherwise" clause the legislature should provide by law how that sort of vacancy should be filled, is a construction not supported by any established rule of statutory construction that I can discover. One naturally wonders why the framers of the Constitution did not merely delete the much abused phrase "or otherwise" and make the constitutional provision so specific that it would not be necessary for the modern jurists to tax their grammatical learning to the steenth degree to discover the hidden meaning of the untutored minds of those who drafted the provisions of our basic law. It seems to me that all that is necessary to convince one of the erroneous constructions placed upon the "or otherwise" clause of section 7, Article VII, is to place the majority opinion side by side with that provision of the Constitution, and note the clear and forceful wording of which the Constitutional provision is composed, as compared with the labored and illogical words of the majority. It would have been competent for the legislature to provide by law for filling vacancies that occurred for any cause other than death or resignation if section 7 of Article VII had provided only for the filling of vacancies from those two causes, but not otherwise.

Relative to the reference to the provisions of sections 414 and 511, Revised Codes, the right of the legislature to repeal or amend any statute cannot be questioned as a general proposition, but when any statutes, such as the two here mentioned, merely amplify some constitutional provision, care must be taken when amending or modifying such statutes to see that the new Act does not infringe upon the Constitution. The statutory provision limiting the absence from the state of certain officers to sixty days was obviously enacted to give effect to section 1 of Article VII, which requires certain state officials, including the attorney general, to maintain their residences at the seat of government. It should be obvious to everyone that this requirement is essential to the proper discharge of the duties of the several officials, and that the word "residence" as used in that instance is not susceptible to the ordinary meaning of the word but was a restriction upon the place of abode of those to whom it was intended to apply.

Citation of authorities on the power of legislative bodies to provide for the suspension of public officials shows a clear misapprehension of the question before this court. No constitutional provision, no statute or court decision from any jurisdiction was cited relating to suspension from office except as an act preliminary to an investigation looking to removal of the incumbent for some delinquency in official duty. The question before this court concerns the power of the legislature to provide a way for a constitutional officer voluntarily to suspend himself by his own act, with the right to retain a hold upon the office in the event he shall desire to reassume the duties imposed by the office he abandons, and not to suspension as mentioned in Article VII, section 20. Chapter 47 is outside the realm of legislative history in so far as suspension from office is concerned, and the only precedents that may be found are such as are found in the majority opinion. The only authority on suspension that can be found in our Constitution and statutes is in sections 17 and 18 of Article V, section 20 of Article VII of the Constitution, and section 11684, Revised Codes, none of which deal with suspension for the purpose of permitting some ambitious politician to enjoy the honor and emoluments of one office while retaining his hold on another. Suspension in all cases cited by the majority were suspensions made in the interest of the public good. The provision in section 11684, Revised Codes, relating to suspension and the kind of suspension provided for in Chapter 47, have no similarity in either purpose or effect. The nondescript suspension provided for by Chapter 47 is purely in the interest of a particular class of office holders. Of course, if an official be suspended for suspected malfeasance or misfeasance in office, as provided by section 11684, Revised Codes, and found to be innocent, it would be a very unjust law that would deny him the right of restoration. Suspension as provided in section 11684 is an essential regulation to assure integrity in administration pending determination of charges brought against any public official.

On the question of vacancy, I think it may be admitted that the legislature may, under the "or otherwise" provision of section 7 of Article VII of the Constitution, enumerate other grounds than death and resignation that would constitute vacancies in state offices, such as impeachment, insanity, change of residence, or acceptance of an incompatible office, but I most emphatically do not agree with the contention that the legislature may say, as it has in Chapter 47, that there is no vacancy when in fact there is a vacancy. Legislative fiat cannot change the existence of an obvious fact. Mr. Bonner has abandoned the office of attorney general; he no longer discharges the duties imposed upon that office; he has accepted an office under another power in violation of a provision of the Constitution of Montana. Black is black and white is white, and arguments to the contrary are merely dogmatic assertions unsustained by any authority.

The contention that a military office is not a public office is not sustained by the authorities. To the contrary are many cases, such as People ex rel. Ward v. Drake, 43 A.D. 325,60 N.Y. Supp. 309; Fekete v. City of East St. Louis,315 Ill. 58, 145 N.E. 692, 40 A.L.R. 650; Kennedy v. Cook,285 Ky. 9, 146 S.W.2d 56, 132 A.L.R. 251; Perkins v. Manning, Ariz., 122 P.2d 857. In the case of Kennedy v. Cook, supra, the defendant was permitted to retain his state office as "Circuit Clerk of Wayne County" while serving temporarily with his national guard company in the United States forces but on the ground that he was commissioned by the Governor of Kentucky and held no commission from the federal government.

The fact that other states have adopted statutes similar to Chapter 47 is of no moment to the argument, in the absence of any showing that such other states have constitutional provisions pertinent to the question like or substantially similar to ours.

Much was said in the oral argument about the grave emergency confronting our national government. On a similar occasion this court said in State ex rel. Campbell v. Stewart, 54 Mont. 504,171 P. 755, 756, Ann. Cas. 1918D, 1101: "We likewise wish to disclaim any view that the Constitution of this state is in abeyance because the nation is at war, or that the Constitution is inadequate to serve the state at such time, or that the exigency justifies or has called forth any canon of construction not applicable in a season of `profoundest peace.' Whatever is legally done by any public agency at any time must be done either with the sanction or without the inhibition of the Constitution; for, like the national charter, it `is a law for rulers and people, equally in war and peace, and * * * no doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended, without its authority for any reason. (In re McDonald, 49 Mont. 454,143 P. 947, L.R.A. 1915B, 988, Ann. Cas. 1916A, 1166; Ex parteMilligan, 4 Wall. 2, 18 L. Ed. 281.)"

It was contended in the oral argument with much earnestness that a state official, who was also a reserve officer in the military forces of the United States, when called into active service has no choice in the matter but must respond to the call. Section 305 of the appendix to Title 50 U.S.C.A., relating to the question, is not entirely clear but in my judgment exempts state officials from military service. No doubt any state official when called for military service would have to make his choice between his state office and service in the United States forces, but that he has a right to make such a choice I have not the slightest doubt. When the law on the subject is not clear, and the mode of procedure by which a state official may be relieved from military service under the United States government is not specific, it will not be presumed that the Congress intended by any legislative Act to invade the sovereign rights of the states reserved to them by the Tenth Amendment to the Constitution of the United States. If it be conceded that the federal government may reach into the state and take by law the state's attorney general, and compel him to serve in the military forces of the United States against his will, such concession would be equivalent to the further admission that the states have no rights under the Tenth Amendment that the federal government is bound to observe. Any state official of course may resign his state office and enter the military service of the United States, but peremptorily to order a state official into the military service is a clear invasion of the reserved powers of the state.

For the reasons stated, Chapter 47 is in conflict with our Constitution and should be declared void.