State Ex Rel. Kuhl v. Kaiser

This is a proceeding in mandamus to compel the issuance of certificates of election to G.E. Wilson and William Nicklas as trustees of school district No. 55 in Fallon county, a district of the third class. Its consideration involves the question as to who, of conflicting claimants, are entitled to the offices. *Page 552 The agreed facts are these: W.V. Kaiser was elected trustee for a three-year term at the school election held in the spring of 1930; A.E. Hoff was elected for the same term in the spring election of 1931; and B.J. Kuhl for the same term in the election of 1932. In the summer of 1932 Hoff resigned, and defendant John Fried was appointed to fill the vacancy. Kuhl resigned in the spring of 1933, and on March 25, 1933, defendant Weinschrott was appointed to fill the vacancy. Acting on the advice of the Attorney General, the board thus constituted caused notice of election to be posted calling for an election on the first Saturday in April, 1933, of three trustees — one for a three-year term, one for a two-year term, and one for a one-year term. Petitions were filed on March 27, 1933, nominating G.E. Wilson for the two-year term, and William Nicklas for the one-year term. On March 29 the board met and, pursuant to a second opinion of the Attorney General so advising, Fried and Weinschrott drew lots, and thus determined that Weinschrott should hold over for the two-year term, and Fried for the one-year term. Ballots were printed calling for the election of one trustee for the three-year term, and making no provision for an election for the other two trustees — all pursuant to the second opinion of the Attorney General. At the election, by the use of stickers or by writing in the names and terms, Wilson received thirty-six votes for the two-year term, and Nicklas forty-four for the one-year term, the highest vote for any opposing candidate for either office being only five. M.F. Carrington was duly elected for the three-year term, and as to him there is no controversy here. The board refused to issue certificates of election to Wilson and Nicklas on the theory that Weinschrott and Fried held over, and this proceeding, initiated by a resident taxpayer and elector, followed. On the foregoing facts the district court found for relator, and defendants appealed. The correctness of the judgment depends upon the construction to be placed upon certain statutory provisions. *Page 553 Section 997, Revised Codes 1921, provides that the term of a trustee shall be three years. Section 998 provides that a trustee appointed to fill a vacancy "shall hold office until the next annual election, at which election there shall be elected a school trustee for the unexpired term." Section 1001 declares that "when at any annual school election the terms of a majority of the trustees regularly expire in districts of the first class, three trustees, in districts of the second class, two trustees, in districts of the third class, one trustee, shall be elected for three years, and the remaining trustee or trustees whose terms expire shall hold over for one or two years as may be necessary to prevent the terms of a majority of the board of trustees expiring in any one year; provided, that it shall be determined by lot what trustees shall hold over, and for what term." The word "term" applies to the office and not to the person[1] holding it. (State ex rel. Morgan v. Knight, 76 Mont. 71,245 P. 267; and see Wilson v. Shaw, 194 Iowa, 28,188 N.W. 940.) Under the facts here the "terms" of the majority of the[2] trustees did not regularly expire at the time of the 1933 election, within the meaning of section 1001, supra. The term of but one trustee regularly expired at that time, and that was filled by the election of Carrington. The other two terms will not expire until in 1934 and 1935, respectively. In consequence it was properly held by the trial court that section 1001 has no application to the facts here presented. Section 998 controls, and under it three trustees were properly elected in 1933, one for the three-year term regularly expiring at that time, and who would hold for the three-year term ending in 1936, one for the unexpired term ending regularly in 1934, and one for the term expiring regularly in 1935. The case of Jersey v. Peacock,70 Mont. 46, 223 P. 903, is relied upon by defendants as compelling a different conclusion. That case is not controlling here, for there all three terms had regularly expired long before the election therein involved. *Page 554 Section 1001 was merely intended to adjust the terms of school[3] trustees so that a majority thereof should not expire at the same time. After this has once been accomplished in any school district, the section has no further application to such district if other statutory provisions have been complied with. The fact that this conclusion greatly restricts the application of section 1001 is no argument against such construction. The fewer the cases wherein a majority of the terms regularly expire at the same time, the more effectually is the legislative intent, expressed in section 1001, accomplished. Section 1001 reveals no plan or purpose to paralyze the people's privilege of selecting their own trustees, except only in the case where there must be an adjustment of the terms so that a majority thereof shall not expire in any one year — a situation not presented here. The court properly issued the writ of mandate prayed for, and the judgment is affirmed. MR. JUSTICE STEWART concurs.