State Ex Rel. Niewoehner v. Bottomly

MR. JUSTICE ANDERSON delivered the opinion of the court. This is a proceeding in quo warranto to determine the right to the office of Attorney General. Respondent holds the office by appointment made by the Governor under Chapter 47, Laws of 1941, a war emergency measure. Relator claims the office by election, having received all the votes cast for Attorney General at the general election in 1942. Judgment in the lower court was for respondent and the relator has appealed. The office of Attorney General is provided for in the State Constitution, to be filled by election for a term of four years. Also, the Constitution, Article VII, section 7, provides that if the office is “vacated by death, resignation or otherwise, it shall be the duty of the governor to fill the same by appointment, *98 and the appointee shall hold his office until his successor shall be elected and qualified.” At the general election held on November 5, 1940, John W. Bonner was elected to the office of Attorney General for the regular four-year term to commence on the first Monday of January, 1941. Bonner duly qualified and on the first year of said term took office and entered upon the discharge of the duties thereof. Prior to his election, Bonner was a member of the Officers Reserve Corps, and on April 20, 1942, he was ordered to report in ten days at Washington, D. C., for active military service. Bonner immediately gave written notice to the Governor of the orders which he had received, and thereupon the Governor, acting under the authority of Chapter 47, supra, appointed Howard M. Gullickson to function as Attorney General during Bonner’s absence in active military service. Howard M. Gullickson accepted the appointment, qualified for and took office on May 1, 1942. On June 6, 1942, this court decided the case of Gullickson v. Mitchell, 113 Mont. 359, 126 Pac. (2d) 1106, wherein the relator George Niewoehner appeared as amicus curiae, submitted an original and a supplemental brief and argued the cause orally. The case was decided contrary to Niewoehner’s contentions, and we held that the induction of Bonner into the active military service of the United States did not vacate the office of Attorney General. Four days after the above case was decided, to-wit: On June 10, 1942, the relator herein, George Niewoehner, attempted to have his name placed upon the ballots for nomination to the office of Attorney General and in that connection he tendered to the Secretary of State of the state of Montana a nominating petition for such office together with the statutory filing fee, contending that the appointee Howard M. Gullickson could not hold the office past the 1942 general election unless chosen by the people at such election. The Secretary of State declined to accept or file Niewoehner’s nominating petition and refused the tendered filing fee. There *99 upon Niewoehner, on June 12, 1942, filed in this court a petition seeking a writ of mandate to compel the Secretary of State to accept his nominating petition and to place his name on the ballots as candidate for the office of Attorney General at the 1942 primary election. (See State ex rel. Niewoehner v. Mitchell, 113 Mont. 617, 139 Pac. (2d) 545.) The matter was presented to, and argued before, this court on June 13, 1942, and thereafter, and on June 16, 1942, the petition for the writ of mandate was denied. On June 18, 1942, the relator Niewoehner filed in this court in said cause a petition for rehearing, which petition this court on June 19, 1942, ordered stricken from the files. Howard M. Gullickson discharged the duties of the office of Attorney General continuously from May 1, 1942, to August 3, 1942, on which latter date he too entered into the active military service of the United States. Thereupon the Governor appointed the respondent R. V. Bottomly to function as Attorney General during Bonner’s continued absence on active military duty. On August 3, 1942, R. V. Bottomly accepted the appointment, qualified for the office and has since continuously discharged the duties of the office of Attorney General. The printed official ballots used in connection with the general election held on November 3, 1942, contained no nominees for the office of Attorney General nor was any provision made on such ballots for voting for an Attorney General. No election proclamation had been issued in connection with the filling of such office. Notwithstanding, the relator Niewoehner in the present action represents that at such general election held on November 3, 1942, he received 124 votes for the office of Attorney General, they being the only votes cast for that office, and that such votes were all by writing in relator’s name for such office on the ballots used at such election. By reason of the foregoing, the relator George Niewoehner claims that he was elected and that his right to the office is superior to that of the Governor’s appointee, R. V. Bottomly. As before stated, Bonner was elected to the office of Attorney *100 General of this state for a full four-year term commencing with the first Monday of January, 1941, and to end with the first Monday of January, 1945. The United States called him into active military service on May 1, 1942, in connection with the present war emergency and be has since continued in such active military service. In the Gullickson case, supra, we held that such active military service did not vacate the office of Attorney General and in line with such bolding the court denied the petition of the relator Niewoehner for a writ of mandate in Cause No. 8340 herein. The Gullickson decision still stands. Hence in the instant action the district court correctly found the issues in favor of the respondent R. V. Bottomly and against the relator George Niewoehner and we so hold. It is of interest to note that the Gullickson Case bas been referred to approvingly in a number of other jurisdictions, as in the following cases: People v. Sischo, Cal. Sup., 144 Pac. (2d) 785; Critchlow v. Monson, 102 Utah 378, 131 Pac. (2d) 794; State v. Wysong, W. Va., 24 S. E. (2d) 463; Baker v. Dixon, 295 Ky. 279, 174 S. W. (2d) 410. In all this series of litigation, the uppermost question bas been whether a special election would need to be beld or whether tbe office could be taken care of by appointment as Chapter 47 provides. Tbe adjudications already made have settled that question, sustaining tbe law as constitutionally sound and workable. Upon tbe basis thereof tbe office of Attorney General bas been, and is being, carried on. A contrary ruling now woidd unsettle all that bas been done except as it might be considered valid as de facto government. As tbe question is now raised, it reaches into tbe whole arrangement adopted under that decision for tbe functioning of tbe office during Bonner’s absence. Tbe rule as therein announced must be beld to control in tbe instant case if tbe law is to serve the purpose intended. Appointments of persons to act during tbe absence of tbe regular incumbents in tbe military service have been made, not only in that case but in many others involving various offices throughout tbe state, in conformity witb that decision. It bas been *101 accepted as the law by the various governmental offices, departments and employees, as well as by the people of the state generally. Relator reiterates his contention as in his earlier cases that an appointment, regardless of its relation to the rights of the regularly elected incumbent, cannot extend beyond the time of a general election; that the people then must have the right to select one for the temporary functioning of the office. The Bottomly appointment, it is contended, could therefore not extend beyond the time of the general election in 1942. The purpose of the law is to make provision for the full functioning of the office without an election during the absence of the regular incumbent while in military service, and so that his right to the office will be preserved and that he may resume it upon his return. Under Chapter 47 it is the duty of the Governor to keep the office filled by appointment during such absence. If one so appointed does not accept, the Governor must appoint another. If an appointee leaves the office, it again becomes the duty of the Governor to make an appointment. Only in that way will the functions of the office be performed without interruption and without loss of the office to the regular incumbent as the law intends. Gullickson’s entry into the military service left the office in the same situation as at the time of his appointment. To carry out the purpose of the law, it then became obligatory for the Governor to select another. A number of law questions have been raised by counsel which, under our view of the case as already expressed, it is not necessary to discuss. Bottomly holds the office by right of appointment made according to law. There was no election to the office to be made in 1942, and the votes cast for the relator at the general election that year did not result in an election. The relator is therefore without right to claim the office. The judgment of the lower court dismissing his petition is affirmed. Mr. Chief Justice Johnson concurs.