I concur in the result reached in the foregoing opinion, but for a different reason. I do not interpret section 10807 as do my associates. When originally enacted, section 10807, so far as material here, provided: "A candidate nominated or elected to an office, and whose nomination or election thereto has been annulled and set aside for any offense mentioned in this Act, shall not, during the period fixed by law as the term of such office be elected or appointed to fill any office or vacancy in any office or position of trust, honor or emolument under the laws of the State of Montana or of any municipality therein."
In the process of codification section 10807 has had six commas added to it. It is my view that the clause "during the period fixed by law as the term of such office," since it is not followed by a comma, necessarily modifies the entire clause "be elected or appointed to fill any office or vacancy in any office or position of trust, honor or emolument under the laws of the State of Montana or of any municipality therein." In other words, during the prohibited period the things that may not be done are twofold, and there must be a union of both before the Act applies. The election or appointment is one thing, and filling, assuming or holding the office the other. In my opinion, an election or appointment may be made during the prohibited period so long as the filling of the office does not take place until after the term for which the person was removed, as here. Likewise, the filling of a position of trust may take place during the prohibited period so long as the appointment or election did not take place within the term for which the person was removed. Thus a person holding the position of notary public by an appointment made before the prohibited period would not *Page 359 lose his right to hold that position during the prohibited period.
I think that it was not contemplated by section 10807 that a person could not be elected or appointed during the period covered by the term of office for which he was removed, but only to prevent him from filling or assuming an office obtained by appointment or election during that period. I think this court properly interpreted section 10807 in the case of State ex rel.Kommers v. District Court, 109 Mont. 287, 96 P.2d 271,273, by saying: "It having been adjudicated that Palagi violated the Corrupt Practices Act in the election of 1938, he is disqualified under section 10807 from holding office by election or appointment for the period fixed by law as the term of such office." To hold otherwise would be to sustain a greater penalty when an officer is removed by an election contest, without the right of trial by jury, than if he were proceeded against by a criminal information for the same act or acts, as he might be under section 10804, and found guilty. (Sec. 10816, Rev. Codes.)
In consequence, I think the writ applied for should be granted. I express no opinion upon the other points discussed in the opinion prepared by the Chief Justice.