I dissent. The accused is charged with the violation of section 10786, Revised Codes. This section is a part of Chapter 6 of the Penal Code — the Corrupt Practices Act. The Act was initiated and became a law by direct vote of the people at the general election of 1912. At the same election another initiated measure became a law — the Direct Primary Law, Chapter 65 of the Political Code. These two initiated measures were clearly intended to purify elections.
Prior to the initiation and approval of the Primary Election Law the old convention system was in vogue in this state. Sections *Page 557 10784, 10785 and 10786, Revised Codes, as parts of the Corrupt Practices Act are in pari materia and must be read and construed together. They provide as follows:
Section 10784: "No person shall, in order to aid or promote his nomination or election, directly or indirectly, himself or through any other person, promise to appoint another person, or promise to secure or aid in securing the appointment, nomination, or election of another person to any public or private position or employment, or to any position of honor, trust, or emolument, except that he may publicly announce or define what is his choice or purpose in relation to any election in which he may be called to take part, if elected, and if he is a candidate for nomination or election as a member of the legislative assembly, he may pledge himself to vote for the people's choice for United States senator, or state what his action will be on such vote."
Section 10785: "No holder of a public position or office, other than an office filled by the voters, shall pay or contribute to aid or promote the nomination or election of any other person to public office. No person shall invite, demand, or accept payment or contribution from such holder of a public position or office for campaign purposes."
Section 10786: "No holder of a public position, other than an office filled by the voters, shall be a delegate to a convention for the election district that elects the officer or board under whom he directly or indirectly holds such position, nor shall he be a member of a political committee for such district."
When the last mentioned section was drafted it appears as clear as the noonday sun that the authors of the chapter were desirous of placing on the statute books a law that would prohibit a candidate for office, such as a candidate for re-election as Governor, or a group of candidates who, if re-elected, would have the power to appoint political associates and assistants to office.
This group of sections was intended to prevent any candidate or group of candidates for re-election from packing nominating conventions with appointees and perpetuating themselves in *Page 558 office. That is all the Act means so far as these sections are concerned. The old convention system has been superseded by the direct primary, and section 10786 is a dead letter. True, the Corrupt Practices Act in which the section is found and the Direct Primary Measure became laws at the same time, and it might be argued that one does not violate any provision of the other. The answer to that argument is that being initiated, measured and obviously championed by much the same group, the movants in the matter could not be assured that both measures would be approved, and in the event the primary election measure did not carry at the election, the Corrupt Practices Act would bring part of the reform sought.
In the instant case the accused is an appointee of the present Governor of Montana; under the old convention system candidates for Governor were selected by a convention made up of delegates frequently chosen at the instance of candidates for state office acting through local committeemen. Under such conditions section 10786 might apply if its ambiguities could be eliminated; but now that Governors and other state officers are nominated by the direct vote of the people, the reason for the section no longer exists, and "when the reason of a rule ceases, so should the rule itself." (Sec. 8739, Rev. Codes.)
Section 10786 is ambiguous in that it provides that persons holding public positions shall not be delegates to "a convention for the election district that elects the officer or board under whom he directly or indirectly holds * * *." The accused does not hold his office under any such officer or board as the section refers to, nor does he represent any district as a county or state committeeman.
There is no precedent, and, in my opinion, no authority in law that justifies the exercise of this court's supervisory powers in the instant case. Being convinced that the allegations of the petition, if true, would not constitute an offense under any of the provisions of the statutes cited, the only affirmative action, if any, that we would be justified in taking would be to direct that the proceeding be dismissed. *Page 559