Section 423, Revised Codes 1921, permitting holding over at expiration of term, is unconstitutional if it is to be interpreted so as to permit a city engineer to hold over after the expiration of a two-year term and until his successor qualifies. Our Constitution directly prohibits the creation of an office by the legislature the term of which is more than two years, and it is not the Constitution which attempts to empower incumbents of office to hold beyond that period, but an Act of the legislature.
Inasmuch as our Constitution contains no provision similar to section 423, supra, permitting or directing an officer to hold over and exercise the functions of his office until his successor is appointed and qualified, but there is, on the contrary, in the very section of the Constitution to which we must look for authority for the creation of the office of city engineer, namely section 6, Article XVI, a positive and direct prohibition or inhibition preventing the legislature from creating an office the term of which "shall be prescribed by law, not in any case to exceed two years," there can be no argument that the legislature could not, by statute, create an office the term of which is longer than two years. There can likewise be no doubt but the direction such as given in *Page 357 section 423, to all officers to perform the duties of their office until their successors are elected and qualified is in direct violation of the Constitution if that section is to be interpreted as authorizing the previous incumbent to continue his term of office as a de jure officer after the expiration of two years. It is entirely possible, however, that it might be said that at the end of the two years his term as a de jure officer ceases and that, if in order to comply with the provisions of section 423, he remains in the office performing its functions after the expiration of two years, he does so as a de facto officer only. That apparently was the idea of Chief Justice Brantly in the case of State ex rel. Jones v. Foster,39 Mont. 583, 104 P. 860. (See State ex rel. Harrison v.Menaugh, 151 Ind. 260, 51 N.E. 117, 43 L.R.A. 408, 418; State v. Plasters, 74 Neb. 652, 105 N.W. 1092, 3 L.R.A. (n.s.) 887;State v. Tallman, 24 Wash. 426, 64 P. 759; Scott v.State, 151 Ind. 556, 52 N.E. 163; Wilson v. Clark,63 Kan. 505, 65 P. 705; State v. Lund, 167 Mo. 228, 66 S.W. 1062, 67 S.W. 572.)
A de facto officer cannot collect by mandamus the salary of the office. Some states, because of a situation such as here arises, have passed special statutes on the subject permitting ade facto officer to recover the salary when there is no dejure officer with complete title claiming the office. California is such a state. However, there is a long line of authority directly to the contrary that a de facto officer may recover the salary. But whatever the rule is in other states, there is no state in the Union that has gone as far as Montana in deciding that a de facto officer cannot recover the salary, but an officer can do so only when he is a de jure officer, with a full and complete title to the office with all the necessary elements of such title. (State ex rel. Boulware v. Porter,55 Mont. 471, 178 P. 832; State ex rel. Cutts v. Hart,56 Mont. 571, 185 P. 769, 7 A.L.R. 1678; State ex rel. Thompson v. Kenney, 9 Mont. 223, 23 P. 733; Burke v. Edgar,67 Cal. 182, 7 P. 488; Rasmussen v. Board of Commrs., 8 Wyo. 277,56 P. 1098, 45 L.R.A. 295.) *Page 358
That Mr. Chief Justice Brantly's estimate that an officer in a similar situation as the respondent here is but a de facto officer is correct is shown by the following cases: In reLieutenant Governorship, 54 Colo. 166, 129 P. 811; State v.Watkins, 87 Conn. 594, 89 A. 178; Allen v. Maynard,202 Ky. 477, 260 S.W. 2; Blain v. Chippewa Circuit Judge,145 Mich. 59, 108 N.W. 440. It is the general rule adopted by our courts that under statutes similar to ours, a regularly constituted public officer continues to hold office until his successor is duly chosen and qualified. (43 C.J. 645, par. 1066; People v. Hammond,66 Cal. 654, 6 P. 741; 19 R.C.L. 917; 2 McQuillin on Municipal Corporations, pp. 130, 166.)
It is also the general rule that a municipal officer has the right and duty to remain in office until his successor is appointed and qualified, even though there is no positive statute authorizing him so to do. (Henriod v. Church, 52 Utah, 134,172 P. 701.)
There is also the uniform rule that "the interest of the public demands that public offices be filled, and the duties thereof performed." (Henriod v. Church, supra.) The same rule is similarly stated in State ex rel. Rogers v. Johnson,135 Wash. 109, 237 P. 12.)
We have, then, the situation that Sandquist was regularly appointed on May 5, 1930, and no successor has been regularly appointed. Clearly, under our statute and the authorities, he holds over.
Is holding over prohibited by our Constitution? It is the general rule that if a term of office is limited to a specified time, by the Constitution, there can be no holding over, notwithstanding a statute authorizing an officer to continue in office until his successor is elected and qualified. (46 C.J. 968; State v. Foster, 39 Mont. 583, 104 P. 860.) *Page 359
The provision of our Constitution, which is advanced as a limitation on the term of a municipal officer, is section 6 of Article XVI, which is: "The legislative assembly may provide for the election or appointment of such other county, township, precinct and municipal officers as public convenience may require, and their terms of office shall be as prescribed by law, not in any case to exceed two years, except as in this Constitution otherwise provided." It is our contention that the section does not apply to the office of city engineer of a municipality. The constitutional provision is limited to offices created by legislation. In State v. Edwards, 38 Mont. 250,99 P. 940, State v. Edwards, 40 Mont. 287, 106 P. 695, 20 Ann. Cas. 239, and State v. Quinn, 40 Mont. 472,107 P. 506, this court held the Police Act constitutional, with reference to chief of police and patrolmen. The cases hold that appointment of a policeman during good behavior was not in violation of the Constitution, in view of the fact that a policeman was a public officer as well as a city officer, and not within the prohibition of section 6 of Article XVI, supra. It will be observed that the court recognized that there might be a distinction between offices created by the legislature and those created by the council under delegated power. The constitutional provision is plainly limited to the offices created by the legislative assembly. The office of city engineer was created by the council by ordinance, and not the statute.
Constitutional provision applies only to terms fixed by statute and not those fixed by ordinance. (Broadwater v.Kendig, 80 Mont. 515, 261 P. 264; Baldwin v.Philadelphia, 99 Pa. 164.)
The provision above applies only where there is a fixed and definite term of office. (43 C.J. 642; State v. OklahomaCity, 38 Okla. 349, 134 P. 58.)
While the council's action on the employment was on May 16, 1932, whereas the new mayor made nomination of a successor on May 2, 1932, the fact that the council allowed claims for the relator's services for the entire period was a ratification of his employment. (43 C.J. 893, par. 1628; Rice v. Gwinn, *Page 360 51 Idaho, 394, 49 P. 412; see, also, State v. McCarthy,86 Mont. 100, 282 P. 1045.)
The mayor's duty to sign the warrants is ministerial. (See two cases last above cited; also, Bowles v. Perkinson,85 Okla. 244, 205 P. 770; 38 C.J. 767, par. 406; 44 C.J. 1168, par. 4127; 18 R.C.L. 223.)
In granting a peremptory writ in the lower court, public policy, dictating that public office shall always have an occupant, was recognized; legislative intent was respected; a common-sense construction was placed upon section 6, Article XVI, of the Constitution, and the mayor was held to the performance of his ministerial duty, requiring him to sign warrants. The relator, Sandquist, was appointed and confirmed on May 5, 1930, as city engineer of the city of Havre, a city of the second class. He qualified soon thereafter, and was in office on May 2, 1932, when defendant Rogers became mayor of the city. On that date the mayor nominated one Wallinder as city engineer, whose nomination failed of confirmation. The following day this nominee attempted to gain control of the engineer's office, but relator refused to yield. On May 16, 1932, the mayor nominated one Tower, and again the city council refused to confirm. He likewise tried to obtain custody of the engineer's office, without result. At a meeting of the city council on the same date, by motion carried, the relator was directed to discharge the duties of the office of city engineer at the salary provided by city ordinance until his successor was appointed and qualified. He alone performed the duties of the office during the month of May, 1933. His claims for salary in accordance therewith were approved and ordered paid by the council. Warrants were issued in payment by the clerk, and the mayor refused to sign the same. This action was brought to compel the mayor to sign the warrants in payment of the claims. *Page 361
The defendant appeared pursuant to an alternative writ of mandate and endeavored to show cause by motion to quash. The cause was submitted, by stipulation of the parties, to the trial court upon the pleadings filed for judgment and decision. Judgment was entered directing the issuance of a peremptory writ of mandate in accordance with the prayer of relator's petition, for costs and damages, from which judgment appeal was perfected to this court.
By ordinance of the city of Havre it was provided that "as soon as convenient after each election, the mayor shall appoint his subordinate officers subject to confirmation by a majority vote of council, as follows: * * * one city engineer."
Section 5030, Revised Codes of 1921, enumerates among the powers of the mayor of a city the following: "To nominate, and, with the consent of the council, to appoint all nonelective officers of the city." Section 4996, Id., enumerates the elective and appointive officers of a city of the second class specifically, and among the latter provides "and any other officer necessary to carry out the provisions of this title." Section 4999, Id., provides: "The city * * * council has the power to abolish any office, the appointment to which is made by the mayor, with the advice and consent of the council, and discharge any officer so appointed, by a majority vote of the council."
The office of city engineer of the city of Havre was an office created under the power conferred by statute and by ordinance of the city council, the incumbent of which might be removed at any time.
The nominees of a mayor who fail to be confirmed by a city[1, 2] council do not become effective as officers, and cannot assume that status until concurred in by a majority of the city or town council. (State ex rel. Peterson v. Peck, 91 Mont. 5,4 P.2d 1086; State ex rel. O'Hern v. Loud, 92 Mont. 307,14 P.2d 432; 22 R.C.L., sec. 84, p. 433; 43 C.J., sec. 1000, p. 614; State ex rel. Rogers v. Johnson, 135 Wash. 109,237 P. 12.) *Page 362
Section 423, Revised Codes 1921, provides that "every officer[3-5] must continue to discharge the duties of his office, although his term has expired, until his successor has qualified." Under this section it was the right and the duty of the relator to continue in office during the month of May, 1932, as no successor in office had been selected, unless, as appellant contends, this statute is in violation of section 6 of Article XVI, of our Constitution, providing as follows: "The legislative assembly may provide for the * * * appointment of such * * * municipal officers as public convenience may require and their terms of office shall be as prescribed by law, not in any case, to exceed two years."
The general rule of law is that an officer shall hold over until his successor is appointed and qualified, unless by the language of the statute such holding over is expressly or by clear implication prohibited. (State ex rel. Rogers v.Johnson, supra; Henriod v. Church, 52 Utah, 134,172 P. 701; 2 McQuillin on Municipal Corporations, 2d ed., sec. 507, p. 186.)
The expression "term of office" uniformly designates a fixed and definite period of time. (State ex rel. Morgan v. Knight,76 Mont. 71, 245 P. 267.)
Unless the time fixed by statute is so plainly at odds with that prescribed by the Constitution as to be wholly inconsistent with it, it is the duty of the court to give it such expression as will enable it to have effect. (Marcellus v. Wright,61 Mont. 274, 202 P. 381.)
The incumbent of the office of city engineer did not have a fixed, definite time in excess of two years under the provisions of the ordinance during which he could enjoy the occupancy of that office, during which he might not be removed, except for cause, although he might hold the office for a longer period than two years. His term of office did not exceed two years; therefore the constitutional provision under consideration was not violated.
The judgment is affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS and STEWART concur. *Page 363