the commissioners outside of a meeting by pre- idential electors is to be made by the vious authority of the board, or such act may county clerk, and not by the secretary of in some cases, perhaps, be ratified, but the state, under Laws 1890, chap. 80, $ 104, providing allowance of claims must be at some time the that tbe names of such electors presented in one act of the board as such. The county is con

certificate shall be arranged in a separate group, stituted, by law, a body politic and corporate,

but the secretary must so certify the names and

description of the candidates as to convey to the and its powers as such corporate body are ex

clerk all knowledge requisite to such grouping. ercised by a board of county commissioners. Such powers are to be exercised, and the du- 2. Thename of a person ascandidate for

elector of President and Vice Presi. ties devolving upon the board are to be discharged, in the manner provided by law. We

dent cannot appear in more than one do not understand that the members compos

place upon the official ballot under Laws 1860, ing the board are autborized to act as a board

chap. 80, 8 104, which provides for no party head

ings or columns set apart for separate parties, but except when together in session. Their act is

requires the ballot to name the party or principle then not individual, but as a body, acting as a

represented by a candidate in connection with his unit. McCortle v. Bates, 29 Ohio St. 419. Whatever authority, if any, is possessed by the commissioners, 10 confess a judgment against 3. The name of a candidate nominated

by certificate of electors in place of a person the body corporate and politic—the county

previously nominated in the same way, but who must reside in them as constituting a board,

has declined, should be given the same place upon rather than as individual officers. As such a

the ballot that the prior nominee would have board, required to act as a body, we are unable to

been entitled to. conceive that it can personally appear in court, 4. The exclusion from the signers of a as required by $ 2668. No statutory provision

certificate of electors nominating canexists empowering one or more of the commis

didates by Laws 1890, chap. 80, $ 89, of those sioners or any other official to so personally ap

persons who have joined in a certificate nominatpear, and in tbe name of the county enter con- ing other candidates for the same office, does not fession of judgment. In the absence of some apply to persons who have participated in the such provision in the present condition of the nomination of other persons through primaries, law concerning judgments by confession, we but only those who have joined in nominations are clearly of the opinion that the board of by certificate. commissioners are without authority to per- 6. The validity of a nomination made sobally appear in court and confess a judg. by a chairman of the state committee ment against the county. It would seem to of a politicul party with 100 associates to fill vafollow that, being powerless in that respect, cancies in the list of presidential electors nomithe board, even as a body, cappot authorize nated in the same manner, when not in violation some person to do so. Such authorization

of statute, cannot be contested by the committee could only be accomplished, however, by the

of an entirely distinct political party. execution of a warrant of attorney. No ex

(October 20, 1898.) press power to execute such an instrument is granted by statute, nor do we observe any au

for can be implied. In discussing this matter it is to the county clerks of the names of the candiperhaps needless to state that we refer only to dates for presidential electors to be voted for confession of judgments in its strict sense, and at a coming election. Denied. do not refer to actions regularly brought, in The facts are stated in the opinion. which issues are duly framed, and upon hear

Mr. Walter R. Stoll for relator. ing or trial, by admission of the lawful rep

Messrs. Lacey & Van Devanter for reresentative of the county in such suits, the spondent. court may be satisfied of the justness of the claim sued upon, and thereupon enter up Potter, J., delivered the opinion of the judgment. Such an action is not dependent court: upon the statutes governing confession of judg- The relator, chairman of the Democratic ments, but is in reality a judgment rendered State Central Committee, brings the present upon trial and proof. We tender this explana- action, seeking thereby the allowance of a writ tion that any possible confusion respecting the of mandamus to compel the secretary of state to decision of ihe court may be avoided. This, I j rescind or modify the form or character of his believe, disposes of all the questions.

certificates to the several county clerks respectGroesbeck, Ch. J., and Conaway, J., ing the candidates for electors of President and

Vice President of the United States. The respondent certified such nominations in the fol

lowing manner and order: the names of three STATE of Wyoming, ex rel. Charles E. candidates of the Republican party, simply BLYDENBURGH,

naming them with the word “Republican" fol

lowing each of their pames; the names of PatCharles W. BURDICK, Secretary of State. rick J. M. Jordan, John Sims, and Daniel L.

Van Meter, with the word “People's” accom(........Wyo.........)

panying the dames of Jordan and Sims, and the 1. The grouping of candidates for pres-words “Democrat and People's” following the



NOTE.- As to name appearing more than once on L. R. A. 586; and Todd v. Election Comrs. (Mich.) 29 official ballot, see also State, Bateman, y. Bode L. R. A. 330. (Ohio) ante, 498; also: Fisher v. Dudley (Md.) 12


name of Van Meter; the names of three Prohi-three other candidates for the same office by bition candidates; and lastly the names of John attending and participating in the primaries of A. Martin and Patrick J. Quealy, with the the Republican party. This last-mentioned word “Democrat” following each of their allegation is general in character. It is neither

The petition discloses: That at the stated wben they so attended and participated, regular Democratic state convention George H. or in what the participation consisted, nor are Cross, John A. Martin, and Patrick J. Quealy the particular individuals referred to indicated. were nominated for presidental electors, and at The petition avers that the certificate of the rethe regular state convention of the People's spondent is illegal and wrong in two respects; party Francis M. Matthews, Charles H. Ran. First, in failing to certify the name of Davdall, and Daniel L. Van Meter were nominated iel L. Van Meter in the same group and in confor such office. All of these nominations were junction with the names of Martin and Quealy, duly certified to the respondent by the respect the other Democratic candidates; and second, ivechairmen and secretaries of such conventions. in including the names of Jordan and Sims That within the time allowed by the statute, in the group of the candidates for electors of Cross, one of the Democratic nominees, and the People's party. The prayer of the petition Randall and Matthews, two of the pominees is that a writ of mandamus issue directing the of the People's party, duly declined. That in respondent to rescind his certificate, and to pursuance of the authority expressly conferred issue therefor vew ones, placing the name of upon it by the convention making the original Van Meter in the group of Democratic candinominations the state committee of the Demo- dates, and omitting the dames of Jordan and cratic party filled the vacancy caused by the Sims from the group of the candidates of the declination of Cross by the domination of Dan People's party, or requiring him to so modify iel L. Van Meter. That neither any conven- bis certificates already sent out that the same tion or committee of the People's party at result may be accomplished. tempted to fill the vacancy occasioned by the The case was heard upon the petition and the declinations of Matthews and Randall, nor various certificates of nominations for the of. took any action concerning the matter, and fice of presidential electors filed in the office of that the People's party convention had not em- respondent. From the record outside of the powered its state committee to fill such or any petition it appeared that on the 25th day of vacancies. It further appears that on the 8th September—several days before the chairman day of October one John W. Patterson, who and secretary of the convention of the People's had been appointed by the said convention of party filed their certificate of the nominations the People's party as the chairman of the state made by that party at its said conventioncommittee of that party, delivered to the re- certificate of nomination, signed by 100 elecspondent a certificate of nomination purporting tors representing themselves as members of to nominate for the office of presidential elec. the People's party, was tiled, making original tors to fill the vacancy in the list of People's nominations of candidates for electors to repparty candidates caused by the declination of resent the principles of the People's party, Matthews and Randall, respectively, Patrick naming as the nominees thereof the same perJ. M. Jordan and John Sims: it appearing sons who were nominated at the state convenfrom the record that in the body of such certion of that party, viz. Matthews, Randall, and tificate it was recited that the undersigned and Van Meter. the said Patrick J. M. Jordan and the said John The duty of the secretary of state with reSims so nominated to fill such vacancies rep- spect to the certification of nominations filed in resent the People's party;" and that the same bis office is defined by the provisions of $ 93 of was verified by said John W. Patterson, who chap. 80 of the laws of 1890, as follows: "Yot made oath that the statements contained in the less thau twenty-five por more than thirty days certificate were true, and described himself in before an election to fill any public office, the his affidavit as the chairman of the state com- secretary of Wyoming shall certify to the mittee of the People's party. The said certi county clerk of each county within which any ficate was signed by 100 electors, including of the electors may by law vote for candidates said Patterson. The relator in his petition for such office, the names and description of charges tbat this certificate of nomination was each person nominated for such office as speci. void. The allegations to support such charge, fied in the certificate of nomination with the summarized, are to the effect that the nomina- said secretary." If the respondent has com: tious mentioned therein were not made by plied with this duty, then the writ prayed for the People's party; that the laws of this state should not be allowed. It is contended that contemplate and expressly require that va- he has failed to perform the duty in the two cancies occurring in the ticket of any political particulars already mentioned. Upon the party nominated in regular convention shall be hearing, although it was not conceded by counfilled only by the convention itself or by the sel for relator that the names of Jordan and party committee duly authorized; that the Sims were entitled to be certified in any mancertificate was not filed witbin the time reper whatever, the chief contention seemed to quired for original nominations; and that no be parrowed to the proposition that they were number of electors can supplant or supersede not properly certified as People's candidates, the action of an organized political party; and in one group with Van Meter; but that, if and the electors whose names are subscribed to certified at all. some words, such as “Indethe certificate in question were not authorized pendent” or “Electors,” should be used to indi. to represent the People's party, or act in its be cate that they were nominated by certificate of half. It was also averred that a large number electors. The argument respecting the groupof the persons whose names were signed to the ing of the Democratic nominees, and including certificate had joined in nominating at least I therein the name of Van Meter in the certifi.

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cate of the secretary, was based upon the re nomination are entitled to be arranged upon quirements concerning the official ballot. Sec. the official ballot in a separate group, and tion 104 of chapter 80 of the Laws of 1890 that the officer charged with the duty of thus provides that “all ballots prepared under the arranging them can have no other source of provisions of this act shall be white in color official information than the contents of the and of a good quality of paper, and the names certificate of the secretary. It would, thereshall be printed thereon in black ink. Every fore, seem reasonably clear that in the perballot shall contain the name of every candi formance of the duty devolving upon the secdate whose nomination for any office specified retary he should so certify the names of such in the ballot has been certified or filed accordo candidates and their description as will coning to the provisions of this act and no other vey to the county clerk all requisite knowl. name. The names of candidates for each edge. The relator and his counsel assumed office shall be arranged under the designation that tbis could only be accomplished by the of the office in alphabetical order according to proper grouping of the candidates in the cersurnames, except that the names of electors of tificate of the secretary. We are not, however, President and Vice President of the United prepared to assent to ibat view. If the informaStates presented in one certificate of nomina- tion sufficient for the appropriate performance tion, shall be arranged in a separate group, of the duty of the county clerk can be given in every ballot shall also contain the name of the other ways than by grouping, and we appreparty or principle which the candidates reprehend that may be practicable, -then it would be sentascontained in the certificate of nomination. erroneous to say in the absence of an express At theend of the list of candidates for each office requirement to that effect, that the secretary is sball be left a blank space large enough to con. under official obligation to place the candidates tain as many written names of candidates as in groups, as they are entitled to appear on the are necessary to fill such office. And on the ballot, and by this method alone to certify the ballot may be printed such words as will aid pecessary information to the county clerks. the voter to vote, as 'Vote for one,' 'Vote for The alternative writ commanded the respondtwo, "Vote for three;' Yes,' 'No' and the ent to thus group the names, or show cause to like." It is not required of the secretary that the contrary. In case the writ should be made he prepare the official ballots. With this be peremptory, the same command would conbas nothing whatever to do. That duty re- tipue, potwithstanding the duty to afford sides with the county clerk of each county. proper information could as well, and perhaps Under our system of voting tbe elector is re- even better, without trespassing upon the disquired to place a cross opposite the name ofcretion of the county clerks, be capable of each candidate for whom be desires to vote; performance in another manner. The soundand, although the names of candidates for elect- ness of the contention of the relator, moreover, ors presented in one certificate of nomination depends upon the correctness of bis theory that are required to be arranged upon the ballot in the name of Van Meter should appear upon the a separate group, one cross will not suffice to ballot in a group to be comprised of his pame vote for the three, or for the group thus ar- and the other two Democratic nominees. If that ranged, but the voter, if desiring to vote for is not a right to wbich he is entitled, then assurthree, as be may do, is required to place a cross edly the respondent is not required to certify opposite the name of each one of the three. At his name in such a group in any event, and we the time of orally announcing the conclusion will not rest our conclusion entirely upon the of the court it was stated that the secretary fact that the respondent might employ different was not required to group the candidates for methods, but will inquire into the proposition electors at all, and that, if he did so, bis ar thus insisted upon by the relator. It is manirangement into groups was not binding or con fest that the issues in this case do not directly clusive upon the officers charged with the duty involve the preparation of the ballot; but that of preparing the ballots. This statement was matter bears a close relation to the obligations made in view of the rather meager provisions imposed upon the secretary, and as affecting affecting the duty of the secretary, and the bis duties it may very properly be considered. pature of a mandamus proceeding; and it It was decided by this court in the case of seemed tbat, unless it was clearly the duty of Sawin v. Pease (Wyo.) 42 Pac. 750, that as to the respondent to group the candidates, be any office other than elector for President and ought not to be directed by a writ of mandamus Vice President a candidate nominated by more to do so. The statute does not expressly re- than one party for the same office was not quire that be shall certify such candidates in entitled to have his name appear upon the the manner in which they are required to be ballot more than once, and we can see no reaarranged upon the ballot; and, so far as the son for departing from that rule. The opinname of Van Meter is concerned. that is the ion in that case out of abundant caution extent of the prayer of relator. But we are expressly stated that whether or not a dif. somewbat apprehensive that a misunderstand- ferent rule would apply as to presidential ing of the views of the court may arise from electors was not decided. The reason for wbat was said when its conclusion was an- the principle adopted in Sawin v. Pease arose nounced, without some further explanation. Out of our system of ballots and voting; the While it is true, as above suggested, that there requirement that a cross must be placed is no express provision requiring the secretary opposite the name of each candidate for to do more than certify the names and descrip. wbom the elector desired to vote; the imtion of each person nominated, as specified possibility of voting a straight ticket, or in the certificate of nomination, it is like for any number or group of candidates repwise true that those candidates for presi resenting the same party or principle, by a dential electors presented in one certificate of single mark or cross; and as a consequence, the probability of mistake and confusion The next question submitted involves the should the name of any candidate be printed status of the nominations of Jordan and Sims. in more than one place as a candidate for the One ground of objection is that a large numsame office. Are those reasons, and is the rule ber of the persons purporting to sigo the certifideduced therefrom in the case of other offices, cate of nomination had joined in nominating inapplicable to the office of presidential elector? at least three other persons for the same office The one difference existing in the law between by attending and participating in the primaries that and other offices is that the names of those of the Republican party Independent of the candidates for presidential electors presented very general character of the allegation, we in one certificate of nomination shall be ar- are of the opinion that the provision of the ranged upon the ballot in a separate group. statute (Laws 1890, chap. 80, S 89), attempted In view of the further provision of law affect to be thus invoked is prohibitory only of the ing alike all candidates upon the ballot that same person joining in a certificate of nominaone cross votes for but one individual, and tion by electors of more than one person for that the name of the presidential nominee now the same office. The last part of the clause where appears on the ballot, we are unable to containing the provision referred to provides distinguish the caseof such candidates from that that, if any person does so join, bis name of candidates for any other office in the respect shall not be counted upon either certificate, and under consideration; otherwise any person or the context clearly indicates that it was only group of persons nominated by more than one intended to forbid one from joining in more party would be entitled to as many places upon than one elector's certificate making a nomina. The ballot corresponding with the number of par- tion for the same office. Whether anyone shall ties nominating tbem, or certificates lawfully have so joined can then easily be ascertained filed of such nominations. The same group of by the officer with whom the certificates are rethree persons might be presented by several par- quired to be filed. It is, however, contended ties, and the entire group be given as many places that 100 electors cannot supplant a regularly upon the official ballot. Such a result could organized political party, and are not auth. only cause much confusion, and throw doubt orized to place in nomination any candidate as upon the correctness of the returns of the votes representative of such a party. The position cast. We are clearly of the opinion that the taken is that a party nomination is permitted law does not contemplate the printing of the to be made only by a party convention. Coun name of one person as candidate for elector of sel for relator stated upon the bearing that President and Vice President in more than one they were until that time unaware that the place upon the ballot. Daniel L. Van Meter People's nominees had first or at any time been was regularly nominated by the People's party, nominated by an electors' certificate; and it and the certificate thereof duly filed. He has was conceded by such counsel that, if a vanot declined that nomination. There is cer- cancy occurs in the nominations made by such tainly no authority to remove his name from an electors' certificate, it might be filled in the the People's party group. His nomination by same manner. The papers upon which the that party was made long prior to its adoption cause was submitted conclusively show that by the Democratic party. His name being 100 electors had nominated by certificate in entitled to but one place upon the ballot, and due form said Randall, Matthews, and Van no one possessing the right to ignore his first Meter as candidates of the People's party or nomination in the preparation of the ballot, it representing the principles of that party, and necessarily follows that his name is not im- that filing preceded the certificate of the offiperatively required to be also printed in the cers of the convention. The resignation of same group, and in conjunction with the other Randall and Matthews declined by clear and Democratic candidates. He is described as express language only the nominations conDemocratic as well as People's, and this de- ferred by the state convention of the People's scription indicates to the voter that he has party; but included in their respective statebeen nominated as representing both parties. ments of declination was a direction to the An arrangement of the ballot in which all ap- secretary of state to omit their names from the propriate groups could be maintained, and yet official ballot sufficiently indicating an intenthe name of Van Meter immediately precede tion upon their part to entirely withdraw as or follow the dames of the other Democratic candidates for presidential electors. It is at candidates, thus bringing the three into closer least certain that the respondent has not certiproximity, would certainly not violate the let- tied their names, and that po person or party ter or the spirit of the law: but that matter is insisting that his action in that regard was has been left to the discretion of the county erroneous. A vacancy, then, occurred in the clerks, which, unless the statute is departed list of candidates for the office in question, from, is not subject to the control of the courts. presented by the said certificate of electors. These views find support in State, Sturderant, That vacancy at least was filled by the certifV. Allen (Neb.) 62 N. W. 35, and Miller v. cate which is now attacked, naming Jordan Pennoyer, 23 Or. 364. Had someone, not al- and Sims. It is not necessary therefore, for ready a candidate of another party, been nom- this court to decide wbether or not a vacancy inated to fill the vacancy caused by the declina in nominations made by a regular convention tion of George H. Cross, the name of such of a political party can be filled by an electors nominee would be entitled to a place in the certificate, even though, as in the case at bar, same group with the original associates of such political party has not again acted in the Cross. A reasonable construction of the statu. matter by convention, and the convention tory provision would clearly require the name making the original nominations, has not em. of one thus substituted to be given thesame place powered any committee to fill vacancies. In upon the ballot that the name of the candidate deed, the contention seemed to have narrowed wbo had declined would have been entitled to. I to an attack upon the action of the respondent in grouping the names of Jordan and Sims but has come to our notice. While according with that of Van Meter, and using in connec- to each of those courts our entire respect, if tion with their names the party name “Peo the conclusions arrived at in the cases cited are ple's," without any qualifying words to indi- not at all depending upon the character of cate that they were not presented by a party their ballot, we would hesitate to follow them convention. So far as concerns the objection in their application to a statute such as that in to their being grouped with Van Meter, what force in this state. We are inclined, however, has already been said is sufficient, bearing in to the opinion that there is a well-defined dismind that the latter-named person was origi. tinction between those cases and the one at nally nominated by the certificate of electors bar. In this state, any convention or primary conjointly with Randall and Matthews, for meeting held for the purpose of making nomi whom Jordan and Sims were afterwards sub- nations to public office, and also a specified stituted.

number of electors, may nominate candidates It is, bowever, very seriously insisted on be- for public office to be filled by election. Laws half of the relator that the respondent is not 1890, chap. 80, S 84. A convention or primary authorized to certify the designation of “Peo meeting is defined as “an organized assemblage ple's” in connection with the names of these of electors or delegates representing a political substituted candidates, but that be should use party." $ 85. Nominations made by a con. some other word of description, or add to that vention or primary meeting are required to be so used, which would clearly indicate that they certified in writing containing the name, resiwere nominated by certificate of electors; and dence, and business of the person nominated, in support of that view we are referred to the and in not more than five words, the party or case of Philips v. Curtis (Idaho) 38 Pac. 405, principle which such convention or primary which gives countenance to that proposition. meeting represents. It is required to be signed That case, however, is founded upon a statute by the presiding officer and secretary of the which, although quite similar in some respects convention or primary meeting, and verified to our own, and particularly so concerning by them in a certain manner. $ 86. Candithe making of doininations, is radically differ- dates for office may be nominated otherwise ent in others, which must have considerable than by convention or primary meeting, as bearing upon the question. In that state the follows: A certificate containing the name of method of preparing the ballot follows that of a candidate for the office to be filled with most of the states using the Australian system. such information as is required to be given *Their statute expressly. requires that “the in certificates of nominations by convention width of the ticket sball be divided into as shall be signed by electors, etc. When the many equal parts by lines the whole length of office is to be filled by the electors of the the ticket,

as there are political prin entire state, the certificate must be signed ciples or parties represented by the candidates by not less than 100 electors. Such cer. each of said parties or divisions to bave a tificates may be filed in the same manner, heading or caption designating the political and with the same effect, as a certificate of principle or party represented by the several nomination made by a party convention. $ 88. candidates.' The ballot in that state therefore Provision is made for declining a nomination, is arranged in separate columns, the candidates at least twenty-five days before election ($ 95); of each party being contained in one column and, in case of vacancy occurring for any reawith the name of the party or principle at the son, the same may be filled in tbe manner rehead. In the case cited we are led to infer quired for original nominations. $96. In from the opinion that the People's party, al- case the nomination thus vacated has been though holding a convention, and making cer- made by a party convention, which has deletain nominations, had failed to mention any gated to a committee the power to fill vacanone as a candidate for state senator; and Phil cies, the same may be filled by such committee. ips, who had been nominated for that office by $ 97. It was urged by counsel for respondent another party, sought to have his name placed that the language of $ 96, viz., "may be filled upon the ticket of the People's party under a in the manner required for original nominanomination made by a certain number of elect. tions,” expressly permitted a vacancy to be ors, the certificate thereof designating him as filled in either of the ways provided for the People's party candidate. The effect would be, making of original nominations, irrespective if his prayer bad been granted, that his name of the manner in which the original nominawould have gone upon the regular People's tion in the particular instance had been made; party ticket, and in the column upon the bal. that is to say, either by convention (or comlot set aside for the ticket of that party, and mittee, if authorized), primary meeting, or with the other candidates regularly nominated certificate of electors. Whether or not the by a convention of that party. It was held language or purport of the statute goes to that that the certificate authorized his name to go extent we do not, as already intimated, express upon the ballot as an independent candidate any opinion, as we find in this case the vacanonly, and that any number of electors could cies to bave been filled in the same manner as pot secure the name of any candidate which the original nominations were made and prethey saw fit to indorse to be placed upon the sented. ticket of any party. It will be observed, In an earlier part of this opinion we adwhetber it is important or not, that the candi- verted to the method of making up the ballot, date seeking the aid of the court in that case from which it appears that there are no party was already named upon the ballot in the beadings thereon, nor columns set apart for ticket of another party. The same comments separate parties; but the ballot is required to are applicable to the case of Atkeson v. Lay, contain, in addition to tbe names of the candi115 Mo. 538, which was not cited by counsel, dates, the name of the party or principle repre

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