Sidebilder
PDF
ePub

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 names. The petition discloses: That at the stated when 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 Dandall, and Daniel L. Van Meter were nominated iel L. Van Meter in the same group and in coufor 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, ive chairmen 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 nominees 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 new 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 names 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 nomination of Dan- People's party, or requiring him to so modify iel L. Van Meter. That neither any conven- his 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 convention-s committee 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 filed, 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, riz. Matthews, Randall, and tificate it was recited that "the undersigned and Van Meter. the said Patrick J. M. Jordan and the said John Sims so nominated to fill such vacancies represent the People's party;" and that the same was verified by said John W. Patterson, who made oath that the statements contained in the certificate were true, and described himself in his affidavit as the chairman of the state committee of the People's party. The said certi ficate was signed by 100 electors, including said Patterson. The relator in his petition charges that this certificate of nomination was void. The allegations to support such charge, summarized, are to the effect that the nominations mentioned therein were not made by the People's party; that the laws of this state contemplate and expressly require that vacancies occurring in the ticket of any political party nominated in regular convention shall be filled only by the convention itself or by the party committee duly authorized; that the certificate was not filed within the time required for original nominations; and that no number of electors can supplant or supersede the action of an organized political party; and the electors whose names are subscribed to the certificate in question were not authorized to represent the People's party, or act in its be half. It was also averred that a large number of the persons whose names were signed to the certificate had joined in nominating at least

The duty of the secretary of state with respect to the certification of nominations filed in his office is defined by the provisions of § 93 of chap. 80 of the laws of 1890, as follows: "Not less than twenty-five nor more than thirty days before an election to fill any public office, the secretary of Wyoming shall certify to the county clerk of each county within which any of the electors may by law vote for candidates for such office, the names and description of each person nominated for such office as specified in the certificate of nomination with the said secretary." If the respondent has com plied with this duty, then the writ prayed for should not be allowed. It is contended that he has failed to perform the duty in the two particulars already mentioned. Upon the hearing, although it was not conceded by counsel for relator that the names of Jordan and Sims were entitled to be certified in any manner whatever, the chief contention seemed to be narrowed to the proposition that they were not properly certified as People's candidates, and in one group with Van Meter; but that, if certified at all. some words, such as "Independent" or "Electors," should be used to indicate that they were nominated by certificate of electors. The argument respecting the grouping of the Democratic nominees, and including therein the name of Van Meter in the certifi

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 accord candidates and their description as will coning to the provisions of this act and no other vey to the county clerk all requisite knowlname. The names of candidates for each edge. The relator and his counsel assumed office shall be arranged under the designation that this 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 that 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 repre- hend that may be practicable,-then it would be sentas contained in the certificate of nomination. erroneous to say in the absence of an express At the end of the list of candidates for each office requirement to that effect, that the secretary is shall be left a blank space large enough to con-under official obligation to place the candidates tain as many written names of candidates as are necessary to fill such office. And on the ballot may be printed such words as will aid the voter to vote, as 'Vote for one,' 'Vote for two, Vote for three;' 'Yes,' 'No.' and the like." It is not required of the secretary that he prepare the official ballots. With this he has nothing whatever to do. That duty resides with the county clerk of each county. Under our system of voting the elector is required to place a cross opposite the name of each candidate for whom he desires to vote; and, although the names of candidates for electors presented in one certificate of nomination are required to be arranged upon the ballot in a separate group, one cross will not suffice to vote for the three, or for the group thus arranged, but the voter, if desiring to vote for three, as he may do, is required to place a cross opposite the name of each one of the three. At the time of orally announcing the conclusion of the court it was stated that the secretary was not required to group the candidates for electors at all, and that, if he did so, his arrangement into groups was not binding or conclusive upon the officers charged with the duty of preparing the ballots. This statement was made in view of the rather meager provisions affecting the duty of the secretary, and the nature of a mandamus proceeding; and it seemed that, unless it was clearly the duty of the respondent to group the candidates, he ought not to be directed by a writ of mandamus to do so. The statute does not expressly require that he shall certify such candidates in the manner in which they are required to be arranged upon the ballot; and, so far as the name of Van Meter is concerned. that is the extent of the prayer of relator. But we are somewhat apprehensive that a misunderstand ing of the views of the court may arise from what was said when its conclusion was announced, without some further explanation. While it is true, as above suggested, that there is no express provision requiring the secretary to do more than certify the names and descrip tion of each person nominated, as specified in the certificate of nomination, it is likewise true that those candidates for presi dential electors presented in one certificate of

in groups, as they are entitled to appear on the ballot, and by this method alone to certify the necessary information to the county clerks. The alternative writ commanded the respondent to thus group the names, or show cause to the contrary. In case the writ should be made peremptory, the same command would continue, notwithstanding the duty to afford proper information could as well, and perhaps even better, without trespassing upon the discretion of the county clerks, be capable of performance in another manner. The soundness of the contention of the relator, moreover, depends upon the correctness of his theory that the name of Van Meter should appear upon the ballot in a group to be comprised of his name and the other two Democratic nominees. If that is not a right to which he is entitled, then assuredly the respondent is not required to certify his name in such a group in any event, and we will not rest our conclusion entirely upon the fact that the respondent might employ different methods, but will inquire into the proposition thus insisted upon by the relator. It is manifest that the issues in this case do not directly involve the preparation of the ballot; but that matter bears a close relation to the obligations imposed upon the secretary, and as affecting bis duties it may very properly be considered.

It was decided by this court in the case of Sawin v. Pease (Wyo.) 42 Pac. 750, that as to any office other than elector for President and Vice President a candidate nominated by more than one party for the same office was not entitled to have his name appear upon the ballot more than once, and we can see no rea son for departing from that rule. The opinion in that case out of abundant caution expressly stated that whether or not a different rule would apply as to presidential electors was not decided. The reason for the principle adopted in Sawin v. Pease arose out of our system of ballots and voting; the requirement that a cross must be placed opposite the name of each candidate for whom the elector desired to vote; the impossibility of voting a straight ticket, or for any number or group of candidates representing the same party or principle, by a 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 sign 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, 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 no- 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 case of such candidates from that that, if any person does so join, his 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 nominathe ballot corresponding with the number of par- tion for the same office. Whether anyone shall ties nominating them, 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 hearing 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 va not 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 offi peratively 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 names 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-fied their names, and that no 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 certifi v. 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 whether 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 emof one thus substituted to be given the same place powered any committee to fill vacancies. In upon the ballot that the name of the candidate deed, the contention seemed to have narrowed who 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 nomiwhom Jordan and Sims were afterwards sub- nations to public office, and also a specified stituted. number of electors, may nominate candidates for public office to be filled by election. Laws 1890, chap. 80, 84. A convention or primary meeting is defined as "an organized assemblage of electors or delegates representing a political party." § 85. Nominations made by a convention or primary meeting are required to be certified in writing containing the name, residence, and business of the person nominated, and in not more than five words, the party or principle which such convention or primary meeting represents. It is required to be signed by the presiding officer and secretary of the convention or primary meeting, and verified by them in a certain manner. § 86. Candidates for office may be nominated otherwise than by convention or primary meeting, as follows: A certificate containing the name of a candidate for the office to be filled with such information as is required to be given in certificates of nominations by convention shall be signed by electors, etc. When the office is to be filled by the electors of the entire state, the certificate must be signed by not less than 100 electors. Such certificates may be filed in the same manner, and with the same effect, as a certificate of nomination made by a party convention. $88. Provision is made for declining a nomination, at least twenty-five days before election (§ 95); and, in case of vacancy occurring for any reason, the same may be filled in the manner required for original nominations. 96. In

It is, however, very seriously insisted on behalf of the relator that the respondent is not authorized to certify the designation of "Peo ple's" in connection with the names of these substituted candidates, but that he should use some other word of description, or add to that so used, which would clearly indicate that they were nominated by certificate of electors; and in support of that view we are referred to the case of Philips v. Curtis (Idaho) 38 Pac. 405, which gives countenance to that proposition. That case, however, is founded upon a statute which, although quite similar in some respects to our own, and particularly so concerning the making of nominations, is radically different in others, which must have considerable bearing upon the question. In that state the method of preparing the ballot follows that of most of the states using the Australian system. Their statute expressly, requires that "the width of the ticket shall be divided into as many equal parts by lines the whole length of the ticket, as there are political prin ciples or parties represented by the candidates each of said parties or divisions to have a heading or caption designating the political principle or party represented by the several candidates.' The ballot in that state therefore is arranged in separate columns, the candidates of each party being contained in one column with the name of the party or principle at the head. In the case cited we are led to infer from the opinion that the People's party, al-case the nomination thus vacated has been though holding a convention, and making certain nominations, had failed to mention any one as a candidate for state senator; and Phil ips, who had been nominated for that office by another party, sought to have his name placed upon the ticket of the People's party under a nomination made by a certain number of elect ors, the certificate thereof designating him as People's party candidate. The effect would be, if his prayer had been granted, that his name would have gone upon the regular People's party ticket, and in the column upon the ballot set aside for the ticket of that party, and with the other candidates regularly nominated by a convention of that party. It was held that the certificate authorized his name to go upon the ballot as an independent candidate only, and that any number of electors could not secure the name of any candidate which they saw fit to indorse to be placed upon the ticket of any party. It will be observed, whether it is important or not, that the candidate seeking the aid of the court in that case was already named upon the ballot in the ticket of another party. The same comments are applicable to the case of Atkeson v. Lay, 115 Mo. 538, which was not cited by counsel,

made by a party convention, which has delegated to a committee the power to fill vacancies, the same may be filled by such committee.

97. It was urged by counsel for respondent that the language of § 96, viz., "may be filled in the manner required for original nominations," expressly permitted a vacancy to be filled in either of the ways provided for the making of original nominations, irrespective of the manner in which the original nomination in the particular instance had been made; that is to say, either by convention (or committee, if authorized), primary meeting, or certificate of electors. Whether or not the language or purport of the statute goes to that extent we do not, as already intimated, express any opinion, as we find in this case the vacancies to have been filled in the same manner as the original nominations were made and presented."

In an earlier part of this opinion we adverted to the method of making up the ballot, from which it appears that there are no party headings thereon, nor columns set apart for separate parties; but the ballot is required to contain, in addition to the names of the candidates, the name of the party or principle repre

which will accord to the citizen the greater liberty in casting his ballot. People, Eaton, v. District Court, 18 Colo. 26. It has been held that, where two factions of the same political party have held separate conventions, and certified nominations, using the same political designation, the secretary of state is without

mass

sented by them respectively as contained in the certificate of nomination. It must be observed that the certificate under which the controversy arises as to the right to use the word "People's" is not arraigned by any persons or authority representing the People's party. No one claiming any allegiance to that party is here complaining of the act of Chairman Pat-authority to decide which of the two is entitled terson and his associates. The complaint comes from the chairman of the state committee of an entirely separate political party, While he probably has the right to prefer such a complaint, and have the matter adjudicated, nevertheless we are confronted with the fact that at the instance of one not affiliated with the People's party in any manner, so far as the record discloses, we are asked to judicially deny the right of more than 100 electors, including the one highest in authority in the party in this state, describing themselves as the representatives of that party, from giving the party name to their candidates. If this certificate bad come in conflict with other nominations made by the same party in regular convention, a very different question might arise. In the case at bar, however, we have before us the broad question whether, in any case, the secretary of state is at liberty to respect the designation of a political party or principle mentioned in a certificate of nomination by electors, when the certificate is signed, sworn to, and presented by the state chairman of such party, and in its body alleges that the signers represent the party, in the absence of any other existing nomination by such party for the same office; or whether he is bound to disregard such description, or add something to it, not found in the certificate, indicating the manner in which the nominations were made. There can hardly exist a doubt but that our legislation on the subject of elections is more or less imperfect, which fact invites conflict, and possibility of confusion; but the courts cannot supply omissions in the law. Anticipating, or perhaps having experienced, controversy along this very line, many of the states have explicitly regulated the manner in which party nominations may be made. There is nothing of that character in our law. We have searched the election law in vain to discover any limitations upon party nominations. There is not a clause or line any where requiring or tending in that direction that a political party can only present nominations for public office through the medium of party conventions or primary meetings. The writer of this opinion believes that a wise regulation in that regard, and legislation explicitly defining the status of nominations by certificate of electors, would be desirable; but there is no such legislation at present, and the courts have no authority to place restrictions upon those matters when the legislature has left them open. A convention of delegates, or even a mass convention, is, after all, but a representation of some political party; neither constitutes the party itself; and until the appropriate department has limited or restricted the method by which a party may be represented, and through what character of representation it may act, we do not consider it within the province of the courts to do so. If there is any doubt about a matter of this character, then that construction of the statute should be adopted

to the party name, and is required in such case to certify both sets of nominations, giving to each the political designation found in the certificate of nomination. People, Eaton, v. District Court, supra; Phelps v. Piper, 48 Neb. 724, 33 L. R. A. 53; Shields v. Jacob, 88 Mich. 164, 13 L. R. A. 760. In Kansas a nomination by electors designating their single candidate as the nominee of the Miners' and Laboring Men's party was recognized as a party nomination, and the court says: "We think that each political party has a perfect right to select its candidates as it pleases, and have their names printed under its party heading; that there is nothing in the law nor in reason preventing two or more political parties, whether acting through conventions or by petitions, from selecting the same individuals for one or more of the offices to be filled.” Simpson v. Osborn, 52 Kan. 328. In Minnesota the supreme court upheld as party nominees certain candidates named by a convention. in opposition to rival candidates presented by a delegate convention of the same party; one of the reasons assigned being the entire absence of any statutory provision regu lating the manner in which political parties should proceed in organizing conventions or making nominations. Manston v. McIntosh, 58 Minn. 525, 28 L. R. A. 605. To hold that the provisions of the statute authorizing a convention to make nominations, and defining a convention as an organized assemblage of electors representing some political party or principle, necessarily confines a political party to proceedings by and through a convention, especially in view of the other provisions affecting nominations by electors' certificate, or by petition, as it is sometimes popularly termed, would require the judiciary to interpolate something which has been omitted, perhaps purposely, from the statute. In the case at bar no convention of the People's party has acted as to two candidates for electors subsequent to the declination of two persons named in convention as well as by petition. No committee was given authority to act. The chairman of the state committee, with 100 associates, present the certificate in question as alleged representatives of the party. If a party may, under any circumstances, act otherwise, than by convention or primary meeting, no lawful or reasonable objection can be urged to such action in the case and upon the facts before us. We conclude, therefore, that the respondent was not bound to disregard the political designation accompanying the names of the candidates Jordan and Sims in the certificate nominating them, that a fair and reasonable construction of the statute does not require him to add to or qualify the party name thus used. No such duty being imposed upon that officer, it does not rest upon the court.

The writ prayed for must be denied. Conaway, J., concurs. Groesbeck, Ch. J., did not participate in the decision.

« ForrigeFortsett »