[174 P. 701]

• Decision Date: 16 August 1918
• Docket Number: [174 P. 701]
• Citation: 31 Idaho 622
• Parties: Dick Donovan, Appellant, v. W. T. Dougherty, Secretary Of State, Respondent.
• Court: Idaho Supreme Court

31 Idaho 622

Dick Donovan, Appellant, v. W. T. Dougherty, Secretary Of State, Respondent.

No.

Supreme Court of Idaho

August 16, 1918

W. R HAMILTON, Plaintiff, v. W. T. DOUGHERTY, Secretary of State Defendant. (Two Cases.)

INJUNCTION-PRIMARY ELECTION-CANDIDATES-POLITICAL PARTIES.

1. Injunction will not lie to restrain a ministerial act by a public official where no property rights are involved.

2. The laws of Idaho contain no provision which directly or impliedly forbids a candidate of one political party from seeking and obtaining the nomination of another political party at the same primary election, but permit a candidate to solicit and secure the nomination from one or more political parties at the same time.

[As to jurisdiction of equity to protect political rights, see note in Ann. Cas. 1915C, 989]

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge, in an action to enjoin the Secretary of State from certifying certain names to county auditors as nominees upon the Democratic ticket to be voted for at the primary election, and original proceedings here by mandamus to accomplish the same purpose.

Judgment of the district court affirmed. Original proceedings dismissed.

E. J Dockery, W. B. Davidson and Isham N. Smith, for Appellant and Plaintiff.

"It was the intention of the legislature that every right conferred upon the voter at the primary election would be protected, defended and enforced by appropriate legal methods, and every wrong committed against such law would have its remedy." (Walling v. Lansdon, 15 Idaho 298, 97 P. 396; State v. Wait, 92 Neb. 313, 138 N.W. 159, 43 L. R. A., N. S., 282; State v. Wells, 92 Neb. 337, 138 N.W. 165, 41 L. R. A., N. S., 1088; State ex rel. Spofford v. Gifford, 22 Idaho 613, 126 P. 1060; State ex rel. Cook v. Houser, 122 Wis. 534, 100 N.W. 964; People v. Tool, 35 Colo. 225, 117 Am. St. 198, 86 P. 224, 229, 231, 6 L. R. A., N. S., 822.)

"A court of equity may issue an injunction in matters relative to elections the same as in any other controversy." (Aichele v. People, 40 Colo. 482, 90 P. 1122; Lewis & Putney Handbook on Election L., sec. 52, p. 188.)

T. A. Walters, Atty. General, and A. C. Hindman, Asst. Atty. General, for Respondent and Defendant. Kessler & Pizey and Elliott & Healy, for Intervenors.

The complaint alleges no facts showing, or tending to show, that the defendant is attempting, or will attempt, a judicial act in certifying down the name of Mr. Samuels. Such an act is clearly a ministerial act. (Miller v. Davenport, 8 Idaho 593, 70 P. 610.)

Courts will not grant writs of prohibition to restrain ministerial duties. (Stein v. Morrison, 9 Idaho 426, 75 P. 246; Balderston v. Brady, 17 Idaho 567, 107 P. 493; Olden v. Paxton, 27 Idaho 597, 150 P. 40; Perrault v. Robinson, 29 Idaho 267, 158 P. 1074.)

The only instance in which courts will interfere in political matters is in cases where there is some express statute which it is alleged is being violated. In those cases courts will interfere to the extent of enforcing or giving effect to Walling v. Lansdon,

15 Idaho 282, 97 P. 396; Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133; State v. Gifford, 22 Idaho 613, 126 P. 1060; 9 R. C. L. 1065, 1070; 10 R. C. L. 342; 14 R. C. L. 365, 374.)

PER CURIAM.

-These causes are consolidated for the purposes of this opinion because they all grow out of the same state of facts and seek the same relief in substance, and the court feels that it has not the necessary time, owing to the public necessity for an early determination of them, to formulate a separate opinion in each.

The first action is in this court upon appeal from the third judicial district, and was brought for the purpose of obtaining a writ of injunction restraining the Secretary of State from certifying the names of certain candidates to the various county auditors of the state for printing upon the official primary ballot of the Democratic party for the primary election to be held on the third day of September next.

The second action is an original proceeding in this court for a writ of mandate directing the Secretary of State to refrain from certifying the name of one H. F. Samuels as a candidate for the Democratic nomination for Governor, in his certificate of names of candidates to the various auditors and the third action is also an original proceeding in this court for a writ of mandate against the Secretary of State, directing him to refrain from certifying the names of certain other candidates for Democratic nominations for various state officers, in his certificate of nominations to the said auditors.

In the first action the trial court sustained a demurrer to the complaint for injunction, and upon refusal of plaintiff to plead further ordered the action dismissed, from which order plaintiff appeals.

The pleadings in these various proceedings allege that a certain organization, calling itself the Nonpartisan League, is a political organization which has appeared in Idaho since the election of 1916, but that it has no standing as a political [31 Idaho 625] Page 626

recent date, chairman of the Republican County Central Committee of Bonner County, and that he has not been and is not now a Democrat, and that one L. I. Purcell, candidate for Congress of the Nonpartisan League, was a member of the Republican Platform Convention held in Boise the latter part of June of this year, and that he has not been and is not now a Democrat.

The relief sought is to prevent the Secretary of State from certifying these Nonpartisan League candidates down as candidates seeking the Democratic nominations for the respective offices for which they have been placed in nomination.

Demurrer was interposed in the injunction proceeding attacking the jurisdiction of the court, the legal capacity of the plaintiff to sue and the sufficiency of the complaint to state a cause of action. In the original proceedings in this court, H. F. Samuels, in the one, was permitted to intervene and filed his demurrer and answer, and the other candidates were permitted to intervene and filed their demurrer and answer in the other proceeding. The demurrers in these proceedings attack the jurisdiction of the court, the legal capacity of plaintiff to sue, allege that there is another action pending, that there is a defect of parties plaintiff, and that the complaint does not state facts sufficient. The Secretary of State appeared in each of the cases and demurred to the jurisdiction and sufficiency of the complaint. As all of the proceedings are determined upon these demurrers, it becomes unnecessary to devote any attention to the answers filed in the original proceedings.

The demurrer to the complaint for injunction was correctly sustained by the lower court on the ground that it did not have jurisdiction of the subject matter of the action. There were no property rights involved and courts of equity will not intervene to restrain a public officer from the performance of a purely ministerial act where...