Adams v. Lansdon

• Decision Date: 11 August 1910
• Citation: 18 Idaho 483,110 P. 280
• Parties: GARDNER G. ADAMS, Plaintiff, v. ROBERT LANSDON, as Secretary of State of the State of Idaho, Defendant
• Court: Idaho Supreme Court

110 P. 280

18 Idaho 483

GARDNER G. ADAMS, Plaintiff, v. ROBERT LANSDON, as Secretary of State of the State of Idaho, Defendant

Supreme Court of Idaho

August 11, 1910

PRIMARY ELECTION LAW-CONSTITUTIONALITY OF-LEGISLATIVE INTENT-MANDATORY PROVISIONS - STATUTORY CONSTRUCTION - EXPENDITURES OF CANDIDATES-PROVISIONS OF LAW CONSTRUED TOGETHER-WHEN A PERSON IS A CANDIDATE-PRECINCT OFFICERS.

(Syllabus by the court.)

1. That provision of section 14 of an act entitled, "An act relating to and providing for the nomination of candidates of political parties," etc., and commonly known as the primary election law (Sess. Laws 1909, p. 196), which requires a voter to vote for both first and second choice if there are more than twice as many candidates as there are positions or offices to be filled, is not in conflict with sec. 19, art. 1, of the constitution, which provides that "No power, civil or military, shall at any time interfere with or prevent the free and lawful exercise of the right of suffrage."

2. Sec 19, art. 1, of the constitution has reference to the attendance of officers, civil or military, at the polls, and prohibits them from interfering with the free and lawful exercise of the right of suffrage.

3. By the provisions of said act, the legislative intent was to take the nomination of the officers therein named away from party committees or party conventions and have them nominated by the legal voters of the several political parties by a majority of the first-choice votes if possible, and in case no candidate receives a majority of first-choice votes, then by a plurality of first and second-choice votes added together.

4. That provision of sec. 14 of said act which reads as follows "Vote for both first and second choice if there are more than twice as many candidates as there are positions," is mandatory.

5. The failure to vote for both a first and second choice will not avoid the ballot except as to the particular office where both a first and second choice vote is required and for which the voter has failed to express both a first and second choice.

6. The provisions of the primary election law in regard to personal expenditures of candidates to aid or promote their nomination are not repugnant to the provisions of sec. 9, art. 1 constitution of Idaho, which declares that "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty."

7. The intent and purpose of said primary election law is to prevent large expenditures of money, property or promises to aid or promote the nomination of any person.

8. Under the provisions of sec. 24 of said law, a candidate for nomination is prohibited from expending for "personal expenses" as the same is defined by said section "or at all," to aid or promote his nomination, more than fifteen per cent of the yearly compensation or salary attached to the office which he seeks.

9. All of the provisions of said act in regard to the nomination of a candidate by payment of a fee or by petition and also the provisions in regard to personal expenses must be construed together, and the candidate is prohibited from expending for all such purposes more than fifteen per cent of the yearly salary of the office he is seeking.

10. A person is a candidate for nomination within the intent of the primary election law when he is expending his money in employing and sending out workers or perfecting an organization, or advertising and exploiting himself, or influencing public opinion in his favor or against an opponent, or in numerous other ways that present themselves to the office-seeker for the purpose of increasing and enhancing his ultimate chances of nomination for a given office or to aid or promote such nomination.

11. Under the direct primary law the purpose of the expenditure by a candidate is the test of its lawfulness without reference to the time at which it was made.

12. Precinct officers may, under the provisions of sec. 29 of said act, be nominated in any reasonable way provided by a party committee or organization.

13. Laws are enacted to be read and obeyed by the people, and in order to reach a reasonable and sensible construction thereof, words that are in common use among the people should be given the same meaning in the statute as they have among the great mass of the people who are expected to read, obey and uphold them.

This is an original proceeding for a writ of prohibition to restrain the secretary of state from certifying to the several county auditors of the state a list containing the names, postoffice address and party designation, etc., of candidates as required by the primary election law. Peremptory writ denied and proceeding dismissed.

Alternative writ quashed and the peremptory writ denied. No costs are allowed to either party.

Hawley, Puckett & Hawley, Karl Paine, and Good & Adams, for Petitioner.

The provision in sec. 14 of the act, "Vote for both first and second choice if there are more than twice as many candidates as there are positions," is ambiguous and uncertain. If it was intended to be a mandatory provision compelling the voter to vote for first and second choice as to candidates for a particular office, then it is unconstitutional, in that it violates the provisions of sec. 15, art. 1 of the constitution.

This constitutional provision applies to primary as well as general elections. A statute may be within the inhibitions of the constitution as well by implication as by expression. ( Evansville v. State, 118 Ind. 426, 21 N.E. 267, 4 L. R. A. 93; Page v. Allen, 58 Pa. 338, 98 Am. Dec. 271.) This statute by implication interferes with the free exercise of the right of suffrage.

State v. Nichols, 50 Wash. 508, 97 P. 728, is the only case of which we have knowledge that passes upon a similar question, but we hold that it is not in point so far as our contention here is concerned. The legislature of our state in passing our primary election law followed the law of the state of Washington closely, but eliminated the mandatory provisions with reference to first and second choice. If it had been the intention of the legislature to compel the elector to vote for both first and second choice, why was it the Washington law was not followed in this regard? Does not such provision in the Washington law so eliminated from the Idaho law of itself and in itself prove that it was the intention of the legislature to leave it optional with the voter whether he cast his ballot for first choice only, or for both first and second choice?

D. C. McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, for Defendant.

While there is no express statutory demand in the law, requiring the voter to vote for a second choice, and providing that if he does not the ballot shall not be counted, yet there is by clear and strong implication an intent of the legislature revealed that it is the duty of the voter to vote both a first and second choice. We find this intent revealed by that part of section 14 which provides for the form of ballot and instructions thereon, and by an absolute lack of any provision whatsoever in the primary law providing for the making of any nomination, either by convention or by another primary election, should the first primary election by any means at all fail to result in a nomination.

The preferential system arose from a desire on the part of the legislature to avoid the expense and inconvenience of two elections. Therefore, it was sought to bring about this result by requiring the people to decide between a first and second choice, providing that if a majority of the first choice votes were not had, that a plurality of first and second choice would prevail. The legislature must have had two objects--first, putting into the hands of the greatest number of people the nominations of the officers; second, to prevent another election being had by requiring first and second choices to be made. In construing the law, then, we must construe it in the light of the evident purpose that the legislature had in view. The intent of a statute is the law. (2 Sutherland on Stat. Const., 2d ed., secs. 363, 366, 368-370.)

"The provision of the statute governing the conduct of elections is mandatory, when the purpose of the law-making power will be plainly defeated if its command to do acts in a particular way did not imply a prohibition to do them in any other way." (Perry v. Hackey, 11 N.D. 148, 90 N.W. 483; 7 Dec. Dig., sec. 227.)

When the disregard of a statutory provision would work the ruin of a law, the provision must be regarded as mandatory and followed. It is reasonable to believe that a disregard of said mandatory provision of preferential voting would necessarily result in a rejection of the ballot so voted. (Beal on Rules of L. Int., pp. 331, 434; 26 Am. & Eng. Ency. of Law, 613.)

We think the intent of the law is plain that the expenses shall be calculated from the time of filing of the acceptance of the nomination. (State v. Bates, 102 Minn. 104, 112 N.W. 1026, 12 Ann. Cas. 105.) This case is in point, as it is based upon a statute almost identically the same as the Idaho statute. To hold otherwise than is laid down in the rule of State v. Bates would bring about a great uncertainty and would be productive of ill-results, and following the said case would make our statute most uncertain, indefinite and ambiguous and most difficult of enforcement.

O. E. McCutcheon, amicus curiae.

Our law is different from the Washington law in using mandatory words addressed directly to the voter in the second person, and this tends to add strength to its commands. (State v. Connor, 86 Tex. 133, 23 S.W. 1103, at 1107; 3 Words and Phrases, 2079.)

The command is, "Vote for...