Anderson v. Cook

• Decision Date: 26 October 1942
• Docket Number: 6554
• Citation: 130 P.2d 278,102 Utah 265
• Court: Utah Supreme Court
• Parties: ANDERSON v. COOK, Acting County Clerk

130 P.2d 278

102 Utah 265

ANDERSON v. COOK, Acting County Clerk

No. 6554

Supreme Court of Utah

October 26, 1942

Original mandamus proceeding by Floyd C. Anderson against Merlin Cook as acting county clerk of Box Elder County, Utah to require the defendant to issue to plaintiff a certificate of nomination as a candidate for the office of county assessor of Box Elder County, Utah, to be voted for at the election to be held in November, 1942, and to print the name of plaintiff as such candidate on the official ballot. On defendant's demurrer to plaintiff's application.

Order in accordance with opinion.

Plaintiff not entitled to appear upon the ballot for the general election as the Republican candidate for county assessor, and the application for the writ denied. Costs to respondent.

David J. Wilson, of Ogden, and Elias Hansen, of Salt Lake City, for plaintiff.

Grover A. Giles, Atty. Gen., and A. John Brennan and Zar E. Hayes Deputy Attys. Gen., for defendant.

MOFFAT, C. J., not participating. PRATT, J., on leave of absence.

OPINION

PER CURIAM.

Application for a writ of mandamus to which a demurrer was filed. The same was argued on the demurrer which admitted the following facts:

That the plaintiff is a citizen of the United States, over the age of twenty-one years and is a resident and duly qualified elector of Brigham City, Box Elder County, Utah;

That defendant is the duly qualified and acting county clerk of Box Elder County, Utah;

That on the 22nd day of July, 1942, your plaintiff presented and left for filing with the defendant a written petition to have his name placed on the official primary ballot as a candidate for nomination by the Republican Party as its candidate for the office of County Assessor of Box Elder County, Utah;

That such petition so presented and left with defendant read as follows:

"Nomination Petition Primary

"Nomination paper of Floyd C. Anderson for the office of County Assessor.

"State of Utah "County of Box Elder

SS.

"For the purpose of having my name placed on the official Primary Ballot for nomination by the Republican party as its candidate for the office of County Assessor, I, the undersigned Floyd C. Anderson, do solemnly swear (or affirm) that I can qualify to hold said office both legally and constitutionally if elected, that I reside at Number 334 So. 2nd East street, in the city or town of Brigham, County of Box Elder, State of Utah, and that I am a member of the Republican party; that I believe in and intend to support throughout my term, if elected, the principles and policies of such political party; (that I affiliated with such party at the last general election of this State, and I voted for a majority of the candidates of such party at the last general election); that I intend to vote for a majority of the candidates of said party at the ensuing election for which I seek to be a candidate; that if nominated as a candidate of said Republican party at the ensuing election I will accept said nomination and, for the protection of the County Clerk, I agree that I will not withdraw as such candidate within the period of thirty days before the said regular primary election; that I will not knowingly violate any election law or any law defining and prohibiting corrupt and fraudulent practice in campaigns and elections in this state, and that I will qualify for said office if elected thereto.

"Floyd C. Andersen"

That at the time said petition was so presented to the defendant the plaintiff paid to said defendant the fee required by law, namely: one-fourth of one per cent of the total salary for the full term legally or customarily paid to the person holding the office of County Assessor of Box Elder County, Utah;

That the petition above-mentioned was presented on the 22nd day of July, 1942, at the hour of fifteen minutes after 5 o'clock p. m. at what is generally known now as Mountain War Time;

That at the primary election held on the first Tuesday of September, 1942, no name appeared on the official ballot used at such primary election on the Republican ticket for the office of County Assessor of Box Elder County, Utah, and no petition or nominating paper was filed for such office other than by plaintiff.

That three qualified electors of Box Elder County, Utah, wrote the name of plaintiff on the Republican ticket used at such primary election for the office of the County Assessor of Box Elder County, Utah, and no votes were cast for any other person at such primary election for the office of County Assessor of Box Elder County on the Republican ticket;

That after the primary election so held on the 1st day of September, 1942, to wit: On September 24, 1942, the County Central Committee of the Republican Party in and for Box Elder County, Utah, after having determined that the plaintiff herein should be the candidate for the office of County Assessor of Box Elder County, Utah, on the Republican ticket at the November election in 1942, presented to and filed with the defendant herein a written designation that the plaintiff herein was and should be the candidate for the office of County Assessor of Box Elder County, Utah, on the Republican ticket to be voted for at the general election to be held in November, 1942;

That no petition and no designation of nomination has been presented to or filed with the defendant or at all by or for any person whomsoever as a candidate for the office of County Assessor of Box Elder County, Utah, on the Republican ticket to be voted for at the general election to be held in November, 1942, other than as above stated;

That the plaintiff herein and the Central Committee of the Republican Party in and for Box Elder County, Utah, have made demand in writing upon the defendant herein that he, the said defendant as the Acting County Clerk of Box Elder County, Utah, issue to the plaintiff herein a certificate of nomination as a candidate for the office of County Assessor of Box Elder County, Utah, to be voted for at the election to be held in November, 1942;

That the defendant threatens to and refuses to have printed on the official ballot to be used at the general election to be held in November, 1942, the name of plaintiff herein as a candidate for the office of County Assessor of Box Elder County, Utah, on the Republican ticket;

That the Republican Party of Utah polled more than two per cent of the total vote cast for representatives to Congress in the general election held in Utah in 1939.

It is further admitted by both parties that the name of the plaintiff did not appear as a candidate for the office of County Assessor of Box Elder County, Utah, or for any other position on the ticket in the primary election.

Three questions are presented:

1. Was the nomination petition filed within the statutory time?

2. Does the County Central Committee of a political party have the power to designate a candidate for a particular office where no petition of nomination of anyone has been previously filed?

3. Where no petition for nomination for a particular office has been filed, can an elector at a primary election, by writing in the name of a person, nominate a person for such office?

As to the first question, the contention of plaintiff with respect to the time of filing the petition raises two questions, namely:

A. Was a petition filed subsequent to 5 o'clock p. m. on July 22nd, but prior to 5 o'clock p. m. July 23rd, 1942, filed within the period permitted by statute?

B. Was a petition filed at 5:15 p. m. Mountain War Time on the last day for filing petitions as allowed by statute filed within the statutory time?

As to "A," Section 16, Chapter 37, Laws of Utah 1939, reads as follows:

"Nomination petitions and designations of nomination required by this chapter to be filed with the county clerk shall be filed not more than one hundred days or less than forty days before the time fixed by law for the primary election. * * *"

It is conceded that election day (September 1st) is not to be counted but plaintiff argues that counting backwards from that date, using August 31 as day one, July 23rd would be the fortieth day, and what is done on the fortieth day is done "[not] less than forty days" before. Unfortunately for plaintiff this court, prior to the enactment of the statute in question, held that the language, "not less than fifteen days before election" meant that fifteen complete days must elapse between the date of filing and the day of election, and neither of those days could be counted in the fifteen days. Wood v. Cowan, 68 Utah 388, 250 P. 979. It must follow that when the legislature used in the present statute the language so construed, it intended the same meaning and construction. See, also, Home Owners' Loan Corporation v. Stevens, 98 Utah 126, 97 P.2d 744. So computing time the petition must needs have been filed on or before July 22nd.

As to "B," Section 16, Chapter 29, Laws of Utah 1937, as amended by Chapter 37, Laws of Utah 1939, provides in part as follows:

"* * * All applications of persons for political party nominations must be filed with and received by the proper election officers not later than 5 p.m. on the last day which the filing may be made under the provisions of this section * * *."

The plaintiff contended that since the act was passed at a time when what is commonly known as War Time, or Daylight Saving Time, was not in effect, that the Legislature contemplated the time which was in effect at the time the statute was passed as the time which would govern in determining filing time so long as the statute remained upon our books.

The case of Salt Lake City v. Robinson, 39 Utah 260, 116 P. 442, 446, 35 L.R.A., N.S., 610, Ann. Cas. 1913E 61, is...