Baker v. Scott

• Decision Date: 30 December 1895
• Parties: BAKER v. SCOTT
• Court: Idaho Supreme Court

43 P. 76

4 Idaho 596

BAKER v. SCOTT

Supreme Court of Idaho

December 30, 1895

ELECTION LAW-CORRECTION OF OFFICIAL BALLOT-TOO LATE AFTER ELECTION.-Where a candidate for a county office neglects to have an alleged defect in the official ballot corrected as provided by section 59 of the election laws of this state, he cannot, after the election is had, and he finds himself defeated, raise the objection that the name of the successful candidate was improperly placed upon the official ballot.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed, with costs.

Attorney General George M. Parsons, Fremont Wood, S. C. Winters, D. C Lockwood, Stewart & Dietrich and Edgar Wilson, for Appellant.

This was an action to contest the election of John Scott respondent, to the office of clerk of the district court in and for Bannock county. It appears that John S. Baker was regularly nominated on the Republican ticket for said office and that John Scott was the regular nominee on the Democratic ticket for said office and that John Scott was placed on the official ballot as the nominee of the People's party and the Taxpayers' party. The certificates of nomination by a convention or primary meeting shall be in writing and signed by the presiding officer and secretary of such convention or primary meeting. (Election Laws, sec. 26; 1st Sess. Laws, pp 62, 63.) There are only two other certificates of nomination provided for under the election laws: One by the electors, without a convention or primary meeting. (Election Laws, sec. 28; 1st Sess. Laws, 63.) One by a committee appointed by a convention or primary meeting to fill vacancies. (Election Laws, sec. 34; 1st Sess. Laws, p. 65.) There were no such certificates filed by the People's party nominating John Scott for said office. The assemblage known as the Taxpayer's convention, which purported to nominate John Scott for the office of clerk of the district court, was not a convention or primary meeting within the meaning of section 25 of the Election Laws. (1st Sess. Laws, p. 62.) The provisions of the statute governing the nominations and filing certificates for an election to a public office are mandatory and must be strictly followed. (Price v. Lush, 10 Mont. 61, 24 P. 749; Lucas v. Ringsrud, 3 S. Dak. 355, 53 N.W. 426; State v. Barber, 4 Wyo. 56, 32 P. 14.) The language of a statute to be construed must be consulted and followed. Statutes that expressly declare any particular act essential to a valid election are imperative and considerations of its policy or impolicy must be addressed to the legislature, and no room is left for construction. (McCrary on Election, sec. 190; Bartlett v. Morris, 9 Port. (Ala.) 268, 269; Sedgewick on Statutory and Constitutional Law, 325, 326, note 327, 328; Slaymaker v. Phillips, 5 Wyo. 453, 40 P. 971, 42 P. 1049.) Nearly all the states that have adopted the Australian method have provided a statute by which the certificates of nomination are deemed to be valid unless objections are filed or some action is commenced within a limited period after filing. (Kansas: Laws 1893, sec. 10, p. 109; Colorado: Laws 1894, sec. 13, p. 148; Nebraska: Laws 1891, sec. 11, p. 243; New York: Laws 1890, sec. 3, p. 485; South Dakota: Laws 1890, sec. 17, p. 157; Massachusetts: Laws 1890, secs. 5, 9, pp. 477, 478; Pennsylvania: Laws 1891, sec. 6, p. 351.) Idaho has no such statute. All, or nearly all, of the states above mentioned have, in addition to the statute cited, another statute either identical with or similar to our section 59, which relates exclusively to the correction of errors appearing in the printed or published ballot after the candidates have been properly nominated and their nominations certified.

Eden & Warner and W. C. Love, for Respondent.

On the fifteenth day of September, 1894, the People's party convention was held. At the convention, no one was named as candidate for clerk of the district court. The convention having failed to name candidates for several offices, among them the office of clerk of the district court, named a committee consisting of Frank Walton, William F. Fisher and F. H. Murphy, delegating to said committee the power to make the nominations for the offices left vacant by the convention. That the convention had the power to so do, we think, is beyond question. (See State v. Benton, 13 Mont. 306, 34 P. 301--a case as nearly like the one at bar as does or can ever exist.) And section 34, of First Session Laws of Idaho page 65, expressly confers this power. Statutes relative to election, should be liberally construed. (State v. Benton, 13 Mont. 306, 34 P. 301; People v. Board of Canvassers, 129 N.Y. 652, 29 N.E. 1032; Simpson v. Osborn, 52 Kan. 328, 34 P. 749; Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S.W. 103; Allen v. Glynn, 17 Colo. 338, 31 Am. St. Rep. 304, 29 P. 678; State v. Van Camp, 36 Neb. 91, 54 N.W. 113; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80.) Appellant evidently knew that the auditor of Bannock county had the name of Scott printed on the official ballot under the separate heads, Democratic, People's party and Taxpayers' party, and being an interested party, it was his duty, under section 59, page 77 of First Session Laws of Idaho to apply to the probate court to have the official ballot corrected, by striking therefrom the name of Scott as the People's party and Taxpayers' candidate if it did not properly belong there, and failing to do this he cannot base a contest on that ground after election. (Allen v. Glynn, 17 Colo. 338, 31 Am. St. Rep. 304, 29 P. 678; Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S.W. 103.)

HUSTON J. SULLIVAN, J., MORGAN, C. J., concurring.

OPINION

HUSTON, J.

This is an action brought by the plaintiff against the defendant to try the right to the office of clerk of the district court and ex-officio auditor and recorder for the county of Bannock. At the regular biennial election held in this state on November 6, 1894, the plaintiff was the nominee of the Republican party of Bannock county, and his name was placed upon the official ballot as such. The defendant was the nominee of the Democratic party for said office, and was also nominated by the People's party and by the Taxpayers' party for the same office, and his name appeared upon the official ballot of said county as the candidate of each of said parties for said office. At the said election the plaintiff received according to the official canvass of the votes cast at said election for said office, five hundred and forty-five votes, and the defendant received eight hundred and eighteen votes. It is claimed by plaintiff that the votes cast for the defendant as the candidate of the People's party, being, as found by the district court, two hundred and seventy-five votes, and those cast for defendant by the Taxpayers' party, being, as found by the district court, forty-six votes, should not have been included or counted in the official canvass, for the reason that said defendant's name as a candidate for said office was placed upon said official ballot as the candidate of said People's party and said Taxpayers' party irregularly, and in contravention of the provisions of the election law of this state. It appears: That on the fifteenth day of September, 1894, the People's party of Bannock county held a convention for the purpose of placing in nomination candidates for the various county offices to be voted for at said election. That said convention left the nomination for clerk of the district court of said county vacant, and that said convention, while in session, duly assembled for the purpose herein mentioned, passed this resolution: "Resolved, that a special committee of three be elected who are authorized to fill all vacancies on the ticket." That said resolution was adopted by said convention, and Frank Walton, Frank H. Murphy and W. F. Fisher were elected as such committee. That said committee organized by the election of W. F. Fisher as chairman and Frank H. Murphy as secretary. Subsequently, and within the time prescribed by the statute, such nomination was duly certified by the chairman and secretary of said committee to the auditor of said county of Bannock, together with the other nominees of said party for county offices of said county. It is contended by the plaintiff that said resolution of the People's party convention gave no power or authority to said committee to certify the name of the defendant to the auditor of said county, or authorizes said auditor to place the name of defendant upon the official ballot of said county as the candidate of the People's party for said office. It is contended by counsel for appellant that under the provisions of section 34 of the election law of 1891 such committee has no power to fill any vacancy that is not made or caused by the death or declination of a candidate previously nominated by the convention. Perhaps a strict technical construction of section 34 might support this contention under certain circumstances, but when we consider this law in the light expressed by an authority cited by appellant, viz.: "The main purpose of the law evidently is to enable voters to express their real wishes by their ballots freed entirely from the influences which might tend to corrupt or intimidate them, and also to provide for printing and distributing at public expense ballots which will afford all political parties, and considerable groups of electors, a fair opportunity to vote for the candidates of their choice" (the italics are ours)--we may well doubt whether the construction contended for by appellant's counsel should be entertained. Vacancies may occur in the nominations of political parties from various causes, entirely consistent...