Burke v. Burkhart

• Decision Date: 02 March 1920
• Docket Number: 4685
• Parties: JOHN L. BURKE, Plaintiff, v. C. A. BURKHART, Secretary of State of the State of South Dakota, Defendant.
• Court: South Dakota Supreme Court

42 S.D. 604

176 N.W. 743

JOHN L. BURKE, Plaintiff,

v.

C. A. BURKHART, Secretary of State of the State of South Dakota, Defendant. South Dakota Supreme Court Original proceedings #4685--Writ granted Gaffy, Stephens & McNamee Attorney for Plaintiff. Byron S. Payne, Attorney General Oliver E. Sweet, Assistant Attorney General Attorney for the State. Opinion filed March 2, 1920

WHITING, J.

Application for writ to compel the defendant, as secretary of state, to place the name of plaintiff on the Republican ballot, at the primary election, as a Republican candidate for railroad commissioner. Plaintiff filed in the defendant's office an individual candidate proposal petition. The defendant contends that the office of railroad commissioner is a state office, and that the petition filed was insufficient, in that it did not have signatures enough attached thereto. Plaintiff contends that those seeking nominations for the office of railroad commissioner are elected "from districts," and that, under section 7118, Rev. Code 1919, the number of signers necessary for a proposal petition is based on the vote cast for candidates for Governor in the district, and not that cast in the state. The decision of this case rests on the determination of which contention is well founded.

The duties of a railroad commissioner and of the board of which such a commissioner is a member are such that he is, 'without question', a 'state officer,' just as members of the Legislature and judges of the circuit court are state officers, though chosen from districts. Butts v. Purdy, 63 Or. 150, 125 Pac. 313, 127 Pac. 25; Dillman v. State, 20 Wyo. 404, 125 Pac. 378; State ex rel. v. Romero, 17 NM 88, 125 Pac. 617. The board of commissioners consists of three members. Under section 1, c. 136, Laws 1893, it was expressly provided that such commissioner's should be elected from separate districts, but by the "qualified electors of the state at large." Section 3 of said act required a commissioner to be a resident of the district "from which he is elected." In the Revised Code of 1903, section 1, supra, was omitted, and the clause above quoted from section 3, supra, was changed to read "for which he is elected." Rev. Code 1903, § 189.

From the adoption of Rev. Code 1903 down to the present time, the law relating to election of railroad commissioners has been like that relating to members of the Legislature, who are also elected "from" districts. There is not a word, either in the Constitution or statute, that declares that members of the Legislature shall be elected by the electors of the several districts instead of by the state at large; and yet, while they are state officers, no one would presume to claim that they should each and every one be elected by the electors of the whole state. If the Legislature should create a board of nine game...