Daniel Boone Schirmer v. Rawson C. Myrick, Secretary of State
| Decision Date | 10 October 1940 |
| Parties | DANIEL BOONE SCHIRMER v. RAWSON C. MYRICK, SECRETARY OF STATE |
| Court | Vermont Supreme Court |
October Term, 1940.
Opinion delivered Oaths.---1. P. L. 171 Gives No Jurisdiction to Supreme Court.---2. Oath Not Taken by One with Interest.---3. Interest to Disqualify Found in Facts.---4. Candidate for Office Disqualified to Take Oaths on Own Nominating Petition.---5. Secretary of State Refusing to Accept Nominations with Improper Oaths.
1. P L. 171 which provides that certain errors in election procedure may be corrected by affidavit presented to a Justice of the Supreme Court or a Superior Judge does not confer jurisdiction upon the Supreme Court to hear and grant such applications.
2. Even though the administration of an oath is a ministerial act public policy forbids it be done by one who has either a financial or beneficial interest in the proceeding.
3. What constitutes a disqualifying interest on the part of an officer taking an acknowledgment or administering an oath must be determined on the facts of each case rather than by a fixed rule.
4. A candidate for political office has such a beneficial interest in the execution of certificates for his nomination that he is disqualified from administering the oaths to the same.
5. The Secretary of State lawfully refused to receive and file nominating petitions as not "in apparent conformity to law" where the required oaths thereto were administered before the person whose nomination was sought when the Secretary promptly took objection and insisted upon the invalidity thereof.
PETITION to Supreme Court, October Term, 1940, seeking relief under P. L. 171 because Secretary of State refused to print name of petitioner as a candidate on ground nomination petitions have oaths taken by the petitioner. The opinion states the case.
The petition is dismissed.
Daniel B. Schirmer, pro se.
Lawrence C. Jones, Attorney General, for the petitionee.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT AND JEFFORDS, JJ.
The petitioner was the candidate of the Communist party of the State of Vermont for the office of Representative to Congress at the general election of November 5, 1940. He presented to the petitionee, the Secretary of State, certificates of nomination signed by 752 voters residing in the State. The petitionee refused to receive and file these certificates on the ground that they were not in apparent conformity with law as required by P. L 189, in that the oaths provided for in P. L. 182 were administered to the signers by the petitioner himself, as notary public, the certificates of oaths being signed by him as such. The petitioner thereupon brought this proceeding to this Court, relying upon the provisions of P. L. 171 claiming that the petitionee had committed a breach of duty, and praying that he should be ordered to desist from his wrongful act and, having filed the certificates of nomination, to place the petitioner's name upon the ballot as a candidate for the office he sought. The petitionee appeared and answered setting forth his reasons for his conduct; and also moved to dismiss the petition for want of jurisdiction in this Court.
So far as material P. L. 171 is as follows: "If it appears by affidavit presented to a justice of the supreme court or a superior judge that an error or omission has occurred or is about to occur in the printing of the name of a candidate on the official ballots, or that an error has been or is about to be committed in printing such ballots, * * * or that any wrongful act has been or is about to be performed by an officer or person charged with a duty under this chapter or that a neglect of duty by such person has occurred or is about to occur, such justice or judge shall order that the officer or person charged shall forthwith correct the error, desist from the wrongful act, or perform the duty as such justice or judge shall direct, or forthwith show cause to the contrary, and failure to obey such order shall be deemed contempt."
This statute places the jurisdiction to make the appropriate orders specified therein in a single justice of this Court or in a superior judge. The Supreme Court, therefore, is not the tribunal erected by the act with authority to hear and...
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