Diehl v. Totten
| Citation | 155 N.W. 74,32 N.D. 131 |
| Decision Date | 11 October 1915 |
| Court | United States State Supreme Court of North Dakota |
Rehearing filed November 24, 1915.
Appeal from the District Court of Bowman County, Hanley, J.
Affirmed.
Purcell Divet, & Perkins, for appellant.
The statute in question, the corrupt practice act, is unconstitutional. It is general in its terms and assumes to apply to all candidates for public office. Its consequences are also general,--applying to all who seek the public favor in an election. Const. §§ 47-173, 196, 197; U. S Const. § 5, art. 1.
A separation of a statute to sustain a part can only be resorted to when it affirmatively appears that the legislature would have enacted the part sought to be sustained, independent of the other part, if the vice had been called to its attention. McDermont v. Dinnie, 6 N.D. 278, 69 N.W. 294; Angell v. Cass County, 11 N.D. 265, 91 N.W. 72; Poindexter v. Greenhow, 114 U.S. 270, 29 L. ed. 185, 5 S.Ct. 903, 962.
"These are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and to declare that the intention of the legislature was that the part pronounced valid should be enforceable even though the other parts should fail." O'Brien v. Krenz, 36 Minn. 136, 30 N.W. 458; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A.(N.S.) 106, 102 C. C. A. 65, 178 F. 619; State ex rel. Selliger v. O'Connor, 5 N.D. 629, 67 N.W. 824.
"If the different portions of the statute are so interwoven and interdependent that the rejected portion furnishes to an appreciable extent the consideration or inducement for the passage of the act, then the entire enactment must be rejected." McDermont v. Dinnie, 6 N.D. 283, 69 N.W. 294; Poindexter v. Greenhow, 114 U.S. 270, 29 L. ed. 185, 5 S.Ct. 903, 962; Spraigue v. Thompson, 118 U.S. 90, 30 L. ed. 115, 6 S.Ct. 988; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A.(N.S.) 97, 102 C. C. A. 65, 178 F. 619; State ex rel. Selliger v. O'Connor, 5 N.D. 629, 67 N.W. 824; United States v. Reese, 92 U.S. 214, 23 L. ed. 563; Cella Commission Co. v. Bohlinger, 8 L.R.A.(N.S.) 542, 78 C. C. A. 467, 147 F. 419, and cases cited; Butts v. Merchants' & M. Transp. Co. 230 U.S. 126, 57 L. ed. 1422, 33 S.Ct. 964; James v. Bowman, 190 U.S. 127, 47 L. ed. 979, 23 S.Ct. 678.
The statute is wholly penal, and that it is punishment that is intended as the end to be attained. If this is true, the officer charged is entitled to have the question of his guilt determined by a jury. The statute cannot go to the right of an elected party to occupy the office to which he has been elected. 15 Cyc. 393-398.
The criminal court can pronounce a judgment of disfranchisement. Baum v. State, 157 Ind. 282, 55 L.R.A. 250, 61 N.E. 672; State ex rel. Crow v. Bland, 41 L.R.A. 297, 46 S.W. 440; People ex rel. Akin v. Kipley, 171 Ill. 44, 41 L.R.A. 785, 49 N.E. 229.
The plaintiff has no standing because of the fact that he received the second highest number of votes at the election. He was the incumbent in office preceding the election in question, and was a candidate for re-election to the same office. By the so-called failure of the election or qualification of the defendant, the repudiated candidate comes into no right. Therefore, he has not capacity to maintain this action. State ex rel. Clawson v. Bell, 13 L.R.A.(N.S.) 1013, and cases cited in the note, 169 Ind. 61, 124 Am. St. Rep. 203, 82 N.E. 69.
It is only where an officer is elected and qualified and where no vacancy exists, that there can be a holdover. Taylor v. Sullivan, 45 Minn. 309, 11 L.R.A. 272, 22 Am. St. Rep. 729, 47 N.W. 802; State ex rel. Atty. Gen. v. Seay, 64 Mo. 89, 27 Am. Rep. 206; State ex rel. Elliott v. Bemenderfer, 96 Ind. 374.
It must be shown that sufficient votes were obtained by the improper means charged to change the result of the election. Especially is this true where the officer is at most only guilty of a mistake. People ex rel. Bush v. Thornton, 25 Hun, 456; State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 110 N.W. 177, 11 Ann. Cas. 560; State ex rel. Leonard v. Rosenthal, 123 Wis. 442, 102 N.W. 49.
Emil Scow, for respondent.
The office of county judge is an elective office. Such officer is elected for a term of two years, and until his successor has been elected and has qualified. If no successor is "elected and qualified," he becomes a holdover. State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74; Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, Ann. Cas. 1913B, 675.
The offer made by the contestee to return back to the treasury of the county a certain portion of his legal and fixed salary, if the voters would elect him, was a violation of the corrupt practice act of this state, and disqualified him from holding such office of county judge. Such act should be liberally construed. Nelson v. Gass, 27 N.D. 357, 146 N.W. 537, Ann. Cas. 1915C, 796; Adams v. Lansdon, 18 Idaho 483, 110 P. 280; Whaley v. Thomason, 41 Tex. Civ. App. 405, 93 S.W. 212; Healy v. State, 115 Md. 377, 80 A. 1074; State v. Milby, 26 Wash. 661, 67 P. 362; State ex rel. Newell v. Purdy, 36 Wis. 213, 17 Am. Rep. 485; State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 110 N.W. 177; State ex rel. Clements v. Humphries, 74 Tex. 466, 5 L.R.A. 217, 12 S.W. 99; Leonard v. Com. 112 Pa. 607, 4 A. 220.
An election secured by a candidate for public office by means of offers to voters to perform the duties of the office for less than the legal fees is void. State ex rel. Atty. Gen. v. Collier, 72 Mo. 13, 37 Am. Rep. 417; State ex rel. Bill v. Elting, 29 Kan. 397.
The figures as to the valuation and population of the county were easily ascertainable by the appellant at the time he made his offer to the voters, and he cannot now be heard to say that he did not know them. He could have known them, and he ought to have known them, and he will be presumed to have known them. Vinal v. Core, 18 W.Va. 38; Ohio Valley Coffin Co. v. Goble, 28 Ind.App. 362, 62 N.E. 1025; State v. Ransberger, 106 Mo. 135, 17 S.W. 290; State v. White, 37 L.R.A.(N.S.) 1177, and note, 237 Mo. 208, 140 S.W. 896; Jarrell v. Young, Smyth, Field Co. 23 L.R.A.(N.S.) 376, and note, 105 Md. 280, 23 L.R.A.(N.S.) 367, 66 A. 50, 12 Ann. Cas. 1.
Appellant told the taxpayers of the county "that his offer, if elected, would reduce to some extent the tax burden." If it would have such effect, it certainly was something of value that he promised. Watson v. State, 39 Ohio St. 123, 4 Am. Crim. Rep. 71; Carrothers v. Russell, 53 Iowa 346, 36 Am. Rep. 222, 5 N.W. 499.
"All elections by the people shall be by secret ballot, subject to such regulations as shall be provided by law." Const. § 129; Fitzmaurice v. Willis, 20 N.D. 372, 127 N.W. 95.
Appellant was just as ineligible to the office at once and upon the making and publishing his offers to the voters and taxpayers, as though he had been an alien, under age, or disqualified in any other manner. Jenness v. Clark, 21 N.D. 150, 129 N.W. 357, Ann. Cas. 1913B, 675; State ex rel. Bickford v. Fabrick, 16 N.D. 94, 112 N.W. 74.
Such a promise as appellant made to the electors is clearly within the condemnation of the statute and adjudicated cases. State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 110 N.W. 177.
Diehl was the duly elected, qualified and acting judge of the county court in and for Bowman county, North Dakota, for the years 1913-14. At the general election to choose his successor, held in November, 1914, he was a candidate for re-election and was opposed by Totten. Shortly prior to said election Totten caused to be published in a newspaper of general circulation in said county an article in the following words:
Political Advertisement.
EDWARD P. TOTTEN For COUNTY JUDGE READ HIS PLATFORM AND PLEDGE (Photograph of Edward P. Totten) TO THE VOTERS AND TAXPAYERS OF BOWMAN CO.
In the situation existing in our county to-day, the first duty is to cut down expenses and save the people's money. All unnecessary expenditures should be stopped and rigid economy should be the watchword all along the line. The present heavy load upon the tax-burdened people of this county should be lightened and the public welfare made the first consideration.
The foregoing is a leading plank in the platform upon which I am seeking election to the office of county judge and, as evidence of the sincerity of my stand thereon, I pledge the people of Bowman county that, if elected to that position, I will turn back into the treasury of the county all salary above the amount of $ 1,500 a year. When my opponent went into office two years ago the salary of county judge took a sudden and unexplained leap of several hundred dollars, rising to $ 1,800 a year, and, while he has been receiving an average of $ 1,700 during his term, he has left nothing undone to increase that amount and add still further to the burdens of taxation under which the people are laboring. The sum of $ 1,500 is fair and ample compensation for the work of the office of county judge, brings the salary down to the same basis as that of the auditor and the treasurer, and under all the circumstances is sufficient for any man who does not regard the taxpaying public as a "cow to be milked." It will reduce to some extent the tax burden and should give an effective start to a much-needed movement toward strict economy in all county affairs. The records of this county will prove that, during my service as state's attorney some years ago, more money was turned into the treasury through my activities than the entire cost of maintaining the state's attorney's office, including salary and all expenses, and the taxpayers thereby relieved. Performance while in office ought to be an earnest of the above platform and...
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