Dillman v. State ex rel. Merrill

• Citation: 125 P. 367,20 Wyo. 404
• Decision Date: 18 June 1912
• Docket Number: 722
• Parties: DILLMAN, COUNTY CLERK, v. STATE EX REL. MERRILL
• Court: United States State Supreme Court of Wyoming

125 P. 367

20 Wyo. 404

DILLMAN, COUNTY CLERK, v. STATE EX REL. MERRILL

No. 722

Supreme Court of Wyoming

June 18, 1912

ERROR to the District Court, Laramie County; HON. CARROLL H PARMELEE, Judge.

Application to the district court for writ of mandamus brought in the name of the state, on the relation of M. R. Merrill against William H. Dillman, as county clerk of the County of Laramie. The purpose of the action was to require the filing by the defendant of a nomination paper presented by the relator nominating him as a candidate for precinct committeeman to be voted for in a certain precinct in the new County of Platte a county in process of organization. A demurrer to the petition and alternative writ was overruled and judgment rendered granting the relief prayed for. The defendant brought the case to the Supreme Court on error. The other material facts are stated in the opinion.

Judgment reversed and cause remanded.

C. L Rigdon and S. G. Hopkins, for plaintiff in error.

The question involved is whether the organiation commissioners appointed in the County of Platte and their provisional clerk will have jurisdiction over and the conduct of the election of officers at the coming general election in said county, or whether the county clerk and the other proper officers of Laramie County (the parent county) will have such jurisdiction. There would seem to be no doubt that under section 1057, Compiled Statutes, the provisional officers of the new county are to conduct the election, and that said section not only refers to the special election to determine whether or not the new county shall be separated from the old county, but also to the general election at which the new county officers are to be chosen. Under that construction of the statute the general laws provide a clear and certain method of organization. It could not have been intended by the act creating the new county that such county should remain a part of the old county for election purposes, with reference to the election of officers for the new county. The provision was merely inserted as a saving clause for the purpose of giving the parent county authority to conduct necessary elections in the new county prior to the complete organization of the new county. The act creating the new county is a special law, and it cannot be construed as amending or repealing the general law for the organization of counties, because by such a construction it would be unconstitutional, since it requires a general law to organize a new county. Provisions of the statute should be interpreted in such a manner, if possible, to give it effect within the limitation of the constitution. The election of officers in a new county is as much a part of its organization as the election to determine whether said county shall be separated from the old county.

Members of the legislature are state officers, and the nomination papers for candidates for the legislature to be voted for in the new and the old counties jointly should be filed with the secretary of state.

Clark & Clark and Ray E. Lee, for defendant in error.

Neither the general law for organizing new counties, nor the special law creating Platte County, nor the direct primary law, confers upon the commissioners and clerk appointed to organize Platte County the authority to hold a primary election. Section 1057, Compiled Statutes, limits their authority to one election, and that election is the one to be held upon the question of division. The organization commissioners are not county commissioners and the clerk appointed by them is not a county clerk. (Taylor v. Commissioners, 11 Wyo. 106.) There is no county clerk of Platte County, and hence no county clerk in whose office the relator can file his nomination papers, unless, under the provisions of the act creating Platte County, which retains it as a part of Laramie County for elective purposes, such papers can be filed with the county clerk of Laramie County. There are no justices of the peace of Platte County, and hence the provision in the primary law for canvassing the votes would be of no avail in Platte County, and the votes could not be canvassed, if the election was conducted by the organization commissioners. The logical result of the several laws is that the nomination papers of candidates for offices in Platte County should be filed with the county clerk of Laramie County, and that the primary election in that county should be under the control and supervision of the proper officers of Laramie County, including the canvass of the votes. This would not work a hardship upon either county, since the direct primary ballots could be prepared by the county clerk of Laramie County and distributed by him, and the canvassing board could declare the result in both counties.

POTTER, JUSTICE. BEARD, C. J., and SCOTT, J., concur.

OPINION

POTTER, JUSTICE.

This case involves generally the question whether the primary election for the nomination of candidates of political parties for offices to be filled at the general election to be held November next should be under the control and supervision of the old county as to the nomination of candidates for an office to be voted for at such general election in a county yet unorganized, but in process of organization, created out of a part of the territory of such old county, or whether as to the nomination of such candidates, the primary election is to be conducted under the control and supervision of the commissioners and clerk appointed for the purpose of organizing such new county. The particular question to be decided is whether the nomination papers of a candidate for precinct committeeman of a political party, where the whole of the precinct is within such new unorganized county, should be filed with the county clerk of the old county or the clerk of the board appointed to organize the new county. A determination of that question necessarily involves a consideration of the general question above stated.

On June 4, 1912, the petition in this case was filed in the district court in Laramie County, setting forth that the defendant therein named is county clerk of the County of Laramie; that the relator, M. R. Merrill, is a member of the Democratic party and a resident and qualified elector of precinct No. 1 in election district No. 4 in said county; that the whole of said precinct is included in that part of the territory of said county which constitutes the unorganized County of Platte; that heretofore, at a special election duly called and held in said unorganized County of Platte under the control of the commissioners for organization purposes appointed by the governor, a majority of the persons voting voted in favor of the creation and organization of said County of Platte; that the relator desires to become a candidate for the position of a member of the Democratic County Central Committee from said precinct to be voted for at the primary election to be held August 20, 1912, and on June 3, 1912, he caused a nomination paper to be properly signed and verified nominating the relator as a candidate for said position; that on June 4, 1912, he caused said nomination paper, together with a statement signed by him to the effect that he would qualify as such officer if nominated and elected, to be offered to the said county clerk at his office for filing; and that defendant refused to accept the said nomination paper and declaration and refused to file them. Upon these facts a writ of mandamus was prayed to require the defendant, as county clerk of said County of Laramie, to accept the said nomination paper and declaration and fiile the same in his office.

An alternative writ was issued, and the cause was heard in the district court upon a general demurrer to the petition, and thereupon it was ordered that the demurrer be overruled, and the defendant having elected to stand upon his demurrer and refused to further plead, that the said defendant accept and file in his office the nominating paper and declaration aforesaid. The defendant has brought the case here on error.

In the argument our attention was called to the fact that at the last session of the Legislature, the same session at which the primary election law was passed, several new counties were created by defining the boundaries thereof and giving a name thereto respectively, and that in each of said new counties organization commissioners had been appointed, and a special election had been held at which was submitted to the qualified electors of the territory proposed to be cut off the question of division, in compliance with the provision of the Constitution that no county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off voting on the proposition shall vote in favor of the division, and in compliance with the statute providing for such election, and also the question of the location of the county seat for such new county; and that at such special election so held in each of said new counties the vote was in favor of said division and had been so declared, and the county seat had been located; also that at least two of such new unorganized counties are respectively composed of territory taken from two or more counties. And that all the territory embraced in each of the new counties of Platte and Goshen was taken from Laramie County. It was also suggested that a determination of the particular question here presented will necessarily determine the extent and manner of the operation of the primary election law in each of such new unorganized counties, affecting as well as other offices the nomination of candidates for the office of senator and member of the house of representatives in the State Legislature to be...