Fuller v. Corey

• Decision Date: 30 September 1910
• Citation: 110 P. 1035,18 Idaho 558
• Parties: HIRAM G. FULLER, Plaintiff, v. IRA N. COREY, County Auditor, Defendant
• Court: Idaho Supreme Court

110 P. 1035

18 Idaho 558

HIRAM G. FULLER, Plaintiff, v. IRA N. COREY, County Auditor, Defendant

Supreme Court of Idaho

September 30, 1910

PRIMARY NOMINATION-FILING EXPENSE ACCOUNT-FAILURE TO COMPLY WITH SECTIONS 25 AND 26 OF PRIMARY NOMINATION STATUTE.

(Syllabus by the court.)

1. Where a candidate for nomination under the direct primary nomination statute of this state has been duly and regularly certified by the canvassing board to the county auditor as having received the nomination of his party, for a county office, the duty of causing the name of such nominee to be printed on the official ballot to be used at the succeeding general election is purely a ministerial act, and the auditor cannot sit in judgment on the candidate and adjudge him ineligible to have his name printed on the ticket on account of his failure to file an expense account either within the time or in the manner provided by the direct primary law. (Secs. 25 and 26, 1909 Sess. Laws, p. 204.)

2. Before a nominee under the direct primary law can be denied the right to have his name printed on the official ballot on account of ineligibility resulting from his failure to file a statement of his expense account either within the time or in the manner provided by law, he must be judicially declared, by orderly and due process of law, to be ineligible on account of his violation of the direct primary law.

Original application for writ of mandate. Petition granted and order entered that peremptory writ issue.

Peremptory writ of mandate issued. Costs awarded in favor of plaintiff.

A. H McConnell, for Plaintiff.

O. P Soule, for Defendant.

Counsel file no briefs.

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

This is an application for a writ of mandate against the auditor of Fremont county, compelling him to cause the name of petitioner, Hiram G. Fuller, to be printed on the official ballot as the Republican candidate for county treasurer of Fremont county to be voted on at the general election in November.

It is alleged by the petitioner that he was duly and regularly nominated by the Republican party at the primary election held in August as the nominee of that party for the office of county treasurer. It is further alleged that the county auditor refuses to have the petitioner's name printed on the official ballot, for the reason that petitioner did not file his expense account as required by secs. 25 and 26 of the primary election law (1909 Sess. Laws, pp. 204 and 205), within ten days after the date on which the primary election was held.

Sec. 25 of the act provides that every candidate for nomination under the terms of the act shall not more than ten days after holding the primary election file an itemized statement in writing, duly sworn to as to its correctness, setting forth the items of expenditures made by him for the purpose of securing or...