Griffin v. Gesner
| Decision Date | 10 October 1908 |
| Docket Number | 16,141 |
| Citation | 97 P. 794,78 Kan. 669 |
| Parties | SAMUEL GRIFFIN v. WILLIAM GESNER et al |
| Court | Kansas Supreme Court |
Decided July, 1908.
Original proceeding in mandamus.
SYLLABUS BY THE COURT.
1. ELECTIONS--Nomination by Primary--Contest. Under the provisions of the primary election law enacted at the special session of the legislature held in the year 1908 the nomination of a candidate for member of the house of representatives in a district comprising a single county may be contested before the tribunal created by section 2703 of the General Statutes of 1901.
2. ELECTIONS--Filing Objections--Limitation. In such a case the three days' time allowed for filing objections after the nomination papers have been lodged with the proper officer begins to run from the filing of the certified determination of the state board of canvassers with the secretary of state.
Troutman & Stone, S. I. Field, and D. M. Martin, for plaintiff.
Noble & Tincher, for defendants.
At the primary election held on August 4, 1908, Samuel Griffin and William Gesner were rival candidates for nomination on the republican ticket for member of the house of representatives from the representative district composed of Barber county. On the face of the returns Gesner was successful. Griffin undertook to institute a contest under section 2703 of the General Statutes of 1901, which provides that objections or questions relating to nominations for officers to be elected by the voters of a county shall be considered by the county clerk, clerk of the district court, and county attorney. The officials named met as a contest court, but declined to investigate the causes for contest, and this proceeding in mandamus was commenced to compel them to do so. The case is finally submitted upon a motion to quash the alternative writ, which raises two questions: Has the contest court, organized as stated, jurisdiction of the controversy? And, if so, was it incumbent upon the contestor to make his objections to the nomination of the contestee within three days following the determination of the result of the election by the county board of canvassers? Section 10 of the new primary election law, which constitutes chapter 54 of the Laws of 1908, reads in part as follows:
Legislation by reference to other acts sometimes produces decidedly crude statutes and frequently occasions confusion and uncertainty in the law. Such legislation is prohibited by the constitutions of some of the states, but the method is not entirely condemned by the constitution of this state. ( Wichita v. Telephone Co., 70 Kan. 441, 447, 78 P. 886.) When the references are as blind as they are in the primary election law it becomes a very difficult and perplexing thing for the people, for public officials and for the courts to know what the statutory provisions are upon the subjects involved.
In dealing with the subject of contests the statute quoted simply gorges article 6 of chapter 36 of the General Statutes of 1901. The most cursory consideration of this article reveals its general inadaptability to contests arising under the primary election law, but so far as controversies like this are concerned it is absolutely unworkable unless there should be a timely session of the legislature, because it provides that contests relating to membership in the house of representatives are to be tried by that body.
On behalf of the defendants it is urged that, the subject of contests having been covered by an express provision of the primary election law, and that provision being useless, further endeavor toward a contest should cease. The express reference in the statute to contests puts it beyond well-founded contradiction that the legislature intended there should be a statutory remedy of that character. Whether fairness and justice require that there should be an opportunity to test the validity of a primary nomination in this way, and what course the courts themselves might pursue if no statutory procedure were prescribed, need not engage attention. In order that the will of the people may prevail the legislature has clearly indicated its purpose that the formal returns of the result of a primary election which do not correctly exhibit the expression of that will may be overridden by means of a contest. Finding a contest code on the statute-book, the legislature adopted it, but did not stop there. Both before and after the reference in section 10 to article 6 of chapter 36 of the General Statutes of 1901 there are clear statements that all existing laws applicable to the subject of general elections are brought to bear upon the subject of primary elections, so far as they are consistent with the primary election law. These statements are as explicit and as mandatory as those adopting the article just referred to, and the court is bound to search all the statute-books for general election laws which may be adapted to the fulfilment of the uses and purposes of the primary election law.
The matter of bringing upon the official ballot the names of the persons to be voted for is of course a subject of paramount importance under the election laws. The act known as the "Australian ballot law" (Gen. Stat. 1901, ch. 36, art. 9) deals with the subject. The primary election law subjects certain matters to the regulations contained in parts of this article. Other parts govern subjects referred to in the primary election law, and still others concern important matters which must arise and must be disposed of the same as before the primary election law was enacted. None of the provisions of this article is expressly repealed by the primary election law, and under the well-settled canons of construction none of them consistent with that law is impliedly repealed, even if they had not been expressly adopted by and incorporated into that law. Everything is saved that can be utilized in meeting exigencies arising in the accomplishment of the purposes of the primary election law.
The Australian ballot law contains the provision which was invoked by the plaintiff in his effort to contest his opponent's nomination and which reads as follows:
The adaptability of this section to the plaintiff's needs manifestly depends upon what is meant by a certificate of nomination or nomination papers, and their filing with some proper officer. Primary elections were recognized as lawful methods of nominating candidates for office before the new law became effective. (See Laws 1891, ch. 115; Gen. Stat. 1901, §§ 2743-2750.) The Australian ballot law is framed in accordance with this fact. Omitting portions plainly rendered ineffectual by the new law, sections 2696 and 2697 of the General Statutes of 1901 contain the following provisions pertinent to this controversy:
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