Hayes v. Ross

• Decision Date: 28 October 1912
• Docket Number: 2437
• Court: Utah Supreme Court
• Parties: HAYES et al. v. ROSS, County Clerk

127 P. 340

41 Utah 580

HAYES et al. v. ROSS, County Clerk

No. 2437

Supreme Court of Utah

October 28, 1912

Mandamus proceedings by H. H. Hayes and another against Ed Ross, Clerk of Sevier County.

WRIT DENIED.

C. S Varian for plaintiffs.

A. E Moreton for defendant.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

We are asked by mandamus to compel the clerk of Sevier County to restore the names of certain alleged nominees stricken by him from a certificate of nomination, and to place them on the official ballot, under the name and emblem of a particular group of voters designating themselves as the Progressive Party, and to be furnished the electors at the general election to be held on November 5, 1912. The election laws drawn in question are parts of sections 822 and 825, chap. 126, Sess. Laws Utah, 1911. Section 822, among other things, provides that nominations of candidates for public office may be made by any convention of delegates of a political party which presented candidates at the last preceding election held for the purpose of making nominations for public office, and that a convention, as defined by the statute, "is an organized assemblage of voters or delegates representing a political party" which, at the last preceding election, case at least two per cent. of the entire vote in a district or other political division." It forbids "any number of voters, convention, or committee of any political party to nominate more than one group of candidates or have placed on the official ballot more than one group of candidates or more than one ticket, by adopting any name, emblem or device, other than the regular name, emblem and device of the political party represented by the voters, committee or convention making such nomination," but permits "any voters, convention or committee of any political party" to "nominate any one or more person or persons who may have been nominated by any other voters, convention or committee, but in making such nomination, the name of such nominee shall be place upon the regular ticket of the political party represented by the voters, convention or committee making such nomination, and no political party shall be permitted to have placed upon the official ballot, either directly or indirectly, more than one ticket or more than one group of candidates, or to group the same persons on different tickets by the same party under a different name or emblem." Section 825 provides for the nomination of candidates by a group of voters other than by a convention or committee. It, among other things, provides that nominations may be made by such a group of voters by a certificate of nomination containing the names of the candidates for the offices to be filled and designating the political or other name which the signers shall select, and that the certificate shall be signed, in case of nominations for offices to be filled within a district greater than a county, by at least 100 voters residing in the district who are required to acknowledge their signatures, and to add their places of residence, and to take oath that they are voters within the district. It further provides that "such certificate shall also contain a statement by the voters that the name or names of the person or persons nominated in the certificate will not be printed upon the official ballot, or upon any party ticket as the nominees of any political party or voters and that the name or names of the persons nominated in the certificate will not be printed upon the official ballot under the name or device adopted in the certificate. It is hereby made the duty of the officers making up the official ballot to erase from the certificate any name or names of nominees contained in such certificate that will otherwise appear printed upon the official ballot as the party ticket." By section 824, Comp. Laws Utah 1907, it is provided that certificates of nomination of candidates for offices to be filled by the voters of any political division or district greater than a county shall be filed with the Secretary of State. Section 832 provides that all certificates of nomination which are in apparent conformity with the statute shall be deemed valid, unless objection thereto shall be made in writing within three days after the filing of the certificate. In cash such objection is made, notice shall be given and the officer with whom the original certificate was filed shall pass upon the validity of the objection, and that his decision shall be final; provided that the officer shall decide the objection within at least forty-eight hours after the objection is filed. By section 829 it is provided that the Secretary of State shall, immediately upon the expiration of the time within which certificates of nomination may be filed with him and corrections thereof made, certify to the county clerk of each county within which any of the voters may by law vote for the candidates named in the certificate the name and description of each such candidate, together with the other details mentioned in such certificate of nomination so filed with the Secretary of State.

At the last preceding election, there was a political party known as the Democratic Party, which, in the Sixth Judicial District, comprising Sevier County and four other counties, case more than two per cent. of the entire vote in that district, but there was no political party designated by the name of Progressive Party. On September 28 1912, a group of voters of that district, who, in their certificate of nomination, designate themselves as the Progressive Party and their emblem as the head of a bull moose, under the provisions and in pursuance of section 825, nominated by such certificate of nomination H. H. Hayes for the office of district judge of that district and E. E. Hoffman for the office of district attorney, to be filed at the general election on November 5, 1912. It is alleged and admitted that the certificate was signed by such electors within the district, and was verified by them on September 28, and filed with the Secretary of State on October 4, 1912. It is further shown that the Democratic Party at a regular convention of delegates called to make nominations for the offices of district judge and district attorney on October 2, 1912, nominated Hayes for district judge and Hoffman for district attorney, and filed a certificate of such nominations with the Secretary of State on October 5, 1912, one day after the filing of the certificate of the group of voters. After the expiration of the time within which certificates of nominations may be filed, the Secretary of State in one certificate certified to the clerk of Sevier County the names of Hayes and Hoffman as nominees of the group of voters and Hayes and Hoffman as also the nominees of the Democratic Party, together, while not alleged, but as we may assume, with the "details mentioned in-such certificates of nomination so filed with" him. The clerk in making up the official ballot to be furnished the electors at the general election placed the names of Hayes for district judge and Hoffman...