Healey v. Wipf

• Court: South Dakota Supreme Court
• Writing for the Court: HANEY, P. J.
• Citation: Healey v. Wipf, 22 S.D. 343, 117 N.W. 521 (S.D. 1908)
• Decision Date: 02 September 1908
• Parties: WILLIAM HEALEY et al., Petitioners, v. D. D. WIPF, Secretary of State, Defendant.

22 S.D. 343

117 N.W. 521

WILLIAM HEALEY et al., Petitioners,

v.

D. D. WIPF, Secretary of State, Defendant. South Dakota Supreme Court Original proceedings Writ dismissed. W. A, Lynch, T. H. Null Attorneys for plaintiffs. S.W. Clark, Attorney General Attorneys for defendant. Opinion filed Sept. 2, 1908

HANEY, P. J.

This original special proceeding was instituted to compel the defendant, as Secretary of State, to receive and file nomination certificates of certain Democratic party candidates, and to certify the names of such candidates to the auditors of the several counties for the purpose of having them printed on the official ballots to be voted at the coming general election, in accordance with the provisions of article 6, c. 19, Rev. Pol. Code. It appears from the application that the Democratic Party is an organized political party that has participated in state, county, township, and municipal elections for 12 years last past, during which time it has regularly presented to the electors of this state its party candidates to be voted for at such elections; that it participated in the June, 1908, primary election, electing delegates to its state convention, members of its state committee, a national committeeman and precinct committeemen, in the manner provided by the primary election law, and likewise nominated a candidate for Governor and a candidate for Lieutenant Governor, but the electors composing its membership wholly failed and neglected to file any nominating petitions for any of the following state officers: Secretary of State, Auditor, Treasurer, Superintendent of Public Instruction, Railway Commissioner, Commissioner of School and Public Lands, and Attorney General, consequently no candidates of that party for the offices named were voted for or nominated at the June primary; that the delegates elected as aforesaid assembled at Rapid City, July 14, 1908, and proceeded to organize a state convention by the election of Hon. P. F. Wickham as presiding officer and Mr. T. W. Taubman, as secretary; that such convention so organized proceeded to and did nominate candidates for the offices before named; that a certificate showing the nomination of such candidates, signed by the aforesaid presiding officer and secretary, conforming to the requirements of article 6, c. 19, Rev. Pol. Code, was presented to the defendant, as Secretary of State, who refused to receive and file the same. It further appears from the application that the Democratic state central committee, treating the official positions before named as vacant, met at Mitchell on August 4th, and proceeded to fill such assumed vacancies by naming the same persons as candidates, that certificates showing the action of the committee were presented to the defendant, as Secretary of State, who refused to receive and file the same, and that the plaintiffs are the persons so nominated by the state convention and state central committee. To this application defendant demurred on the following grounds: (1) The plaintiffs have no legal capacity to sue in this form of action; (2) there is a defect of parties in that the state is not made a party by one of its officers, by the Attorney General or by relation of the plaintiffs; and (3) the application does not state facts sufficient to constitute a cause of action or to justify this court in issuing the writ prayed for.

As we understand the argument of counsel it is contended (1) that the Primary Election Law (Laws 1907, p. 285, c. 139) should not be considered as prescribing an exclusive mode of nominating party candidates for the offices mentioned in the application; and (2) that, if it should be so considered, it is unconstitutional and void, The first contention is clearly untenable. Section 3 reads as follows:

“Hereafter all party candidates for the elective officers hereinafter named, and for the office of United States senator, shall be nominated, and all party delegates to political conventions, and all precinct, county, state, and national committeemen shall be nominated and elected at a primary election held in accordance with the provisions of this act. All other nominations of such candidates shall be by petition in the manner now provided by law.”

Section 6, subd. 1, declares:

“The name of no candidate for United States senator, nor of any candidate for member of Congress, nor for any state office including judges of the circuit court,”

shall be printed upon any official ballot used at the primary election unless a nominating petition in the form prescribed shalI have been filed in the office of the Secretary of State. The phrase “any state office” in section 6 must be read in connection with and be qualified by the words “elective officers” in section 3. Each of the officers involved in this proceeding is mentioned in section 8, relating to fees, and in section 11, relating to the form of the official primary ballot. Sections 61, 69, and 72 contain these provisions:

“Any candidate for nomination whose name is printed upon any official primary election ballot who receives the highest number of votes cast by the voters of his party for any candidate for nomination to the office for which he is a candidate, and not less than thirty per cent. of the total vote cast in his party for all the candidates for nomination to such office at the primary election shalI be the nominee of his party for such office, and any candidate for national, state, or precinct committeeman who receives the highest number of votes cast for any candidate for election to the position for which he is a candidate shall be duly elected to such position. In all cases where no candidate receives as high as thirty per cent of the total vote cast by the voters in his party for all the candidates for the same office for which he is a candidate, no nomination shall result, but such candidates shall submit to the decision of the following state or county convention, as the case may be. Such convention must decide among the candidates whose names were submitted to the voters at the primary and cannot consider new candidates. The convention shall nominate one of the contesting candidates and certify his nomination to the Secretary of State or to the county auditor as provided under existing laws. All county conventions held under the...