Jacobs v. Pyle

• Decision Date: 24 April 1928
• Docket Number: No. 6713.,6713.
• Citation: 219 N.W. 247,52 S.D. 537
• Parties: JACOBS v. PYLE, Secretary of State.
• Court: South Dakota Supreme Court

52 S.D. 537

219 N.W. 247

JACOBS

v.PYLE, Secretary of State.

No. 6713.

Supreme Court of South Dakota.

April 24, 1928.

Original proceeding by William J. Jacobs against Gladys Pyle, as Secretary of State of the State of South Dakota, to have the petitions of the proposed candidates for nomination as Republican candidate for state Senator declared insufficient and defendant enjoined from recognizing them. Injunction granted.Martens & Goldsmith, of Pierre, and F. E. Snider, of Faulkton, for plaintiff.

Buell F. Jones, Atty. Gen., and R. F. Drewry, Asst. Atty. Gen., for defendant.

Roy Nord, of Faulkton, and Frank S. Tait, of Gettysburg, amici curiae.

CAMPBELL, J.

The counties of Faulk, Potter, and Dewey, in this state, constitute the Thirty-Sixth senatorial district, entitled under section 5076, Rev. Code 1919, to elect one state Senator. At the November, 1926, general election the total votes cast in said senatorial district for the Republican candidate for Governor were 2,721. Therefore, by virtue of section 7120, Rev. Code 1919, as amended by chapter 113, Laws 1927, in order to place upon the ballot to be used by the Republican party at the oncoming May primary the name of a candidate for selection at such primary as the Republican party nominee for state Senator from such joint district, there must have been filed in the office of the secretary of state on or before April 1, 1928, an individual proposal petition in behalf of such candidate, having affixed thereto the signatures of at least 5 per cent. or 137 of the Republican party electors of such joint legislative district.

On March 28, 1928, there was accepted for filing and filed in the office of the secretary of state an individual proposal petition, proposing the plaintiff, Jacobs, for nomination as Republican candidate for the office of state Senator from said joint legislative district, and the present proceeding does not in any manner bring in question the sufficiency or regularity of the Jacobs' petition or the filing thereof. On March 30, 1928, there was tendered to the secretary of state for filing an individual proposal petition, purporting to propose one Metz as a candidate for the Republican nomination for the same office, and on March 31, 1928, there was tendered to the secretary of state for filing an individual proposal petition, purporting to propose as a candidate for said Republican nomination for said office Hon. Frank Cundill, the present incumbent thereof.

On April 14, 1928, plaintiff instituted the present action by serving and filing summons and verified complaint alleging his own qualifications as a resident and Republican elector of Faulk county in said joint legislative district, setting out the foregoing facts and specifically alleging, with reference to the Metz petition, that the same purported to have affixed the names of 171 persons, and was defective and insufficient in the following particulars appearing upon the face thereof, namely: First, that 20 of said persons were disqualified to sign the Metz petition because they had previously signed the petition filed two days earlier nominating plaintiff as a candidate for the same office, said signatures being affixed to plaintiff's petition at divers dates between March 1st and March 15th, and the same signatures being affixed to the Metz petition at divers dates between March 16th and March 27th; second, that in addition to said 20 duplicate signatures 5 signers of said petition failed to add after their names their voting precinct, post office address, county, and date of signing as required by law; third, that in addition to the duplicate signatures and to those who failed to add the required information, 29 of the signers of said petition failed to affix their signatures with pen and ink or by indelible pencil.

With reference to the Cundill petition, the complaint alleges that it purported to have affixed the names of 144 persons, and that it was defective and insufficient in the following particular appearing upon the face thereof, namely, that 72 of said signers failed to affix their signatures with pen and ink or by indelible pencil.

The complaint further alleges that, notwithstanding such facts, defendant threatens to and will, unless restrained, file said Metz and Cundill petitions, and transmit to the county auditors of said joint legislative district the names of said Metz and Cundill, as duly proposed candidates for nomination as the Republican candidate for state Senator in said district upon the Republican primary ballot, and the prayer is that the petitions objected to be determined by this court to be insufficient and invalid, and that defendant be enjoined and restrained from filing or recognizing said petitions or acting thereon, or certifying said names as candidates for such Republican nomination, and also for a temporary injunction. The same facts are set up by affidavit, and an order was issued upon such affidavit and the verified complaint to show cause why an injunctional order should not issue.

The matter is now before us upon the order to show cause. Defendant appeared by counsel, but made no countershowing upon the facts and entered no denial of the allegations of the plaintiff. Defendant's sole return to the order to show cause is in the following form:

“Comes now Gladys Pyle, as secretary of state of the state of South Dakota, defendant in the above-entitled action, and for her return to the order to show cause dated April 14, 1928, says that individual candidate proposal petitions of William J. Jacobs, Henry W. Metz, and Frank Cundill, referred to in plaintiff's affidavit and application and said order to show cause, are now on file in the office of the secretary of state and will be produced in court by this defendant at the time of the hearing on said order.

Wherefore defendant prays that upon the said hearing such order may be made as shall appear just and equitable.”

[1] Defendant does not deny that she has determined the petitions in question here to be sufficient, and has filed the same, and is about to certify out the names of the candidates therein mentioned as duly proposed thereby and entitled to be placed upon the primary ballot as candidates for republican nomination. Neither has defendant seen fit by her return to question in any manner whatever the facts pleaded by plaintiff. The allegations of plaintiff's verified complaint and affidavits stand before us entirely uncontroverted. Defendant was not served with a subpoena duces tecum, but with an order to show cause. She cannot be deemed to controvert plaintiff's allegations as to the facts merely by a statement that she will produce the petitions in court. We will therefore assume the facts to be as plaintiff alleges and proceed to consider the legal questions arising thereon. We may further state that from the oral argument we do not understand that there is any serious dispute between the parties as to the facts even though defendant's return is entirely insufficient to raise any fact questions.

It is the contention of plaintiff that three classes of names are ineligible to be considered as valid signatures upon the petitions to which he objects: First, those who failed to add after their names their voting precinct, post office address, county, and date of signing (applicable to the Metz petition only); second, those who had previously signed the earlier filed petition of plaintiff (applicable to the Metz petition only); third, those who affixed their signatures by common lead pencil as distinguished from pen and ink or indelible pencil (applicable to both the Metz and Cundill petitions).

Section 7120, Rev. Code 1919, as amended by chapter 113, Laws 1927, providing for individual proposal petitions for candidates for party nomination as legislative candidates from a joint legislative district, reads in part as follows:

“*** Said individual proposal petition shall be substantially in the same form as provided in section 7117 and shall have affixed thereto the signatures of at least five per cent. of the party electors of the joint legislative district, with the same requirement as to form of execution and declaration; and the timely filing thereof shall entitle the candidate to have his name printed upon the official ballot used by his party at the primary in each county in such legislative district. ***”

Section 7117, Rev. Code 1919, as amended by chapter 113, Laws 1927, reads in part as follows:

“The name of no party candidate for *** legislative *** offices *** shall be printed upon the official party ballot used at any primary held, as herein provided except the candidates of two representative proposals within each party as herein provided, unless on or before April first, before the date of the primary, an individual candidate proposal petition shall have been filed in the office of the secretary of state *** in substantially the following form. ***”

Section 7118, Rev. Code 1919, as amended by chapter 113, Laws 1927, makes provision for the percentage of signers upon individual proposal petitions for party primaries.

Section 7119, Rev. Code 1919, bears the subtitle “Individual Proposal Petition-How Made and Signed,” and reads as follows:

“To each of the individual proposal petitions, as provided in sections 7117 and 7118, each petitioner shall affix his own signature, with pen and ink or by indelible pencil, and shall add, after his name, his voting precinct, post office address, county and date of signing. No petitioner shall sign more than one such petition relating to the same office, in the same year, and no name shall be counted upon such petition unless the same appears to have been signed within five months prior to the date of the primary election in which the person, in whose behalf the petition is filed, is to be a candidate. It shall not be necessary that one paper shall contain all the signatures, but a single petition may be made up of one or...