Napton v. Meek

• Decision Date: 02 December 1902
• Citation: 8 Idaho 625,70 P. 945
• Parties: NAPTON v. MEEK, RECORDER
• Court: Idaho Supreme Court

70 P. 945

8 Idaho 625

NAPTON v. MEEK, RECORDER

Supreme Court of Idaho

December 2, 1902

ELECTION LAW-CERTIFICATE OF DECLARATION.-The provisions of section 24 of an act approved February 2, 1899, commonly called the "Australian Ballot Law" (5th Sess. Laws 1899, p 37), prescribing that declinations of persons nominated for public office shall be filed with the proper officer at least thirty days before election, are mandatory, and a nominee desiring to take advantage of such provisions must file his declination with the proper officer at least thirty days before the day of election.

(Syllabus by the court.)

An original proceeding in Supreme Court for writ of mandate.

Writ denied. Costs awarded to the defendant.

Alfred A. Fraser and Walter Griffith, for Plaintiff, file no brief.

Rice &amp Thompson, for Defendant.

While vacancy caused by death or insufficiency of certificate of nomination may be filled at any time, clerk has no authority to fill vacancies caused by declination, except when declination is made "as in this act provided." (5th Sess. Laws, p. 37, sec. 25.) The only case apparently directed to point is Com. Hudson v. Martin, digested in 6 Gen. Dig. Annotated, page 2166. Other sections of election law regarding time are held mandatory; for instance, that certificate of nomination must be filed within a certain time. (State v. Falley, 9 N. Dak. 464, 83 N.W. 913; Casper v. Piper, 50 Neb. 40, 69 N.W. 383; Hollon v. Center, 102 Ky. 119, 43 S.W. 174; In re Cuddeback, 3 A.D. 103, 39 N.Y.S. 388; Griffin v Dingly, 114 Cal. 48, 46 P. 457; Phillips v Curtis, 4 Idaho 193, 38 P. 405.) All the reasoning in these cases is applicable to declinations. A distinction is taken between election contest cases and such cases as the present. (Jones v. State, 153 Ind. 440, 55 N.E. 229; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80; Baker v. Scott, 4 Idaho 596, 43 P. 76.) Certificate of register is sufficient because it does not certify that signature to declinations is that of party declining, or that party declining appeared before her and acknowledged it to be his signature, and is perfectly consistent with a state of facts such as an oral declination and a writing signed by someone else; it might open the door to fraud. Residence and business of certifying officers is held to be a matter of substance in Lucas v. Ringsrud, 3 S. Dak. 355, 53 N.W. 426. Being an application for a writ of mandate, plaintiff must show himself entitled to a writ in every essential particular. This is not a case where the interests of candidates and committees only are involved; it involves questions of substantial law in which the whole people are interested, and incidentally it may be remarked that a candidate has no right as a matter of law to resign at will or decline to take upon himself the discharge of the duties of a public office to which he may have been elected; he may be compelled by mandamus to perform such duties. (People v. Williams, 145 Ill. 573, 36 Am. St. Rep. 514, 33 N.E. 849, 24 L. R. A. 492.)

SULLIVAN, J. Stockslager, J., concurs. Quarles, C. J., sat at the hearing, but took no part in the decision.

OPINION

SULLIVAN, J.

This is an original proceeding in this court for a writ of mandate to Edgar Meek, clerk of the district court, and ex-officio auditor and recorder of Canyon county, to compel said auditor to file a certificate of nomination, whereby the plaintiff, Houston Napton, was nominated for the office of representative of the state of Idaho from said county, and to further command said auditor to have the name of the plaintiff properly printed on the official ballot of said county. It appears that one Allen K. Wright was nominated for said office of representative by the regular Democratic convention of said county, and that his name was duly certified, as by law required; that on the first day of October, 1902, he declined the nomination, by letter to the chairman of the Democratic committee of said county, on the ground that he had only been a resident of said county seven months. His written declination was certified by the register of the South Payette precinct of said Canyon county. It is alleged that at a regularly called meeting of the Canyon county central committee of the Democratic party, held on the third day of October, 1902, said declination was accepted, and Houston Napton, the plaintiff, was duly nominated by said committee to fill the vacancy resulting from said declination. Thereafter, on the thirteenth day of October, 1902, said declination, with the certificate of the register, was presented to the defendant, the auditor of said county, and he was requested to file the same, which he refused to do, and indorsed on the back thereof that the filing was refused on the ground that it was not presented for filing thirty days prior to the day of election. Thereupon the plaintiff instituted these proceedings to compel him to file said declination, and to file the plaintiff's certificate of nomination to said office of representative.

The answer puts in issue some of the facts alleged in the complaint, but the case was submitted on the demurrer to the complaint. Although the demurrer specifies some particulars in which the complaint fails to state a cause of action, it is a general demurrer. It is contended that said declination was not offered for filing in the time required by law, and upon that point counsel for defendant cites Session Laws of 1899, page 37, section 24. Said section reads as follows "Whenever any person nominated for public office, as in this act provided, shall at least thirty days before election, except in the case of municipal elections, in a writing signed by him, and certified to by the registrar of the precinct where the person nominated resides, notifying the officer with whom the certificate nominating him is by this act required to be filed, that he declines such nomination, such nomination shall be void. In municipal elections such declination must be made at least ten days before the election." It is...