Nelson v. King

• Decision Date: 16 November 1906
• Citation: 21 S.D. 51,109 N.W. 649
• Parties: NELSON v. KING, County Auditor
• Court: South Dakota Supreme Court

21 S.D. 51

109 N.W. 649

NELSON

v.KING, County Auditor

Supreme Court of South Dakota.

Nov. 16, 1906.

Mandamus by the state on the relation of Wilmer D. Nelson to compel W. A. King, as county auditor of Hughes county, to print the name of Frank L. Fuller, as a candidate for the office of county commissioner. Proceedings dismissed.John L. Sutherland and Byron S. Payne, for plaintiff.

Gaffy & Stephens and Goodner & Goodner, for defendant.

HANEY, J.

This was an original application, upon notice, for a peremptory writ of mandamus commanding the defendant as county auditor to print the name of Frank L. Fuller, as a candidate for county commissioner from the second district, on the ballots to be used at the recent general election in Hughes county, and to not print the name of George L. Fay thereon, in the Republican column, as a candidate for the same office. It was made in the name of the state on the relation of Wilmer D. Nelson, who, upon the hearing, was substituted as plaintiff, for the reason that the Attorney General had neither authorized nor refused to institute the proceeding. Smith v. Lawrence, 2 S. D. 185, 49 N. W. 7. It was agreed that the Republican county convention nominated no county commissioners and that, though Mr. Fuller's petition or certificate was signed by electors only, he was designated therein as a “Republican”; a designation belonging exclusively to candidates of the Republican Party. The auditor was not authorized to print his name under any other designation than that stated in the certificate. State v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. R. A. 331. It could not be printed under that designation for the very obvious reason that Mr. Fuller was not nominated by the Republican Party. Under the caucus law a party nomination for the office of county commissioner could be made only by the county convention. State v. Rexford (S. D.) 109 N. W. 216. Independently of that law, he could not be regarded as representing the Republican Party, because the electors who signed his certificate were not authorized to select candidates for the party. Hence, his name properly could not appear at any place on the ballots. With Mr. Fuller's name excluded and Mr. Fay's alone remaining it was clearly immaterial to plaintiff (a signer of the Fuller certificate) as to what place the latter occupied. Plaintiff offered to show that after the time for filing certificates had expired and after this proceeding was commenced, an...