Park v. Rives

• Decision Date: 08 December 1911
• Docket Number: 2333
• Citation: 40 Utah 47,119 P. 1034
• Court: Utah Supreme Court
• Parties: PARK v. RIVES, City Recorder

119 P. 1034

40 Utah 47

PARK v. RIVES, City Recorder

No. 2333

Supreme Court of Utah

December 8, 1911

MANDAMUS by Samuel C. Park against B. S. Rives, City Recorder of Salt Lake City, to compel the recorder to issue a certificate of election.

PEREMPTORY WRIT ISSUED.

Van Cott, Allison & Riter, Mathoniah Thomas, C. S. Varian Rawlings, Ray & Rawlings, Booth, Lee, Badger, Rich & Parke and Stephens, Smith & Porter for plaintiff.

Soren X. Christensen and H. J. Dininny for defendant.

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

OPINION

STRAUP, J.

Prior to the enactment of chapters 125 and 126, Sess. Laws 1911, approved March 20th of that year, incorporated cities of this state were governed and controlled by a mayor and a city council. The elections of such municipal officers were conducted according to the general election laws (Comp. Laws 1907, tit. 21) of the state. Under those laws, political parties are permitted to hold primary elections, or conventions of delegates, to nominate candidates for office. Such nominations may also be made by a certificate of nomination of voters signed and filed by them. It is further provided (section 839) that such nominations "shall be placed" on the official ballot under party names and emblems, or some suitable title or designation of group of petitioners, and that "the ballot shall contain no other names except that in case of electors for president and vice president of the United States, the names of the candidates for president and vice president may be added to the party or political designation." The manner of making up the ballot and of voting is done and conducted under a method known as the Australian ballot system. In that respect it is provided that the officer designated to make up the official ballot shall cause to be printed the names of the offices to be filled immediately above the names of the candidates for the same, "and that at the right of the ballot there shall be left a blank ticket long enough to contain as many written names of candidates as there are persons to be elected, in which ticket shall be printed the names of the officers to be filled." By the Session Laws of 1911 referred to, the legislature abolished the offices of mayor and city councilmen of cities of the first and second class, to take effect the 1st day of January, 1912, created a board of commissioners for the government and control of such cities, prescribed its powers and duties, and vested the municipal government of cities of the first class in a board of five commissioners consisting of a mayor and four commissioners, and in some particulars amended the general election laws theretofore applicable to municipal elections.

It is only necessary to notice the amendments relating to the primary election, the official primary ballot, and the general election ballot. It is provided that candidates for such municipal offices shall be selected or nominated by a primary election, and that "candidates to be voted for at all general municipal elections in cities of the first and second class under the provisions of this act shall be nominated by a primary election and no other name shall be placed upon the general ballot except those selected in the manner hereinafter prescribed." (Chapter 126, section 2.) Any person desiring to become a candidate is required to file with the recorder a statement of such candidacy and a petition of at least 100 voters requesting such candidacy. At the expiration of the time for filing such statements and petitions, the recorder is required to publish in a newspaper or newspapers the names of the persons who have filed such statements and petitions, and the manner in which they will appear upon the official primary ballot. The recorder shall make up the primary ballots and cause them to be printed; and it is provided that "upon the said ballot the names of the candidates for mayor, arranged alphabetically, shall first be placed with a square at the left of each name and immediately below the words 'Vote for One.'" A similar provision is made with respect to candidates for the office of commissioners and auditor, the only other municipal offices to be filled by election. When so made up and printed, the recorder is required to cause such primary ballots to be delivered to the judges at the various polling places for the use of the voters at the primary election. Upon a canvass by the city recorder of the returns of the cast ballots at the primary election, he shall declare and publish the result thereof. It then is provided that "the two candidates receiving the highest number of votes for mayor shall be the candidates and the only candidates whose names shall be placed upon the ballot for mayor at the next succeeding general municipal election." A similar provision also relates to the offices of commissioners and auditor. There is also a general provision which, among other things, provides that "the ballot at said general municipal election, so far as applicable," shall be the same as provided by the general election laws "not inconsistent with the provisions of this act."

The petitioner, Samuel C. Park, was a candidate for mayor of Salt Lake City, a city of the first class, at the primary election held pursuant to the Session Laws of 1911, and was one of the two candidates receiving the highest number of votes cast for that office at that election. A canvass of the returns was made, and the result declared and published. In making up the official ballot for the succeeding general municipal election to be held on the 7th day of November, 1911, the names of the two candidates for mayor so receiving the highest number of votes at the primary election were the only names printed or placed on the official ballot by the recorder for the office of mayor. That, also, was true with respect to the names of candidates for the offices of commissioners and auditor. The recorder, however, at the right of the ballot left a blank ticket long enough to contain as many written names of candidates as there were persons to be elected, and in which were printed the names of the offices to be filled. The official ballots so made up and printed for the general municipal election were delivered to the judges of the several voting districts for the use of the voters. Upon a count of the cast ballots at the general municipal election and a canvass of the returns, it was found and declared that Park had received the highest number of votes cast for the office of mayor. The city council, whose duty it was to canvass the returns and issue certificates of...