Patton v. Withycombe

• Decision Date: 14 July 1916
• Citation: 159 P. 78,81 Or. 210
• Parties: PATTON v. WITHYCOMBE, GOVERNOR.
• Court: Oregon Supreme Court

159 P. 78

81 Or. 210

PATTON v. WITHYCOMBE, GOVERNOR.

Supreme Court of Oregon

July 14, 1916

In Banc.

Original proceeding in mandamus by H. M. Patton against James Withycombe, Governor, wherein defendant filed demurrer. Demurrer sustained.

Upon the petition of H. M. Patton an alternative writ of mandamus was issued by this court, directing James Withycombe, as Governor of Oregon, to refrain from issuing a proclamation declaring that Gus C. Moser, A. W. Orton, Conrad P. Olson, S B. Huston, and Robert S. Farrell were nominated at the primary election as the Republican candidates for the five offices of state senator for the Thirteenth senatorial district, and to refrain from issuing certificates of nomination to any of those persons, and that the Governor proclaim that the petitioner was nominated, and issue him a certificate of nomination, or show cause for not doing so. The defendant filed a demurrer, and consequently the questions for discussion arise out of the allegations found in the writ. A general primary nominating election was held throughout the state on May 19, 1916, for the nomination of candidates for different offices, including five senatorships for the Thirteenth senatorial district, which comprises Multnomah county only. Complying with the direct primary nominating elections law, H. M. Patton filed a petition with the secretary of state as a candidate for the Republican nomination for the office of state senator in the Thirteenth senatorial district. Gus C. Moser, A. W. Orton, Conrad P Olson, S. B. Huston, and Robert S. Farrell each filed a declaration of candidacy for the Republican nomination for the office of state senator for the Thirteenth senatorial district with the secretary of state, and paid the fees prescribed by chapter 124, Laws of 1915. The name of the petitioner, as well as the names of the other five persons were printed as candidates for the Republican senatorial nominations on all of the official primary nominating ballots which were submitted to and used by the voters of the Republican party in Multnomah county. A canvass of the votes cast at the primary election showed that Moser, Orton, Olson, Huston, and Farrell each received more votes than Patton. It is alleged, however, that the five persons mentioned were not lawful candidates, for the reason that the act of 1915 is void, that Patton received more votes than any other lawful candidate, and that therefore he is entitled to a certificate of nomination.

W. T. Hume, of Portland, for petitioner. George M. Brown, Atty. Gen., for defendant. F. W. Mulkey, of Portland, amicus curiæ.

HARRIS J. (after stating the facts as above).

The argument of the petitioner proceeds upon the theory that the legislative act of 1915 is unconstitutional because it requires the payment of a fee, that all persons who followed that statute were unlawful candidates; and that therefore all votes cast for those persons were deposited for unlawful candidates and should not be counted. The petitioner announced his candidacy in compliance with the provisions of the direct primary nominating elections law, which was adopted by the people in the exercise of the sovereign right of initiative at the general election held on June 6, 1904 (chapter 1, Laws 1905; 2 L. O. L., §§ 3349 to 3391, inclusive), but the other five persons filed their declarations of candidacy in the manner prescribed by the legislative act found in chapter 124, Laws 1915. The direct primary nominating elections law permits a person to become a candidate for a party nomination by filing a petition signed by a specified number of voters belonging to that party, but no fee is required to be paid by the candidate. If the petition is signed by the required number of voters, it must be filed without the payment of any fee, and the name of the candidate must be printed on the official ballot. The legislative act of 1915 provides that:

"Any registered elector may become a candidate for his or her party's nomination for any office to which he or she is constitutionally eligible * * * in addition to the method now provided by law, by filing declaration of his or her candidacy, as herein provided and accompanying said declaration with the required filing fee."

The fees are fixed at $150 for United States senator; $100 for offices to be voted for in the state at large, except national committeemen, delegates to national party conventions and presidential electors; $100 for representatives in Congress; $50 for certain district offices; $20 for county offices, except district offices within the county; $10 for senator and representative in the Legislature; $15 for national committeemen, delegates to national party conventions and presidential electors; and $5 for district offices within the county. Upon the filing of the declaration and the payment of the required fee, "said candidacy shall be deemed complete," and the name of such candidate is then "printed upon the official ballot at the ensuing primary election, and no additional signatures or fees shall be required to make said candidacy complete and effective."

While the Constitution does not deny to the Legislature the right to amend or repeal a statute enacted by the people in the exercise of the initiative ( Straw v. Harris, 54 Or. 424, 431, 103 P. 777), yet it is plain that the legislative act of 1915 was not designed to amend, revise, or repeal the initiative statute of 1904, and consequently the second act was not passed in violation of section 22, art. 4, of the state Constitution, which declares that:

"No act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth and published at full length." Sheridan v. City of Salem, 14 Or. 328, 337, 12 P. 925; State v. Rogers, 22 Or. 348, 365, 30 P. 74.

Even though an independent act, complete within itself, works a repeal by implication, the repealing statute is not pregnable on account of a failure to observe section 22, art. 4. Warren v. Crosby, 24 Or. 558, 563, 34 P. 661; Northern Counties Trust v. Sears, 30 Or. 388, 399, 41 P. 931, 35 L. R. A. 188. The second statute employs the most positive language in expressing its purpose. The title introduces the act by declaring that it is "an additional method, whereby electors may become candidates for party nominations." Section 1 provides that an elector may become a candidate for a party nomination "in addition to the method now provided by law * * * as herein provided." The final section directs that:

"In case any candidate for office shall elect to become a candidate under the provisions of section 3361 of Lord's Oregon Laws, he shall be required to file the following declaration."

Section 3361 relates to the form of the petition to be circulated and filed when following the provisions of ...