Phillips v. Curtis, Secretary of State

• Decision Date: 24 November 1894
• Citation: 38 P. 405,4 Idaho 193
• Parties: PHILLIPS v. CURTIS, SECRETARY OF STATE
• Court: Idaho Supreme Court

38 P. 405

4 Idaho 193

PHILLIPS v. CURTIS, SECRETARY OF STATE

Supreme Court of Idaho

November 24, 1894

ELECTION LAWS-PETITION OF ELECTORS TO PLACE NAME ON OFFICIAL BALLOT-CANNOT BE PLACED ON TICKET OF ANY PARTY.-Under the election laws of Idaho, the presentation, in time prescribed by the statute, of a petition signed by the requisite number of qualified electors, entitles the petitioner to have his name placed upon the official ballot, as an "elector's nominee" of the party designated in the petition, but not upon the regular ticket of any party.

SAME-SENATOR NOT A STATE OFFICER.-A senator is not a state officer in the sense that three hundred names are required to a petition to have his name placed upon the official ballot, under the election laws of this state.

(Syllabus by the court.)

ORIGINAL proceeding in Supreme Court by writ of mandate..

Writ issued.

Johnson & Johnson and N. M. Ruick, for Plaintiff.

Plaintiff was duly nominated by certificate signed by one hundred and fifty electors. The nomination was for "a district office or subdivision of the state, including two counties." The number of signatures required by section 28 of the election law is in proportion to the number of electors required to elect. When the office is to be filled by the electors of the entire state, three hundred signatures are required; for a district office or a subdivision of the state, including two or more counties, one hundred and fifty signatures are required; for an office to be filled by the electors of a county, fifty signatures are required; and ten signatures are sufficient to nominate to a township, precinct or ward office. It could never have been intended to require three hundred signatures to nominate a candidate to be elected in a single county. Speaking of what is known as the Australian ballot system the court of appeals of New York has said: "The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice without the possibility of revealing, by the act of voting the identity or political complexion of the candidate voted for." (People v. Board of Canvassers, 129 N.Y 395, 29 N.E. 331.) The statute should receive the most liberal construction. (Simpson v. Osborn, 52 Kan 328, 34 P. 749.) The presence of a name, although unauthorized, cannot thwart the object and purposes of the act, while the absence of a name from the official ballot may defeat the will of the electors. (Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 20 S.W. 103; Allen v. Glynn, 17 Colo. 338, 31 Am. St. Rep. 304, 29 P. 678; State v. Van Camp, 36 Neb. 9, 91, 54 N.W. 119; State v. Barber, 4 Wyo. 56, 32 P. 25, 26.) Each political party has a perfect right to select its candidates as it pleases, and have their names printed under its party heading; and there is nothing in the law, or in reason, preventing two or more political parties, whether acting through conventions or by petitions, from selecting the same individuals for one or more of the offices to be filled. (Fisher v. Dudley, 74 Md. 242, 22 A. 3, 4.)

George M. Parsons, Attorney General, for Defendant.

Representatives being chosen by towns is a fact which cannot alter their official rank, because that rank arises from their destination and power; thus senators and representatives, though chosen by districts and counties, are still beyond all question "state officers." (Morrill v. Haines, 2 N.H. 246; Henshaw v. Foster, 9 Pick. 319; Mechem on Public Officers, sec. 54; State v. Barnes, 3 N. Dak. 319, 55 N.W. 883-886.) The certificate of nomination nominating petitioner was not signed by the required number of electors. (Election Law, sec. 28.) The statute is explicit and reads: "For a district office, or subdivision of the state, including two or more counties, the number of signatures shall not be less than one hundred and fifty." This refers to the office of district judge or district attorney, and cannot refer to a senatorial district. The right of the electors and petitioners to have Phillips' name placed upon the official ballot in the counties of Owyhee and Cassia if the certificate of nomination had been properly and legally made and filed is conceded, but in such event Phillips would be the candidate of the electors who named him, and their candidate only. (Election Laws, sec. 25; Atkeson v. Lay, 115 Mo. 538, 22 S.W. 484; Fisher v. Dudley, 74 Md. 242, 22 A. 2.) The nomination of Phillips by the state central committee, being an original nomination, was made too late. The requirements of the statute are mandatory. (Price v. Lush, 10 Mont. 61, 24 P. 749; People v. Board of Canvassers, 129 N.Y. 395, 29 N. 327; State v. Barber, 4 Wyo. 56, 32 P. 27; Paine on Elections, 497; State v. Hilmantel, 21 Wis. 574; Sutherland on Statutory Construction, sec. 446; State v. Connor, 86 Tex. 133, 23 S.W. 1107; Miller v. Pennoyer, 23 Or. 364, 31 P. 830, 831; Lucas v. Ringsrud, 38 Dak. 355, 53 N.W. 426; Simpson v. Osborn, 52 Kan. 328, 34 P. 749.)

HUSTON, C. J. Morgan and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

The plaintiff applies for a writ of mandate to be issued to the Secretary of State, directing him to place the name of petitioner upon the ticket of the People's party, as a candidate for the office of senator for the twelfth senatorial district of this state. The facts, as they appear from the record, are substantially as follows: The petitioner, Isaac Phillips, was regularly nominated by the state convention of the Democratic party as a candidate for the office of state senator from the twelfth senatorial district, consisting of the counties of Owyhee and Cassia and his name, as such candidate, was regularly so placed on the ballot prescribed by the statute. He now seeks to have his name placed upon the ticket of the People's party as a candidate for the same office, and in support of such claim he presents a petition signed by one hundred and fifty-three electors of said senatorial district, accompanied by a demand upon the Secretary of State that he so place his name upon the official ballot, to wit, as the candidate of the People's party for the office of senator for the twelfth senatorial district. The petitioner further claims to have his name so placed upon the official ballot by virtue of a certificate of the chairman and secretary of the state committee of the People's party, alleging, in substance, that, no nomination having been made by the state convention of said People's party for the said office of senator for said twelfth senatorial district, said convention empowered the said state committee to fill such vacancy, and that, by virtue...