Price v. Lush

• Decision Date: 28 July 1890
• Citation: 10 Mont. 61
• Parties: PRICE v. LUSH.
• Court: Montana Supreme Court

10 Mont. 61

PRICE

v.LUSH.

Supreme Court of Montana.

July 28, 1890.

Appeal from district court, Lewis and Clarke county;.W. H. HUNT, Judge.

A. C. Botkin, for appellant.

Milton S. Gunn, for respondent.

BLAKE, C. J.

This is an election contest, involving the right of the respondent to the office of justice of the peace. It is alleged in the statement: That Price, the appellant, is a citizen of the United States and the county of Lewis and Clarke, territory of Montana, and a resident and elector in Marysville precinct, Belmont township, county aforesaid. That an election was held October 1, 1889, in said township, for the office of justice of the peace for the term of three years. “That said L. L. Lush appeared upon the tickets that were voted at said election as a candidate for said office of justice of the peace, as above set forth, and was voted for by the electors of said Belmont township as a candidate for said office.” That the ballots were counted by the judges of election for said precinct, and the returns made to the chairman of the board of county commissioners, and that the board of canvassers of said county canvassed, October 16, 1889, the returns, and “declared said L. L. Lush duly elected justice of the peace in and for said Belmont township.” That said Lush was not elected a justice of the peace of said township at said election, and was not entitled to hold said office by virtue of said election. “ First. L. L. Lush was not nominated for office of justice of the peace for said Belmont township in the manner required by law, for the reason that the pretended nomination was not made by any organized assembly of delegates representing any party or principle. Second. The certificate of nomination which was forwarded to the county clerk and recorded of Lewis and Clarke county was not in accordance with the requirements of the statute in this, that said certificate did not contain the name of said Lush; it did not contain his business; it did not designate the name of the party or principle which said convention or primary meeting represented; it was not signed by any person whatever as presiding officer or secretary of said alleged convention or primary meeting; nor was there any name or signature attached to said certificate whatever. Third. Said certificate purported to be a certificate of nomination to fill a vacancy which had happened in the nominations for justice of the peace, but failed to set forth the cause of the vacancy, or the name of the person nominated, or the office for which he was nominated, or the name of the person for whom the nomination was to be substituted; nor did it set forth the fact that the committee, or any committee, was authorized to fill any vacancy. Fourth. Said nomination certificate was not filed within 20 days before the election, being filed on the 14th day of September, 1889, and less than 16 days before the election. Fifth. Because said pretended nomination for the office of justice of the peace was not published by the county clerk of said county in any newspaper within the county of Lewis and Clarke, as certified to him under the provisions of the law, and the pretended publication in the Helena Independent of the name of L. L. Lush as a candidate for said office of justice of the peace was without authority of law, and unwarranted by the provisions of the statute, and was in no way authenticated by said county clerk and recorder of said Lewis and Clarke county.” This statement was filed October 19, 1889, in the office of the county recorder; November 27, 1889, by the clerk of the court below. Upon the motion of Lush, the statement was quashed as being “insufficient in law,” and upon the ground that it did not set forth “a cause of action under the general election law of the state.” Judgment was thereupon entered in favor of Lush, and declared that he was “the duly-elected justice of the peace of Belmont township, Mont.” The sixteenth legislative assembly of the territory passed a law entitled “An act to provide for printing and distributing ballots at the public expense, and to regulate voting at territorial and other elections,” which was approved March 13, 1889. The sections which relate to this inquiry provide, substantially: “Sec. 2. Any convention or primary meeting *** held for the purpose of making nominations to public office, and also electors to the number hereinafter specified, may nominate candidates for public office to be filled by election within the territory. A convention or primary meeting *** is an organized assemblage of electors or delegates representing a political party or principle.” “Sec. 3. All nominations made by such convention or primary meeting shall be certified as follows: The certificate of nomination, which shall be in writing, shall contain the name of each person nominated, his residence, his business, his business address, and the office for which he is named, and shall designate, in not more than five words, the party or principle which such convention or primary meeting represents, and it shall be signed by the presiding officer and secretary of such convention or primary meeting, who shall add to their signatures their respective places of residence, their business, and business addresses. Such certificates, made out as herein required, shall be delivered by the secretary or president of such convention or primary meeting to the secretary of the territory or to the county clerk, as hereinafter required.” “Sec. 4. Certificates of nomination for county and precinct officers shall be filed with the clerks of the respective counties wherein the officers are to be elected.” The fifth section provides that a certificate of the nomination of a candidate for an office otherwise than by a convention or primary meeting shall be signed by a certain number of the electors. The sixth section provides that no certificate of nomination shall contain the name of more than one candidate for each office. The seventh section requires the secretary of the territory and clerks of the several counties to preserve in their offices for one year all certificates of nomination filed therein under this act, and provides that “all certificates shall be open to public inspection under proper regulations, to be made by the officers with whom the same are filed.” “Sec. 8. Certificates of nomination herein directed to be filed with the county clerk shall be filed not more than sixty days, and not less than twenty days, before the election.” “Sec. 10. At least ten days before an election to fill any public office other than a municipal office, the county clerk of each county shall cause to be published in one or more newspapers within the county the nominations to office certified to him under the provisions of this act. The county clerk shall make such publications daily, until the election, in counties where daily newspapers are published.” The twelfth section provides that, if “any certificate of nomination be or become insufficient or inoperative from any cause,” the vacancy may be filled in the manner required for original nominations. “If the original nomination was made by a party convention which had delegated to a committee the power to fill vacancies, such committee may, upon the occurring of such vacancies, proceed to fill the same. The chairman and secretary of such committee shall thereupon make and file with the proper officer a certificate setting forth the cause of the vacancy, the name of the person nominated, the office for which he was nominated, the name of the person for whom the new nominee is to be substituted, the fact that the committee was authorized to fill vacancies, and such further information as is required to be given in an original certificate of nomination.” This certificate shall have the same force as an original certificate of nomination. “Sec. 13. When any vacancy occurs before election day, and after the printing of the tickets, and any person is nominated according to the provisions of this act to fill such vacancy, the officer whose duty it is to have the tickets printed and distributed shall thereupon have printed a requisite number of stickers, and shall mail them by registered letter to the judges of election in the various precincts interested in such election, and the judges of election, whose duty it is made by the provisions of this act to distribute the tickets, shall affix such stickers in the proper place on each ticket before it is given out to the elector.”

The statement of contest points out many particulars wherein the foregoing requirements of the statute have not been complied with. Are these provisions directory or mandatory? When this question is decided, the appeal will be determined. The law embraces the leading features of what is termed popularly the “Australian Ballot System.” The mode of selecting candidates for public...