State ex rel. Campbell v. Torgerson, 5548.

• Decision Date: 28 July 1928
• Docket Number: No. 5548.,5548.
• Citation: 220 N.W. 834,57 N.D. 152
• Parties: STATE ex rel. CAMPBELL v. TORGERSON, County Auditor.
• Court: North Dakota Supreme Court

57 N.D. 152

220 N.W. 834

STATE ex rel.

CAMPBELL

v.TORGERSON, County Auditor.

No. 5548.

Supreme Court of North Dakota.

July 28, 1928.

Syllabus by the Court.

Section 854 of the Compiled Laws of 1913, enacted as section 4, c. 109, Laws of 1907, which provides, among other things, that every candidate for a county office shall, not less than 30 days and before 4 o'clock p. m. on the 30th day prior to any primary election, present to the county auditor a petition, etc., is held applicable to candidates for county offices to be nominated in a nonpartisan primary election, under chapter 117, Laws of 1919, to be held at the same time as the party primaries.

A repealing clause which repeals all acts or parts of acts, in so far as they conflict with the new enactment, or which repeals all acts or parts of acts which are in conflict, is not broader than a repeal by implication, and it repeals pre-existing legislation on the same subject only to the extent of any repugnancy, but no farther.

In an act in which no discretion is left with the ministerial officer with whom a petition is to be filed, a requirement that the petition be filed by a candidate before 4 o'clock p. m. on the last day is mandatory.

Original application for mandamus by the State, on the relation of Paul Campbell, against A. G. Torgerson, County Auditor in and for Ward County. Alternative writ quashed.Paul Campbell, of Minot, pro se.

George Shafer, Atty. Gen., and Charles Simon, Asst. Atty. Gen., for defendant.

PER CURIAM.

The relator petitioned to this court for the issuance of a writ of mandamus to require the defendant to cause his name to be printed upon the primary election ballot as a candidate for nomination to the office of state's attorney of Ward county at the primary election to be held on June 27, 1928. An alternative writ was issued to which a return was filed, and arguments were heard. From the affidavits submitted in support of the petition and from the return the following facts are to be deduced: On May 28, 1928, at 4:20 p. m. the relator presented a nominating petition at the office of the county auditor. The county auditor was not personally present in his office at the time, and the deputy who was present interposed an objection to the filing of the petition on the ground that the law required the same to be filed before 4 o'clock on that day; but after some conversation the petition was marked “Filed,” the relator suggesting that the auditor enter a memorandum showing the exact time of filing. The memorandum was not entered. Subsequently the defendant caused the name of the relator to be published as one who had filed as a candidate for nomination. The relator heard nothing further from the defendant until the night of June 5th, when he was informed that the filing was protested, and on June 6th the defendant informed the affiant that he would not recognize the petition. There is a conflict between the affidavits of the relator and the defendant's verified return with reference to an understanding that the defendant would secure legal advice as to whether he was authorized to accept the petition and as to whether the petition was left in his charge with that understanding. Under our view of the law it is unnecessary to resolve this conflict in favor of either party.

The essence of the relator's contention is that the provision of the general primary election law controlling the time of the filing of candidates' petitions and requiring that they be filed before 4 o'clock p. m. on the last day does not apply to a petition for nomination to the office of state's attorney and that, while this provision originally applied to this office when nominations were made at a party primary under the law passed in 1907, it ceased to apply when the Legislature in 1919 made provision for nominating candidates upon a nonpartisan ballot. It is said that the 1919 act, though deficient in details, purports to be and is a complete legislative enactment with reference to this subject, and that, since it contains no exact limitation upon the time of the filing of petitions, the petition of the relator was in all ways regular and was properly filed. An alternative contention is advanced to the effect that, if it be held that the provision of the 1907 law is applicable, it should further be held that the requirement that a petition be filed before 4 o'clock p. m. on the last day is directory rather than mandatory.

Section 854 of the Compiled Laws of 1913, enacted as section 4, c. 109, Session Laws of 1907, reads in part as follows:

“Every candidate for a county or district office shall not more than forty days nor less than thirty days, and before four o'clock p. m. of the thirtieth day prior to any primary election, present to the county auditor a petition giving his name, post office address, the title of the office to which he aspires and the party which he represents, containing the names of five per cent. of the total vote cast for the candidate of the party which he represents, for the same position at the last general election; such names to be procured from at least one-fifth of the precincts of his district; provided, however, that in no case shall there be more than two hundred names. * * *”

The chapter of which the above is a part, at the time of its enactment, provided for nomination in a primary election of candidates for United States Senator, members of Congress, state offices, and judges of the Supreme and District Courts, as well as for county and district offices. As to the former class of offices, it was provided that the petition should be filed not more than 60 nor less than 30 days prior to said primary election. (Section 3, c. 109, Session Laws of 1907.) The additional requirement that a petition should be filed before 4 o'clock p. m. of the 30th day was prescribed with reference to county and district offices only, as indicated in the above-quoted portion of the statute.

It is not seriously disputed that it is within the province of the Legislature to regulate primary elections and to that end that it may prescribe reasonable limitations of time within which those aspiring to nominations must file petitions in order that their names may appear upon the ballot. It is argued, however, that while the 30-day limitation may be reasonable and compliance therewith mandatory, the general purpose of the law cannot be said to depend upon compliance with the further requirement that the petition be filed “before 4 o'clock p. m.” on the last day, and that therefore this provision should be construed as directory only.

[1] We shall consider the contentions of the relator in their logical order: (1) Does section 854 of the Compiled Laws of 1913 apply to a petition to have one's name placed upon a nonpartisan or no-party primary ballot for nomination to the office of state's attorney? Neither the section, nor the act of which it forms a part, has ever been expressly repealed, but from time to time since its enactment the Legislature has made provision for nominating in a nonpartisan primary election, held at the same time as the party primaries, candidates for offices which were originally embraced within the party primary election. The first officers to be removed from the party primaries were the judges of the Supreme and District Courts. The first section of the act providing for nonpartisan nominations for these offices (chapter 82, Laws of 1909) made provision that (section 1):

“In all petitions and affidavits to be filed by or in behalf of candidates for nomination at the primary election to the office of judge of...