State ex. rel. Cook v. Polley
| Decision Date | 28 December 1912 |
| Citation | 139 N.W. 118,30 S.D. 528 |
| Parties | STATE OF SOUTH DAKOTA ex. rel. ALFRED N. COOK, Plaintiff, v. SAMUEL C. POLLEY, Secretary of State, Respondent. |
| Court | South Dakota Supreme Court |
The people of this state presented to the Legislature of 1911 an initiative petition, seeking the enactment into law of a most comprehensive measure which, from the name of its reputed author, was and is known as the "Richards Primary Bill." This bill was first introduced on February 1, 1911; it being sought at that time to have the Legislature enact it into a law, and with an emergency clause, so that it might go into full force and effect upon its passage by the Legislature and approval by the Governor. The bill as so introduced was finally defeated upon March 2, 1911. Upon February 25, 1911, another bill was introduced into the Legislature, which sought the submission of this measure to the electors of the state for their adoption or rejection. This bill carried, and the measure was submitted to the vote of the electors. At the general election held on November 5, 1912, this measure was enacted into law by the votes of the electors, and it went into full force and effect upon the canvass of said votes, December 5, 1912. Sections 112-114 of said law (Laws 1911, c. 201) read as follows:
At the primary election held in June, 1912, and under the law then in force, certain persons were chosen as the member of the Republican state central committee of this state. Some of these persons met at the time and place mentioned in section 114, supra and assuming to act as the state central committee of the Republican party, passed a resolution by which they attempted to give to one Alfred N. Cook the "official party indorsement" provided for by the above sections in support of his candidacy for appointment to the office of food and drug commissioner, a position to be filled by the incoming Republican state administration, and to that end they passed a resolution of indorsement. The said Cook had, at a date not earlier than November 15, 1912, filed in the office of the secretary of state a written application seeking such "official party indorsement." Two of the persons taking part in such meeting, and who acted, respectively, as chairman and secretary thereof, assuming to act as such chairman and secretary, executed and delivered to said Cook a certificate certifying to the said resolution and its passage. The said certificate was then presented to the secretary of state for filing. Said officer refused to file such certificate, and the said Cook, as relator, seeks from this court a writ of mandamus requiring the respondent, as secretary of state, to receive and file said certificate. The respondent, answering the petition of relators demurs thereto, and also denies that there was in existence, subsequent to December 5, 1912, any Republican state central committee. It is the contention of respondent that, upon the going into effect of the said "Richards Primary Bill," all existing party state central committees were legislated out of existence, and that, inasmuch as no committee had been chosen under the provisions of the new law, there was no such committee in existence. Under the view we take of the case, we find is unnecessary to, and believe it would serve no useful purpose for us to, in any manner intimate our views upon this question.
It is the contention of relator that the provisions of sections 112 and 113, supra, are merely directory, and, that an applicant for "official party indorsement" may file his application at any time prior to the second Tuesday of December; and it is even contended by such relator that the party committee may consider and indorse candidates for appointment who have never filed any applications under Section 112, supra. Respondent contends that the provisions of sections 112 and 113 are mandatory; that they provide the only method through which there can be presented to a party committee the name of an applicant seeking its indorsement; and that such committee has no jurisdiction to give an "official party indorsement" to any person whose name is not thus presented. These contentions raise a question that will be just as vital and important in after years as it is today. Therefore upon the answer to this question we deem it best to base this decision.
It is probable that the electors of this state, in presenting their initiative petition, hoped that the Legislature might enact the proposed measure into law, thus rendering it unnecessary to submit it to a vote of the people. This is indicated from the fact that, as petitioned for, and even as voted for by the electorate, it had an emergency clause, which clause is mere surplusage when forming a part of a law enacted by popular vote. State ex rel. Gray v. Olsen, 30 S. D. 57, 137 N.W. 561. This is also indicated from the fact that the chronological order for the doing of the various acts to be performed under the proposed law is such that, if it had been enacted into law by the Legislature of 1911, with the emergency clause as a part thereof, every provision of said law would have worked out in regular and natural order, one result of which would have been the giving of full opportunity for the filing of applications for "official party indorsements" prior to the first general election held after such law went into effect. If the law had been so enacted, and such an opportunity for filing applications had been given, probably the contention now urged by relator would never have occurred to the mind of any person. But when such law was enacted by the vote of the people, and thus went into effect in the interim after the general election and prior to the date for the meeting provided for by section 114,...
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Elfring v. Paterson, 8295
...when once ascertained, it will be given effect, even though it may be inconsistent with the strict letter of the statute. State ex rel. Cook v. Polley, 139 N.W. 118. It may be conceded that it is the general rule that courts may not strike out and insert other words or numerals in a statute......