State ex rel. Driscoll v. Swanson

• Citation: 256 N.W. 872,127 Neb. 715
• Decision Date: 19 October 1934
• Docket Number: 29401
• Parties: STATE, EX REL. CHARLES H. DRISCOLL, RELATOR, v. HARRY R. SWANSON, SECRETARY OF STATE, RESPONDENT
• Court: Nebraska Supreme Court

256 N.W. 872

127 Neb. 715

STATE, EX REL. CHARLES H. DRISCOLL, RELATOR, v. HARRY R. SWANSON, SECRETARY OF STATE, RESPONDENT

No. 29401

Supreme Court of Nebraska

October 19, 1934

Original proceeding in mandamus by relator to compel respondent to accept and file a petition to place the name of relator on the official ballot as a candidate at the general election for the office of auditor of public accounts. Writ denied.

WRIT DENIED.

Syllabus by the Court.

As to an office created by the Constitution or laws of this state " no candidate defeated at the primary election shall be permitted to file by petition in the general election next following." Comp. St. 1929, § 32-1125.

Original mandamus action by the State, on the relation of Charles H Driscoll, against Harry R. Swanson, secretary of state.

Writ denied.

McCracken, Lawrence & Thomas and G. E. Price, for relator.

Paul F. Good, Attorney General, and Daniel Stubbs, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY and PAINE, JJ., and BROADY and REDICK, District Judges.

OPINION

EBERLY, J.

This is a mandamus action brought to compel the secretary of state to accept and file a petition for the purpose of placing the name of relator on the official ballot at the general election as a candidate for the office of auditor of public accounts of the state "by petition," and to certify relator's name to the several county clerks as such candidate. The action was commenced in this court. The pleadings in effect admit the controlling facts, and the case is presented at the bar of this court upon motion of respondent for judgment thereon.

It is conceded that on July 5, 1934, a petition was filed, in writing, in the office of the secretary of state to have the name of Charles H. Driscoll, the relator in this action, printed on the official ballot as a candidate for nomination by the democratic party for the office of secretary of state at the primary election to be held August 14, 1934; that said Driscoll filed his acceptance of said application petition in the office of the secretary of state on July 16, 1934, duly verified under oath, stating, in substance, that he affiliates with the democratic party, and that party only; that he will abide by the results of said primary, and, if elected, will qualify and serve as such officer. In compliance with law, and the application so made and relator's acceptance thereof, relator's name was thereupon properly certified to the several county clerks as a candidate for the nomination above referred to, and his name was printed on the official ballot as such candidate at such primary election, which was the primary election at which candidates were nominated for the general election to be held November 6, 1934; that relator was defeated at such primary election.

It is also agreed that on September 19, 1934, there was presented and filed in the office of the respondent a nominating petition in due form, properly executed by 1,092 duly qualified electors of the state of Nebraska, praying that the name of Charles H. Driscoll, the relator, be placed upon the official ballot provided for use at the general election to be held on November 6, 1934, as a candidate for the office of auditor of public accounts "by petition;" and that on September 21, 1934, Charles H. Driscoll tendered to the secretary of state his acceptance of such nominating petition, in due form and by him properly executed; that the secretary of state then refused to accept the petition and acceptance, and refused to certify relator as a candidate "by petition," for the sole reason that Driscoll had been defeated as a candidate for the nomination for secretary of state on the democratic ticket at the primary election held on August 14, 1934.

Thus, the case turns on the question of whether this refusal was justified.

Driscoll voluntarily participated in the primary as a candidate for secretary of state. It is also to be noted that, had he received in this primary the greatest number of democratic votes for the office of auditor of public accounts, and amounting to more than 5 per cent. of the entire vote cast for the democratic party, by having his name written upon the ballot, he would have been the candidate of that party for that office. Comp. St. 1929, sec. 32-1162. But, it appears conceded that he was a defeated candidate at this primary.

In this condition of the record, the words of his statutory oath, that he "will abide by the results of said primary," are not without force and effect. "To abide" means "to observe and obey, to accept the consequences of." This suggests that as the "primary" act was originally enacted in 1907 (Laws 1907, ch. 52) would not its due enforcement have made relator's oath binding upon him and prevented his becoming a candidate by petition? Putham v. Pyle, 57 S.D. 250, 232 N.W. 20.

However, the act of 1907 was subsequently amended by attaching thereto a proviso (now appearing as section 32-1108, Comp. St. 1929) in the following terms, viz.: "Provided, no person who has been a candidate for an office at a primary shall be a candidate by petition or certificate of nomination for the office for which he was defeated, at the next general election." Relator insists that this provision is exclusive and renders him ineligible as a candidate for the office of secretary of state, but does not inhibit his candidacy "by petition" for the office of state auditor.

In addition to the provisions of section 32-1124, Comp. St. 1929, respondent relies upon section 32-1125, Comp. St. 1929, which, in part, expressly provides: "No candidate defeated at the primary election shall be permitted to file by petition in the general election next following."

The following authorities on the proper construction of statutes are deemed applicable, viz.: "Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning; a mere reading will suffice." State v. Heupel, 114...