State ex rel. Ewing v. Reeves

• Decision Date: 09 October 1942
• Docket Number: 28893.
• Parties: STATE ex rel. EWING, v. REEVES, Secretary of State.
• Court: Washington Supreme Court

129 P.2d 805

15 Wn.2d 75

STATE ex rel. EWING, v. REEVES, Secretary of State.

No. 28893.

Supreme Court of Washington, En Banc.

October 9, 1942

Mandamus proceeding by the State of Washington on the relation of Edwin C. Ewing, relator, against Belle Reeves, as Secretary of the State of Washington, respondent, to compel the respondent to place the relator's name on the judicial ballot at the next general election.

Application for writ of mandamus denied.

S Harold Shefelman, Gail M. Williams, John Ambler, and Ray Dumett, all of Seattle, for relator.

Loren Grinstead, of Seattle, amicus curiae.

Smith Troy, Harold P. Troy, and John Spiller, all of Olympia, for respondent.

Neal Bonneville & Hughes and Metzger, Blair & Gardner, all of Tacoma, amici curiae for the State.

STEINERT Justice.

On October 1, 1942, relator, Edwin C. Ewing, made application to this court for a writ of mandamus to compel respondent, Mrs Belle Reeves, Secretary of State of the state of Washington, to place his name on the judicial ballot at the next general election to be held November 3, 1942. In response to an alternative writ and order to show cause, the respondent, appearing by the attorney general, filed her return on October 3d. Briefs were thereafter submitted by counsel for the respective parties and by amici curiae consisting of Messrs. Neal, Bonneville & Hughes, and Messrs. Metzger, Blair & Gardner, of Tacoma. On October 6th, the cause was argued Before the court sitting en banc. At the hearing, Mr. Loren Grinstead, of Seattle, appeared as amicus curiae and participated with the others in the oral argument.

The facts upon which this proceeding is based are these: At the primary election held September 8, 1942, there appeared on the ballot, as candidates for nomination for judge of the supreme court, position number one, the names of John F. Main, the present incumbent; Joseph A. Mallery, then and now a judge of the superior court for Pierce county; Edwin C. Ewing, the relator herein, who is a practicing attorney of Seattle; and Eret L. Casey, a practicing attorney of Walla Walla. The unofficial election returns showed that no one of the candidates had received a majority of all the votes cast for that position, but that John F. Main had received the greatest number of votes cast, Joseph V. Mallery the next greatest, and Edwin C. Ewing the next greatest after Mallery.

A few days prior to the primary election, Judge Main was suddenly stricken with a serious illness, and on September 14, 1942, which was after the primary election but prior to the official canvass and certification, he declined the nomination, as shown by the following communication sent to the respondent:

'To Honorable Belle Reeves, Secretary of State of the State of Washington.

'Notice

'Pursuant to Section 5175, Remington's Revised Statutes, I hereby notify you that I decline the nomination for Judge of the Supreme Court (Position No. 1) of the State of Washington.

'Dated this 14th day of September, 1942.

'(Signed) John F. Main

'Witnesses:

'Margaret M. Wylde

'Hanna McLean'

Thereafter, on September 24, 1942, which was prior to the time for the official canvass and certification, relator prepared and sent to respondent a formal application in writing requesting that, if the official canvass should confirm the unofficial returns, she certify relator's name as that of one of the two candidates for judicial position number one. On September 28, 1942, the state canvassing board met and canvassed the primary election vote, as required by law. The canvass with respect to the above-mentioned judicial position disclosed that the several candidates had received the number of votes set opposite their respective names as follows:

John F. Main, 67,437

Joseph A. Mallery, 66,752

Edwin C. Ewing, 39,036

Eret L. Casey, 26,275

thus confirming the unofficial returns. Respondent thereupon refused to certify relator's name as previously requested by him, and in consequence thereof relator thereupon instituted this action to obtain the relief referred to above.

It is relator's contention that, since no candidate received a majority of all votes cast at the primary election for position number one of the supreme court, the names of two candidates must appear on the ballot at the general election to be held on November 3rd, in accordance with Rem.Rev.Stat. § 5212 [P.C. § 2259], and that, since Judge Main declined the nomination, thereby rendering his nomination void, as provided in Rem.Rev.Stat. § 5175 [P.C. § 2166], the two candidates entitled to have their names placed on the ballot for position number one are Joseph A. Mallery and relator, Edwin C. Ewing.

The election laws of this state with reference to nominations and primary elections are found in volume 6 of Rem.Rev.Stat., Title 29, chapter 4, appearing therein as §§ 5167 to 5213-2 [P.C. §§ 2158 to 2260], inclusive, and consisting, for the most part, of portions of the general election act of 1890, Laws of 1889-90, ch. 13, p. 400, and the primary election act of 1907, Laws, of 1907, ch. 209, p. 457, together with the subsequent amendments thereto, respectively. The pertinent sections, considered in their logical sequence rather than in their numerical order, are Rem.Rev.Stat. §§ 5212, 5175, 5176 [P.C. §§ 2259, 2166, 2167].

Rem.Rev.Stat. § 5212 [P.C. § 2259], prescribes the method for determining the candidates whose names are to be placed on the general election ticket, under the heading 'Judicial ticket.' So far as pertinent here, that section reads as follows:

'When there are to be elected at any general election one or more judges of the supreme court, * * * the candidates for each respective office whose names are to be placed on the general election ticket shall be determined as follows: Not less than ten days Before the time for filing declaration of candidacy, the secretary of state, * * * shall designate by number each position to be filled upon the supreme court, * * *. Each candidate at the time of the filing of his declaration of candidacy shall designate by the number so assigned, the position for which he is a candidate and the name of such candidate shall appear on the ballot only for such position. The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes for each position, shall appear on the general election ballot under the designation for each respective office: Provided, however, that where any candidate for such position, so designated as aforesaid, shall receive a majority of all votes cast at such primary election for such position, the name of such candidate receiving such majority shall be printed separately on the general election ballot under the designation 'Vote for One' and the name of no opposing candidate shall be printed on such ballot in opposition to such candidate, but one space shall be left following such name in which the voter may insert the name of any person for whom he wishes to cast his ballot. * * *' (Italics ours.) Laws of 1925, Ex. Ses., ch. 68, § 1, p. 66, as amended by Laws of 1927, ch. 155, § 1, p. 140.

Rem.Rev.Stat. § 5175 [P.C. § 2166], provides for declinations of nominations for public office, as follows: 'Whenever any person nominated for public office, as in this chapter provided, shall at least twenty days Before election, * * * in a writing signed by him, notify the officer with whom the certificate nominating him is by this chapter required to be filed, that he declines such nomination, such nomination shall be void. * * *' (Italics ours.) Laws of 1890, ch. 13, § 11, p. 404, as amended by Laws of 1921, ch. 178, § 3, p. 701.

Rem.Rev.Stat. § 5176 [P.C. § 2167], provides the method for filling vacancies occasioned by declinations, insufficiency, or inefficacy of nominations, as follows:

'Should any person so nominated die Before the printing of the tickets, or decline the nomination as in this chapter provided, or should any certificate of nomination be or become insufficient or inoperative from any cause, the vacancy or vacancies thus occasioned 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, or by primary election, the committee of the political party he represents may, upon the occurring of such vacancy, proceed to fill the same. [Here follows a detailed description of the manner in which the proper committee of the political party shall fill vacancies occasioned as previously stated.]' (Italics ours.) Laws of 1890, ch. 13, § 12, p. 404.

Relator bases his contention upon three propositions. His first argument is that since Rem.Rev.Stat. § 5212 [P.C. § 2259], expressly provides that only in the event that a candidate shall have received a majority of all votes cast at the primary election shall the name of such candidate alone be printed on the general election ballot as being unopposed, and since no one of the candidates received such majority at the primary election, therefore neither Judge Mallery, nor any other one of the candidates is entitled to an exclusive listing on the general election ballot. In furtherance of that argument, relator leans upon the correlative provision in Rem.Rev.Stat. § 5212 [P.C. § 2259], reading:

'The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes for each position, shall appear on the general election ballot under the designation for each respective office.'

Relator then concludes that, by reason of the failure of any one of the candidates to fulfill the first requirement above mentioned, the provision last above quoted becomes...