State ex rel. Fisk v. Porter

• Decision Date: 24 October 1904
• Citation: 13 N.D. 406,100 N.W. 1080
• Parties: STATE ex rel. FISK v. PORTER, Secretary of State.
• Court: North Dakota Supreme Court

13 N.D. 406

100 N.W. 1080

STATE ex rel.FISK

v.PORTER, Secretary of State.

Supreme Court of North Dakota.

Oct. 24, 1904.

Syllabus by the Court.

1. Section 491, Rev. Codes 1899, which prohibits the printing of the name of a candidate for office in more than one column of the official ballot, is, as to a candidate who is the nominee of a single political party and the nominee of electors by petition, a reasonable regulation of the manner of exercising the right of suffrage, and is valid and constitutional.

Application by the state, on the relation of Charles J. Fisk, for writ of mandamus to E. F. Porter, Secretary of State. Writ denied.Charles F. Templeton, Guy C. H. Corliss, and Tracy R. Bangs, for plaintiff. C. N. Frich, Atty. Gen., John F. Philbrick, Asst. Atty. Gen., Newman, Spalding & Stambaugh, and R. H. Bosard, for defendant.

YOUNG, C. J.

Upon the application of the Honorable C. J. Fisk an alternative writ of mandamus issued out of this court directed to the Secretary of State, and commanding him to certify relator's name to the county auditors of Grand Forks and Nelson counties as a candidate by petition for the office of judge of the district court of the First Judicial District, or show cause why he has not done so. It appears from the relator's affidavit upon which the alternative writ was issued, and from the return of the Secretary of State, and there is no controversy as to these facts, that the relator was regularly nominated as the Democratic candidate for said office, and on September 23, 1904, a certificate of such nomination, in due form, was filed in the office of the Secretary of State; that thereafter, and on the 5th day of October, 1904, a certificate of nomination of said C. J. Fisk by petition of electors for the same office was filed in the Secretary's office; that upon receipt of the latter certificate of nomination the Secretary of State requested the relator to designate the column on the official ballot in which he wished his name printed, and on the same day the said C. J. Fisk, in answer to said request, demanded that his name be placed twice on the official ballot, once in the column headed “Democratic,” and once in a column to be headed “A Non-Partisan Judiciary”; that because of the relator's refusal to designate a column the Secretary of State certified his name as the nominee of the Democratic party, and directed his name to be placed in the column headed “Democratic” upon the official ballot and in no other, and for the reason that the Democratic nominating certificate was first filed in his office.

Under the statutes of this state the name of a candidate for office secures a place and is printed upon the official ballot when such candidate is nominated by an “assembly or convention of delegates held for the purpose of making nominations,” in accordance with the provisions of section 498, Rev. Codes 1899, or when he is nominated by a petition of electors pursuant to the provisions contained in section 501, Rev. Codes 1899. Our statute (section 491), in addition to prescribing the form and contents of the official ballot, provides for separate party columns, “under the appropriate party designation for each,” in which the names of the party nominees are to be placed, also provides for one or more columns for the names of persons nominated by petition of electors under the designation “Individual Nominations.” It also provides that “when the same candidate has been nominated for the same office by more than one assembly, convention or body of electors qualified to make nominations for public officers, such candidate shall file with the proper officer * * * a statement in writing, signed by himself, designating one of the columns upon such ballot allotted to one of the parties, assemblies, conventions or bodies of electors by whom said candidate has been nominated, as to the column upon such ballot in which such candidate desires his name to appear upon such ballot, and such candidate's name shall be printed upon such ballot in such column, and in no other. But if such candidate shall refuse or neglect to give notice to the proper officer as above provided, specifying in which column he wishes his name printed on the ballot, then in such case the said officer shall cause his name to be printed in the column of the party or political organization from which he received first notice of such person's nomination.”

It thus appears that the refusal of the Secretary of State to certify the nomination last filed, i. e., the nomination by petition of electors, was made in obedience to the legislative command contained in section 491, supra, prohibiting the printing of a candidate's name upon the official ballot in more than one column, and it is argued that nominations by petition of electors, such as that here in question, is within the prohibition of ...