State ex rel. Graham v. Hall

• Decision Date: 15 September 1944
• Docket Number: 6942.
• Citation: 15 N.W.2d 736,73 N.D. 428
• Court: North Dakota Supreme Court

15 N.W.2d 736

73 N.D. 428

STATE ex rel. GRAHAM v. HALL, Secretary of State, et al.

No. 6942.

Supreme Court of North Dakota

September 15, 1944

Syllabus by the Court.

Chap 141 of the S.L. of 1939, which prescribes 'that any person who was a candidate for nomination for office at any primary election in any year and who was defeated for said office shall not be eligible as a candidate for the same office at the ensuing general election,' is unconstitutional in that it adds a qualification to those prescribed by Sec. 73 and Sec. 82 of the Constitution for the state officers named therein.

J. K. Murray, of Bismarck, for petitioner.

P O. Sathre, Asst. Atty. Gen., for respondents.

A R. Bergesen, of Fargo, and Hugo P. Remington, of Lisbon amici curiae.

PER CURIAM.

The petition sets forth: That at the recent primary election, 'one Alvin C. Strutz was a candidate for the Republican nomination for the office of governor * * * that at said primary election he was defeated'; that thereafter he filed with the secretary of state 'his petition * * * for said office' to be voted on at the general election of 1944 and that the secretary of state 'is about to certify the name of Alvin C. Strutz as a candidate for the office of governor at the coming general election * * * as such candidate * * * unless restrained by the order and judgment of this Court.' It is stated generally that the secretary of state will certify 'the names of other defeated candidates at the primary election * * * for their same office,' the inference in the latter statement being that they were candidates for some of the offices mentioned in Sec. 82 of the Constitution. The petitioner asks this court to assume original jurisdiction under the provisions of Sec. 87 of the Constitution, and that the respondent be permanently restrained from certifying the name of Alvin C. Strutz as candidate for the office of governor, and from certifying the names of 'these other defeated candidates.' The truth of these statements is not denied.

The proceedings present some curious features. While the petitioner seeks to prevent the secretary of state from certifying the name of Mr. Strutz as a candidate for governor, in his brief he states specifically:

'It is to be noted that the Legislature used unequivocal language in the statute: 'shall not be eligible as a candidate * * *' If the Legislature set out purposely to have a collision with Section 73 of the constitution and other constitutional provisions fixing the qualifications of constitutional officers, they could not have done a better job of it; consequently, this Court should state in plain language that said statute is unconstitutional in its application to state officers and, consequently, the injunction be denied.'

Generally, when a petitioner appears and asks to have the relief demanded in his petition denied and respondent takes the same position, the proceeding will be dismissed without any discussion on the merits. However, in the matter of the exercise of original jurisdiction on the part of this court, other features enter into the matter. Mere private rights are not enough upon which to base an application for an original writ. The rights of the public must be affected directly. The real plaintiff is the state. As we say in State ex rel. Linde v. Taylor et al., 33 N.D. 76, 83, 156 N.W. 561, 563, L.R.A.1918B, 156, Ann.Cas.1918A, 583:

'The private relator, in his capacity as a citizen and taxpayer, merely informs the court of the infringement which has been or is about to be made upon the sovereignty of the state or its franchises or prerogatives or the liberties of its people, and the court by virtue of the power granted by the Constitution, commands that the suit be brought by and for the state, even though the Attorney General may refuse to bring this action or consent to its institution.'

The matter was one of statewide concern, affecting the state and the electorate directly and we assumed original jurisdiction. Because of the statewide character of the controversy, several citizens became interested and thus Mr. A. R. Bergeson and Mr. Hugo P. Remington--both officers of this court as members of the bar--asked leave to appear in this court as amici curiae. Leave was granted and each filed his brief, Mr. Bergeson appearing personally to argue the matter. Those gentlemen took the position that the statute is constitutional and the argument was on the merits.

This proceeding involves the interpretation and effect of Chap. 141 of the S.L. of 1939, which provides as follows:

'An act prohibiting any person who was a candidate for nomination for office at a primary election and who was defeated for said office, from being a candidate for the same office at the ensuing general election.

'Be it Enacted by the Legislative Assembly of the State of North dakota:

'§ 1. That any person who was a candidate for nomination for office at any primary election in any year and who was defeated for said office shall not be eligible as a candidate for the same office at the ensuing general election.'

We must distinguish between a statute that prohibits candidacy and attempts to render one ineligible as a candidate, and one that merely prescribes the method of arranging an official ballot. It is argued the legislature has the right to make such regulation as is attempted in this chapter and decisions are cited to sustain this position. But such a case as State ex rel. Driscoll v. Swanson, 127 Neb. 715, 256 N.W. 872, is not in point, though it involved a candidate defeated for nomination, as the statute there involved prescribed: 'No candidate defeated at the primary election shall be permitted to file by petition in the general election next following.' Comp.St.Neb.1929, § 32-1125. This quotation in the Nebraska syllabus is taken from the statute. The Nebraska statute did not seek to prohibit a defeated candidate from being a candidate at the next election, nor did it purport to render him 'ineligible as a candidate.' Clearly, it related to the filing of a petition in order to get his name upon the official ballot. The subsequent case of State ex rel. O'Sullivan v. Swanson, 127 Neb. 806, 257 N.W. 255, 256, expressly states that one defeated at a primary 'may be a candidate and if electors write his name on the ballot in sufficient numbers he will be elected.' The statute was dealing with the manner of preparing the ballot. Our statute is dealing with the eligibility of a candidate and is an attempt to prohibit a man from being a candidate.

The controversy centers around the interpretation to be given the expression 'eligible as a candidate.' It will be noticed the title of the act seeks to prohibit candidacy at the ensuing election.

A similar question involving this statute was before the court in State of North Dakota ex rel. Sundfor v. Herman Thorson et al., 72 N.D. 246, 6 N.W.2d 89, 143 A.L.R. 599, involving a candidate defeated for nomination for representative in the congress. We held specifically that the provisions of this Chap. 141 in effect imposed 'a qualification for the holding of the office of Representative in Congress in addition to those fixed by the Constitution of the United States.' The Constitution of the United States prescribes the qualifications of a candidate and we held the legislature could not add to nor subtract therefrom.

In the case at bar, we have a similar proposition but based upon the provisions of the state Constitution. Section 73 of the state Constitution provides for the election of a governor and states the qualifications as follows:

'No person shall be eligible to the office of governor or lieutenant governor unless he be a citizen of the United States, and a qualified elector of the state, who shall have attained the age of thirty years, and who shall have resided five years next preceding the election within the state or territory, nor shall he be eligible to any other office during the term for which he shall have been elected.'

It is conceded that Mr. Strutz is a citizen of the United States, a qualified elector of this state, thirty years of age, and has resided in the state at least five years next preceding the election to be held in November, 1944. This section of the constitution prescribes the qualifications required of a governor. May the legislature add thereto the provision that he must not have been defeated for nomination as governor at the preceding primary election?

It is urged that the emphasis is to be placed on the word 'candidate'; that ineligibility is confined to the candidacy and that alone; that it was not the intent of the legislature to add any qualification for governor so as to make a defeated candidate ineligible to hold the office, but it was its intent to prevent him from having his name printed upon the official ballot; that the history of the chapter shows this was the purpose of the legislature; and that here the word 'candidate' should be construed so as to distinguish between one who is a candidate by his own volition and one who is selected or put forth by others.

We can not see any merit in this attempted distinction. The statute does not say 'a voluntary candidate' nor does it define the term 'candidate.' All persons voted for are candidates whether they put themselves forward or are 'drafted' by a group or by a party. See State v Hirsch, 125 Ind. 207, 24 N.E. 1062, 1063, 9 L.R.A. 170. Whether one offers himself as a suitable person for the office or is put forward by others, he is a candidate (Starkweather v. Hoss, 126 Or. 630, 270 P. 768); and he is a candidate even if he is put forward contrary to his own wishes. McCamant v. Olcott, 80 Or. 246, 156 P. 1034, L.R.A.1916E, 706. There being no statutory...