State ex rel. Howells v. Metcalf
| Decision Date | 21 September 1904 |
| Citation | 100 N.W. 923,18 S.D. 393 |
| Parties | STATE OF SOUTH DAKOTA ex rel. ROBERT M. HOWELLS, Plaintiff, v. H. A. METCALF, County Auditor of Roberts County. Defendant. |
| Court | South Dakota Supreme Court |
Original proceedings
Writ of mandamus granted
J. J. Batterton, Horner & Stewart
Attorneys for plaintiff.
Frank McNulty, Campbell & Taylor
Attorneys for defendant.
Opinion filed September 21, 1904
On March 22, 1904, the regularly constituted central committee of the Republican party in Roberts county issued a call for a delegate convention to meet in Sisseton at 1 o'clock p. m., on April 5, 1904, for the purpose of selecting 28 delegates to the state convention, 28 delegates to the judicial convention, and to place in nomination candidates for the following legislative and county offices: One senator, 3 representatives, treasurer, sheriff, register of deeds, auditor, state’s attorney, county judge, clerk of the courts, superintendent of schools, coroner, surveyor, 3 county justices, and 3 constables. The call was properly published. It recommended that precinct caucuses be held April 2d or at such time as might be fixed by the member of the county committee residing in the precinct, and at the place where the preceding spring election was held. It stated that “credentials should be handed to the chairman or secretary of the committee before the opening of the convention.” At the time designated in the call numerous persons claiming to be delegates to the convention provided for therein appeared at Sisseton. Some of these persons repaired to the place selected by a majority of the county central committee, were called to order by the chairman of that committee, and having organized in the usual manner, proceeded to transact the business mentioned in the call. At the same time the other persons present in Sisseton, claiming to be delegates, assembled in another place, were called to order by a member of the county central committee, and, having organized in the usual manner, proceeded to transact the business mentioned in the call. The first mentioned assembly so organized as presided over by Mr, Howard Babcock, and will be hereafter termed the “Babcock convention.” The other assembly so organized was presided over by Mr. A. M. Houck, and will be hereafter termed the “Houck convention.” In due time the nominations for legislative and county offices, made by each of these conventions, were certified in proper form by the respective officers of such conventions as nominees of the Republican party in Roberts county, and each of these certificates of nomination was received and filed by the defendant as auditor. Subsequently the relator and his associate candidates, who were nominated by the Babcock convention, demanded of the defendant that their names be printed on the ballots to be used in Roberts county at the coming general election, in the Republican party column, and that the names of the persons nominated by the Houck convention be excluded from such ballots. This demand having been refused, the relator has applied to this court, upon notice, for a peremptory writ of mandamus commanding the defendant to comply with such demand.
The writ of mandamus may be issued by this court to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. Rev. Code Civ. Proc. § 764. The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit, upon the application of the party beneficially interested. Id. § 765. It is an official duty of the auditor, which the statute specially enjoins, “to provide printed ballots for every election in which the voters of the entire county participate.” All official ballots are to be white in color, of good quality of printing paper, and to contain the name of every candidate whose nomination has been certified by the Secretary of State or filed with the county auditor in the manner provided by law; but the name of no candidate shall appear more than once on the ballot for the same office.
Rev. Pol. Code, §§ 1886, 1892. Where, as in this state, the voter may express his choice for all the candidates in a party ticket by merely making a cross in the circle over the head of a party column (Id. § 1914), the practical advantage of having a candidate’s name printed in a party column is apparent, and whether it shall be so printed presents a question of substantial right. At the coming general election in this state the Republican column will embrace the names of candidates for presidential electors, congressmen, judges, and state officers. It can embrace the names of only one set of county candidates. In counties where only one set of Republican county candidates have been nominated in the manner provided by law, the duty of the auditor to print their names in the Republican column will be clear and unquestioned. In the county of Roberts, however, there are two certificates of nomination on file in the auditor’s office, each regular on its face, each containing a set of county candidates, and each purporting to have been nominated by the Republican party.
When the legislation under consideration was enacted the existence of organized political parties, governed by generally recognized rules, and perpetuated by well-known methods, was disclosed by the current history of the country. Hence, where the word “party” occurs in the statute relating to nominations, it should be construed to mean a number of persons united in opinion and organized in the manner usual to the then existing political parties. Mindful of this definition, it seems to us to be self-evident that a party—that is, an organized political party—cannot have, at the same time, more than one candidate for the same county office. The acts of an organized political party, with respect to the selection of candidates for public office, must be regarded as the acts of the electors constituting such organization, and the statute expressly declares that no person shall join in nominating “more than one person for any place to be filled.” Rev. Pol. Code, § 1903. Whenever an elector joins, through a convention or by petition, in nominating a candidate other than the one nominated by the party organization, he by that act ceases to be a member of the organization with respect to such nomination, and the candidate he has joined in nominating cannot be regarded as representing the organization. A convention, within the meaning of the statute relating to nominations, “is an organized assembly of delegates or electors representing a political party or principle.” Such a convention “may nominate candidates for public offices to be filled by any public election within this state.” All nominations made by such convention are required to be certified in a prescribed manner, the certificate of nomination to “designate in not more than five words the party or principle which such convention represents;” and if the certificate relates to county officers it shall be filed with the county auditor. Id. §§ 1899, 1900, 1901. Then as the auditor is required to print only such names as have been certified or filed “in the manner provided by law,” and only one set of county candidates can be in the Republican column, some one must decide which, if either, of the conventions held in Roberts county, represents the Republican party. Such a controversy has here arisen may not have been anticipated by the Legislature. It did, however, provide for the correction of errors on the part of the auditor, and thus clearly indicated that his decision respecting such a controversy should not be regarded as final. The statute reads as follows:
“Whenever it shall appear by affidavit that an error has occurred in … the printing of the sample or official ballots, the judge of the county court shall, upon application of any voter, by an order, require the county auditor or other public official or board charged with the duty of preparing ballots, to correct such error or show cause at such time and place as under the circumstances he may deem necessary, why such error should not be corrected.”
Id. § 1889. Having thus clothed the county judge with power to review the auditor’s action, it is clear the Legislature did not intend to preclude interested parties from invoking the aid of the courts in enforcing their legal rights with respect to the preparation of ballots; and as an application to the county judge in the present case would not have afforded an adequate remedy, because of the delay incident to any proper procedure for bringing his decision here for review, this count undoubtedly has authority to control the auditor’s action by means of a peremptory writ of mandamus.
Whenever the Legislature in its wisdom sees fit to regulate nominations and the printing of ballots by statutory enactments, the duty of interpreting such enactments devolves upon the courts, and they should not attempt to escape responsibility or avoid disagreeable consequences by assuming that no judicial questions are involved. The auditor’s duties and the candidate’s rights respecting the preparation of ballots having...
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