State ex rel. Mitchell v. Dunbar

• Decision Date: 15 October 1924
• Citation: 230 P. 33,39 Idaho 691
• Parties: STATE ex rel. PERRY W. MITCHELL, Plaintiff, v. J. A. DUNBAR, as County Auditor of Canyon County, Idaho, Defendant
• Court: Idaho Supreme Court

230 P. 33

39 Idaho 691

STATE ex rel. PERRY W. MITCHELL, Plaintiff, v. J. A. DUNBAR, as County Auditor of Canyon County, Idaho, Defendant

Supreme Court of Idaho

October 15, 1924

ELECTIONS-STATUTORY CONSTRUCTION-STATUTES IN PARI MATERIA-NGATIVE STATUTE-CANDIDATE NOMINATED BY MORE THAN ONE PARTY-HOW NAMED ON BALLOT-DECLINATION OF NOMINATION-Action BY AUDITOR-CONSTITUTIONAL LAW-VALIDITY OF C. S., sec. 573-RIGHTS OF PARTY-RIGHTS OF ELECTOR-RIGHTS OF NOMINEE.

1. The provision of C. S., sec. 573, that no name shall appear on the ballot more than once applies to a case where one desires to have his name on more than one ticket as the candidate of several parties for a political office.

2. Statutes in pari materia should be construed together and reconciled, if possible.

3. It is a general, though not an inflexible rule, that a negative or prohibitory statute is mandatory.

4. An objection to the validity of the provision of C. S., sec 573, that no name shall appear on the ballot more than once on the ground that it is uncertain, indefinite and uninforceable, is not well taken.

5. The provision of C. S., sec. 553, for declination of nominations furnishes a means of determining on which ticket the candidate's name shall appear on the ballot where he has been nominated by more than one party.

6. If a candidate is nominated by more than one party and declines none of the nominations, his name may be placed by the county auditor upon the ballot on the ticket of any one of the parties that has nominated him, but on only one.

7. If a candidate nominated by more than one party does not exercise his right to decline, but, before the ballots are printed makes a request of the auditor that his name appear on a certain ticket, the statute does not prohibit the auditor from complying with this request.

8. A court should not hold a statute unconstitutional unless its repugnance to the constitution appears beyond all reasonable doubt.

9. The provision of C. S., sec. 573, that no name shall appear on the ballot more than once is not unconstitutional.

Original proceeding in mandamus. Demurrer to application sustained. Alternative writ quashed. Action dismissed.

Defendant's demurrer to plaintiff's application sustained, the motion to quash the alternative writ granted, and action dismissed, with costs to defendant.

James P. Pope, Henry Z. Johnson and Wm. M. Morgan, for Plaintiff.

It is the imperative duty of the county auditor to publish and print the name of every candidate as certified to him by the Secretary of State. (C. S., secs. 551, 572, 3631.)

That portion of section 573, C. S., providing that "No name shall appear thereon [on ballot] more than once" is unconstitutional and void. (Murphy v. Curry, 137 Cal. 479, 70 P. 461, 59 L. R. A. 97; Hopper v. Britt, 203 N.Y. 144, Ann. Cas. 1913B, 172, 96 N.E. 371, 37 L. R. A., N. S., 825.)

Such portion of section 573 is incomplete and inoperative, as no means is provided for its execution. (2 Lewis' Sutherland, Stat. Construction, sec. 388; Holmberg v. Jones, 7 Idaho 752, 760, 761, 65 P. 563; State v. Kingsley, 35 Idaho 262, 205 P. 892.)

The same person may be the candidate of more than one political party in Idaho. (Donovan v. Dougherty, 31 Idaho 622, 628, 174 P. 701.)

Logan D. Hyslop, Pros. Atty., and A. H. Conner, Attorney General, for Defendant.

The right of suffrage is not a natural right, but may be granted, or withheld, or given subject to such restrictions as the sovereign may deem most conducive to the public welfare. ( Innis v. Bolton, 2 Idaho 442, 17 P. 264; Shepherd v. Grimmett, 3 Idaho 403, 31 P. 793; Wiggin v. Lewiston, 8 Idaho 527, 69 P. 286; Blair v. Ridgely, 41 Mo. 63, 97 Am. Dec. 248, and note; Adams v. Lansdon, 18 Idaho 483, 110 P. 280; 20 C. J. 60; State v. Superior Court, 60 Wash. 370, 140 Am. St. 925, 111 P. 233; Gardner v. Ray, 154 Ky. 409, 157 S.W. 1147.)

The provision in the statute that the name of a candidate may appear on the ballot but once, such as is found in C. S., sec. 573, is constitutional. (Idaho Const., art. 6, sec. 4; State v. Superior Court, 60 Wash. 370, 140 Am. St. 925, 111 P. 233; Todd v. Election Commrs., 104 Mich. 474, 62 N.W. 564, 64 N.W. 496, 29 L. R. A. 330; State v. Coburn, 260 Mo. 177, 168 S.W. 956; State v. Wileman, 50 Mont. 436, 143 P. 565; State v. Porter, 13 N.D. 406, 3 Ann. Cas. 794, and note, 100 N.W. 1080, 67 L. R. A. 473; State v. Bode, 55 Ohio 224, 60 Am. St. 696, 45 N.E. 195, 34 L. R. A. 498; Hayes v. Ross, 41 Utah 580, 127 P. 340; State v. Anderson, 100 Wis. 523, 76 N.W. 482; People v. Czarnecki, 256 Ill. 320, 100 N.E. 283, 107 N.E. 625; 20 C. J. 148.)

The repeal of a statute by implication is not favored by the courts. (Innis v. Bolton, 2 Idaho 442, 17 P. 264.)

Even if a strained construction of certain words in C. S., secs. 536, 542 and 551, could be taken to mean that the name of a candidate could be printed in the column of each party nominating him, such sections would not repeal by implication the positive prohibition contained in sec. 573. Almost identical sections were held not to repeal similar provisions in the following cases: State v. Wileman, 50 Mont. 436, 143 P. 565; People v. Czarnecki, supra; State v. Superior Court, supra.

At least one other state has provided no method by which the officer shall determine the column in which the name of a candidate shall be placed. (State v. Coburn, supra.)

This case cannot be confused with other cases where there is an uncertainty as to the duty to be performed. In this case the duty is specific, but is left to the discretion of the officer as to how it shall be performed. Discretionary powers are a large element of the law of administration, and county officers have by implication such powers as are necessary to perform the duties enjoined on them. (15 C. J. 510; Lewis' Sutherland, Statutory Construction, 2d ed., p. 1046; Throop, Public Officers, sec. 542; Wyman's Administrative Law, sec. 36; Woods v. State, 44 Neb. 430, 63 N.W. 23.)

The duty of an auditor to prepare the official ballot is ministerial. (Miller v. Davenport, 8 Idaho 593, 70 P. 610; Fuller v. Corey, 18 Idaho 558, 110 P. 1035.)

MCCARTHY, C. J. William A. Lee, J., Babcock, District Judge, and DUNN, J., concurring. Budge and Wm. E. Lee, J., did not sit at the hearing nor participate in the decision.

OPINION

MCCARTHY, C. J.

This is an original proceeding in mandamus. Plaintiff was nominated for representative in Congress by the state conventions of both the Democratic and Progressive parties, certificates of nomination being duly filed with the Secretary of State by the chairman and secretaries of said conventions. Plaintiff alleges that he accepted both nominations, and the Secretary of State certified them to defendant, Auditor of Canyon county, whose duty it is to provide printed ballots for use at the election in said county. Plaintiff demanded of defendant that he cause plaintiff's name to be printed upon the official ballot as candidate for representative in Congress on the Democratic ticket and also on the Progressive ticket, which defendant has refused to do. Plaintiff asks the mandate of this court to compel such action on the part of defendant. Defendant demurs to the application for the writ and moves to quash the alternative writ heretofore issued on the ground that the application, setting forth substantially the facts above stated, does not state facts sufficient to constitute a cause of action nor entitle plaintiff to the writ.

The decision of this case requires a consideration and construction of the following provisions of our statutes. C. S., sec. 573, provides, inter alia:

"Every ballot shall contain thereon the names of every candidate whose nomination for any office specified on the ballot has been certified or filed according to the provisions of this title, but no name shall appear thereon more than once."

This provision has been contained in our statutes since it was first enacted at the Seventh Session in 1903. It has never been expressly amended or changed. In 1909, in an act relating to the nomination of candidates for political parties at a primary election the following provision was enacted:

"In case a person is nominated upon more than one ticket, he shall file with the proper officer a written declaration indicating the party designation under which his name is to be placed on the official ballot." (Sess. Laws 1909, H. B. No. 16, p. 207, sec. 31.)

In 1917 the general provisions of the statutes in regard to the preparation of election ballots were amended by the insertion of the following provision:

"If a candidate shall receive the nomination of more than one party or more than one political designation for the same office, he may, at any time, not less than thirty-five (35) days prior to the date of the general election, by a writing delivered to the Secretary of State, if the nomination is for a state office, or to the county auditor, if the nomination is for a county office, direct in what order the several political designations shall be added to his name upon the official ballot, and such directions shall be followed by said officer. If, during the said time, the said candidate shall neglect to direct in writing as aforesaid, then said officer shall add said political designations to the name of said candidate in such order as said officer shall see fit." (Sess. Laws 1917, chap. 93, p. 319.)

By sec 31 of chap. 27 of the Political Code of the Comp. Laws the above provision of the 1909 Session Laws was reenacted. In 1919, in an act relating to the nomination of candidates for political offices, sec. 31 of chap. 27 of Political Code of the Compiled Laws was expressly repealed. (Sess. Laws 1919, chap. 107, sec. 46, p. 390.) This act...