State ex rel. Riley v. District Court of Second Judicial Dist. in and for Silver Bow County

• Decision Date: 02 January 1937
• Docket Number: 7658.
• Citation: 64 P.2d 115,103 Mont. 576
• Parties: STATE ex rel. RILEY v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

64 P.2d 115

103 Mont. 576

STATE ex rel. RILEY v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.

No. 7658.

Supreme Court of Montana

January 2, 1937

Rehearing Denied Jan. 23, 1937.

Original proceeding by the State of Montana, on the relation of Frank L. Riley, for a writ of review directed to the District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow, and the Honorable Frank P Leiper, Judge presiding.

Application denied, and proceeding dismissed.

SANDS C.J., dissenting.

P. E Geagan, G. W. Howard, and Timothy Nolan, all of Butte, for relator.

McCaffery & McCaffery, of Butte, for respondents.

PER CURIAM.

This is an original application for a writ of review directed to the district court of Silver Bow county, by which it is sought to have various orders made in a proceeding brought under the provisions of chapter 27, Laws 1935, now section 828.1 et seq., Revised Codes, annulled.

At the general election held on November 3, 1936, Jeremiah J. Lynch T. E. Downey, Frank L. Riley, and Henry A. Tyvand were candidates for the office of judge of the district court of the Second judicial district comprising Silver Bow county, two of whom were to be elected. As a result of the determination of the board of county canvassers, T. E. Downey and Frank L. Riley were declared elected. Thereafter Jeremiah J. Lynch, one of the unsuccessful candidates, filed a petition under the provisions of chapter 27, supra, seeking to secure a recount of the votes for himself and Frank L. Riley in certain precincts. Both Downey and Riley were the incumbent judges and made no orders whatever in the proceeding thus initiated. Thereupon the Governor directed the Honorable Frank P. Leiper, judge of the Seventh judicial district, to hear the petition, and he assumed jurisdiction and proceeded with the hearing. On November 27, 1936, upon the appearance of Judge Leiper to hold court, Frank L. Riley filed written objections to the court's proceeding with the hearing on the ground that he had received no notice of the hearing of the petition, nor of the time and place fixed for its hearing. On the same day notice of the time and place of hearing was served upon Riley, and upon the case being called for hearing pursuant to notice on the following day, objection was again interposed on the ground that he had not received five days' notice. A motion and demand for a bond was filed by Riley, and both the objection and this motion were denied. A motion was filed on behalf of Riley for continuance of the cause, and this was also denied. A demurrer to the petition was filed and overruled, and thereupon on the same day Riley filed a separate answer to the petition. Thereafter evidence was introduced, and on December 2, 1936, the court made an order addressed to the board of county canvassers, directing the board to reassemble on December 4, 1936, to canvass the judicial ballots in each of the precincts designated in the order, forty in number. On December 5 the board of canvassers organized as required by the order and commenced to recount the judicial ballots as the same related to candidates Jeremiah J. Lynch and Frank L. Riley.

During this recount, and while the board of canvassers was so engaged, the respondent judge directed the issuance of an order and citation to the three members of the board to show cause why they should not be punished for contempt. They appeared in response to the citation and were heard separately under oath on the same day, and as to two members the proceeding was dismissed. As to the third member the court ordered the board to proceed with the recount but the proceedings for contempt against such member were continued from time to time until the completion of the recount and the board's final report and return to the court on December 15, at which time the proceeding against this member was also dismissed.

On December 12, 1936, the board made a partial report to the court, and on December 14 the presiding judge, over the objection of the relator, advised the board regarding matters of law in relation to the ballots that should and should not be counted. All the proceedings had by the court and rulings made by it were over the objections of counsel for relator.

Thereupon relator filed application seeking a review of these proceedings. It is argued that in many respects the trial judge acted in excess of and without jurisdiction. The first contention of relator is that chapter 27, supra, is without application to candidates seeking the office of district judge and other state officers, and further that, if the body of the act itself may be so construed as to apply to candidates for the office of district judge, then, by reason of deficiencies in its title, the act as applied to such candidates is unconstitutional as being in violation of section 23, article 5 of the State Constitution.

The pertinent provisions of the act, so far as section 1 (Rev.Codes, § 828.1) is concerned, are as follows: "Any unsuccessful candidate for any public office at any general or special election, or at any municipal election, may within five days after the canvass of the election returns by the board or body charged by law with the duty of canvassing such election returns, apply to the district court of the county in which said election is held *** for an order directed to such board to make a recount of the votes cast at such election, in any or all of the election precincts wherein the election was held. *** Within five days after the filing of said application in the office of the clerk of said district court, the said court *** shall hear and consider said application, and determine the sufficiency thereof; and *** the court *** shall make an order addressed to the said board of county canvassers, requiring them *** to reassemble and reconvene as a canvassing board, and to recount the ballots cast at said election precinct or precincts of which complaint is made."

The title of the act reads as follows: "An Act Providing for the Recount of the Votes Cast at Any General or Special Election, or at Any Municipal Election, by the Board of County Canvassers Pursuant to an Order Therefor, Upon Application Made to the District Court, or to a Judge Thereof, by Any Person Who by the Statement of the Result of the Canvass of the Election Returns by the Board of County Canvassers Is Found Not to Have Received the Highest Number of Votes for the Office for Which Said Person Was a Candidate at Such Election; and Providing for the Correction of the Official Canvass by the Said Board of County Canvassers to Conform to Such Recount; and for the Cancellation of the Certificate of Election Issued by the County Clerk if it Should be Found by Such Recount That the Person to Whom the Certificate Had Theretofor Been Issued Did Not Receive the Highest Number of Votes for Said Office; and for the Issuance of a Certificate of Election to the Successful Candidate as Disclosed by Said Recount; and Repealing and Amending All Acts or Parts of Acts, or Section of the Statute in Conflict Herewith."

Section 6 of the act (Rev.Codes, § 828.6) provides that if a certificate of election has been issued pursuant to the provisions of section 797, Revised Codes, to the person who did not in fact receive the highest number of votes cast at the election, then the certificate of election shall be void and a new certificate issued by the clerk pursuant to the findings and determination of the recount. Section 797 provides that the county clerk, after the completion of the canvass by the county canvassing board, shall make out and deliver to the person receiving the highest vote a certificate of election, signed by him and authenticated by the proper seal, except as to the person elected district judge. Thus it will be observed that the county clerk does not issue a certificate to a district judge, and the provisions of section 6 of the act are wholly without application.

The election returns for the candidates for the office of district judge are compiled in the form of a certified abstract of the results of the board of county canvassers (section 801, Rev.Codes), which are transmitted to the Secretary of State (section 802, Id.), canvassed by the state board of canvassers which makes out and files in the office of the Secretary of State a statement thereof and transmits a copy of such statement to the Governor (section 803), who, except as to himself if reelected, issues commissions to the persons who appear from this statement to have received the highest number of votes (section 805).

From the quoted provisions of chapter 27, supra, it appears that "any unsuccessful candidate for any public office at any general or special election" may invoke its provisions. Clearly, unless we are to disregard this plain language, an unsuccessful candidate for the office of district judge comes within the purview of its provisions. The office sought is a public office, and the election held was general. We may not, in construing a statute, omit what was inserted therein. Section 10519, Rev.Codes.

It is argued that a candidate for a state office or for district judge in a district comprising three or more counties might at the conclusion of the official canvass in one county, be an unsuccessful candidate, and, when the results of others are added to the total already compiled, become a successful candidate, and that as the results from other counties are added to it the same candidate might become unsuccessful, and that in the meantime as the canvass proceeds in various counties the candidate, before it is finally determined officially, may have lost his right in some one or more counties to pursue a proceeding...