State ex rel. Runge v. Anderson

• Decision Date: 20 September 1898
• Citation: 100 Wis. 523,76 N.W. 482
• Parties: STATE EX REL. RUNGE v. ANDERSON, CITY CLERK.
• Court: Wisconsin Supreme Court

100 Wis. 523

76 N.W. 482

STATE EX REL. RUNGE

v.ANDERSON, CITY CLERK.

Supreme Court of Wisconsin.

Sept. 20, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Alternative mandamus by the state, on the relation of Carl Runge, against William E. Anderson, as city clerk of the city of Milwaukee. There was an order quashing the writ, and relator appeals. Affirmed.

Milwaukee for 1898, the Democratic party duly placed in nomination candidates for the several offices to be voted for at such election, the petitioner being the nominee for the office of city attorney, and thereafter duly certified such nominations to the city clerk as required by law. The day after the making of such nomination, the People's party also duly nominated the same persons as its candidates for such offices, and thereafter duly certified the same to the city clerk. Each of said parties polled the required number of votes at the preceding general election to entitle its candidates to have their names printed under its party designation on the official ballot, subject to the provision of the ballot law that no name can be printed but once on the ballot for the same office. The city clerk refused to print the names of the candidates but once, or otherwise than under the designation of the party first placing them in nomination, to wit, the Democratic party. The petitioner thereupon, on a petition in due form, setting forth the facts, obtained an alternative writ of mandamus to compel the printing of the names of the candidates under the designation of the People's party as well as that of the Democratic party. On the return of the alternative writ, on motion of respondent it was quashed, and from the order entered to that effect the petitioner appealed to this court.

Winslow, J., dissenting.

At the proper time prior to the spring election in the city ofAT E. L. Wood and M. M. Riley, for appellant.

Howard Van Wyck, for respondent.

MARSHALL, J. (after stating the facts).

This appeal presents interesting and important questions under the election law of 1897. The action was commenced, as the statement of facts discloses, prior to the spring election of 1898, and could only be effectual to secure the object sought, by a final determination in time to control the form of the official ballot to be used at such election. That has long since passed into history, so a judgment now entered, that the writ of mandamus issue pursuant to the petition of the appellant, would be without force and of no benefit to him whatever. Therefore, manifestly, under the uniform practice in such cases, such a judgment should not be entered; nevertheless, if the relator was entitled to the relief sought when the order appealed from was entered, he is entitled to a reversal of such order with costs, and to recover his costs in the lower court with nominal damages, as in case of an action for damages for a false return. Rev. St. § 3453; 5 Wait, Prac. p. 592. To the extent of such costs and damages the case is not affected by the changed condition which compels a denial of the writ, so no reason is perceived why the appeal should not proceed to a final determination of all questions presented. This much is said, not because of any objection to the jurisdiction of the court, or to a determination of any of the questions argued in the briefs of counsel, as both sides, as we understand it, desire such determination, but because attention was called on the argument and in the briefs to the circumstances of the situation as if some doubt existed in the minds of counsel as to whether the court has now jurisdiction to determine the appeal, or whether, if it has such jurisdiction, it is bound to exercise it. Of course, if the subject of the action has been withdrawn from the jurisdiction of the court by reason of lapse of time, counsel cannot confer it by any submission they may make, and it would be our duty to dismiss the proceedings. But, as before stated, no reason is perceived why the questions raised by the motion to quash are not all preserved for review on this appeal and before us for consideration and determination.

The first contention of appellant is that the statute contains no express prohibition against placing the name of a candidate receiving two nominations on the ballot twice, and cites language from sections 38, 41, Rev. St. 1898, as follows: “When any person is nominated for the same office by more than one party or convention his name shall be placed upon the ticket under the designation of the party which first nominated him.” “Except as in this chapter otherwise provided, it shall be the duty of each county clerk and city clerk to provide printed ballots for every election for public officers to be voted for in his county or city, and to cause to be printed in the appropriate ballot the name of every candidate whose name has been duly certified to or filed with him.” Suppose it to be true that the language quoted does not prohibit the placing of the name of a candidate twice on the official ballot; certainly, that does not impose upon the officer charged with the duty of preparing the ballot the duty of double printing to satisfy the mere wishes of one or all parties. That is a sufficient answer to the application for a writ of mandamus to compel such printing, for it is not within the office of the writ to compel an officer to do more than what the law clearly requires of him. Before the petitioner for a writ of mandamus is entitled thereto, he must show more than that there is a public wrong specially injurious to him. He must show that such wrong consists of some failure of official duty clearly imposed by law, and that there is no other adequate specific legal remedy. The duty must be positive, not discretionary, and the right must be so clear as not to admit of any reasonable controversy. These principles are so elementary as not to call for discussion or support by a citation of authorities, and effectually answer the contention that appellant was entitled to a writ to compel the putting of his name twice on the official ballot because such double printing is not prohibited.

It is further contended that if it be true that the officer, whose duty it was under the law to prepare the official ballot, was not bound to place the name of a person nominated by two political parties on the ballot twice when only one or any number less than all the candidates on the ticket are interested, the statute expressly requires such double printing where all have received two nominations, and in support of that, language in section 38, Rev. St. 1898, is referred to as follows: “The several regular party tickets nominated by conventions or by regularly constituted and authorized committees shall each be printed in one column, under the appropriate party designation, the columns to be arranged alphabetically according to the first letter of the party name.” That language is followed in the act of 1893 in the same section [28], with the following: “When any person is nominated for the same office by more than one party or convention, his name shall be placed in each column in which the nominations of such parties or conventions are given.” That was changed by the amendatory act of 1897 to the following: “When any person is nominated for the same office by more than one party or convention his name shall be placed upon the ticket under the designation of the party which first nominated him; or if he was nominated by more than one party or convention at the same time, he shall, within the time fixed by law for filing certificates of nomination, file with the officer with whom his certificate of nomination is required to be filed a written election indicating the party designation under which he desires his name to be printed on the ballots, and it shall be so printed. If he shall refuse or neglect to so file such an election, the officer with whom the certificate of nomination is required to be filed shall place his name under the designation of either of the parties by which he was nominated, but under no other designation whatever.” Taking the amended section as a whole, the legislative intent to provide for the printing of the name of each candidate regularly nominated and certified by a party convention, having the legal qualification to be known as a party, once on the official ballot, and to expressly prohibit the printing of it otherwise, seems to be too clear for controversy. The first part of the amendatory act, in mandatory language, requires the printing of the name of a candidate receiving two nominations under the party designation first nominating him instead of under both party designations as required by the old law, and that is followed by the very plain provision that, in case of two nominations at the same time, the candidate shall have his choice as to the party designation under which his name shall appear, and that is followed by the further provision that if he fails to make a choice between the two nominations the officer shall make the choice for him and the name shall be printed accordingly and under no other designation whatever. The rule that language which is plain does not admit of judicial explanation or construction applies here. The words referred to will admit of but one construction, therefore we are bound to take that as expressing the legislative will and give force to it, unless it contravenes some provision of the state or national constitution. The language of the first part of the amendment, to wit, “that the name shall be printed under the party designation first making the nomination,” carries with it by implication, in view of the language of the old act which it displaces, a prohibition against double printing. Then the prohibiting clause with which the amendment terminates as clearly refers to all that precedes it as if the punctuation were such as to indicate such reference.

But it is...