State ex rel. Spofford v. Gifford

• Citation: 126 P. 1060,22 Idaho 613
• Parties: STATE ex rel. JUDSON SPOFFORD, Plaintiff, v. WILFRED L. GIFFORD, as Secretary of State of the State of Idaho, Defendant, and J. H. GIPSON, Intervenor
• Decision Date: 08 October 1912
• Court: United States State Supreme Court of Idaho

126 P. 1060

22 Idaho 613

STATE ex rel. JUDSON SPOFFORD, Plaintiff, v. WILFRED L. GIFFORD, as Secretary of State of the State of Idaho, Defendant, and J. H. GIPSON, Intervenor

Supreme Court of Idaho

October 8, 1912

ELECTION LAWS-PRIMARY NOMINATIONS-CONVENTION NOMINATIONS-NOMINATIONS BY PARTIES-STATE TICKET-PRESIDENTIAL ELECTORS-CANDIDATE FOR CONGRESS.

(Syllabus by the court.)

1. Under the provisions of sec. 1 of the direct primary election law of this state (1909 Sess. Laws, p. 196) a political party is an affiliation of electors representing a political organization under a given name, which at the last preceding general election cast for any candidate on their ticket for office within the state at least ten per cent of the total vote cast for all candidates for the same office within the state, and all political parties coming within this definition are required to make nominations at the direct primary election held on the last Tuesday in July of election years.

2. Under the provisions of sec. 11 of the direct primary law "any organization of electors not governed by the terms" of that act must hold their conventions for the nomination of candidates on the same day that the direct primary election is held.

3. "Convention," as used and employed in the direct primary election law, means an organized body of delegates or representatives assembled for the purpose of making nominations, and does not have reference to a mass meeting or assemblage of persons who represent themselves only, but is intended to be an assemblage or body selected or appointed by some class, body or party of electors as representatives of the people, party or district making the selection or appointment.

4. Under the provisions of sec. 385, Rev. Codes, candidates for state offices, district offices and county offices, may be nominated by petition, provided the required number of signatures designated by statute be obtained of qualified electors who have not joined in the nomination of any other person for the same office.

5. Under the provisions of secs. 385 and 386, Rev. Codes persons nominating candidates for public offices by petition are authorized to "designate in not more than five words the party name or principle" which they desire to give the ticket so nominated, and where the required number of electors signing a petition for the nomination of candidates for public office designate the name of the ticket "The Electors' Progressive Party," such name or designation is not in conflict with the name of an organized party called the "Progressive Party." (Phillips v. Curtis, 4 Idaho 193, 38 P. 405 followed.)

6. Courts will not go into the realm of politics to inquire into the motives of electors for seeking or advocating the nomination or election of any person to office, and will not inquire into or investigate the motives or purposes of any person in either circulating or signing a petition for the nomination of a candidate to public office.

7. The statutes of this state do not authorize or permit the nomination of candidates for presidential electors or candidates for Congress by petition.

8. The only method provided by the statute of this state for nominating candidates for Congress is, first, by political parties under the direct primary election law, and second, by organizations holding conventions on the day of the direct primary election.

9. The only method provided by the laws of this state for nominating candidates for presidential electors is, first, by the state central committee of an organized political party, and second, by an organization not governed by the direct primary election laws holding a convention on the day of the direct primary in conformity therewith.

Original action for restraining order enjoining and restraining the secretary of state from certifying nominations. Granted in part and denied in part.

A. A Fraser, for Plaintiff.

Under sec. 382, the Progressive party was entitled to hold a convention for the nomination of state officers. Sec. 385 has no application whatever to an organized assemblage of electors, but was intended only to permit of the filing of independent candidates for public office by the number of electors mentioned in the statute, said electors not being an organized body of electors. (State ex rel. Russell v. Tooker, 18 Mont. 540, 46 P. 530, 34 L. R. A. 315; State ex rel. Woody v. Rotwitt, 18 Mont. 502, 46 P. 370; Partridge v. Devoto, 148 Cal. 167, 82 P. 775.)

John J. Plowhead, H. E. McElroy, and Harry S. Kessler, for Intervenor.

Nomination by electors' certification of nomination--by required number of electors that were without organization prior to the time that a convention might have been called--has been approved in at least two Idaho cases. (Phillips v. Curtis, 4 Idaho 193, 38 P. 405; Williams v. Lewis, 6 Idaho 184, 54 P. 619.)

An organized assemblage must nominate by convention and cannot nominate by petition. (State v. Rotwitt, 18 Mont. 502, 46 P. 370; State v. Reek, 18 Mont. 561, 46 P. 442; State v. Tooker, 18 Mont. 540, 46 P. 530, 34 L. R. A. 315; State v. Elliott, 17 Wash. 18, 48 P. 734; State v. Weir, 5 Wash. 82, 31 P. 417; Curtis v. Phillips, supra.)

In Phillips v. Curtis the "People's Party" had a ticket in the field and had legally appropriated that name. The electors by petition placed a candidate in the field under the designation of "Electors' People's Party." The court directed the filing of the name under that designation.

It will thus be seen that it is the intention of the law to give each individual voter the opportunity of voting for any ticket presented by a political party or presented by electors representing, not a political party, but some political principle. The law then provides for party tickets and for independent tickets representing some distinctive principle. (Williams v. Lewis, supra; Partridge v. Devoto, 148 Cal. 167, 82 P. 775.)

D. E. Hodge, Amicus Curiae.

A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and policy, of the law. (Lewis' Sutherland Stat. Const., sec. 521.)

The rule expressio unius exclusio est alterius is applicable to this case. The legislature specifically provided for the lesser political organizations by referring them to existing laws; then, in order to preserve the harmony and constitutionality of the primary law, selected by mention a certain means known to existing law; and having so expressed its approval of the one method--conventions on call--and modified it so as to conform to the spirit of the primary law, excluded all other methods.

D. C. McDougall, Attorney General, files no brief.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

STATEMENT OF FACTS.

This action was instituted in the name of the state as plaintiff on the relation of Judson Spofford. After alleging the official position held by the defendant and that relator is a qualified elector of the state, the complaint alleges that on about the 3d of August, 1912, a national convention was held in the city of Chicago which was duly organized, consisting of delegates from most of the states of the Union, and that such convention adopted a platform and declaration of principles, and candidates for President and Vice-President of the United States were nominated, and that during the session thereof an organization was perfected and a party name was adopted whereby the organization assumed and appropriated the name of "Progressive Party"; that prior thereto and on the 30th day of July, 1912, an organization of electors of the state of Idaho, not governed by the terms of the direct primary law of this state adopted in 1909 (1909 Sess. Laws, p. 196), held a convention in the city of St. Anthony of this state, at which delegates from a number of counties of the state, composed of fifty or more persons, formed an organization which they designated the "Progressive Party of the State of Idaho," and thereupon elected delegates to attend the above-named convention, to be held in the city of Chicago on August 3d, and at the same time nominated three candidates for electors for President and Vice-President of the United States, and thereupon declined and refused to make further nominations, and selected certain committeemen to represent such party organization and empowered and instructed them to organize and represent such party, and thereupon adjourned; that thereafter and on the 12th of August, 1912, such committee met in the city of Boise and organized by electing J. H. Gipson chairman of the Progressive party state central committee, and that thereupon the committee agreed upon certain persons for nomination for certain state offices, and that thereafter J. H. Gipson, as chairman of the Progressive party, caused a certificate of nomination to be prepared and printed and circulated nominating the persons so agreed upon for the respective state offices therein designated; and that thereafter he caused and procured these petitions to be circulated throughout the state and subsequently presented the same to the secretary of state for filing, and that the secretary thereupon filed the same. The petition circulated and subsequently filed is in the following words:

"CERTIFICATE OF NOMINATION BY ELECTORS.

"We the undersigned qualified electors of the State of Idaho, who are not entitled to nominate candidates for the public offices named below under the Primary Election Laws of Idaho and who have not joined in the nomination of any candidate for any office herein mentioned, do hereby certify for nomination as candidates for public office in the State of Idaho, under the party designation of the electors'...