State ex rel. O'Sullivan v. Swanson
| Decision Date | 13 November 1934 |
| Docket Number | 29406 |
| Citation | 257 N.W. 255,127 Neb. 806 |
| Parties | STATE, EX REL. EUGENE D. O'SULLIVAN, RELATOR, v. HARRY R. SWANSON, SECRETARY OF STATE, RESPONDENT |
| Court | Nebraska Supreme Court |
Original proceeding in mandamus by relator to compel respondent to accept and file a petition to place the name of relator on the official ballot as a candidate at the general election for the office of United States senator. Writ denied.
WRIT DENIED.
Syllabus by the Court.
As to the office of United States Senator, " no candidate defeated at the primary election shall be permitted to file by petition in the general election next following." Comp. St. 1929, § 32-1125. This statute interpreted to apply to a candidate defeated at the primary election for nomination for the office of Governor.
Original mandamus proceeding by the State, on the relation of Eugene D. O'Sullivan, against Harry R. Swanson, as Secretary of State.
Writ denied.
Eugene D. O'Sullivan, pro se.
Paul F Good, Attorney General, and Daniel Stubbs, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ and LANDIS, District Judge.
This is a mandamus action to compel the secretary of state to accept a petition of nomination bearing the proper number of qualified signers and the relator's acceptance of the nomination, and to compel the secretary of state to cause relator's name to be placed on the official ballot for the 1934 general election as a candidate "by petition" for the office of United States senator from this state. The respective pleadings stated the facts, about which there was no dispute, leaving only questions of law to be decided. The petition was filed October 6, 1934. The answer and all briefs were filed by October 13, 1934, on which day oral argument was heard by the court. As Tuesday, October 16, 1934, was the last day for the secretary of state to certify the names of candidates to the county clerks, the judgment of this court was entered on Monday, October 15, 1934. That judgment denied the writ. It is the purpose of this opinion to record briefly the reasons for the judgment.
The relator filed under the primary laws as a candidate for governor and the secretary of state caused his name to be printed on the ballots as a candidate for that office at the statewide primary held August 14, 1934. Relator was defeated. At that primary candidates for United States senator were nominated. The secretary of state refused to place relator's name on the ballot as a nominee because of the statute which says: "No candidate defeated at the primary election shall be permitted to file by petition in the general election next following." Comp. St. 1929, sec. 32-1125.
We recently held that the section above quoted prevented one who was an unsuccessful candidate at the 1934 primaries for secretary of state from having his name placed on the ballot for the general election as a candidate for the office of state auditor. State, ex rel. Driscoll, v. Swanson, ante, p. 715, in which the judgment was entered October 6, 1934, and the opinion was filed October 19, 1934. However, much that was said in the opinion is applicable here and will not need to be repeated. The reasoning of the opinion there is adopted here as far as it goes. The issue here is whether the relator is entitled to have his name printed on the ballot as a candidate nominated by petition, regardless of the Driscoll decision, because the office relator seeks is a federal office rather than a state office. The question is not whether he may be a candidate, but whether he may be nominated by petition and have his name printed on the ballot at the state's expense. He may be a candidate and if electors write his name on the ballot in sufficient numbers he will be elected.
Section 3, art. I of the Constitution of the United States, provides for the qualifications of a senator: "No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for...
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