State ex rel Wolfe v. Falley
| Decision Date | 19 October 1900 |
| Citation | 83 N.W. 860,9 N.D. 450 |
| Court | North Dakota Supreme Court |
Original application for mandamus by the state on the relation of Charles E. Wolfe v. Fred Falley, Secretary of State.
Writ granted.
Peremptory writ issued.
Cochrane & Corliss, for relator.
A public officer charged with the duty of certifying nominations cannot conclusively determine who has been legally nominated so as to entitle his name to be certified. State v. Miller, 39 N.E. 24; Williams v Lewis, 54 P. 339; Shields v. Jacobs, 50 N.W 105; State v. Allen, 62 N.W. 35; State v. Falley, 8 N.D. 90; Baker v. Board, 68 N.W. 752. The secretary is not bound to certify all nominations apparently regular on their face, otherwise there could be, on the official ballot, two or more names purporting to be the candidates of the same party, for the same office, contrary to the spirit and intent of the ballot law. §§ 491, 498, 502, 504, Rev. Codes; State v. Weir, 31 P. 417; Baker v. Board, 68 N.W. 752; State v. Allen, 62 N.W. 35; Phelps v. Piper, 67 N.W. 755; State v. Piper, 69 N.W. 373. The court may inquire on mandamus as to which of the two rival candidates is lawfully nominated by the party. McDonald v. Hinton, 46 P. 870; State v. Tucker, 46 P. 530; State v. Johnson, 46 P. 533. Unless a candidate has been regularly nominated by a party convention the law requires his name to be placed in nomination by petition, § 501, Rev. Codes, and no person who goes on the ballot by petition can select a party designation already in use by an existing political party. State v. Rotwitt, 46 P. 370; Atkeson v. Lay, 22 S.W. 481; Philips v. Curtis, 38 P. 405; McCoach v. Whipple, 51 P. 164. Therefore, if the court cannot, on mandamus, inquire into the question of fact as to who is the lawful nominee of the party, the whole policy of the law may be subverted.
John F. Philbrick, Assistant Attorney General, for defendant.
OPINION
On the application of Charles E. Wolfe, as relator, this court issued an alternative writ of mandamus directed to the Honorable Fred Falley, as secretary of state, directing him to certify to the proper county auditors the name of relator as the nominee of the Republican party for the office of district judge of the Fourth judicial district, or show cause for not so doing; said district being composed of the counties of Richland, Ransom, Sargent, Dickey, and McIntosh. The facts upon which relator bases his claim as such nominee were set out at length in the alternative writ, and, omitting all formal parts, and stating only the facts that raise the controversy, are as follows: The judicial district Republican central committee in said district, in calling the judicial convention, fixed the time and place for holding the same, and the representation for the several counties composing the district, and then proceeded to direct that the caucuses in the various precincts in the several counties composing the district should be called for the special purpose of electing delegates to a county convention that should be held for the exclusive purpose of electing delegates to the judicial district convention, and declaring that the county conventions that selected delegates to the judicial convention should not elect delegates to any other convention or transact any other business, and declaring, further, that any delegates to the judicial convention not elected in conformity to such directions would not be recognized by said judicial committee, or permitted to participate in the preliminary organization of the judicial convention. It further directed that in case the proper county committees refused or declined to call the caucuses and conventions as directed, by a time specified, then the member of the judicial district committee for such county should proceed to call such convention, and provide for the election of delegates thereto. Relator alleges that in these special directions the said judicial district central committee exceeded its powers, and violated the usages of the Republican party in this state; that by said usages the various counties have each its own county Republican central committee, and that the calling of all county conventions, as well as all precinct, township, or ward caucuses within the respective counties, is within the exclusive control and management of such county committee; that the action of said judicial central committee in assuming to control the county conventions and the caucuses was without precedent, and in direct conflict with party usages in this state; and that said action had never been authorized by any representative convention of the Republican party in this state or in said judicial district. It is further alleged that said directions were disregarded by the county of Richland, which county was entitled to 17 delegates in the Republican judicial convention; that in said county a county convention was called by the proper county committee for the purpose of electing delegates to the Republican state convention, and for the purpose of electing delegates to the Republican judicial convention, and for the purpose of nominating candidates for the various county offices in said county; that caucuses were properly called throughout the county, and delegates elected thereby to attend the county convention; that said county convention met pursuant to call, and elected 17 delegates to said judicial convention, all of whom favored the nomination of relator as the Republican candidate for judge of said district, and the election of such delegates was duly and properly certified by said county convention to said judicial district convention, and such certificate was duly filed with the proper officers before said convention met; that at the time and place appointed for said convention all of said delegates appeared, and also the delegates from the four other counties composing said district, but there was no contest as to the delegates from such other counties; that, when the delegates were called to order, the secretary of the judicial central committee read a list of the names of those who were entitled to vote and participate in the preliminary organization of the convention; that none of the delegates so elected from Richland county were named in said list, but in their stead 17 other persons, residents of Richland county, were named in said list as delegates from said county. It is alleged that the persons so named were never elected as such delegates by any convention, but that they were present as spectators, and to further the interests of an opposing candidate. It is further stated with particularity that when an attempt to organize was made there was an immediate split in the convention; that the delegates from the counties of Sargent and Dickey, 16 in number, together with the 17 men named by the secretary of the central committee, as aforesaid, as delegates from Richland county, proceeded to organize a convention, while the delegates from Ransom and McIntosh counties, 16 in number, together with the 17 delegates so as aforesaid elected from Richland county, and favorable to relator, proceeded to organize a convention. The first-named convention nominated one W. S. Lauder as the Republican candidate for district judge of the Fourth judicial district, and the other convention nominated the relator as such candidate; the vote in each convention being unanimous, and both of said nominations being regularly certified to the secretary of state. But relator claims that by reason of the facts stated he was and is the duly-elected and regular Republican nominee for such judgeship, having received therefor the vote of a majority of all the persons properly elected as delegates to such convention. It appears by notice and return on file in this court that a copy of the alternative writ was served upon W. S. Lauder. But upon the return day he was not represented, and, so far as appears, does not oppose this proceeding. But that fact does not relieve the situation. The defendant, the secretary of state, answers, expressly admitting the facts set forth in the alternative writ, and stating that he refuses to certify the name of the relator to the proper county auditors as the Republican nominee for judge of the Fourth judicial district, because there have been filed in his office two nominations for said office, each claiming to be the regular Republican nomination, and each regular in form and fair on its face.
It requires no argument to show that one political party cannot hold two separate conventions at the same time, and nominate two different persons to fill one office. If two nominations for the same office by the same party are filed, one or the other must be spurious. Both may be spurious, but both cannot be genuine. It is perfectly clear, from section 502, Rev Codes, that the legislature never intended that one party should have more than one candidate for any one office. The section declares: "No certificate shall contain the name of more than one candidate for each office to be filled." Section 504 requires the secretary of state to certify to the proper county auditors "the name and postoffice address of each person nominated for such office as specified in the certificates filed with him. But certificates can be filed with him only in pursuance of nominations made by a convention representing a party or a principle. Such is the clear purpose of the law. Sections 497a to 512, inclusive. But one party can make but one nomination for one office. Hence he can properly certify but one nomination by the same party. This is made clear by the provisions of section 491, which...
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