State v. Duncan

• Citation: 177 P. 248,55 Mont. 376
• Decision Date: 17 December 1918
• Docket Number: 4330.
• Parties: STATE ex rel. SMITH v. DUNCAN, County Clerk and Recorder.
• Court: United States State Supreme Court of Montana

177 P. 248

55 Mont. 376

STATE ex rel. SMITH v. DUNCAN, County Clerk and Recorder.

No. 4330.

Supreme Court of Montana

December 17, 1918

Mandamus by the State of Montana, on the relation of Park Smith against A. J. Duncan, County Clerk and Recorder of the County of Lewis and Clark, State of Montana. Motion to quash alternative writ sustained.

E. D Phelan and C. A. Spaulding, both of Helena, for plaintiff.

J. R Wine and Lester Loble, both of Helena, for defendant.

HOLLOWAY J.

At the general election held November 5th of this year, Frank D. Miracle was elected state senator for Lewis and Clark county to fill the unexpired term of the senator elected in 1916 who resigned. On November 22d the newly elected senator died, and on November 27th a special election was duly called for December 28th to elect a senator to fill the vacancy. On November 30th the Republican county central committee, acting through its executive committee, assumed to nominate Park Smith as the candidate of the Republican party for state senator, and certified his nomination to the county clerk, who refused to file the certificate. This proceeding was instituted to have determined the question whether under the laws of this state the county central committee had authority to make the nomination. If it had, the county clerk was required to file the certificate. If it had not such authority, the clerk cannot be compelled to file the certificate.

Plaintiff must assume the burden of calling to the attention of this court some provision of law which gives countenance to the authority which the committee assumed to exercise, for clearly it exceeded any authority which vested in a like body from 1895 to 1912. Under the convention system of nomination the central committee never had authority to make original nominations. It was only after a duly constituted convention had made a nomination and a vacancy occurred before the election that the committee was authorized to act. It did not make an original nomination, but merely filled the vacancy. But counsel for plaintiff rely upon the provisions of section 32 of the Direct Primary Election Law (Laws 1913, p. 570) for the authority exercised by the committee in this instance. Was it the purpose of that act to clothe the central committee with power to make a nomination originally? We think not. Such a construction of the language of section 32 would lead to a result at war with the intent and purpose of the entire measure. It is entitled "A law to provide for party nominations by direct vote," and the title of a statute is indicative of the legislative intent in passing it.

Within the compass of this act it was clearly the purpose to confer the power to make original nominations upon the electors voting at a primary election. If we eliminate from the act the idea of direct nominations by the electors, nothing whatever of consequence remains. In order to interpret the statute, that fundamental purpose must be kept constantly in view, and every section of the act read with that idea in mind.

Section 32 provides for the election of a central committeeman in every precinct, for the organization of the county and city central committees, and confers upon such committees specific authority as follows:

"Said county and city central committees shall have the power to make nominations to fill vacancies occurring among the candidates of their respective parties nominated for city or county offices by the primary nominating election, where such vacancy is caused by death or removal from the electoral district, but not otherwise."

No authority is here given to make an original nomination, but the power conferred is limited strictly to filling vacancies occurring among candidates nominated by the primary nominating election. As if to add emphasis to the fact that very limited authority was intended to be conferred upon the committee, the statute restricts the causes for which a vacancy may occur to death or removal of the candidate from the...