State v. Hogan

• Decision Date: 17 October 1900
• Docket Number: 1,615
• Citation: 62 P. 493,24 Mont. 379
• Parties: STATE ex rel. SCHARNIKOW v. HOGAN, Secretary of State. No. 1,612. STATE ex rel. KENNEDY et al. v. MARTIN. County Clerk.
• Court: Montana Supreme Court

62 P. 493

24 Mont. 379

STATE ex rel. SCHARNIKOW v. HOGAN, Secretary of State.

No. 1,612.

STATE ex rel. KENNEDY et al. v. MARTIN. County Clerk.

No. 1,615

Supreme Court of Montana

October 17, 1900

Application by the state, on relation of Edward Scharnikow, for a writ of prohibition to prevent Thomas S. Hogan, secretary of state from certifying the name of Welling Napton as candidate for judge of the Third judicial district; and application by the state, on relation of J. M. Kennedy and others, for a writ of prohibition to prevent Martin Martin, county clerk of Deer Lodge county, from printing certain names in the column headed "Democratic" on the official ballot. Both applications were considered together. Proceedings dismissed.

T. J Walsh, for respondent.

PIGOTT J.

These are original proceedings in this court. In No. 1,612 it appears that a certificate of the nomination of the relator as the candidate of the Democratic party for the office of judge of the district court of the Third judicial district of the state of Montana was duly filed with the secretary of state, and that a certificate of the nomination of one Welling Napton as the candidate of the Democratic party for said office was also duly filed with the secretary of state. Both certificates were filed under the provisions of sections 1312 and 1316 of the Political Code. By section 1317 of the Political Code, the secretary of state must certify to the county clerk of each county within which any of the electors may be entitled to vote for candidates for such office the name and description of each person nominated, as specified in the certificates of nomination filed with him. The secretary of state threatens to certify both of the nominations to the clerks and recorders of Deer Lodge and Granite counties, these counties comprising the Third judicial district of Montana, and it is sought to prevent him from so certifying the nomination of Mr. Napton. In No. 1,615 the relators seek, by the writ of prohibition of this court to prevent the county clerk and recorder of Deer Lodge county, Mont., from printing in the column headed "Democratic," upon the official ballot to be prepared by him for use at the general election in Deer Lodge county, to be held on the 6th day of November, 1900, the names of the persons nominated by a Democratic convention of that county held on the 17th day of September, 1900, and certificates of whose nominations were duly filed with the county clerk within the time prescribed in section 1316, supra. An alternative writ of prohibition was issued in each proceeding. It is now suggested that this court is without jurisdiction in the premises.

Except as otherwise provided in the constitution, this court has appellate jurisdiction only. Section 2, art, 8, Const. It has power, in its discretion, to issue, and to hear and determine, writs of prohibition. Section 3, Id. At the time the constitution was adopted, chapter 3 of title 13 of the first division of the Code of Civil Procedure (Comp St. 1887) was in effect, section 579 whereof provided that "the writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without, or in excess of, the jurisdiction of such tribunal, corporation, board or person." This section did not enlarge the common-law office of the writ so as to permit the arrest of proceedings not of a judicial character. Mandamus lies to compel the performance of a ministerial duty, whereas, under section 579, prohibition arrests judicial action in proceedings which are without or in excess of the power to hear and determine, and in this sense prohibition is the counterpart or opposite of mandamus. State v. Second Judicial District Court, 22 Mont. 220, 56 P. 281; Maurer v. Mitchell, 53 Cal. 289. We are aware that in Williams v. Lewis, 54 P. 619, the supreme court of Idaho entertained a different view of the provisions of a statute identical...