State v. Howell

• Decision Date: 22 August 1910
• Citation: 110 P. 543,59 Wash. 634
• Court: Washington Supreme Court
• Parties: STATE ex rel. DURYEE v. HOWELL, Secretary of State, et al.

110 P. 543

59 Wash. 634

STATE ex rel. DURYEE v. HOWELL, Secretary of State, et al.

Supreme Court of Washington, En Banc.

August 22, 1910

Mandamus on the relation of Schuyler Duryee, against I. M. Howell Secretary of the State of Washington, and another. Writ denied.

Hulbert & Husted, for plaintiff.

George A. Lee, Asst. Atty. Gen., for defendants.

RUDKIN, C.J.

Section 4822, Rem. & Bal. Code, provides that: 'In all cases where there are four or more candidates of any political party for one state or congressional position, every elector voting at a primary election held under the terms of this act shall be required to designate one first choice and one second choice for each such position.' Section 4811 provides that: 'At least twenty days before any September primary the Secretary of State shall transmit to each county auditor a certified list containing the name, post office address and party designation of each person entitled to be voted for at such primary, and the office for which he is a candidate, as appears by the nomination papers filed in his office.' Section 4831 provides that: 'It shall be the duty of the Secretary of State and Attorney General on or before July 1, 1907, to prepare all forms necessary to carry out the provisions of this act, which forms shall be substantially followed in all primaries held in pursuance hereof.' Section 4829 provides that: 'Whenever it shall appear by affidavit to any judge of the Supreme Court or superior court of the county that any error or omission has occurred or is about to occur in the printing in the name of any candidate on official ballots, or that any error has been or is about to be committed in printing the ballots, or that the name of any person has been or is about to be wrongfully placed upon such ballots, or that any wrongful act has been performed or is about to be performed by any judge or clerk of the primary election, county auditor, canvassing board or member thereof, or by any person charged with a duty under this act, or that any neglect of duty by any of the persons aforesaid has occurred, or is about to occur, such judge shall, by order, require the officer or person or persons charged with the error, wrongful act or neglect, to forthwith correct the error, desist from the wrongful act, or perform the duty, and to do as the court shall order, or to show cause forthwith why such error should not be corrected, wrongful act desisted from, or such duty or order not performed.' At the ensuing primary election to be held on the 13th day of September, 1910, there will be four or more candidates of the Republican party for the office of United States senator; the relator, Schuyler Duryee, being one of such candidates. This is an original application for a writ of mandamus in his behalf against the Secretary of State and the Attorney General to compel these officers to so prepare and certify the official ballot to the several county auditors that the electors of the state will have an opportunity to designate their first and second choice for the office of United States senator, and the application of the second-choice provisions of the direct primary law to that office is the only question presented for our consideration.

The provisions of the primary law tending to throw light on the question thus presented are the following: Section 4805, Rem & Bal. Code, provides that: 'Hereafter, all candidates for elective offices in this state, either state, county municipal, precinct or congressional, shall be nominated at a direct primary election held in pursuance of this act. * * *' Section 4808, relating to the fee and the time for filing declarations of candidacy, provides that, when the candidacy is for a state, congressional, or district office embracing more than one county, the fee shall be paid to the Secretary of State. Section 4810 provides that declarations of candidacy for state offices, United States senators, representatives in Congress, and those members of the state Legislature, and judges of the superior court whose districts comprise more than one county shall be filed in the office of the Secretary of State. Section 4813 prescribes the form of ballot and the method of voting, and, so far as material to the question now under consideration, provides as follows: 'The position shall be arranged as follows, provided nominees for such positions are to be selected in said county under the provisions of this act hereinafter provided: First, congressional; next, state; next, preference for United States senators; next, legislative; next, county officers; next, precinct officers; in all cases following under each heading here given, the rotation used in the make-up of the various ballots at the general election. * * * When there shall be four or more candidates for any state or congressional office, there shall be printed immediately under the designation of office, the following: 'Vote for both first and second choice for this office.' On the next line shall be printed the words 'To vote for a person for first choice, mark a cross (X) in the first square at right of the name of the person for whom you desire to vote.' 'To vote for a person for second choice, mark a cross (X) in the second square after the name of the...