State v. O'Leary
| Decision Date | 03 April 1911 |
| Citation | 115 P. 204,43 Mont. 157 |
| Parties | STATE ex rel. HoLLIDAY v. O'LEARY, City Clerk. |
| Court | Montana Supreme Court |
Mandamus by the State, on the relation of W. H. Holliday, against John O'Leary, as City Clerk of the City of Butte, Silver Bow County, to compel the filing of relator's certificate of nomination as a candidate for the office of police judge of the city. Writ awarded.
W. B Rodgers and Davies & Lyon, for relator. Edwin M. Lamb, for respondent.
On March 2d of this year, and within the time allowed by law for filing certificates of nominations of candidates for city offices, there was presented to the city clerk of Butte, for filing, a certificate which on its face discloses that relator had theretofore been regularly nominated by the Republican party of Butte as its candidate for the office of police judge of said city, to be voted for at the forthcoming city election. The city clerk refused to file the certificate, upon the sole ground that chapter 113, Laws of 1909, forbade him doing so. Application was thereupon made to this court for a writ of mandate to compel the clerk to file the certificate. An alternative writ was issued, and upon the return the matter was argued and submitted for determination. This proceeding raises the question of the constitutionality of chapter 113 above, popularly known as the nonpartisan judiciary act.
1. However laudable the ambition of our legislators to divorce the judiciary from partisan politics, they failed to accomplish their purpose by means of chapter 113, above, by reason of the fact that its provisions are not sufficient to make it operative throughout the state.
(a) It does not provide any means by which a candidate can be nominated for judicial office in a newly created municipality. It is a matter of general knowledge that at the time this act was passed there were cities and towns in the state that had sprung up since the last election for city officers; that these municipalities have increased in population rapidly, are now duly incorporated and entitled in every instance to elect officers, including police judge. This act prohibits the nomination of a candidate for judicial office in any manner, except by petition signed by electors of the municipality in number not less than 5 per cent. of the vote cast for the successful candidate for the same office at the last preceding election. In every instance of a newly created municipality, there has not been a preceding election, or any successful candidate for the same office and therefore this act prohibits the electors in such municipality from participating in the nomination of any candidate for that office. The same thing is true of a newly created judicial district. A candidate for nomination for district judge in such district will be confronted by conditions with which it is impossible to comply. He cannot be nominated, except by petition, and he cannot be nominated by petition, because he cannot determine, and neither can the Secretary of State, the number of signatures necessary to secure his nomination, since there never was a preceding election for the same office in the same district.
(b) The act does not make any provision for the nomination of a candidate for a newly created judicial office. It is a matter of legislative history that, since the last general election for district judges, four new district judgeships have been created. Neither any one of the appointees to these positions, nor any one else, can be nominated a candidate to succeed to one of these offices under the provisions of this act; for at the time the election in November, 1908, was held none of these offices existed, and there could not have been a successful candidate for any of them.
(c) The act does not make any provision for the nomination of a candidate for judicial office in any district the boundaries of which have been changed since the last election, or may hereafter be changed. Since the last election of district judges, the boundaries of the Eighth, Tenth, Eleventh, and Thirteenth judicial districts have been altered. A few Illustrations will serve to emphasize this omission in the act. At the last election for district judge, the Eighth judicial district was composed of Cascade county only. That district now comprises Cascade and Teton counties. There was not any successful candidate for district judge in the territory which now comprises this district. A petition signed by 5 per cent. of the vote received by the successful candidate in 1908 would ignore altogether the vote of Teton county--a county which is now part of the district. In 1908 the Eleventh district comprised Flathead and Teton counties. After that election and before chapter 113 was passed, Teton county was detached from that district (Laws 1909, c. 26). Shall a candidate for the nomination for district judge be required to have his petition signed by electors in number not less than 5 per cent. of the vote cast for the successful candidate at the last election in Flathead county only, or shall he be required to secure signatures in number not less than 5 per cent. of the vote received by the successful candidate in 1908 in both Flathead and Teton counties? If this last alternative be chosen, then the candidate is required to take into consideration the vote cast in a county which is not now a part of the district in which he aspires to office. The same conditions prevail in the Tenth and Thirteenth districts. But great emphasis may be given to this lapse in the act by an assumed state of facts:
By an act of the Twelfth Legislative Assembly, approved February 11, 1911, Musselshell county was created out of a portion of Fergus county, a portion of Meagher county, and a portion of Yellowstone county. The portions taken from Fergus and Meagher counties were theretofore portions of the Tenth judicial district, while the portion taken from Yellowstone county was theretofore a portion of the Thirteenth judicial district. Assume that when Musselshell county was created it had been constituted the Fourteenth judicial district; and assume a further fact, which may or may not be true, that the present boundary lines or Musselshell county do not follow any of the election precinct boundary lines, but that the new county now contains portions only of election precincts from each of the parent counties. A candidate for nomination for district judge in the supposed district could not possibly comply with the requirements of chapter 113, because there was not any Fourteenth district at the last election, and not any candidate for district judge therein; but more particularly because there is not any means by which to determine the vote cast in the territory which now comprises Musselshell county, under the assumed state of facts. An entire election precinct is the smallest territorial subdivision of the state for which any record of the vote is or can be had, and it is impossible for the officer charged with the duty of filing nominating certificates to determine the vote cast for any candidate in a portion of an election precinct. It will not do to say that the number of signatures necessary to secure a nonpartisan nomination under the circumstances enumerated can be estimated or approximated. The operation of a statute cannot be made to depend upon mere guesswork. The theory of this act is that the officer with whom the nominating certificate is to be filed, by reference to the official returns of the last election as they appear in his own office, shall determine whether the certificate tendered for filing is signed by the required number of electors.
Neither is it any answer to say that the conditions assumed may not arise. They may arise, and the validity of a statute is not determined by what has been done under it, but by what may be done under it. This a well-recognized rule of constitutional law. 1 Lewis' Sutherland on Statutory Construction, § 107; Minneapolis Brewing Co. v. McGillivray (C. C.) 104 F. 258.
The Illustrations given only serve to show that chapter 113 is so far deficient in its provisions that it cannot be made to operate uniformly throughout the state; and, if it cannot be made to operate in any portion of the state, then, as to such portion, the electors are denied the right to participate in the nominations for judicial candidates, and any statute which denies to the elector of the state, or any portion of it, the right to nominate candidates for public office, is in violation of sections 5 and 26 of our Bill of Rights, and void. State v. Drexel, 74 Neb. 776, 105 N.W. 174; State ex rel.
Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473, 23 L. R. A. (N. S.) 839; People v. Election Commissioners, 221 Ill. 9, 77 N.E. 321; Rouse v. Thompson,...
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