State v. Wileman

• Decision Date: 05 October 1914
• Docket Number: 3555.
• Parties: STATE EX REL. METCALF ET AL. v. WILEMAN, COUNTY CLERK.
• Court: Montana Supreme Court

143 P. 565

49 Mont. 436

STATE EX REL. METCALF ET AL. v. WILEMAN, COUNTY CLERK.

No. 3555.

Supreme Court of Montana

October 5, 1914

Mandamus by the State, on relation of George Metcalf and others against Frank E. Wileman, as County Clerk of Granite County. Writ dismissed.

Henry C. Smith and Geo. W. Padbury, Jr., both of Helena, for relator.

D. M Kelly, Atty. Gen., and C. S. Wagner, Asst. Atty. Gen., for respondent.

HOLLOWAY J.

At the primary election held on August 25th George Metcalf was duly nominated for state senator, Samuel Clark for sheriff, and Hugh T. Cummings for representative, for Granite county by the Progressive, Republican, and Socialist parties. The county clerk of Granite county refuses to print their names on the official ballot for the general election in more than one party column, hence this proceeding.

1. The act of the Tenth Legislative Assembly known as the anti-fusion statute (Laws 1907, p. 210 [Rev. Codes, § 545]) specifically prohibits a county clerk from printing a candidate's name on the official ballot for a general election more than once; but it is insisted by counsel for these relators that that act was repealed by the primary election law, enacted by the people in 1912 (Laws 1913, p 570). The primary law does not contain any specific repealing provision, but only the general clause:

"All acts or parts of acts inconsistent with or in conflict with the provisions of this act are hereby repealed."

So, if any repeal was effected, it was only by implication, and such a repeal is never favored by the courts. State ex rel. Hay v. Hindson, 40 Mont. 353, 106 P. 362. The following general rules of law are of universal application:

"Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern, although it contains no repealing clause. But it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the cases provided for by the prior statute, since it may be merely affirmative, or cumulative, or auxiliary. Between the two acts there must be plain, unavoidable, and irreconcilable repugnancy, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy. If both acts can, by any reasonable construction, be construed together, both will be sustained. Two statutes are not repugnant to each other unless they relate to the same subject. Furthermore, it is necessary to the implication of a repeal that the objects of the two statutes be the same. If they are not, both statutes will stand, although they may refer to the same subject." 36 Cyc. 1073.

That the two statutes now under consideration do not fall within the scope of the rules above is manifest. The anti-fusion statute deals exclusively with the official ballot to be used at the general election. The primary law deals exclusively with nominations of candidates to public office. The ballot law of which the anti-fusion statute is a part, has nothing to do with nominations, but accepts those legally made, whether by convention, primary, or direct petition. The primary law has nothing whatever to do with the official ballot to be used at the general election. It provides only for nominations, leaving all questions of ballot, regulation to existing laws. These two statutes do not treat of the same subject, and do not have the same object in contemplation. Furthermore, their provisions are not in irreconcilable conflict, or in conflict at all.

It may be conceded that under section 20 of the primary law a person may be legally nominated for the same office by two or more parties. So, likewise, a person might have been nominated for the same office by conventions representing two or more parties, at any time between 1907 and 1912, and still he could have had his name printed on the official ballot but once. This precise question was disposed of so ably by the Supreme Court of Illinois, that we quote as follows:

"Repeals by implication are never favored, and a subsequent statute will never be held to have repealed a prior statute by implication, unless the inconsistency between the two is irreconcilable. The Ballot Act and the Primary Act deal with different subjects. The former relates primarily to the printing and distribution of ballots and the conduct of the general election. It recognized existing methods of nominating candidates by political parties, provided a method for making nominations independent of parties, and concerned itself no further with nominations. It provided that the ballot should be formed from nominations so made, but that a candidate's name, by whatever method he might be nominated, should appear but once. The Primary Act relates to the nomination of candidates by political parties, and adopts to a great extent for that purpose the machinery of the Ballot Act. It does not concern itself, except incidentally, with the making or distribution of the ballots, the nomination of candidates independent of parties, or the conduct of the general election. The declarations of sections 58 and 59 in regard to the placing of the names of candidates upon the official ballot have reference to the ballot law, and were not intended to repeal or change its provisions. The names of all candidates are to be placed by the proper officer upon the official ballot in accordance with the requirements of that law. It was not the intention of the Legislature to change those requirements, and nominations made as the result of a primary election are in the same situation with reference to the ballot as were nominations made by political parties in conventions or caucuses before the Primary Act required all such nominations to be made by a primary election." People ex rel. Schnackenberg v. Czarnecki, 256 Ill. 320, 100 N.E. 283.

2. It is further contended that, if the anti-fusion statute was not repealed by the primary election law, it is unconstitutional as violating section 1 of our Bill of Rights, and Hopper v. Britt, 203 N.Y. 144, 96 N.E. 371, 37 L. R. A. (N. S.) 825, Ann. Cas. 1913B, 172, is cited to sustain the position. The New York ballot law considered in that case provided for the circle at the head of the ticket and for a straight party vote by a single mark. It was held that the anti-fusion statute discriminated in favor of the man who desired to vote a straight ticket and whose ticket was complete as against the man who desired to vote a straight ticket and whose ticket was not complete on the ballot and who must therefore make two or more marks to express his will. The gist of the opinion is compressed in a single sentence:

"While the Constitution does not guarantee that the elector shall be allowed to express his vote by a single mark, our position is that he is

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