Taylor v. Girard, 6198

• Decision Date: 05 October 1934
• Docket Number: 6198
• Citation: 54 Idaho 787,36 P.2d 773
• Parties: ROWLAND C. TAYLOR, Plaintiff, v. FRANKLIN GIRARD, Secretary of State of the State of Idaho, Defendant
• Court: Idaho Supreme Court

36 P.2d 773

54 Idaho 787

ROWLAND C. TAYLOR, Plaintiff, v. FRANKLIN GIRARD, Secretary of State of the State of Idaho, Defendant

No. 6198

Supreme Court of Idaho

October 5, 1934

Original proceeding by Rowland C. Taylor for a writ of prohibition to Franklin Girard, Secretary of State, of the State of Idaho.

Writ denied.

HOLDEN, J., dissenting.

APPLICATION for peremptory Writ of Prohibition. Denied.

Writ denied.

James F. Ailshie, in pro. per.

An elector has no "beneficial interest" in preventing the certification of the name of a nominee for office nor in the candidacy of any particular person.

The court has no jurisdiction of the contest of an election or the conduct or supervision of holding the same except in so far as the statute has expressly granted such. (Craft v Davidson, 189 Ky. 378, 224 S.W. 1082; Perrault v Robinson, 29 Idaho 267, 158 P. 1074; Toncray v. Budge, 14 Idaho 621, 95 P. 26; Walling v. Landson, 15 Idaho 282, 97 P. 396; secs. 33-807, 33-1704, I. C. A.)

The writ of prohibition will not lie to prevent or restrain the Secretary of State from complying with the law in certifying the name of a nominee certified to him by the State Canvassing Board. (State v. Leonardson, 51 Idaho 646, 9 P.2d 1028. Same cases cited above.)

An elector who before election failed to avail himself of a plain and speedy remedy at law (sec. 33-807, I. C. A.) has waived his remedy and is estopped after election to raise the issue. (Sec. 33-807, I. C. A.; Baker v. Scott, 4 Idaho 596, 43 P. 76; McGrane v. County of Nez Perce, 18 Idaho 714, 112 P. 312, Ann. Cas. 1912A, 165, 32 L. R. A., N. S., 730; McCrary on Elections, sec. 196.)

Oppenheim & Lampert, Harry S. Kessler, Fred J. Babcock and L. E. Glennon, for Sam E. Blaine.

Prohibition will not lie to restrain the Secretary of State from certifying the names of said nominees to the various county auditors because such act is purely a ministerial act. ( Donovan v. Dougherty, 31 Idaho 622, 174 P. 701; Stein v. Morrison, 9 Idaho 426, 75 P. 246; 20 C. J., p. 181, sec. 223; Sheely v. People, 54 Colo. 136, 129 P. 201; State v. Vaughn, 33 Okla. 384, 125 P. 899.)

One who delays action to try the validity of an act for an election until the election has been held may not urge that the expressed will of the voters be set aside because of an irregularity which could not have affected the result. ( Weisgerber v. Nez Perce County, 33 Idaho 670-675, 197 P. 562; Baker v. Scott, 4 Idaho 596-603, 43 P. 76; Sizemore v. Board of County Commissioners, 36 Idaho 184-190, 210 P. 137; 20 C. J. 153.)

A statute which before an election would be mandatory if direct proceedings for its enforcement were brought would nevertheless after an election be merely directory. (20 C. J. 182.)

Eugene A. Cox, A. S. Hardy, Elbert A. Stellman, B. Auger and Bissell and Bird, Amici Curiae.

The writ will only issue to prohibit something that is not yet done, and two conditions are necessary for its issuance. There must be an absence or excess of jurisdiction and a lack of adequate remedy in the ordinary course of law. (State v. Leonardson, 51 Idaho 646, 9 P.2d 1028, at 1033.)

"At common law the writ of prohibition lies only to control judicial or quasi-judicial action as distinguished from legislative, executive or ministerial action, and, inasmuch as constitutional grants of power to issue the writ are deemed to contemplate the exercise of judicial authority as it existed under the common law, it is held that the constitutional provision inhibits the legislature from enlarging the office of the writ so as to include the restraint of ministerial acts." (Bancroft's Code Prac. & Remedies, vol. 5, p. 5323, sec. 4063; Stein v. Morrison, 9 Idaho 426, 75 P. 246; Miller v. Davenport, 8 Idaho 593, 70 P. 610.)

B. W. Davis, J. L. Eberle, A. A. Fraser, Hawley & Worthwine, Martin & Martin, and Frank T. Wyman, for Plaintiff.

It is not contended that Mr. Taylor could have contested the election under any contest statutes in existence. That possibility is, of course, nonexistent, because there is no provision in law providing for a contest of primary election and our supreme court has very definitely so decided. ( Lansdon v. State Board of Canvassers, 18 Idaho 596, 111 P. 133.)

There is, of course, under that statute no remedy whatever for the situation which spread all over the state of Idaho and demanded the impossible. Is there any other remedy? We think that we have found the only possible way by which he could bring to the courts the failure of the law and the voidness of the election. He could not, of course, have brought mandamus, since the Secretary of State has not refused to perform any action. To the contrary, he says that he is going to certify down these names and by virtue of the general election laws put Judge Ailshie and Mr. Blaine on the ballot unless he is prohibited from so doing. Mandamus clearly could not lie, because the facts do not justify.

Many times there has been before this court an application either for a writ of mandamus or a writ of prohibition to test out the validity of an election under one guise or another. ( Walling v. Lansdon, 15 Idaho 282, 97 P. 396; State v. Metcalf, 18 S.D. 393, 100 N.W. 923, 67 L. R. A. 331; Adams v. Lansdon, 18 Idaho 483, 110 P. 280; Perrault v. Robinson, 29 Idaho 267, 158 P. 1074.)

In State ex rel. Reynolds v. Howell, 70 Wash. 467, 126 P. 954, 41 L. R. A., N. S., 1119, an application was made for a permanent writ of prohibition, prohibiting the state canvassing board from certifying to the Secretary of State the nomination of the defendant Black as Governor of the state, and prohibiting the latter from certifying his nomination. In the opinion the court said, "We think the right to maintain an action questioning the eligibility of a candidate for election to a public office is inherent in a citizen and elector. (State ex rel. Harvey v. Mason, 45 Wash. 234, 88 P. 126, 9 L. R. A., N. S., 1221.) Moreover, the proceeding seems to have the sanction of the statute law. (Laws 1907, p. 471, sec. 25.)" (State ex rel. Birchmore v. State Board of Canvassers, 78 S.C. 461, 59 S.E. 145, 13 Ann. Cas. 1133, 14 L. R. A., N. S., 850; 10 R. C. L. 162, p. 833; City of Lebanon v. Humkey, 161 Ky. 454, 170 S.W. 1172; Elliott v. Burke, 113 Ky. 479, 68 S.W. 445; State ex rel. Swerdfiger v. Whitney, 12 Wash. 420, 41 P. 189.)

BUDGE, C. J., MORGAN, J. Justice Givens concurs in the conclusion. Honorable Wm. A. Babcock, District Judge, concurring. HOLDEN, J., Dissenting.

OPINION

BUDGE, C. J.

This is an original application for a peremptory writ of prohibition to prevent the Secretary of State from transmitting to the various county auditors the names of James F. Ailshie and Sam E. Blaine as the candidates to be voted for at the coming general election for the nonpartisan office of justice of the supreme court. A demurrer to, and a motion to quash, the petition were filed urging, among other things, that the court has no jurisdiction of the subject matter or of the action or of the person of the defendant. The cause was duly argued and voluminous briefs have been submitted, both for and against the granting of the peremptory writ. Due to the shortness of time before the holding of the general election it is a physical impossibility to consider and determine each and all of the questions raised and dismissed in the briefs of learned counsel whose arguments and briefs demonstrate a desire to be of assistance to the court in a proper determination of the important question here for decision.

We are asked, notwithstanding the decision in Koelsch v. Girard, ante, p. 452, 33 P.2d 816, in which we held the act now under consideration to be constitutional and valid, to now hold that act to be unconstitutional and void, and to set aside a primary election for the reason that the various county auditors did not agree upon the instructions to the voter to be, and which were placed upon the primary ballot. Some counties instructed the voters on the ballot to vote for one. In other counties instructions were placed upon the ballot to vote for two, and, in some counties there were either no instructions or the instructions were so vague and uncertain as to constitute no instruction. There were four candidates and but one position to be filled, and but two to be nominated. The primary election has been duly and regularly held. The canvassing board of each county has certified the returns to the state canvassing board and the latter board has certified the names of James F. Ailshie and Sam E. Blaine to the Secretary of State, as being the duly nominated competing candidates for the office of justice of the supreme court to be voted for at the next general election.

We are first called upon to determine whether or not this is a case in which a peremptory writ of prohibition will issue.

The rule would seem to be that the prerogative writ of prohibition should be issued with forbearance and caution, and only in cases of necessity, and that such writ will not issue if there exist an adequate remedy otherwise. In Little v. Broxon, 31 Idaho 303, 170 P. 918, the following language is used:

"This court has repeatedly held that neither the writ of prohibition nor mandate, of which it is the counterpart . . is available where a plain, speedy and adequate remedy at law exists." (Olden v. Paxton, 27 Idaho 597, 150 P. 40; Lewis v. Mt. Home Co-op. Irr. Co., 28 Idaho 682, 156 P. 419; Fraser v. Davis, 29 Idaho 70, 156 P. 913, 158 P. 233; New First Nat. Bank v. City of Weiser, 30 Idaho 15, 166 P. 213; Ex parte S. J. Jones, 160 S.C. 63, 158 S.E. 134, 77 A. L. R. 235, and note; State v. Superior Court, 162 Wash. 377, 298 P. 716; Hill v. Wittmeier, 209 Ala. 355, 96 So. 327; Pacific Mut. Life Ins....