Tipton v. Sands
| Decision Date | 13 July 1936 |
| Docket Number | 7520. |
| Citation | 60 P.2d 662,103 Mont. 1 |
| Parties | TIPTON v. SANDS. |
| Court | Montana Supreme Court |
Rehearing Denied Sept. 21, 1936.
Appeal from District Court, Lewis and Clark County; Robert C. Stong Presiding Judge.
Election contest by W. T. Tipton against Walter B. Sands. From a judgment for the contestee, the contestant appeals.
Affirmed.
E. G Toomey and John W. Chapman, both of Helena, for appellant.
B. K. Wheeler, James E. Murray, Joseph P. Monaghan, A. G. Shone, H. L. Maury, and N. F. Nolan, all of Butte, Harry L. Burns and D. C. Kenyon, both of Chinook, Wellington D. Rankin, Arthur P. Acher, and C. A. Spaulding, all of Helena, Frank
p>Page T. Hooks, of Townsend, George E. Hurd, of Great Falls, and John F. Duffy, of Kalispell, for respondent.
FORD District Judge, sitting in place of MATTHEWS, J., disqualified.
This is an election contest. Contestant has appealed from a judgment of the lower court favorable to the contestee.
In his petition the contestant alleges: That a general election was held in the state of Montana on the 6th day of November, 1934, for the election, among other state officers, of a Chief Justice of the Supreme Court of the state of Montana; that Llewellyn L. Callaway and Walter B. Sands were candidates at said election for such office, and that the board of canvassers returned the said Walter B. Sands as being duly elected at said election for the office of Chief Justice of the Supreme Court of the state of Montana; that, with the intent and purpose to induce the voters and electors to vote for him for the office of Chief Justice of the Supreme Court of the state of Montana, the said Walter B. Sands at various times and places in the state, prior to said election, generally and publicly announced, declared, and promised that, if elected, he would serve as Chief Justice of the Supreme Court of the state of Montana at a salary of $6,000 per year, and would not receive or accept the salary of $7,500; that by said announcements, declarations, and promises by him made, the said Walter B. Sands gave or promised to give a valuable consideration to the said electors, with the intent and purpose to induce them to vote for him as a candidate for the office of Chief Justice of the Supreme Court of the state of Montana at said general election; that with the intent and purpose to induce the said voters to vote for him for the office of Chief Justice of the Supreme Court of the state of Montana, the said Walter B. Sands published and circulated campaign cards, placards, and advertising matter in words and figures as follows:
That at various places in the state Walter B. Sands addressed assemblies of electors, spoke over a radio station at Great Falls, and discussed with electors personally the matters set forth in the printed cards; that all such announcements, declarations, and promises were made with the intent and purpose of respondent to induce the electors to vote for him for Chief Justice, and thereby respondent gave or offered to give a valuable consideration to the electors for their votes, and that such announcements, declarations, and utterances constituted undue influence upon the electorate, resulting in deliberate, serious, and material violation of the Corrupt Practices Act of this state (Rev.Codes 1921, §§ 10773 et seq.).
Contestee in his answer admitted the publication and circulation of the card set forth, the addresses to and discussions with electors as alleged in the petition, and denied the other allegations of the petition; averred that in good faith he believed, and so stated, that in his opinion the law purporting to authorize the payment of $1,500 annually to each of the justices of the Supreme Court for reporting their decisions was unconstitutional, and that the Chief Justice was entitled to only $6,000 per annum, and that he would accept only the salary authorized by the Constitution and law of the state; and that his oral and printed statements were his declaration of the principles in which he believed and for which he stood and which he would endeavor to have established in this state, and were made for no other purpose than to inform the electors thereof.
In his reply the contestant denied the good faith of the contestee in making such announcements and declarations, and alleged that they were made corruptly to influence the electors to vote for him.
The only witness on behalf of the contestant was Walter B. Sands, who testified that he made the statements and declarations above, and published and circulated the cards as alleged; that he visited 52 counties of the state and distributed his cards and interviewed voters, and that he made said declarations and statements and distributed said cards with the intent to influence electors to vote for him; that he had the general proposition that the $1,500 paid to the justices for reporting decisions was unearned, and in view of all the circumstances it was too much at that time; that more than ten years prior to his becoming a candidate for Chief Justice he investigated the question of the constitutionality of section 378, Revised Codes of 1921, which provides for a salary for each of the justices for reporting cases, and his mind was thoroughly made up that the law was unconstitutional; that when he filed his petition for nomination, he inclosed only $60, which was returned to him by the secretary of state, who stated in his letter returning the same that the filing fee was $75; that witness requested the secretary of state to secure an opinion from the Attorney General, which the secretary did, and on the 17th day of May, 1934, inclosed the Attorney General's opinion to him, holding the filing fee to be $75, and the secretary of state wrote him it would be necessary to test the matter out by a writ of mandate or some other proceeding; that thereupon he paid the filing fee of $75, $15 of which was paid under protest; that he never instituted any action to test the constitutionality of section 378, nor did he ever commence any action to recover the $15 paid under protest.
On his own behalf the witness testified that when he made the statements and declarations and circulated the cards, he thought that the Constitution and the law authorized not over $6,000, and that he acted in good faith; that he discussed the matter with several lawyers of the state who were of the same opinion and so stated to him; several lawyers testified in the case to that effect.
The court made findings of fact and conclusions of law and entered judgment dismissing the petition, in which the court found: "That all campaign cards, placards, advertising matter, addresses by radio or from platforms to audiences in the state, and all announcements, statements and declarations, including conversations with electors, relating to the amount of salary to which he would be entitled if elected as Chief Justice of the Supreme Court of the State of Montana, were based upon his opinion that the law of Montana did not warrant or justify the payment of any salary to any Judge of the Supreme Court in excess of the sum of Six Thousand ($6,000.00) Dollars, and that all of said statements were believed by said contestee, and all of them were made for the purpose of informing the electors who would vote at the general election held on November 6, 1934, of the principles for which he stood and which he believed, and to which, if elected to the office of Chief Justice, he would adhere."
Numerous assignments of error are made by the appellant in his brief, and several assignments are made by the respondent; but they have grouped them under the following heads:
The provisions of the Corrupt Practices Act applicable to the issues in this case are as follows:
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