Williams v. Lewis

• Decision Date: 01 October 1898
• Citation: 6 Idaho 184,54 P. 619
• Parties: WILLIAMS v. LEWIS, SECRETARY OF STATE
• Court: Idaho Supreme Court

54 P. 619

6 Idaho 184

WILLIAMS v. LEWIS, SECRETARY OF STATE

Supreme Court of Idaho

October 1, 1898

WRIT OF MANDATE-SECRETARY OF STATE.-Writ of mandate is the proper proceeding to compel the Secretary of State to file and certify a ticket entitled to filing and certification by such officer.

WRIT OF PROHIBITION-SECRETARY OF STATE.-Writ of prohibition, under the statutes of Idaho, will lie to restrain the action of a ministerial officer, when it appears that such action is illegal and beyond his jurisdiction as the Secretary of State in certifying to the county auditors a ticket not entitled to be certified.

RIVAL CONVENTIONS-SAME PARTY-OFFICIAL BALLOT-WHO ENTITLED TO.-Where a contention between two conventions of the same party arises as to which is entitled to have the ticket nominated by it placed upon the official ballot under the recognized party name, held, that the convention called by the regular state central committee of the party is entitled to have the ticket nominated by it placed upon the official ballot under the party name or designation.

OFFICIAL BALLOT-ONLY ONE TICKET OF SAME PARTY.-Under the statutes of Idaho only one ticket under the recognized name or designation of a political party is entitled to be placed upon the official ballot.

(Syllabus by the court.)

Original proceedings for writ of mandate and writ of prohibition.

Costs of this proceeding awarded to the plaintiff.

N. M Ruick, for Plaintiff.

No brief filed.

T. J Jones, S. B. Kingsbury and George M. Parsons, for Defendant.

No brief found on file.

OPINION

PER CURIAM.

Plaintiff petitions for a writ of mandate to the Secretary of State commanding him to file and certify to the various county auditors of the state a certain ticket containing, as is alleged in the petition, the names of the candidates for the various state offices and member of Congress to be elected at the coming biennial election in November next, nominated by the People's Party, at a convention of said party regularly called and held at Boise City, on August 24, 1898, and which ticket, it is alleged, the said Secretary of State refuses to either file or certify as requested. Plaintiff is named on said ticket as the candidate for the office of lieutenant-governor. At the same time, plaintiff files a petition for a writ of prohibition to the Secretary of State, commanding him not to certify to said county auditors a certain other ticket, heretofore filed with him, and purporting, as is alleged in said petition, to contain the names of the candidates for the various state offices and member of Congress, as aforesaid, nominated by the People's Party. To both petitions defendant files a general demurrer and motions to quash.

It will be seen that here are two sections or factions of one party, or two distinct parties under the same name or designation, to wit, the "People's Party," claiming the right to have their several tickets filed and certified and placed upon the official ballot as the ticket of the "People's Party." It is conceded that under our statutes but one of said tickets is entitled to a place upon the official ballot. It is contended by defendant that, he having already filed one ticket under the name and designation of the "People's Party" ticket he cannot be required to file another under the same name or designation. In making this contention at this time, counsel is anticipating a condition which is not before the court. Upon the petition for writ of mandate, we are considering a demurrer to the complaints or petitions, and it does not appear therefrom that any ticket has been filed or certified. The only question before the court at this time is, Do the complaints state facts sufficient to constitute a cause of action? The object and purpose of the election law was and is to protect the purity of the ballot, to protect the citizen in the exercise of the elective franchise from fraud, deception, compulsion or intimidation; and in securing that right, we think it is proper for the citizen to invoke the aid of the courts.

Political parties are a necessary incident to popular government, and they have found recognition in the statute; and any attempt to deprive them of the rights secured to them by law entitles them to invoke the protection of the courts. If, therefore, a "convention or primary meeting representing a political party or principle" has put in nomination a ticket, naming therein the candidates of such party to be voted for at an ensuing election, it is prima facie entitled to have such ticket filed and duly certified by the Secretary of State, upon presentation to him as required by law. The complaint, we think, sets forth a case entitling the petitioner to the relief sought by mandate. The objection of counsel for defendant that mandamus is not the proper remedy we do not think well taken. The demurrer to the petition for writ of mandate is overruled.

The demurrer to the complaint for a writ of prohibition is urged upon the ground that such writ is sought to prevent or prohibit the act of an official purely ministerial in its character; and this contention is supported by several decisions of the supreme court of California, from which state our statute upon the subject was taken. The purpose of the common-law writ of prohibition was to suspend or stop the action of an inferior judicial tribunal, when such tribunal was acting or contemplated acting beyond its jurisdiction. The authorities hold that the common-law writ of prohibition will not lie to prohibit an act that is purely ministerial. We think, however, there is a distinction between the California conditions and those of Idaho. By section 1866 of the Revised Statutes of the United States it is provided that the jurisdiction of the courts provided for in sections 1907 and 1908 (U. S. Rev. Stats.), both original and appellate, shall be limited by law. By the Revised Statutes of Idaho of 1887 (section 3816), while Idaho was still a territory, it is provided that the original jurisdiction of the supreme court extends to the issuance of writs of mandate, review, prohibition, habeas corpus, and all writs necessary to the exercise of its appellate jurisdiction. Section 4994 of the Revised Statutes of Idaho of 1887 is as follows: "The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person when such proceedings are without, or in excess of, the jurisdiction of such tribunal, corporation, board or person." Section 4995: "It may be issued by any court except probate or justices' courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law." By section 1851 of the Revised Statutes of the United States, the legislative power of the territories was declared to extend to all rightful subjects of legislation, and not inconsistent with the constitution and laws of the United States. The defining of the functions of the writ of prohibition was a rightful subject of legislation. The original jurisdiction of the supreme court of the state is defined in section 9 of article 5 of the constitution in almost the exact words of section 3816 of the Revised Statutes of Idaho. The men who formulated the constitution were familiar with the provisions of the statute. The supreme court of California (Camron v. Kenfield, 57 Cal. 550) says: "The new constitution was framed in view of the construction of the language used in the former constitution, unanimously concurred in by the members of the highest tribunal of the state; yet the framers of the present constitution repeated the words employed in the former. We are forced to the conclusion that they used these words in the sense which had been attributed to them by the supreme court." We may conclude with equal confidence that the framers of the constitution of Idaho in defining the functions of the writ of prohibition, did so with a full knowledge of the character and functions of the writ, as the same were defined in the statutes of Idaho then existing, and which had been in force in the territory of Idaho for fifteen years at least prior to the adoption of the constitution. While it is true there had been no consideration of the question by the supreme court of the territory, we think it may reasonably be presumed that the members of the constitutional convention were as well advised as to the general legislation of the territory as they were to the decisions of its supreme court. The constitution expressly continues in force all laws of the territory which are not repugnant to the constitution. It will hardly be contended, we apprehend, that the provisions of sections 4994 and 4995 are repugnant to the constitution. As the law defining the functions of the writ of prohibition preceded the constitution by some fifteen years, and such law was continued in force by express provision of the constitution, we are, as expressed by the supreme court of California, "forced to the conclusion" that, in providing for the issuance of the writ of prohibition in section 9 of article 5 of the constitution, they intended the writ then existing under the laws of the territory, and with the functions therein declared and defined.

Accepting the statements in the complaint as true, which we must do in considering the demurrer, it is clear that the defendant is about to do an act beyond his jurisdiction. The plaintiff has no plain, speedy, and adequate remedy in the ordinary course of law, and this is one of the contingencies provided for in the statute when the writ of prohibition will lie. The recognition of the rule, "Prior tempore, prior jure," contended for by counsel for defen...