Dillman v. State ex rel. Merrill

125 P. 367, 20 Wyo. 404, 1912 Wyo. LEXIS 46

• Court: Wyoming Supreme Court
• Decided: June 18, 1912
• Docket: No. 722
• Status: Published

Opinion

Potter, Justice.

This case involves generally the question whether the primary election for the nomination of candidates of political parties for offices to be filled at the general election to be held November next should be under the control and supervision of the old county as to the nomination of candidates for an office to be voted for at such general election in a county yet unorganized, but in process of organization, created out of a part of the territory of such old county, or whether as to the nomination of such candidates, the primary election is to be conducted under the control and supervision of the commissioners and clerk appointed for the purpose of organizing such new county. The particular question to be decided is whether the nomination papers of a candidate for precinct committeeman of a political party, where the whole of the precinct is within such new unorganized county, should be filed with the county clerk of the old county or the clerk of the board appointed to organize the new county. A determination of that question necessarily involves a consideration of the general question above stated.

On June 4, 1912, the petition in this case was filed in the district court in Laramie County, setting forth that the defendant therein named is county clerk of the County of Laramie; that the relator, M. R. Merrill, is a member of the Democratic party and a resident and qualified elector of precinct No. 1 in election district No. 4 in said county; that the whole of said precinct is included in that part of the territory of said county which constitutes the unorganized County of Platte; -that heretofore, at a special election duly called and held in said unorganized County of Platte under the control of the commissioners for organization purposes appointed by the governor, a majority of the persons voting voted in favor of the creation and organization of said County of Platte; that the relator desires to become a candidate for the position of a member of the Democratic County Central Committee from said precinct to be voted for at the primary election to be held August 20, 1912, and on June 3, 1912, he caused a nomination paper to be properly signed and verified nominating the relator as a candidate for said position; that on June 4, 1912, he caused said nomination paper, together with a statemeht signed by hitn ' to the effect that Tie would qualify as such officer if nominated and elected, to be offered to the said county clerk at • his office for filing; and that defendant refused to accept the said nomination paper and declaration and Refused to-file them. Upon these facts a writ of mandamus was prayed to require the defendant, as county clerk of said County of Laramie, to accept the said nomination paper and declaration and fiile the same in his office.

An alternative writ was issued, and the cause was heard in the district court upon a general demurrer to the petition, and thereupon it was ordered that the demurrer be over-' ruled, and the defendant having elected to stand upon his cjemurrer and refused to further plead, that the said defendant accept and file in his office the nominating paper and declaration aforesaid. The defendant has brought the^case here on error.

In the argument’our attention was called to the fact thaf at the last session of the Legislature, the same session at which the primary election law was passed, several new counties were created by defining the boundaries thereof and giving a name thereto respectively, and that in each of said new counties organization commissioners had been appointed, and a special election had been held at which was submitted to the qualified electors of the territory proposed to be cut off the question of division,- in compliance with the provision of the Constitution that no county shall be divided unless a majority of the qualified electors of the territory proposed to be cut off voting on the proposition shall vote in favor of the division, and in compliance with the statute' providing for such election, and also the question of the location of the county seat for such new county; and that at such special election so held in each' of said new counties the vote was in favor of said division and had been so declared, and the county seat had been located; also that at least two of such new unorganized counties are respectively composed of territory taken, from two or more counties. And.that all the territory embraced in each of the new counties of Platte and Goshen was taken from Laramie County. It was also suggested that a determination of the particular •question here presented will necessarily determine the extent •and manner of the operation of the primary election law in each of such new unorganized counties, affecting as well •as other offices the nomination of candidates for the office ■of senator and member of the house of representatives in 'the State Legislature to be voted for at such primary election; and it is argued that if such election in an unorganized county, which is in process of organization as aforesaid, .is to be conducted under the control and supervision of the organization commissioners and clerk, it will be impossible by reason of certain provisions of the primary election law, ■and the acts creating the new counties, for party candidates for the legislature to be nominated as required by the primary law, and voted for at the primary election in the new counties. It is also argued that if the election is to be conducted by the officers of the old counties, respectively, from ■which the new counties are taken, there will be much diffi•culty', if it will not be impossible, for the candidates for office in the new counties to be nominated as required by the primary election law, at least in such new counties as are respectively composed of territory taken from two or more counties; and that these matters should be considered in •construing the various provisions of the primary law, in order that they may be so construed as to operate uniformly •and in harmony with the laws controlling the general election to be held in November.

The question thus presented is therefore not only an important one, but it is not free from difficulty, for it is conceded that the primary election law is ambiguous respecting the matters to be considered, because of some of the language employed therein, and the omission of any reference to unorganized counties, and that one provision which is similar in each of the acts creating a new county adds to the uncertainty of the application of such primary law to the •election .in such unorganized counties.

It is necessary to first consider the provisions controlling the general election in November in the new counties, bearing in mind that the main object of the primary law is to-provide for the nomination of candidates to be voted for at the November election. The Constitution provides that in-, several enumerated cases the Legislature shall not pass local' or special laws, and that in all other cases where a general' law can be made applicable no special law shall be enacted. (Art. Ill, sec. 27.) And that the .Legislature shall provide-by general law'for organizing new counties. (Const., Art. XII, sec. 2.) A general law for such purpose was enacted' in 1895. (Laws 1895, Ch. 59; Rev. Stat. 1899, secs. 102-112; Comp. Stat. secs. 1049-1060.) By that act it was provided, and it continues to be' so provided, that whenever a petition of a prescribed number of the electors and taxpayers residing within the limits of an unorganized county, shall be presented to the governor for the organization of' such county, under certain conditions named in the act, it shall be the duty of the governor, upon being satisfied that the county is one entitled to be organized under the provisions of the Constitution and statutes, to appoint the three-persons named in such petition as commissioners to organize such county and notify them of their appointment. Also that such commissioners shall, as soon as practicable, after receiving notice of their appointment, meet at some practicable place, within such unorganized county, to be selected by them, and that each shall take and subscribe an oath to-the effect that he will faithfully and impartially discharge the duties of his office as prescribed by law, and also the oath required to be taken by county commissioners. That such commissioners shall then appoint a clerk who shall take an oath to the effect that he will faithfully and impartially discharge the duties of his office as prescribed by law, and' also the oath required of the county clerk, and that the commissioners shall at the same time designate a place for the-transaction of their official duties.. (Laws 1895, Ch. 59, sec: 5; Rev. Stat. 1899, secs. 1006, 1007; Laws 1909, Ch. 75,,, sec. 1; Comp. Stat. 1910, secs. 1053,-1054.)

In the original act aforesaid it was provided that at the next general election after the appointment of such commissioners, an election shall be held in such county in the same manner as if it was organized; and that in addition to voting for a member of Congress and such state and district officers as may be provided for by law, the electors of such county shall at such election elect the members of the senate and house of representatives of the state to which such county is entitled-, and- also the county and precinct officers provided for by law; and that at the same time they shall choose a county seat in the same manner in which county officers are elected. (Laws 1895, Ch. 59, sec. 6; Rev. Stat. 1899, sec. 1008.) Section 1007, Revised Statutes of 1899, contained that part of section 5 of the Act of 1895 which provided lor the appointment of a clerk of the organization commissioners, his oath, and the designation of a place by the commissioners for the transaction of their official duties. There was no provision in the Act of 1895 nor in any other act until 1909, for the submission to the electors in the unorganized county of the question of division. But by an act approved February 24, 1909, such a provision was made by amending section. 1007 aforesaid. The section as amended contains without change the provisions last above mentioned and the following added after the provision for designating a place for the transaction of official duties: “and shall, immediately, in the manner now prescribed by the laws of Wyoming for holding special elections for county and precinct officers, call and arrange for a special election for the purpose of submitting to the qualified electors of. the territory proposed to be cut off, the question of whether said qualified electors are in favor of division. At the game time said electors shall in like manner choose a location for a county seat for said new county. Provided, however, That said commissioners may call and arrange for such special election co-incident with any general election.” And, by section 2 of said Act of 1909 it was provided as follows: “Any and all expenses for such special election shall be borne by the proposed new county, and the county commissioners of the old county shall be empowered to make a special levy upon the taxable property within the boundaries of the proposed new county for the purpose of defraying the expenses of said election, and paying the salaries of the first board of county commissioners of the said new county, appointed by the governor, and the salary of the first county clerk thereof; also to defray any and all expenses incident to the said special election. The county commissioners and the county clerk first appointed in the proposed new county shall receive a salary of $50.00 each.” (Laws 1909, Ch. 75; Comp. Stat. 1910, secs. 1054, 1055.)

Section 1008, originally section 6 of the Act óf 1895; was also amended by the said Act of 1909 to read as follows:

“If a majority of the qualified electors residing in the territory proposed to be cut off vote in favor of division, then said new county shall be organized, and at the next general election, or in case said special election was called co-incident with the general election, then at such general election said qualified electors residing in said new county shall in the manner provided by law, vote for a member of Congress, state and. district officers, and shall at such election elect the members of 'the senate and house of representatives of the state to which said county is entitled; and also the county and precinct officers provided for by law,'’ (Comp. Stat. 1910, sec. 1056.)

By section 7 of the Act of 1895, (Rev. Stat. 1899, sec. 1009; Comp. Stat. 1910, sec. 1057.) it was provided that the commissioners and said clerk appointed as aforesaid, “shall respectively at the time and in the manner provided by law, perform all and singular the duties preparatory to, respecting or incident to such election, which are imposed by law upon county commissioners and county clerks respectively in organized counties; and such election shall be held, conducted, and all matters preparatory or incident thereto, or connected therewith, shall be done and performed as in elections held in organized counties, except that the returns thereof shall be canvassed and the result declared by the commissioners appointed by the governor.” Section 8 of the Act of 1895 (Rev. Stat. 1899, sec. 1010) provided, and it continues to be so provided, (Comp. Stat. 1910, sec. 1058) that on the first Monday in January next following, or as soon thereafter as may Be possible, the county and precinct officers elected in such county shall respectively qualify and enter upon their respective duties as is provided by law in organized counties;, and when a majority of the county commissioners so elected shall have qualified and entered upon their duties such county shall be deemed and held to be organized, and shall be vested with all the powers of organizéd counties under the laws of this state. It was and is also provided by the statute that the commissioners appointed by the governor shall approve the bonds of the county commissioners of the new county elected at such first election. (Laws 1895, Ch. 59, sec. 9; Comp. Stat. 1910, sec. 1059.)" And that "for the purpose of such election any such unorganized county shall be deemed to be segregated from the original county or counties from which the same is taken.” (Laws 1895, Ch. 59, sec. 10; Comp. Stat. 1910, sec. 1060.)

At this point we will consider the contention of counsel for the relator that the provisions of section 1057, Compiled Statutes, originally section 7 of the Act of 1895, respecting the conduct of the election, and the duties of the organization commissioners and clerk respectively concerning the same, applies only to the special election held for the purpose of taking the vote of the electors, in the territory embraced in the proposed new county on the question of division, and that the power and duties of such commissioners and clerk extends no further than holding such special election and ascertaining the result thereof. It is clear, we think, that such contention cannot he sustained. 'In the Act of 1895 the provisions referred to immediately followed a section which plainly provided for an election in the proposed new county at the next general election after the appointment of the commissioners, at which the electors therein should vote for a member of Congress, state and district officers, members of the senate and house of representatives, and the county and precinct officers of such new county. The duties preparatory to, respecting or incident to that election, were the duties required to be performed by the organization commissioners and clerk; and it was that election which the statute required should be held and conducted, and all matters preparatory or incident thereto, or connected with, done and performed, as in elections held in organized counties, except that the returns should be canvassed and the result declared by the organization commissioners. The amendment of 1909 made no material change in that respect. Section 1008, Revised Statutes of 1899, which was section 6 of the Act of 1895, as amended in 1909, merely adds the provision, so far as this question is concerned, .that in case the special election on the question of division is called coincident with a general election, then at the same general election the qualified electors in the proposed new county shall vote for and elect the several officers named. The election referred to in the section as amended is the general election to be held following the appointment of the commissioners at which state and district and other officers are to be elected, including the county officers. To prevent a construction that would postpone the election of officers of the new county for two years, or until another general election, in case the special election on the question of division should be called co-incident with a general election, it was provided that such county officers should be selected at the same general election at which such question of division should be so submitted. Big Horn County was organized under this general statute, and its officers were elected at the general election in November, 1896, which was conducted for all the purposes of that election by the provisional officers of said county. (See Taylor v. Commissioners, 11 Wyo. 106, 70 Pac. 835.) Unless, therefore, there is some other statute to the contrary, the organization commissioners and clerk of a new county, where the question of division has been settled by a vote favorable thereto, will be required at the general election in November to perform all the duties preparatory to, respecting or incident to such election, which are imposed by law upon county commissioners and county clerks, respectively, in organized counties; and that election in the unorganized county is required to be held and conducted, and all matters preparatory or incident thereto, or connected therewith, to be done and performed as in elections held in organized counties, except that the returns are to be canvassed by the organization commissioners, and the results declared by them, so far as such results are to be declared by county canvassers.

Such commissioners are appointed for the purpose of organizing the county; and the county will not be fully organized until its officers, at least its county commissioners, are elected. And such commissioners and clerk are also required, as above stated, to perform all the duties imposed by law upon county commissioners and county clerks, respectively, with reference to the general election at which the new county officers are required to be elected. And they are required further to approve the bonds,of the newly elected county commissioners. I't is plain that these powers and duties do not cease until the county is organized, in case a special election has been held and the vote has been in favor of division.

We are not here required to determine the manner of conducting the general election in a proposed new county where the special election on the question of division is called co-incident with such general election. In such case complications might possibly arise owing to the uncertainty of the result of the special election, and the seemingly apparent necessity on account of that uncertainty of conducting a general election in the territory embraced in the proposed new county not only for the officers thereof, but also for officers of the old county, notwithstanding that if division carries the vote in the proposed new county for officers of the old county may he nugatory, or in the event that it does not carry the vote for officers of the new county would have no effect. If we are right in assuming that such a condition might arise, the provision allowing the vote on the question of division to be taken at the general election and the new county officers to be voted for at the same election would seem to be an unfortunate one if an attempt should be made to follow it.

This brings us to a consideration of a provision found in the several acts of 1911 creating the new counties referred to which seems in a large measure to have caused this controversy. The several acts are in effect the same except as to the name of the county, and the description of boundaries. The act creating Platte County provides in section 3 as follows: “Until such time as the said County of Platte shall have selected officers as provided by law, and the same shall have duly qualified as such, all such portion of said Platte County, as at the time of the passage of this act belong to or are a part of some other county for judicial, revenue and elective purposes, shall be attached to the county from which said Platte County is taken, except as hereinafter provided by law.” The only provisions of the act following that section at all qualifying it are those found in sections 4 and 5 to the effect that until a re-apportionment law may be passed fixing the legislative representation for said County of Platte, the portion of the county from which it is formed shall constitute a portion of Laramie County (the old. county) for the purpose Of legislative representation; and that for all purposes for which a county exists in this state, after its organization, and the qualification of its elective and appointive officers, as provided by law, said county of Platte shall be deemed and held to be one of the counties of the state, “from and after the passage of this act.” Similar provisions are found in each of the other acts. Hot Springs County was taken from parts of three counties. Section 4 of the act creating that county provides that until a census shall be taken upon which a re-apportionment law may be based, a portion of the respective counties from which the County of Hot Springs is formed shall be continued to be a part of Big Horn, Fremont and Park counties, respectively, for the purpose of legislative representation. (Raws 1909, Ch. 9.) Campbell County was taken partly from Crook County and partly from Weston County, and the act creating it contains a provisioin to the effect that until the new county shall be entitled to a separate representation in the legislature under a duly enacted apportionment act, it shall be and remain a part of the counties of Crook and Weston, respectively, for the purpose of legislative, representation.

It is argued that if the general law aforesaid for the organization of new counties could at any time have been construed as vesting authority in the organization commissioners and clerk to conduct a general election in a new county prior to its organization, it has been rendered inapplicable in that respect to the new County of Platte, and the other new counties in the same situation, by the provision above mentioned contained in the act creating the new county that until its organization such new county shall, be attached to the county or counties from which the same is taken, for election purposes. We do not so construe that provision, nor can it, we think, be reasonably so construed. The natural -and reasonable construction of the provision aforesaid is that it continues the new county as.a part of the original county or counties until its organization, for election purposes, only as to such elections conducted by the old county that would be participated in by the electors within the territory of the new county if no provision had been made for the creation of the new county. This is made clear 'by a reference to the former legislation on the subject. Practically the same provisions as those found in the new county acts and the general law for organizing counties are to be found in all the legislation relative to new counties since Wyoming was organized as a territory. In the Act of December 10, 1875, which defined the boundaries of Crook and Pease •counties (the name of Pease County being afterwards changed to Johnson) and provided for the organization thereof, it was declared that the county embraced within the boundaries of such counties “shall for judicial and all other purposes, remain and constitute, as nozv, part of the counties from which the same is proposed to be taken, respectively, until organized as hereinafter provided.” But in the same act it was provided that upon the petition of a prescribed number .of electors residing in either of the proposed new counties, the governor should appoint three electors resident therein to act as commissioners in organizing the same; and that such commissioners should establish voting places, appoint judges of election, hold an election at a time to be selected by them for all county and precinct officers for such county, and canvass the vote thereof. . (Comp. Stat. 1876. pp. 198-201.) The provision that the new county should, until its organization, remain a part of the county from which it was taken “as now” for judicial “and all other purposes” was certainly broad enough to include election purposes. Yet, in connection with that provision, it was also provided that’the election to be held for the selection of officers in the new county should be called and conducted and the result thereof canvassed by the organization commissioners; and there seems to have been no thought that the two provisions were inconsistent.

Again in 1888, by the act in which the boundaries of the counties of Converse, Natrona and Sheridan were defined, it was provided that until -organized the region of country •embraced within the limits of an unorganized county should remain, constitute and be a part of the. county or counties from which the unorganized county shall be taken, “for municipal, judicial and other purposes.” And in that act provision was made for the appointment of commissioners to organize any such county, requiring them to call an election for county and precinct officers, establish voting places, appoint judges of election, and canvass the votes cast at ■such election. And in each such counties such an election was held resulting in the organization of the counties (Laws 1888, Ch. 90.) In 1890 the act creating Big Horn County was passed. (Laws 1890, Ch. 48.) In one section it was provided that until said county shall have selected officers, as provided by law, and the same shall have qualified as such, all portions of the county which, when the act was passed, belonged to or formed a part of some other county “for judicial, revenue and election purposes,” should be attached to the counties, respectively, from which such portions of said county are taken. And in other sections the Act of 1888 providing the method of organizing unorganized counties was amended in certain particulars, but the authority of the organization commissioners to call and conduct the election for county and precinct officers and canvass the returns thereof was continued. Thus, the two provisions existed together,' apparently without it being supposed that they were inconsistent, one of them continuing the several portions of the unorganized county as a part of the county from which they were respectively taken for election purposes, until the officers of the new county shall have been elected and shall have qualified, and the other vesting authority in the organization commissioners to call and conduct in all respects the election for county and precinct officers of the new county, when it became proper to hold such an election. If such provisions were not inconsistent when found in the same act, and it must be conceded that it would have been necessary to give them such an interpretation as ■Orould give due effect to each according to the manifest legislative intent, the provisions of the general law and the new county acts under consideration may as reasonably be read and construed together allowing that effect to each which will not operate to destroy the other. And by doing so they can and ought to be construed and enforced as above indicated.

There is another reason, even more conclusive, which requires a construction of these provisions giving full force and effect to the general law aforesaid relating to the conduct of the election at which the officers of the new county are to be elected. It is a general law enacted pursuant to the constitutional provision that the legislature shall provide by general law for organizing new counties. And it is, therefore, beyond the power of the legislature to enact provisions of that nature to operate and to be applicable only to a particular county named. The act creating Platte County legislates for that county alone, and the other acts creating new counties likewise contain provisions which refer only to the county therein named or the territory to be embraced therein. It would not only have been an unconstitutional exercise of power for the legislature to have provided specially the method of organizing, or holding the election in connection with organizing the particular new county named in either act, but it is not to be presumed that the intention was to do so; especially, in view of the fact that there is nothing else in either act that can be suggested as even remotely indicating such intention. Indeed the contrary intent is manifest, for in several sections of each of the new county acts the necessity of other statutory provisions to enable the county to organize is recognized. As an illustration of this it is sufficient to refer to the act creating Platte County. Section 2 prescribes the judicial district to which the county shall belong after it “shall have been organized-and shall have chosen its officers, as provided by law.” Section 3, which contains the provision in question, declares that the new county shall be attached to the county from which it is. taken until such time as it “shall have selected officers as provided by law.” And section 4 attaches the new county to the parent county for legislative representation, after it “shall have been organized, as provided by law.” These references to the organization of the county, and the selection of its officers, “as proyided by law,” are the more significant, in this connection, in view of the omission from the act of anjr provision for the organization of the county. A provision postponing the operation of the general law in the case of a particular county named until after its organization would be equally as objectionable-as a special provision for its organization applicable to it alone, for that would be an attempt to prevent the general statute from operating in the manner and at the time therein provided, and in effect, to amend if by limiting its application.

Restating our conclusion respecting the provision in the acts creating the new counties which declares that the new county shall be attached for election purposes to the parent county until it shall have been organized by the selection of its officers and their qualifications as such, and the effect thereof upon the provisions of the general law for organizing new counties relating to elections, it is, that such provision of, the new county acts applies only to such elections as would necessarily be participated in alike by the electors within the proposed new county and those within the remaining part of the old county, as electors of such old county. This excludes any election pertaining to the pending or proposed organization of the new county, and requires the application of the provisions aforesaid of such general law to the general election to be held in November next in the new counties.

' Referring again to those provisions, we observe that at such general election the qualified electors residing in the new county are required, in the manner provided by law, to vote for a member of Congress, state and district officers, and elect the members of the senate and house of representatives of the state to which said county is entitled, and also the county and precinct officers provided for by law. (Comp. Stat., sec. 1056.) And that, at the time and in the manner provided for by law, the commissioners appointed to organize the county and the clerk appointed by them shall perform all and singular the duties preparatory to, respec"-ing or incident to such election, which are imposed by law upon county commissioners and county clerks, respectively, in organized counties; and that such election shall be conducted, and all matters preparatory or incident thereto, or connected therewith,, shall be done and performed as in elections, held in organized counties, except that the returns thereof 'shall be canvassed, and the result declared by said commissioners. (Id. sec. 1057.) And we observe, further, that such general law declares that for the purpose of such election any such unorganized county shall be deemed to be segregated from the original county or counties from which the same is taken. (Id. sec. 1060.) Thus, while the clerk appointed by the organization commissioners may not be in all respects, if any, technically considered, a county clerk, he is vested with authority to perform and is required to. perform as to such election all and singular the duties, preparatory to, respecting or incident to the election, as are imposed by law upon county clerks in organized counties Concerning those duties we need only refer to that relating to the preparation and distribution of ballots. The names of all candidates for office are required to be printed upon one ballot. The county clerk is required to prepare such official ballot, cause the same to be printed, and distribute a suitable number thereof to the judges of election of each voting precinct. It is apparent that there would be much difficulty, if it would not be quite impossible to comply with the law, if ballots were to be prepared for use in the new county by the county clerk of the parent county containing the names of candidates for all officers other than county and precinct officers, and another ballot by the clerk in the new county containing the names of candidates for county offices, for we do not think that such a procedure is contemplated by any provision of the statute, and certainly it is not provided for. We think there must be but one ballot containing the names of candidates, and that in the unorganized county, whose officers are to be selected at the election, the ballot is to be prepared, and the proper number distributed by the provisional clerk in that county. In other words, his office is equivalent to that of county clerk, and, within the meaning and operation of the general election laws, he is the county clerk, with whom all papers must be filed that are required by the general election law to be filed with the county clerk, by whom all papers and returns are to be certified that, are required by that law to be certified by the county clerk, and to whom all notices are to be sent and papers certified that are required by that law to be sent or certified to the county clerk. For the purpose of holding and conducting such general election in the territory embraced within the new county in process of organization, including the voting for all candidates for office that are to be voted for therein, and upon all questions submitted to the electors at large, the election is to be held and conducted therein the same as if the county was organized, except that the organization commissioners constitute the canvassing board. This seems to us to be the proper construction of the statutes aforesaid; and we doubt if under any different construction, the provisions of the general election law, and the law controlling the organization of new counties, could be complied with in the territory embraced within a new county in process of organization.

Thus far we have not considered the primary election law, and have not intended by anything that has been said with reference to the general election law to determine the extent and manner of the operation of the primary law. The object of the primary law is to provide for the nomination of candidates to be voted for at the general election, and having concluded that such general election in a new county about to be organized as aforesaid is to be held and conducted therein under the control of the provisional officers in the same manner as in an organized county, with the exception that the organization commissioners constitute the county canvassing board, we are prepared to consider the provisions of the primary law and determine their application to the election in the new county-. Such provisions should, if possible, be construed so that they may operate throughout the state uniformly and permit the nomination and election of officers in accordance with the evident purpose of the act. Before doing so it seems desirable to refer to certain provisions of the statutes concerning the nomination of candidates as they stood when the primary law was enacted, that we may observe the principal changes made by that law.

The general election law regulating the nomination of candidates and requiring the votes of electors to be expressed upon an official ballot was first enacted in 1890, a few months prior to the admission of Wyoming as a state. By that act, and until the enactment of the primary law in 19x1, nominations might be made by conventions of political parties or by petition. And it was provided in section 87 that certificates of nominations for officers to be filled by the electors of the entire state, or of any division or district greater than a county shall be filed with the secretary of state; that certificates of nomination for county and precinct officers, “including members of either branch of the legislature,” shall be filed with the clerks of the respective counties wherein the officers are to be elected; and “that the certificate of nomination for joint member of either branch of the legislative assembly shall be filed in the office of the county clerk of each county to be represented by such joint member.” Provision was also made as to municipal elections. The secretary of state was required to certify to the respective county clerks the names and description of persons nominated in the certificates of nomination filed in his office. The names of the candidates whose respective certificates of nomination were duly filed and certified were required to be printed in a prescribed manner upon the official ballot prer pared and distributed by the respective county .clerks.

When the Act of 1890 was passed, not only might it happen that a new county should remain attached to the original county for the purpose of legislative representation, but two or more original counties might be exjpressly given joint representation in addition to separate representation, and that occurred in at least one instance. That condition was provided for in that act as shown above. Upon the supposition, probably, that the provision for the nomination of joint legislative candidates had become obsolete on account of the constitutional provision that each county shall constitute a senatorial and representative district, it was omitted from the Revision of 1899, and consequently from the later compilation of the statutes. But it has not been expressly repealed or amended by the legislature, nor by implication except so far as it may be affected by the primary law of 1911. And we believe that it was followed in the case of new counties organized after the Constitution became effective,, while they remained a part of the original county for the purpose of legislative representation, on the theory that such provision for nominating a joint member was operative in such case, as the only statutory provision governing the matter. The Constitution, it is true, declares that each coutny shall constitute a senatorial and representative district. (Art. Ill, sec. 3.) But it also provides for a re-apportionment for senators and representatives ’ only at the session of the legislature next following an enumeration of the inhabitants of the state in the year 1895 and every tenth year thereafter, and the session next following an enumeration made by the United States. (Art. Ill subtitle “Apportionment,” sec. 2.) By section 4 of the same article and sub-title an apportionment was made of senators and representatives among the- existing organized counties. Subsequently other counties were organized but before a re-apportionment act was passed. Concerning such counties as to their representation in the legislature it was said in the concurring opinion of the writer in State ex rel. v. Schnitger, 16 Wyo. 479, 538, 95 Pac. 698, 714: “Although each county is expressly constituted • a separate senatorial and representative district by the Constitution itself, that provision would necessarily be read in connection with the section making a specific apportionment, which, for that purpose, mentioned the counties as they existed when the Constitution was framed. Tó preyent the non-representation of the territory and people included in the newly-organized counties, they would necessarily be regarded as parts of the original counties, respectively, for the purposes of legislative elections and representation. And that course was in fact followed in the election of the first legislature that convened in November, 1890, and the second that convened in January, 1893.” The several county acts in question, as above shown, continued the new counties as parts of the original counties, respectively, for such purposes until an act should be passed giving them separate county representation. By the above quoted remarks that the new county remained a part of the original county for the purposes of legislative elections and representation, it was not meant that such elections were conducted or controlled by the original county, for, clearly, the new county having been organized it held and conducted its own election, and, under the law then in force for nominating and certifying the nomination of candidates, there was no difficulty in relation to that matter. The fact should be mentioned that the result of general elections for members of the legislature are not declared by the county canvassing board in any case, but an abstract of the canvass made by such board of the votes for members of the legislature was and is required to be sent to the secretary of state, to be canvassed and the result declared by the State Canvassing Board.

It" appears, therefore, that as the law stood at the time of the last general election, and the elections preceding it since the present method of voting by official ballot has been in operation, there would have been no trouble in applying the general election law, together with, the general law for the conduct of the general election in new counties about to be organized by electing their officers at such election, for under the last mentioned law, the provisional clerk is required to perform all the duties of county clerk with reference to the election.

The primary law calls for an election before the general election for the purpose of determining thereby the nominations to be made of certain, candidates to be voted for at the general election. Such primary election must, of course, require the performance of official duties preceding and following it, and, as to a candidate required to be nominated at the primary election, the nominating petition is for the purpose of 'getting his name upon the primary election ballot, instead of the official ballot as under the old law. It should be borne in mind, however, that the primary election is a matter preparatory and incident to, and connected with the general election. In considering the act providing for such primary election, we shall refer, as we proceed, to only those provisions that may seem pertinent to the questions necessary to be considered in determining the questions here presented.

The act provides for preparing, circulating, signing and filing nomination papers nominating candidates to be voted for at the primary election. It is provided in section 8 of the act concerning such nomination papers as follows:

“All nomination papers herein required shall be filed as follows: (1) For state officers, judges of the supreme court and district courts, senators in the Congress of the United States, and Representatives in Congress, in the office of the secretary of state, at least thirty days before the date of the primary election next ensuing; * * * (2) For offices to be voted for wholly within one county, and for officers not herein otherwise provided for, in the office of the county clerk of the proper county at least twenty days before the date of the primary election next ensuing. (3) For city or town officers, when the election of such city or town officers is' at a different time and place from the election of county officers, in the office of the city or town clerk, at least ten days before the primary election next ensuing.”

It is conceded that the nomination paper of the relator is required to be filed in the office of the county clerk, but on one side it is contended that it should be filed with the provisional clerk of the new County of Platte, and on the other hand that it should be filed with the county clerk of Laramie. County, the county from which Platte County is taken. If no other question than this was to be considered it might easily be disposed of, after having determined as above that the election is to be held in the new county in the same manner as in an organized county, except as to the canvass of the votes. But it is said that this would also require the nomination paper of a candidate for either branch of the legislature as a representative from Laramie County to be filed with the provisional clerk in the new county, which would make the primary law inoperative in that particular for the reason that there is no provision of law for a final canvass by a single board of the votes cast at the primary election in two or more voting counties for legislative candidates. And, further, that a similar difficulty would occur if such papers should be filed only in the office of the clerk of the original county, and the election should be conducted in the new county by its organization officers, since there is then no provision for getting the names of the legislative candidates upon the primary ballot in the new county or counties. It is considered, therefore, that the question relating to legislative candidates for nomination is directly involved in any construction of the primary law for the purpose of determining the place for filing the relator’s nomination paper. And we are urged to remove the doubt that has arisen concerning the nomination at the primary election of candidates for the legislature. We are of the opinion that there is reasonable ground for doubt in relation to that matter until it is settled by this court, and that the question must come here for determination sooner or later, if it is not here now, and that it would not be improper for us to express our views concerning it, even if its determination is not imperative for-the purpose of disposing of the particular question before us.

The primary law provides generally that the candidates of political parties for all-offices which, under the general law,' are filled by the direct vote of the people at the general election in November, and candidates for the office of United States senator, shall be nominated, and party'committeemen shall be elected at primary elections at the times and in the manner therein provided; and that no names of candidates of any political party required or permitted under the act to make nominations shall be placed upon the official election ballot unless such candidates shall have been chosen and nominated in accordance with the act. (Laws 1911, Ch. 23, sec. 1.) Such primary election “shall consist of an election by all political parties, at the same time and place in the various voting precincts designated as provided by the general election laws of the state, on the first Tuesday after the third Monday in August in every year in which occurs a general election, for the nomination of candidates for such offices as are to be filled at the general election in November next ensuing, and for the election of party committeemen.” (Sec. 2.)

Can it be doubted that by the general election laws, including the general law construed as aforesaid relating to the general election in November’in the new unorganized counties above mentioned, the various voting precincts in such new counties are required to be designated by the organization commissioners? That is an act preparatory to, respecting and incident to. the general election, and the duty of county commissioners in respect thereto is imposed' upon the officers appointed to organize the county. In those precincts so designated the primary election is to be held, as well as in voting precincts as designated by county commissioners in organized counties.

Coming to section 8, above quoted, which prescribes where nomination papers shall be filed, we observe that those for. state officers are required to be filed with the secretary of state, and those for offices to be voted for wholly within one county, and for officers not otherwise provided for, in the office of the county clerk of the proper county. What officers are to be regarded, within the meaning of this section, as those to be voted for wholly within one county? Unquestionably county and precinct officers are such officers. A party committeeman is such an officer, for the committeemen to be elected at the primary are to become the members of the county committee, composed of at least one corii-mitteeman from each election precinct. (Sec. 36.) But in what sense is the word “county” employed in the provision referred to? As the legislature must have had in mind, ■considering the purpose of the act, the ballot to be prepared for the primary election, and were providing a method of nominations tó enable the names of candidates therefor to be placed upon the ballot, the provision is to be reasonably held, we think, to refer to a separate sub-division in which as a county the election will be held, that is to say, a county, whether organized or not, if in process of organization, which acts as' a county for the purposes of the general election. The new county is declared by the general law to be segregated from the original county for the purpose of such ■election. Though unorganized and not a county for the time being for any other purpose for which counties are organized, it is to be regarded as a county for election purposes, or, more accurately, perhaps, the territory embraced within it has been set apart by law and endowed through its organization commissioners and clerk with all the powers of a county for the purpose of providing for, holding and conducting the election, and as an “unorganized county” it is mentioned in the statute declaring it to be segregated from the original county or counties for the purpose of the election. There is nothing forced or illogical, therefore, in a construction that will bring such new county within the meaning of the word “county” as found in the section under consideration. And this is especially true in view of the provision of the primary law which declares that it shall be liberally construed, so as to insure full opportunity to become candidates and for voters to express their choice. (Sec. 50.) There is a further and very good reason leading to such construction when the election of party committeemen is considered. At the ensuing primary election party committeemen are to be elected who will constitute the county committee for the term of two years from the date of their first meeting; that meeting being required to be held within five days, if possible, after the candidates of the respective political parties shall have been declared nominated by the proper canvassing board. With the election of the new county officers in November, and their qualification in January next, the county will become fully organized, and upon the county committee therein to be elected may devolve thereafter important duties under the primary law. Such committee moreover is required to elect a member of the state committee of its party, and is authorized to fill vacancies occurring among the candidates of its party nominated within the territory over which it has jurisdiction by the primary elections. (Sec. 37.) In view of the election of county officers to occur in the new county, and the nomination of candidates therefor at the primary election, the county committee of the new county elected at such primary will thereafter be vested with the authority conferred upon county committees, for the scheme of the act, in this particular, is plainly that there shall be a county committee in each county where county officers are to be elected, the members of which shall themselves be elected in the manner provided therein.

Construing the word “county” as employed in section 8 to mean a county, whether organized or unorganized, wherein an election is to be held in November for county and precinct officers of that particular county, it would follow that the nomination paper of the relator is required to be filed with the clerk appointed by the organization commissioners of the new County of Platte, unless there are other provisions of the act preventing that conclusion. In this connection our attention is called to section 28 of the act, which provides that the county board of canvassers shall consist of the county clerk and two justices of the peace of the county, called in by the clerk, which justices shall be of different political parties, if possible, and requiring the canvass of the returns of the primary election to be canvassed by that board. And it is argued that as there are no justices of the peace of Platte County, no way is provided by the act for canvassing the returns of the primary election if the election is conducted in the new county separate and apart from the original county. As to the general election that is the very difficulty intended to be provided for by declaring that the organization commissioners-shall constitute the canvassing board. It may be conceded' that section 28 refers only to organized counties, and that upon a strict and technical construction this might affect the construction of the entire act. But it is possible that a county may be mentioned or referred to in one section in the sense of a county fully organized, and in another in a. broader sense, including an unorganized as well as an organized county. That construction should be given to a-particular section, not abortive of the purpose of the act,, or conflicting with other provisions, which would.be proper ór -required if it stood alone to enable it to operate as intended, if such a construction be possible. It is clear that section 28, so far as it declares who shall constitute the-county canvassing board, cannot apply to an unorganized' county. There then appears to be no provision in the act itself for the canvass of the returns of the primary election in such a county. But the act was clearly intended to apply-throughout the state, and in every county wherein the election in November is required to be held. To guard against possible omissions in the act it is provided in section 17,. that “except as herein otherwise provided, all primary elections shall be conducted as required for general elections under the general election laws, as far as the provisions-thereof may be applicable.” The word “conducted” is ■here used, we think, as inclusive of everything necessary to the holding of the election, which involves not only the-casting of the votes of the elector, and preliminary provision therefor, but also the canvass of the returns and declaration-of the result, for otherwise the election would be unavailing. (Blake v. Walker, 23 S. C. 517; Brass v. State, 45 Fla. 1, 34 So. 307.) The act'might have declared that the return^ should be canvassed by the canvassing board provided for by the general election laws. It has done so in effect as to-organized counties, for in such counties' the county clerk: and two justices of the peace constitute the canvassing board at general elections, so that no change is made in this respect in the case of primary elections. But in the case of an unorganized county the other general statute intervenes which declares that the commissioners appointed to organize the county shall be the county canvassing board. This is a part of the general election law, for it applies to a general election held in an unorganized county at which its officers are to be elected. The provision of section 28 designating the members of the county canvassing board clearly refers only to a county which has justices of the peace. It does not provide for the canvass in an unorganized county in which the general election is to be held for the purposes aforesaid. Section 17 therefore controls the matter, whereby the general laws become applicable; and it follows that the duti.es of the. county canvassing board prescribed in section 28 of the primary law will devolve upon the organization commissioners in the new county.

These conclusions will not interfere with the nomination at the primary election of candidates for the legislature, nor with the proper operation of any other provision of the primary law, so far as we have been able to discover. The argument that a construction of the statute vesting authority in the new counties, respectively, to conduct the primary election therein will prevent the nominating thereat of legislative candidates is based upon the theory that the nomination papers of, such candidates are required to be filed with the county clerk, and that, since the new county remains attached to the parent county for legislative representation, it is necessary to file such papers with the clerk of the parent county. But that theory is, we think, erroneous. It is true that by the general election law the certificates nominating members of either branch of the legislature were required expressly to be filed with the “clerks of the respective counties” wherein they are to be elected. This entitled such candidates to have their names placed upon the official ballot for the general election, and, without the provision as to joint representatives, might perhaps be held to authorize the filing of such certificates with the clerk of each voting county, that is to say, each county separately conducting an election, but with the provision for filing the certificates nominating a joint member in the office of the clerk of each county to be so represented, which remains in the statute, notwithstanding its omission from the subsequent revision and compilation, that matter is made very clear. For the new county, even after its organization as a county, until a new apportionment, will remain attached to the old county for representation in the legislature, and the new and' old counties will, therefore, be jointly represented during that time.

■ In no section of the primary law are members of the legislature specifically mentioned. To ascertain where nominating papers for candidates for the legislature to be voted for at the primary election are to be filed, we must examine the provisions of section 8, and determine what clause or description or officers therein contained includes such candidates. Having construed that part of the section requiring the filing of a nominating paper with the county clerk where the office is one to be voted for wholly within one county, as referring to a county for election purposes, it necessarily follows that the office of senator or representative is not one necessarily to be voted for wholly within one county. Nor is it an office not otherwise therein provided for, for in the first part of the section nomination papers for state officers are required to be filed in the office of the secretary of state; and members of the legislature are, in a strict legal sense, .state officers. They are clearly not county or precinct officers.' They are members of a body which constitutes a separate and distinct department of the state government. They are paid by the state. They receive, respectively, their certificates of election, after the general election, from the secretary of state. They perform duties, and exercise powers, relating to the state at large. “In general, it may be said that a state officer is one whose duties and powers are co-extensive with the state, while a county officer is one whose duties^and powers are co-extensive with the county.” (People v. Evans, 247 Ill. 547, 93 N. E. 388.) “State officers are those whose duties concern the state at large, or the general public, although exercised-within definite limits, and to whom -are delegated the exercise of a portion of the sovereign power of the state. They are in a general sense those whose duties and powers are co-extensive with the state, or are not limited to any political sub-division of the state, and are thus distinguished from municipal officers stri.ctly, whose functions relate exclusively to the particular ■municipality, and from county, city, town, and school district officers.” (36 Cyc., 852-853.) In Morril v. Plaines, 2 N. H. 246, it was held that within the meaning of a statute providing the method of balloting for state officers a representative in the state legislature was a state officer. Though •members of the legislature are thus held to be state officers within the meaning of section 8, they are 'to be regarded, ■within the meaning of section 7 regulating the number of signers to a nominating petition, as officers to be voted for within a district, which may consist of one county or more.

In the-absence, therefore, of any specific provision controlling their nomination we think it clear that the nomination paper of a candidate for the office of state senator or representative in the state legislature to be voted for at the primary election must be filed in the manner required in the case of state officers, that is, with the secretary of state. So 'construing the statute it is rendered uniformly operative and free from any difficulty as to senators and representatives for it is made the duty of the secretary of state to transmit to each county clerk at least twenty-five days before the primary election a certified list containing the name and post office address of each person for whom a nomination paper lias been filed in his office, in accordance with the provisions of the act and entitled to be voted for at such primary election by the voters of such county, together with the designation of the office for which he is a candidate, and the party from which he seeks a nomination. And it is made the duty of the county canvassing board to certify and file the abstracts made by such board in the office of the county clerk; and to make a separate abstract of the canvass as to all state officers, United States senator, representative in Congress, and judges of the supreme and district courts, and certify the same and forthwith forward it to the secretary of state.

Upon the abstracts received from the several counties by the secretary of state, the secretary, auditor and treasurer of the state are required to meet as a canvassing board, make an abstract of its canvass in a manner prescribed by the act, and when the canvass is concluded, to deliver the original abstract returns to the secretary of state to be filed and recorded in his office, and thereupon within a time specified the secretary of state is required to certify to the clerk of each county, under separate cover party headings the name of each person nominated as shown by the official canvass made by the said canvassing board, as well as those certified to him by the proper persons when any person has been nominated by a convention or party committee, his place of residence, the office for which he was nominated and the order in which the tickets of the several political parties shall appear on the official ballot. Remembering that the clerk appointed by the organization commissioners in a new county is for all the purposes of the election the county clerk of such county, such certificate and all other certificates' pertaining .to the matter required to be transmitted by the secretary of state to the county clerk will be transmitted to the proper clerk in the new counties, whereupon the official primary election ballot can be prepared at' the proper time and in the manner required by the primary election law, and the official ballot for the election can likewise be prepared in each new county conducting the election as well as in organized counties. In the case of a new county, like Hot Springs and Campbell counties, wherein a part of its territory votes with one of the old counties for members of the legislature, and a part with another county, the names of the candidates for the legislature to represent each of such old counties, whose nomination papers have been filed with the secretary of state will be tránsmitted to the clerk of such new county, as well as after the canvass of. the abstracts of the primary election the names of, and other required information concerning the candidates nominated at such election. And, since it will be the duty of the organization commissioners in such counties to arrange the voting precincts so as to enable the electors to properly vote at the primary and also at the general election for candidates for the legislature, the clerk can have no difficulty in properly preparing and distributing the ballots containing the names of such candidates to be voted for in the several precincts; any more than in the case of precinct officers.

A question arises under section 35 of the primary law affecting the relation between the old and new counties respecting the primary election in one particular. That section provides for the filling of vacancies occurring or existing in any office or position for which nominations are made under the act before the printing of the primary election ballots, and confers authority to fill such vacancy upon the regularly constituted committee of the party to which the vacancy belongs. It seems clear that if a vacancy so authorized to be filled occurs in the office of senator or representative in the legislature the proper committee to exercise the power-granted by the section will be the county committee of the old county, for that is the only committee recognized by the primary law (Sec. 38)^ until the primary election shall have been held. And it seems also that such committee will be the only one, if any, authorized to fill vacancies covered by the section in any Office which is to be voted for in the new county alone, for section 38 declares that the various political committees “now in existence” are recognized, and that they and thejr officers shall exercise the powers and perform the duties “herein prescribed,” until committeemen are chosen in accordance “with the provisions of this act.”' There may be difficulty, perhaps insurmountable in the case-of a new county taken from two or more counties, in acting under section 35 as to an office to be voted for only in the new county.. But that need not interfere with the operation of the law in other respects. For another provision of the act (sec. 37) authorizes the proper committee, after the primary election, to make nominations to fill vacancies occurring among the candidates nominated within the territory over which it has jurisdiction, by the primary nominating election; and a county committee will presumably be elected in the new county at such primary election. And the act also permits the nomination of candidates by petition to be voted for at the general election (sec. 46), so that there may be candidates at the general election for all county and precinct offices in the new county, even if there should occur a failure to nominate any or the allowed number at the primary election. The manner of the operation of section 35 is not directly before us at this time, and while we do not perceive that any except the committee of the old county can act under it for the ensuing primary election, we do not care to decisively so hold as to county and precinct officers of the new county. But as to the office of senator or representative in the legislature the power of the committee of the old county is, we think, plain, for the new county remains attached to the old county for legislative representation, and the vacancy nominations as to such an office can easily be so made as to be placed upon the primary election ballot.

The primary law expressly permits, as above stated, the nominating of candidates, as provided in the general election law, by petition, and provides also that any political organization which at the last preceding general election cast less than ten (10) per cent of the total votes cast for representation in Congress, may nominate candidates in the manner provided by existing laws for conventions, provided, that all such conventions shall be held on the same days as the primary election provided for in the act. Such petitions and conventions will, of course, be governed by existing laws therefor other than the primary law, except as stated in that law, and certificates nominating candidates for the legislature in that manner will necessarily be filed as required by such other existing laws.

All the questions suggested have thus been considered. The nominating papers of the relator should be filed with the clerk appointed by the organization commissioners in the new County of Platte. The judgment of the District Court will, therefore, be reversed, and the cause will be remanded with directions to enter judgment denying the writ of mandamus prayed for, and dismissing the petition.

Beard, C. J., and Sco'i'T, J., concur.