State ex rel. Spring-Meyer v. Brodigan

35 Nev. 35

• Court: Nevada Supreme Court
• Decided: July 15, 1912
• Docket: No. 2039
• Status: Published

Opinions

By the Court,

Norcross, J.:

This is an original proceeding in prohibition, in which an order is prayed for prohibiting the respondent, as secretary of state, from certifying to the several county clerks the name of relator and certain other candidates for public office as " Independent” candidates. The petition in this proceeding recites that on the 18th day of September, 1912, a certificate of nomination, signed by more than ten per cent of all the qualified electors in the state as shown by the last preceding general election, was filed with the secretary of state, in which certificate candidates for all state offices to be filled at the general election to be held in November, 1912, including candidates for presidential electors, United States senator, and representative in Congress, were regularly nominated, the said certificate of nomination further designating said candidates as the nominees of the Progressive party, which had for its candidate for president of the United States Theodore Roosevelt, and for vice-president Hiram W. Johnson. The petition further alleges that at the time of filing said certificate of nomination demand was made of the respondent that he certify all said candidates as nominees of the Progressive party, but that subsequently relator was informed in writing by the respondent that he, respondent, on the advice of the attorney-general, would certify all said nominees as "Independent,” and under no other designation. The proceeding is of a friendly character, for the purpose of having an authoritative construction of certain provisions of the election laws relating to primary and general elections.

Section 2 of the act known as the "Primary Election Law,” adopted by the legislature of 1909, provides: "All candidates for elective public offices shall be nominated as follows: (1) By direct vote at primary elections held in accordance with the provisions of this act; or (2) by nominating petitions signed and filed as provided by existing laws. Party candidates for the office of United States senator shall be nominated in the manner provided herein for the nomination of candidates for state officers.” (Rev. Laws, 1737.) Sections 3 and 4 of "An act relating to elections and to more fully secure the secrecy of the ballot,” adopted in 1891 (Rev. Laws, 1835, 1836), provide:

"Sec. 3. All nominations made by any such convention shall be certified as follows: The certificate of nomination, which must be in writing, shall contain the name of each person nominated, his residence and the office for which he is nominated, and shall designate the party or principle which such convention represents. * * *

"Sec. 4. A candidate for public office may be nominated otherwise than by a convention in the manner following: A certificate of nomination containing the name of the candidate to be nominated, with the other information required to be given in the certificate provided for in section 3 of this act, shall be signed by electors residing within the district or political division for which candidates are to be presented equal in number to at least ten per cent of the entire vote cast at the last preceding election in the state. * * *”

It is the contention of counsel for relator that, under the plain provisions of the two sections last above quoted, a certificate of nomination made by electors, otherwise than by convention, must designate the party or principle which the candidates so nominated represent, and that it follows as a duty upon the part of respondent to certify the candidates named in the petition, together with the party designation stated in the said certificate. Upon the contrary, it is the contention of the attorney-general that candidates of a political party cannot be nominated otherwise than by primary election; that the "party or principle” required to be designated in the certificate mentioned in section 3, supra, was applicable only to nominations made by conventions under the law as it existed prior to the adoption of the primary election law. The primary election law did not change the existing provisions relative to nominations of candidates by certificates signed by a prescribed number of electors, but specifically provided that they should be continued in force. By section 4, supra (Rev. Laws, 1836), it is provided that the certificate shall contain "the name of the candidate to be nominated, with the other information required to be given in the certificate provided for in section 3 of this act” What, then, is the. other information required to be given in- the certificate provided for in section 3 ? A certificate under the provisions of section 3 was required to contain, in addition to the name of the candidate, his residence, the office for which he was nominated, the "party or principle” which the convention represented. It must be conceded that the "party or principle” is information that was required to be given in the certificate made by the convention officers under the provisions of section 3, supra.

It is argued, however, that these words are limited by the other words used in their connection,"which the convention represents”; that, therefore, they are applicable only in cases where .the certificate was made by convention officers and inapplicable where the certificate is made by electors. This construction places a limitation on the word " information” used in section 4, supra, and the point involved here might be resolved into the question: Did the legislature intend to exclude the designation of a party or principle in certificates made by electors? The language used may not be as clear as could be wished in statutes of this kind, and it may be somewhat ambiguous, but considering the act, generally known as the " Australian Ballot Law, ” as a whole, of which law the sections in question are a part, we think it was the intention of the legislature to require that the certificate made by electors shall contain all the information required in a certificate made by convention officers, including that of the designation of the party or principle which the candidate or candidates nominated by electors stand for. This we think is the spirit, if not the letter, of the law as it is written. Under the old party convention system, the party or principle was represented in the party name, and the statutes of some of the states which have adopted the Australian ballot law do not refer to the party name or principle in stating what the certificate shall contain in-the case of nominations made by a party convention, but specifically mention such requirement in cases of nomination certificates made by electors. Such is the case in the Minnesota statute, a case construing which will hereafter be referred to.

Where a doubt may exist as to the proper construction to be placed on a constitutional or statutory provision, courts will give weight to the construction placed thereon by other coordinate branches of government and by officers whose duty it is. to execute its provisions. (State v. Glenn, 18 Nev. 34; State v. Grey, 21 Nev. 378, 19 L. R. A. 134.) Since the adoption of the Australian ballot law in this state, during the past twenty years, six different parties have at different times secured a place on the official ballot under party designation by means of electors’ petitions, to wit: Silver, People’s, Socialist, Prohibition, Stalwart Silver, and Independence League. If the construction contended for by the attorney-general is correct, these several parties should not have been designated otherwise than as " Independent. ” If this construction is correct, we are unable to see how any party coming into existence after the adoption of the Australian ballot law could ever get upon the ballot under its proper designation. In the absence of language permitting of no other construction, we ought not to impute to the legislature an intention to prevent the electors of the state who have organized a new party from haying candidates representing that party from appearing on the ballot. We think the whole policy of our election laws has been to recognize the right of electors to form new political parties and to have candidates appear upon the official ballot at general elections under such party designations. Ten legislative sessions have come and gone since the secretary of state first certified candidates nominated by electors’ petitions under party designations, and no change in the law has ever been made.

The primary election law of 1909 did not attempt to change this feature of the old law. Nothing in Riter v. Douglass, 32 Nev. 400, is in conflict with the views here expressed. In that case we said: "The primary law expressly preserves the existing law wherein independent candidates and parties who may not be able to qualify or avail themselves of the primary law may get on the official ballot by independent action.”

The point involved here was not involved in the Riter case, but that case recognized the right of a party to get on the ballot by " independent action”; that is, independent of the primary law by petition. The word " Independent” after the name of a candidate on the official ballot may represent a.party or principle, and it was so held in the case of Quealy v. Warweg, 106 Minn. 145, 118 N. W. 673, decided in 1908, under a statute substantially like ours. In that case the court said: "The election law (section 214; R. L. 1905), so far as here involved, requires that the certificate of nomination, which may consist of one or more writings, shall contain the name of the person nominated, the office for which he is nominated, and the party or political principle he represents, expressed in not more than three words. It has been previously held that a petition (certificate) which wholly fails to set forth any party or political principle which the candidate represents is void, because the statute is mandatory, and must be complied with in every essential respect. (State v. Grift, 106 Minn. 29, 117 N. W. 921.) That case did not involve the propriety of any attempted statement of a party or political principle represented. The question is a new one in this state. The statute must be liberally construed so as to effectuate legislative intention, and to fully secure to the people their right to express their choice. A technical construction of the language used would be objectionable on general principles, and tend to subvert the purposes sought to be attained. That purpose was evidently to secure a designation of a party or political principle which would be sufficient inter alia to prevent the candidate from unfairly posing to one person as of his party and to other persons as of their respective parties. All that the statute requires in this regard is a declaration of political principle. Independence in politics is a familiar and recognized principle. Accordingly, when the present candidate used the term 'Independent party,’ he was within the spirit of the law. It is not material whether that designation be regarded as describing the ' party, ’ or whether the word' party’ be regarded as merely surplusage. An appropriate emblem was used. See Schafer v. Whipple, 25 Colo. 400, 55 Pac. 180. ”

If " Independent” sufficiently designates a political principle under the statute, as decided by the Minnesota court, and we think it does, then manifestly it would not appropriately designate candidates who represented defined principles such as those now being expounded by the Democratic, Republican, Socialist, Progressive, Prohibitionist, or other existing parties. One purpose, if not the only, the main purpose, in having some designation after the name of a candidate upon the official ballot, is to give information to the voter of the party or principle for which the candidate stands. The purpose and intent of the law is to give the voter this information, and the law should be construed accordingly, and not as contended, in a way that would be manifestly misleading. The views herein expressed are also supported by the case of Schafer v. Whipple, 25 Colo. 401, 55 Pac. 180. It is clear from the provisions of the primary election law of 1909 that it has only reference to existing parties appearing upon the official ballot at the last general election, for candidates for party nomination are required to make affidavit that "they affiliated with such party at the last general election in this state, and * * * voted for a majority of the candidates of such party at the last general election,” etc. (Rev. Laws, 1740.) The candidates of parties which did not appear on the official ballot at the -last general election could not make the required affidavit, and, if they could hot obtain a place on the official ballot by petition, the party could not secure representation. Under the law as it was while the convention system prevailed, a párty must have cast three per cent of the entire vote cast at the last preceding general election in order to nominate by the convention method, but, as before stated, it was always recognized that a new party organization could obtain a place on the ballot under its party designation by petition of electors.

The cases mainly relied upon by the attorney-general— Atkeson v. Lay, 115 Mo. 538, 551, 22 S. W. 481; State v. Rotwitt, 18 Mont. 502, 46 Pac. 373; State v. Looker, 18 Mont. 540, 46 Pac. 531, 34 L. R. A. 315; Phillips v. Curtis, 4 Idaho, 193, 38 Pac. 405 — are distinguishable in principle from the case now before this court. In all these cases it was sought to obtain a regular party nomination of a previously existing party by means of a petition of electors. This, it was held, could not be done, for the reason that the statutes provided a method for the nomination of such candidates, and a body of electors could not arrogate to themselves the functions of a party organization. In the case of Atkeson v. Lay, supra, it was, however, held that the candidate nominated by petition of electors, while not entitled to go on the ballot as a regular party nominee, was entitled to go on the ballot in such a manner as to disclose the true status of his nomination. The court held: "In his case the requirements of the situation would have been fairly met by the heading 'Electors’ (Republican) ticket, ’ which would have indicated as plainly to the voter the nature and character of his candidacy under one of his certificates as did the other headings indicate the character of the candidacy of those whose names appeared under those headings; * * * so, also, he had the right to have his name placed under another heading, at the top of the ticket, * * * which heading might well have been 'Electors’ (People’s) ticket,’ or 'Electors’ (People’s party) ticket.’’’

To the same effect is Phillips v. Curtis, supra.

If the Progressive party was a previously existing party,, and a petition of electors was also filed designating candidates as of that party faith, an additional word or words would doubtless have to be used in the secretary of state’s certificate so as to distinguish the candidates from the regular party nominees, but there could be no doubt of their right to use the party name in conjunction with appropriate qualifying words. We need not consider what would be the case, as suggested, if several petitions had been filed nominating candidates as of the Progressive party. One solution of the proposition that suggests itself is that they would all be entitled to appropriate recognition, and all entitled to go on the ballot, but it will be time enough to cross that bridge when the court comes to it.

We think the candidates named in the petition are entitled to go on the official ballot with the designation "Progressive party,” and that the writ prohibiting the respondent from certifying them as "Independent” should issue. ,

It is so ordered.