State ex rel. Wheeler v. Stewart

230 P. 366, 71 Mont. 358, 1924 Mont. LEXIS 145

• Court: Montana Supreme Court
• Decided: October 14, 1924
• Docket: No. 5,627
• Status: Published

Opinions

HONORABLE O. F. GODDARD, District Judge,

sitting in place of MR. JUSTICE GALEN, disqualified, delivered tbe opinion of tbe court.

Relators seek a writ of mandate to compel Charles T. Stewart, as secretary of state, to place their names as independent candidates for presidential elector upon tbe official ballot to be voted at tbe general election to be held on November 4, 1924. These persons claim they have been nominated by petitions under tbe provisions of section 615, Revised Codes of 1921. They assert they do not represent any recognized party but are pledged to vote and if elected will vote for Robert M. La Follette for President and B.\ K. Wheeler for Vice-President of tbe United States, and they say they are tbe only independent candidates for tbe office of presidential elector in tbe state of Montana.

No question is raised as to tbe sufficiency and form of tbe petitions, nor as to tbe number of signatures appended thereto. Upon tbe filing of tbe petition this court issued an alternative writ of mandate which was made returnable October 11, 1924. Tbe respondent appeared by a motion to quash. At tbe bearing John M. Johnson, claiming to be duly nominated, qualified and acting candidate of tbe Farmer-Labor party for presidential elector, asked permission to intervene in tbe action by filing a petition and praying for an injunction enjoining tbe respondent from certifying to the county clerks of tbe several counties of the state tbe names of the La Follette-Wbeeler electors. His motion to intervene was granted, whereupon relators and respondents severally filed answers to Johnson’s petition, and after extensive argument the matter was submitted to the court for decision.

It is urged, first, by respondent and intervener that section 673, Revised Codes of 1921, provides an exclusive method of nominating presidential electors in this state. This position is not tenable for the reason that section 673 refers to party candidates for President and Vice-President only. That this is so is disclosed by the title as well as the body of the bill which was adopted by the people as an initiated measure at the general election in 1912 (Laws 1913, p. 590) ; and it has been so declared by this court in State ex rel. Mills v. Stewart, 64 Mont. 453, 210 Pac. 465.

It is next contended that section 615, Revised Codes of 1921, does not permit the nomination of independent candidates for presidential electors. The section provides: “Candidates for public office may be nominated otherwise than by convention or primary meeting in the manner following”: and then follow the procedural requirements for a certificate of nomination by petition. This section was first enacted in 1889 (Laws 1889, p. 136, see. 5), and has been re-enacted twice since in identical form. In State ex rel. Woody v. Rotwitt, 18 Mont. 502, 46 Pac. 370, this court treated this “section of the Code as contemplating simply the candidacy of one not a nominee of a party — an independent or electors’ candidate.” That it is applicable to the nomination of independent candidates for public office is not debatable.

We are not disposed to treat as serious any argument to the effect that a citizen may not run independently for the office of President of the United States. If he may do so, a necessary corollary is that there must be presidential electors representing his candidacy. There was much said at the hearing to the effect that a candidate for presidential elector is not a candidate for public office. In this connection State ex rel. Spofford v. Gifford, 22 Idaho, 613, 126 Pac. 1060, and the case of Spreckles v. Graham, 194 Cal. 516, 228 Pac. 1040, recently decided by tbe supreme court of California, were much relied upon by respondent and the intervener. We do not regard these cases as particularly helpful to us by reason of the wide dissimilarity of the statutes of those states and our own, but there eannot be any question that one who is a candidate for presidential elector is a candidate for public office in this state. In State ex rel. Richardson v. Stewart, 58 Mont. 707, 198 Pac. 1118, this court recognized, without discussing the question, that candidates for presidential and vice-presidential electors are public officers. By the provisions of section 10775, Revised Codes of 1921, the term “ ‘public office’ shall apply to any national, state, county, or city office to Which a salary attaches and which is filled by the voters, as well as to the office of presidential elector, United States senator, or presiding officer of either branch of the legislature.” This section is in pari materia with other election statutes.

It is worthy of note that in Spreckles v. Graham, supra, the supreme court of California does not deny, but rather inclines to the view, that a presidential elector is a public officer. Whatever may be the rule in other states, under the statutes of Montana there is no doubt that such candidates are candidates for public office and that they may be nominated independently under the provisions of section 615, supra.

But it is urged that the candidacy of these persons is ■ inhibited by the provisions of section 639, Revised Codes 1921, which provides, in part: “No independent or nonpartisan candidate shall be permitted to use any word of the name of any existing political party or organization in his candidacy.”

It appears from the proof that on the twenty-second day of September, 1924, certain petitions for the nomination of the La Follette-Wheeler electors were filed with the secretary of state. In these the signers sought to nominate the persons named therein as “candidates for said offices under the designation La Follette-Wheeler Independent.” On the 25th of September, 1924, before a sufficient number of petitions to nominate were filed with the secretary of state, there was filed in the office of the secretary a certificate of nomination by “The Independent Party of Montana,” nominating Sam W„ Teagarden as a candidate for United States senator. It is contended that, as the Teagarden nomination was that of an existing political party containing the word “Independent,” the proponents of the candidacy of La Follette and Wheeler may not make use of that word in the name “La Follette-Wheeler Independent.” This position is not tenable. It is unnecessary to discuss this subject at length.

The statute expressly permits the nomination of independent candidates. The use of the word as there employed is generic. Assuming, but not deciding, that those who compose “The Independent Party of Montana” have the right to use the word “Independent” in their party name, still they may not prohibit independent candidates from using the name “Independent.” Where the statute in so many words recognizes the right of electors to file as independent candidates, it is not reasonable to hold that by employing the words “no independent candidate shall be permitted to use any word of the name of any existing political party or organization in his candidacy,” the legislature intended to prohibit an independent candidate from using the very word which designates the character of his candidacy.

Consequently it is clear that relators are entitled to the relief sought. Respondent’s motion to quash is overruled and the relief sought by the intervener is denied. Let the writ issue forthwith as prayed for. It is ordered that this opinion be filed nunc pro tunc as of October 14, 1924.

Writ issued.

Mr. Chief Justice Callaway and Associate Justice Rankin concur.