125 P. 367 | Wyo. | 1912
This case involves generally the question whether the primary election for the nomination of candidates of political
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
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.
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.
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 re
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 ap
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
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
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
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
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
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
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
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
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
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 man
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
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
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 sep
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
■ 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
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
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
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-
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
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.