3 S.D. 355 | S.D. | 1892
This is an original application for a writ of mandamus to compel the defendant to file in his office the certificate of nominations made by the Prohibition party of this state. The facts as they appear in the affidavit which is the basis of the application are in substance as follows; which facts are, however, denied by the defendant: On the 9th .day of June, 1892, a mass convention of the Prohibition party was held in the city of Water-town for the purpose of electing delegates to the national convention of that party, and for placing in nomination presidential electors. At that convention the following named persons were duly and regularly nominated for the office of presidential electors, to be voted for at the general election, viz.: J. P. Hewes, J. S. Akers, and A. R. Cornwall. A state central committee was also appointed, and empowered to fill any and all vacancies that then or thereafter should exist, either by resignation or by the certificate of nomination being or becoming insufficient or inoperative. Thiv committee was duly orgaized by the appointment of a chairman and secretary, and, under the power delegated to it by the convention, nominated one O. B. Warren as one of the presidential electors of said party. A certificate of these persons named as presidential' electors was executed by the chairman and secretary of said convention and of the executive committee. On the 8th day of October, 1892, it was tendered to the Honorable A. O. Ringsrud, secretary of state, for filing in Ms office. On the ,i4th day of September, 1892, another mass convention of this party was
It is because of these several refusals of the secretary of state to file these certificates that we are asked to issue the writ of mandamus to compel him to do so. Chapter 57, Sess. Laws, 1891, known as the “Election Law,” provides but two modes whereby nominations for public offices to be filled by election can be made: (1) By a convention or primary meeting, representing a political
From the third certificate which’ was presented to and refused by the secretary of state, we learn that the state central committee of this party met »n the 20th day of October, 1892, for the purpose of curing the insufficiencies of the previous certificate which had been refused by the secretary of state. After meeting, it proceeded to put in nomination certain persons for the respective offices named as substitutes for themselves, to be voted for at the general election to be held November 8, 1892, as follows: “For presidential electors of the state of South Dakota the following named persons were duly nominated: A. R. Cornwall, whose residence and business address is Aberdeen, Brown county, South Dakota, and who is substituted for himself; J. P. Hewes, whose residence and business address is Clear Lake, Deuel county, S. D., and who is substituted for himself,” — and so on through all the presidential electors and the various state officers. It will be noted that this certificate was not presented for filing 30 days or more before the election. As a certificate for original nominations, therefore, it was offered out of time. It is, however, evident that this committee did not intend that it should be considered as a certificate of original nominations, but a certificate of substitutes to fill vacancies which had arisen in the original nominations after they were made. This is made to appear very plainly from the wording of the certificate itself, wherein it says the nominee “is substituted for himself.” If such were the intention, the certificate is not within the spirit or intention of the law. Section 11 provides that the certificate for filling vacancies shall state for whom the person nominated is to be substituted. This presupposes that some other person has been nominated, and the secretary of state has previously filed in his office the name of the person for whom the new nominee is to be substituted, and that the name substituted is to fill a vacancy in the nominations before made and filed with him. This construction is made clear by the wording of the last clause of the section, which provides that “the secretary of state shall certify to the several county auditors the name of the person for whom such nominee is to be substi
It was in no sense a filling of a vacancy, but a nomination made by tbe state central committee. Tbe record shows that tbe very men who were named by tbe committee bad been nominated by tbe party previous to tbe meeting of tbe committee at Salem, but it fails to show that any of them bad resigned or withdrawn since so nominated. Consequently there could have been no vacancy to be filled. Tbe certificate itself precludes any such conclusion. The facts disclosed by tbe record also show that tbe convention of tbe Prohibition party met at a time early enough to have bad a proper certificate of its nominees filed in tbe office of tbe secretary of state, but for some reason unknown to us tbe officers of that party whose duty it was to have done so neglected to perform their duty within tbe time prescribed by law. Afterwards, when too late, tbe executive committee of that party met and nominated tbe same persons for tbe various offices, and made a certificate of tbe facts, and presented it to tbe secretary of state, claiming tbe certificate was a substitution for persons previously nominated. Tbe secretary of state bad no evidence of tbe fact, for no certificate bad been filed in bis office showing wbat nominations bad been made. Had this been done, it would have been bis duty to have filled by substitution any vacancy occurring in tbe nominations within a reasonable time before tbe election. There must be an original nomination on file before a substitute can take its place. Holding these views upon tbe merits of tbe application, we must decline to issue tbe writ. ■
While I do not wish to record any affirmative disagreement with tbe conclusions expressed in tbe foregoing opinion,