164 Iowa 645 | Iowa | 1914
Some controversy is presented over questions of practice. The defendants challenge the right of the plaintiff to try the question presented in an action of mandamus. In view of our conclusions on other features -of the case, we shall have no occasion to pass upon this question. Also the appellant contends that the ease is triable here de novo, on appeal, whereas the defendants contend that it is triable on errors only.
We find ourselves in accord with the trial court in the finding of facts. It is therefore immaterial, for the purpose of this appeal, whether it be deemed triable de novo or otherwise.
The material facts are undisputed. The plaintiff was the regular Eepubliean candidate upon the ballot in the general election of 1912 in Carroll county for the office of county supervisor, for the term to begin January 1, 1914. One Shirck was the regular democratic candidate upon the ballot for the same office. At 8:30 o’clock of the night preceding the election day, Shirck died. The election proceeded on the following day- without any change in the official ballot, and without any attempt at filling the vacancy on the part of the party officials, and without knowledge on the part of the voters generally that the death of the candidate had occurred, Upon a canvass of the election returns, by the canvassing board, it was found that more than 1,800 votes had
Section 1087-a24 (Code, Supp. 1907) :
Vacancies occurring after the. holding of any primary election occasioned by death, withdrawal or change of residence of any candidate, or from any other cause, shall be filled by the party committee for the county, district, or state, as the case may be, representing the party in which the vacancy nomination occurs.
(Section 1102:)
If a candidate declines a nomination, or dies before election day, or should any certificate of nomination or nomination paper be held insufficient or inoperative by the officer with whom it may be filed, or in case any objection made to any certificate of nomination, nomination paper, or to the eligibility of any candidate therein named, is sustained by the board appointed to determine such questions as hereinafter provided, the vacancy or vacancies thus occasioned may be filled by the convention, caucus, meeting or primary, or other persons making the original nominations, or in such a manner as such convention, caucus, meeting or primary has previously provided. If the time is insufficient for again
(Section 1108:)
The name supplied for a vacancy by the certificate of the secretary of state, or by nomination certificates or papers for a vacancy filed with the county auditor, or city or town clerk, shall, if the ballots are not already printed, be placed on the ballots in place of the name of the original nominee, or, if the ballots have been printed, new ballots, whenever practicable, shall be furnished. "Whenever it may not be practicable to have new ballots printed, the election officers having charge of them shall place the name supplied for the vacancy upon each ballot used before delivering it to the judges of election. If said ballots have already been delivered to the judges of election, said auditor or clerk shall immediately furnish the name of such substituted nominee to all judges of election within the territory in which said nominee may be a candidate, and such election officer having charge of the ballots shall place the name supplied for the vacancy upon each ballot issued before delivering it to the voter, by affixing a paster, or by writing or stamping the name thereon.
(Section 1170:)
All canvasses of returns shall be public, and the persons having the greatest number of votes shall be declared elected.
Turning to the sections above quoted relating to the filling of vacancies upon a ballot, it would be uneandid to hold, upon the facts appearing in this record, that it was a practical possibility for the party officials to have filled the vacancy in time for the opening of the polls. With .one or two exceptions, none of these officials knew of the death until the following day and after the voting had begun. The precise question presented to us therefore is: Where a regular candidate dies only a few hours before election day, so that the time intervening between such death and the opening of the polls is so brief that fair compliance with the provisions of the statute for filling vacancies is impossible, and where the name of such dead candidate appears upon the official ballot at the time of the voting, and where the fact of his death is not generally known to the voters, and where a majority of the voters vote for him as a purported candidate, will the candidate having the next highest number of votes be entitled, as a matter of law, to claim his own election? This precise question is involved in some doubt. It has not frequently arisen, and the authorities are very few. Anal
It has not infrequently happened that ineligible candidates have been voted for by a majority of the voters. Though the candidate thus voted for by a majority cannot be declared elected because of his ineligibility, and the majority vote is thereby rendered ineffective for such purpose, yet it is quite uniformly held that such majority vote is effective to forbid the election of the candidate having the next highest number of votes. The effect of such majority vote is to render the purported election nugatory, and to leave a vacancy in the office thus attempted to be filled. State v. Speidel, 62 Ohio St. 156 (56 N. E. 871); State v. Giles, 2 Penney (Wis.) 166 (52 Am. Dec. 149) ; State v. Tierney, 23 Wis. 430; Barnum v. Gilman, 27 Minn. 466 (8 N. W. 375, 38 Am. Rep. 304); Crawford v. Molitor, 23 Mich. 341; State v. McGeary, 69 Vt. 461 (38 Atl. 165, 44 L. R. A. 446); People v. Clute, 50 N. Y. 451 (10 Am. Rep. 508); State v. Frear, 144 Wis. 79 (128 N. W. 1068, 140 Am. St. Rep. 992); State v. Bell, 169 Ind. 61 (82 N. E. 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. 203).
Some authorities make a distinction as between cases where the ineligibility of the candidate was generally known to the voters at the time of the voting and those cases where such ineligibility was not known. We have no occasion to deal with that distinction in the present case.
In cases where the candidate died upon election day, the authorities also seem to be-uniform. If, in such a case, the-majority or plurality of the voters vote for the dead candidate, such candidate cannot thereby be deemed elected. But such easting of the majority or plurality vote is nevertheless effective to prevent the election of the candidate having the next highest number of votes. State v. Speidel, 62 Ohio St. 156 (56 N. E. 871); Howes v. Perry, 92 Ky. 260 (17 S. W. 575, 36 Am. St. Rep. 591).
No case is brought to our attention holding otherwise on
The conclusion which seems to us the rational one in' the case at bar has definite support in State v. Walsh, 7 Mo. App. 142; Howes v. Perry, 92 Ky. 260 (17 S. W. 575, 36 Am. St. Rep. 591). The following excerpts from State v. Walsh will indicíate the general nature of the holding:
Yet, unless we depart from the principle upon which the only sound rule rests, we must hold that the ballots upon which was the name of Mr. Miltenberger are properly counted, not for himself, for he was not in existence, but against this opponent, so far as to render a new election necessary. The relator had no plurality of votes. The will of the electors was declared against him. He is not ‘the person having the highest number of votes, ’ to whom the certificate must, under the statute, be given; for these words imply that the successful candidate shall be the choice of the majority of voters who vote. Thus the case contemplated by the statute is not met. Through the death of one of the candidates immediately before the polls are open, an exigency arises not contemplated by the law, and the obvious consequence is a new election. It is not the accidental death of his opponent, but the votesi of electors, which should give the certificate to a candidate. If it is true that a majority vote operates only to elect, and, failing of that, goes for nothing, then the most innocent mistake of fact on the part of the majority — as, the
Without fully committing ourselves to the reasoning above quoted, we are in accord with the conclusion reached, so far as applicable to the fact in the case at bar. The cited ease was later followed by the same court in Sheridan v. St. Louis, 183 Mo. 25 (81 S. W. 1082, 2 Ann. Cas. 480).
Our citation of the foregoing Missouri cases is made with
What we hold herein is that, where the death of a candidate before the day of election is so recent as to render it practically impossible to properly fill the vacancy, and where a plurality of the votes are cast for the deceased candidate without knowledge on the part of the voters generally that he is deceased, the plurality vote thus cast will be effective to prevent the election of another candidate for the same office having a lesser number of votes. The appellant herein was therefore not entitled to claim election, and his petition was properly dismissed.
Such order of the district court is therefore — Affirmed.