4 Wyo. 56 | Wyo. | 1892
Lead Opinion
ON MOTION TO QUASH THE ALTERNATIVE WRITS OE MANDAMUS.
The alternative writs of mandamus in the above entitled causes presenting substantially the same array of facts, were allowed by the chief justice of this court during the recess and vacation of the court, and were each made returnable by him to the court at the first day of its ensuing adjourned term.
The power to allow the writ by a justice of this court is not expressed in the constitution of this State. The provisions of that instrument conferring the jurisdiction upon the supreme court is “original jurisdiction in quo war-ranto and mandamus as to all State officers, and in habeas corpus.” Each of the judges of said court has power under the same section of the constitution to issue writs of habeas corpus to any part of the State upon petition by or on behalf of a person held in actual custody, and may make the writ returnable before himself or before the supreme court, or before any district court of the State or any 'judge thereof. Con. Wyo., Art. Y, Sec. 3. The power and authority to issue the alternative writ of mandamus by a member of this court is wholly dependent upon the following provision of the Revised Statutes of this State, and by implication in the constitution: “When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not ¡oerforming it, a court may, in the first instance, allow a peremptory mandamus; and in all other cases an alternative writ must first be issued on the allowance of the court, or a judge thereof.” Rev. Stat. Wyo., Sec. 3077. The sections of the Code of Civil Procedure relating to mandamus were enacted prior to the admission of the State into the Union and before the constitution took effect thereby, under the powers bestowed upon the supreme and district courts by congressional and legislative enactment. All laws in force in the territory of Wyoming at the time of the taking effect of the constitution of the State, not repugnant to the same, remain in force until they expire by their own limitation, or be altered or repealed by the legislature. Sec. 3 of Art. XXI, Con. (Schedule). The Revised Statutes of the Territory and the session laws following the revision, in so far as they do not conflict with, or are repugnant to the provisions of the con
We have examined with much care the case of In re Garvey, 7 Colo., 502, 4 Pacific, 758, where it was held that under the power conferred by the constitution of that State upon its supreme court “to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same,” this clause by clear implication forbade the exercise
In the Missouri constitution the power to issue the writ of mandamus is lodged in the supreme court, yet a statute providing that a member of the court could issue the alternative writ was held not to violate that provision. The same ruling would apply as to the power to issue the writ of habeas corpus
Under our statute, a single justice of this court, as well as the court itself, may hear an application for a writ of error in a criminal cause and allow the same, and he may order a suspension of the execution of a sentence of the court appealed from, even in a capital case, until the writ of error is heard and determined by the supreme court. Section 3354-6, Rev. Stat. Wyo. It certainly will not be contended that these statutory provisions, so essential to the right of the accused, in bestowing this necessary power upon a judge of this court, are repugnant to the constitution of -this State, because that instrument confers upon the supreme court appellate jurisdiction in both civil and criminal causes and a general superintending control over all inferior courts, under such rules and regulations as may be prescribed by law, and does not in express terms'give any judge of that court any judicial power except to issue writs of habeas corpus returnable before himself or his court or any district court or judge thereof. It seems that such powers bestowed upon a single judge of the court of last, resort by statute is essential to the preservation of and incident to its appellate jurisdiction. So in the case of the statute providing that the alternative writ of mandamus may be allowed by a single judge of the court, as a means of procedure, in vacation or recess of the court to bring the case before the court; it does not destroy or impair the original jurisdiction of the supreme court in such cases, but invokes it in the only manner it can be invoked when the court is not in session. It is true that the writer of this opinion has heretofore entertained a different view from that. expressed herein, and refused in one instance to allow the alternative writ, stating as one ground of refusal that such a writ could not be issued in vacation; but the writ was refused on another ground, which was conclusive, and that was that the writ prayed for would run to one not a State officer. To sustain such a position as to right to allow the writ in vacation where this court has original jurisdiction, taken as it was on an
On the ground that the allowance of the alternative writ is merely a method of procedure to set in motion the original jurisdiction of this court in mandamus to State officers, and is not expressly or by fair implication inhibited by the constitution, we hold that such a writ may be allowed by a justice of this court in vacation or in the reeess of the court. The only express inhibition upon the legislature as to the imposition of judicial duties upon this court or any member thereof is found in Section 16 of Article 5, of the State constitution. It is as follows: “No duties- shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial,” etc.
This might necessarily imply that some judicial duties might be imposed by statute upon the judges of this court, as well as upon the court itself. Certainly this could be done where such duties would not exclude, interfere with, or absorb any of the functions of the court. The issuance of the alternative writ of mandamus is not such a ease.
The motions to quash are overruled.
ON MOTION TO STRIKE OUT CERTAIN ALLEGATIONS IN THE PETITIONS AND TO MAKE THE PETITIONS MORE DEFINITE AND CERTAIN.
A motion was interposed by defendants to strike out certain portions of the petition in each of these causes. These are allegations of fact as to the vote and return of the vote at Hanna Polling Precinct and the action of the State board of canvassers thereon. The State board of canvassers can act only on the return made to it by the county clerk. The inquiry in this court is directed to two leading points:
2. Was the action of the State board erroneous upon the return as presented?
We have endeavored to purge the record of matter not pertinent to either of these inquiries. The propriety of doing so is quite apparent. If such matter were allowed to remain in the petition and were denied by the defendants, it would devolve upon both parties, as a matter of ordinary care and precaution, at least, if not as a matter of necessity, to prepare for trial upon these irrelevant issues. And a demurrer would involve the admission of the truth of irrelevant matters of fact, of the effect of which there might well be doubt. Neither court nor counsel should be employed in the consideration of such matters. Another motion has been presented to require relators to make their petitions more definite and certain. The law requires the canvass by the State canvassing board to be made in the presence of the governor. The ground of the motion is that the petition should show this fact. We think this is not necessary. The presumption is that these officers of the law did their duty and observed the requirements of the statute in their official action. It is not necessary to allege and show affirmatively matters of fact which the law presumes from other facts, which are alleged. Sections 2477 and 3083, Rev. Stat. Wyo. (Code of Civil Procedure).
The motion to strike out is sustained as to paragraphs 1, 2 and 5, as indicated by counsel, and overruled as to paragraphs marked 3 and 4. The motion to make the petition more definite and certain is overruled in each case.
ON DEMURRER TO PETITIONS AND ALTERNATIVE WRITS OP MANDAMUS.
The petitions for mandamus in these cases set forth in extenso, with various matters of inducement and explanation,
These two abstracts of votes appear in a single paper over the official certificate of the county clerk. Defendants, constituting the State canvassing board, counted the abstract made by the county clerk as the official return of the vote of Carbon County. Such count results in the defeat of relators. Relators claim that the abstract made by the two justices of the peace is the actual legal official return of the vote of Carbon County. If counted as such it results in their election. They ask the writ of mandamus of this court compelling the State board of canvassers to so count this abstract.
Defendants demur in each case on the following grounds:
1. The said petition and the said alternative writ do not set forth any circumstances which render it necessary or proper that a writ of mandamus should issue originally from ■this court.
2. It appears upon the face of the said petition and the said alternative writ, that this court has no jurisdiction of the subject of this action.
3. Heither the said petition nor the said alternative writ states facts sufficient to constitute a cause of action.
4. Heither the said petition nor the said alternative writ state facts sufficient to entitle -the plaintiff to the relief prayed for, or to any relief.
The first objection is merely formal, and is waived as tending to delay in presenting an amended petition, all parties desiring an early decision. The second objection, which is to the jurisdiction, is founded upon constitutional and statutory provisions to the effect that each house shall judge of the elections, returns and qualifications of its own members. It is
If the effect of the decision of this cause could be as extensive in its scope as have been some of the discussions of counsel this objection might be valid. In connection with vigorous strictures upon political methods, the courts have been mentioned as the last bulwark of the rights of the people. This is a high compliment to the courts, and one which they should endeavor to deserve. But in cases like the present, it is hardly appropriate. In such cases, the courts are not the last or the principal bulwark of the rights of the people in choosing their representatives. The final and plenary jurisdiction, upon which the people must rely in the last resort in such cases is that of the house of representatives itself. And courts will not entertain the idea that other tribunals, in which the constitution and the laws have vested some small portion of judicial power, will not exercise such power with as much wisdom and justice as could the courts.
But the decision of this cause can affect only the action of the State board of canvassers. The action of the State board of canvassers, whether directed by the court or not, cannot affect the authority of the house of representatives. The second ground of demurrer is not well taken.
The third and fourth grounds of demurrer are similar in their nature and may be considered together. These grounds of demurrer are that the facts stated are not sufficient to constitute a cause of action, or to entitle 'relators to the relief prayed for, or any relief.
The constitution of the State of Wyoming confers upon the supreme court of the State original jurisdiction in mandamus as to all State officers. The statute defining and regulating the procedure in mandamus defines mandamus as “a writ issued in the name of the territory to an inferior tribunal, a corporation, board or person commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Rev. Stat., Sec. 3073. This
What is the nature of the assistance to be rendered by these justices of the peace? Is it merely by their presence to enable the clerk to open the returns and make abstracts of the votes as sole canvasser, or do they, with the clerk, constitute a board of canvassers which can act by a majority of its members? The following section, 138, provides that “in canvassing the returns.the vote of every precinct returned within fifteen days after the election to the county clerk shall be counted and the canvassers shall not throw out the vote of any precinct so returned.” Who are the canvassers, who, but for this provision, might throw out a precinct? The next section, 139, provides that the county clerk immediately after making, out abstracts of the votes given in his county shall make a copy of such abstract and transmit the same by mail or by some proper person to the office of the secretary of the territory. A copy of what abstract should he so transmit, an abstract made by himself and by his own sole authority, or one made by authority of a board of canvassers consisting of himself and the two justices of the peace called to his assistance? It is primarily necessary to determine the character in which the two justices of the peace appear; whether as canvassers or members of a canvassing board, or merely as attendants upon the county clerk acting as sole canvasser. The cases of O’Ferrall v. Colby and Bryant v. Colby, 2 Minn., 180, were decided under a statute requiring the clerk of the board of supervisors, taking to his assistance two justices of the peace of the county, to proceed to open the returns and make abstracts of the votes. It appeared from the pleadings that in the canvass so made the return of the vote of one precinct was rejected resulting in the defeat of the plaintiffs, whereas, had it been counted, they would have been elected. On this showing the court required the clerk, by its peremptory writ of mandamus, to issue to the plaintiffs certificates of election as state senators. The court remarks in its opinion that the “justices of the peace who were called to the assistance of the clerk were selected by the clerk himself; and their fitness
“On or before the tenth day after the close of any election, or as soon thereafter as all the returns are received, the county clerk or auditor shall take to his assistance a majority of the county commissioners of the county, or the county treasurer, judge of the county court and one county commissioner, none of which persons so called shall he candidates for office, unless there is not sufficient of said officers who are not such candidates, and shall proceed to open the returns from the various precincts in said county, and make abstracts of the votes in the following manner.” Another section provides that “if the county auditor or county clerk, as the case may be, is a candidate for office, he shall take no part in the canvass, hut shall act as clerk for the said hoard of canvassers for the county,” etc. This would seem to be a legislative construction of the section first quoted to the effect that the clerk or auditor together with the other State officers taken to his assistance constituted a hoard of canvassers, and this seems to he the view upon which the court acted. The case of the People ex rel. Fuller v. Hilliard et al., 39 Ill., 413, was decided under a statute providing that on the seventh day after the election, or sooner if all the returns he received, the clerk of the county court, taking to his assistance two justices of the peace of his county, shall proceed to open said returns and make abstracts of the votes in the following manner,” etc. The clerks and justices are considered by the court as can*76 vassing officers, and are mentioned as “tire board.” In commenting ripon the matter, the court says: “These officers are clothed with no discretionary power. They are to open The said returns/ and make abstracts of the votes aS they appear in said returns, and the clerk is to deliver a certificate of election to each of the persons, having the highest number of votes, as manifested by The said returns/ They are not allowed to reject any returns, or to decide upon their validity, if on the face, they are made in compliance with the law, and in the form prescribed by the statute.”
In the case of Dalton, Clerk, v. The State ex rel. Richardson, 43 Ohio State, 652, under statutes similar to ours, the court treats the clerk and the two justices of the peace called by him to his assistance, as canvassers, and mentions them as “the board.”
In Bowen v. Hixon, 45 Missouri, 340, which was decided under a statute requiring the clerk to take to his assistance two justices of the peace of his county, or two justices of the county court, and examine and cast up the votes of each candidate, the court says, it is simply a plain ministerial duty of the clerk aided by the two magistrates requiring sufficient knowledge of arithmetic and moral honesty to count correctly, and clerical ability to make the certificate, and the three officers are called “the board.” The decision is that, having completed their duty, they could not legally reconvene of their own motion, and make another canvass and declare a different result.
The case of The State v. Hill, 10 Feb., 58, was decided under a statute requiring the county clerk, together with two disinterested electors of the county, to be chosen by himself, to open the returns and make complete abstracts of the votes cast for each several office at said election. The court says it seems quite clear that it is the duty of the clerk and his two assistants, who are usually — though not very accurately-called the board of canvassers, to tabulate the votes contained in each one of the returns, or in other words, the returns received from each of the precincts, and in ascertaining the result, to add up the votes given for each candidate respectively, as returned from each precinct, from which a re
In the ease of Magee v. Supervisors of Calaveras County, 10 California, 376, the court refused a writ of mandamus to compel defendants, canvassers of the county, to issue a certificate of election to plaintiff, the canvassers having declared the result of the election adversely to him. The court says: “By law it is the duty of the supervisors to canvass the returns of the vote of that county, and to ascertain and declare for whom the greater number of legal votes are east. If they neglect this duty, the court will award a mandamus to compel them to act, but cannotcontrol their action.” If bythe law of California the supervisors as canvassers were invested* with authority to determine the legality of the votes cast and count only legal votes, this decision is clearly correct. Such seems not to be the law of most of the States or of Wyoming. ■ It would seem that under statutes like ours, the courts are substantially unanimous in considering the county clerk and the officers whom he calls to his assistance as all acting officially as canvassers in opening the returns and making abstracts of the
The county clerk has acted with perfect fairness from his view of the law. He has placed the State canvassing board, and through it, this court, in possession of the exact facts as to the action of himself and his associate canvassers in making the canvass of the Carbon County vote. We must consider the copy of the abstract made by the two justices of the peace as the one authorized by the action of the majority of the board and as the legal and official return to the State board of canvassers of the vote of Carbon County.
It results that the State board has not canvassed the return
The demurrer is overruled.
ON DEMURRER TO ANSWER.
As this is a case of public interest, in order to avoid any possible misunderstanding as to what really has been decided or what is now to be decided in the case, we will state that it is not an election contest.
The ultimate right of relators or either of them to any office can not be determined in this action. The question of fraud or illegality in the voting of any precinct can hot be considered, in this action.
Such questions could not lawfully be considered by the county canvassing board of Carbon County, or by th'e defendants, the State canvassing board, and can not be considered by this court in this action. "What has been decided in overruling the demurrer to the petition is that the county canvassing board of Carbon County, having found by a majority of its members, that there was a return before it of the vote of Hanna Polling Precinct, it properly proceeded to canvass and make an abstract of that vote, with the vote of other precincts, and that the copy of that abstract was the proper official return of the vote of.Carbon County, and that the State canvassing.board should have accepted it as such, and that the State canvassing board is subject to control by mandamus in the discharge of such duty. Upon the overruling* of demurrer of defendants to petition of relators, defendants filed their answer to the petition, and relators, in their turn, now demur to that answer. This answer and the demurrer thereto raise the further question, which is the question to be
Each of relators alleges in his petition as part of his canse of action that he was regularly nominated by a convention of the Democratic party, that his nomination was duly certified in the manner required by law, and that certificates thereof were duly and regularly filed in the proper offices, and that his name was duly printed upon the official ballots. Defendants in their answer in each case deny that any nomination was ever duly or otherwise certified in the manner required by law or otherwise; and deny that any certificate thereof was ever duly or otherwise filed in the office of the county cleric of either of the counties of Carbon and Natrona. . And defendants allege in each case that the name of relator was unlawfully printed upon the official ballots in said counties in this, that no certificate of nomination had ever been made or filed in any public office presenting the name of relator as a candidate; and that no votes were cast for the said relator in either of said counties in any other way than by placing a cross opposite the name of relator where the same was printed on the official ballots.
It is not necessary to state to lawyers that a demurrer admits the truth of the pleading demurred to. In ruling on defendants’ demurrer to petition of relators, we were compelled to consider, the statements in the petition as true. In ruling on this demurrer, we are compelled to consider the statements of the answer directly to the contrary effect as true.
The demurrer is general; that is, that the facts alleged are not sufficient to constitute a defense to the action.
In support of the demurrer, it is urged that the only questions that can be considered have already been determined; that is, that the State board of canvassers did not canvass the actual, legal return from Carbon County, and that they may be required by mandamus to do so. But the authorities are to the effect, with substantial unanimity, that a private individual, in order to entitle himself to a writ of mandamus in any case, must show a legal interest in himself in the result of the proposed action. The writ of mandamus is an extra
Relators Contend that the-validity of their- election cannot be considered in. this action. , In support of sufeh contention, their attorneys cite the State ex rel. Piggott v. Board of Canvassers, 31 Pacific, 536 (Mont.), decided November 19, 1892. That was an action to restrain a board of canvassers from canvassing votes cast- because of informality in the certificates of nomination of candidates.- The court denied the writ. The decision is correct law according to.ihe views-already expressed by this court in this case: The. canvassers in common but expressive, language, cannot'“go behind the returns,” and should not. be compelled to. do- so by mandamus. But this does not touch the.quesfion of the standing of relators in .this court, or their right to maintain their actions. The case of The People ex rel. Henry Bradley et al. Respondents v. Thomas G. Shaw et al. Board of Canvassers, 133 N. Y., 493, is cited for relators. - Relators were candidates for the several town offices of the Town of Minerva, Essex County. They
The case of Bowers v. Smith, 20 S. W. Rep., 101 (Missouri), is also'cited for relators. This was a proceeding by Bowers to contest the election of Smith, who, received a plurality of the votes cast, to the office of sheriff of Pettis County. Contestant Bowers did not claim that defendant Smith’s name was illegally printed on .any official ballots. His claim was that the official ballots printed by the county clerk for use in the City of' Sedalia contained among others the names of thé nominees of the Union Labor party, and that party had not polled three per .cent, of the entire.vote at the last previous general election as required by statute to entitle them to have
We have now' to- inquire* -taking' the statements ás true that ho certificate of the'nomination of relators was ever made or filed,-and-that their names were consequently-unlawfully printed upon -the official ballots, and that no votes were cast for them in either Carbon or Natrona- Counties in any other way or manner than by placing-a cross (X)-opposite their names, do these facts invalidate their election?
This-involves the question as to what extent our statutory provisions are-mandatory to the -extent that they cannot be disregarded without invalidating- elections- held under -them. These statutes; popularly known as the “Australian ballot law,” are of comparatively recent introduction into the United States, and the decisions upon this point are very scarce. We can-only avail-ourselves-of such assistance as these meager authorities -give us in deciding this important question. • It is. a duty-we would gladly be excused from, but cannot evade.
The cases of Allen v. Glynn and Bowers v. Smith, supra, have been- sufficiently commented upon and distinguished from the-case at bar. The case of the People ex rel. Nichols v. Board of Canvassers, 129 N. Y., 395, goes far in holding the
With the best light upon the matter within our reach, we feel constrained to overrule the demurrer.
Demurrer is overruled with leave to the relators to reply.
ON DEMURRER TO REPLY.
This cause now assumes a new phase. The demurrers to the answer already decided were an admission of the truth of those answers.
They contained among other things allegations that the names of relators were unlawfully printed upon the official ballots, in that no certificates of their nomination had been filed. The court held in effect that the filing of such certificates was necessary, that the statute requiring such filing is mandatory, and that without the filing of such certificates re-lators’ names could not lawfully be printed upon the official ballots, and if so unlawfully printed the election of relators would be invalidated. The demurrers of relators being overruled they filed their replies. These replies are now demurred
These replies allege that relators -were duly nominated by a Democratic convention held at Rawlins in Carbon County on September 27th, 1892, as candidates for election to the House of. Representatives, to the Second Legislature of the State of Wyoming from said county, and that certificates of such nominations were duly filed as required by law. These certificates are exemplified by copy. They are precisely similar in form even as to every word, letter and punctuation mark. The following is one of them in full:
“CERTIFICATE OE NOMINATION.”
. We, the undersigned, do hereby certify that S. B. Bennett, a resident of Baggs, Wyoming, whose business is stockgrower has been nominated for member of house of representatives, and that the convention making the nomination is Democratic.
William Daly, ■ Rawlins, Wyo.
Chairman. Residence.
. P. P. Shannon, Secretary. Carbon, Wyo. residence.
State of Wyoming, ) ' Carbon County." j
I, the undersigned, being duly sworn, do depose and say that I was the officer, I above represent myself to be the above named convention, and that the above certificate and the statements therein contained, are true to the best of my belief. So help me God.
William Daly, Chairman. Rawlins, Wyo. residence.
Subscribed in my presence and sworn to before me this 11th. day of October, A. D. 1892.
Charles P. Hill, Hotary Public.
State of Wyoming, ) Carbon County, jss'
. I, the undersigned, being duly sworn, do depose and say that I was" the officer I above represent myself to be the
F. P. Shannon, Secretary. Carbon Wye. residence.
Subscribed in my presence and: sworn: to before me this 12th. day of October, A. D. 1892.
Lou R. Meyer, Notary -Public.” -
This is one of the certificates which are claimed by the defendants to be no certificates, or insufficient to answer the requirements of the law. The other is precisely like -it. What we say of this one applies to both. Relators, on the contrary, claim that the objections to-the certificates-are merely formal and technical, and that the certificates do not fall short of the requirements of the law i-hany essential particular. Our election law; after providing'that any convention or primary meeting may. nominate candidates;, proceeds as. follows:- < " ■ '
’ “Sec. 86. All nominations-made by such convention or primary meeting shall be certified as follows: The certificate of nomination, which shall be in writing, shall contain the name of each person nominated, his. residence, his business, and the office for which-he is named; and¡ shall designate in not more than five words the party or principle which such convention or primary meeting represents.” Laws of 1890, p. 168.
It is objected, to the! certificate -under'consideration that it does not state that the nomination was-made by an organized assemblage of electors ’or delegates representing á-political-party. This is not required to be stated-in the certificate. It is sufficiently apparent from the certificate -that the nomination was made by a-convention. The statute defines the word ^convention” as follows:-
“See. 85. A convention or primary -meeting - within the meaning of this act is an organized assemblage of electors or delegates representing a political party.” When the word “convention” is used, all this is meant and understood. '
It is objected that the certificate does not show when or where the nomination was made. The statute does not-re
Speaking of the certificate, the statute continues: “It shall be signed by the presiding officer and secretary of such-convention or primary meeting-who shall add to. their signatures, their respective places of residence- and make oath before-an officer qualified to administer the same that the affiants were such officers of such- convention or such- primary meeting, and that said certificates' and the statements therein contained are true to the best of their knowledge and belief. - A certificate that such oath has been administered shall be -made and signed by the officer before whom the same was taken.” . It is claimed that the affidavit to the. certificate in question does not fulfill, these requirements, but .that it -is seriously- defective.. It is true that it is seriously defective. --'Is this defect sufficient-to render the certificate void? If it has this effect, then, by the great preponderance of--authority, both English and American, relators had no right to have their names upon the official ballots and their election is invalid: This involves the inquiry to what extent the provisions of our election laws are mandatory as distinguished from directory.- - As intimated. in our opinion on the demurrer to the answer of defendants,' it seems that American courts -axe -not .disposed to enforce so strict .a rule of construction as are-the English courts.
A fair summing up of the--result, of, American decisions is found in McCrary on Elections, Section 192: .“The rule of construction to be gathered from all the’ authorities was thus stated in Jones v. State (1 Kan., 273) and approved in- Gilleland v. Schuyler 19 Kan., 569): -‘Unless a fair consideration of the statute shows'that the.'legislature intended compliance with the'provisions in relation.to -the manner to be.
These views are in no degree relaxed in more recent decisions arising under the Australian ballot law. It seems that there is a principle underlying these decisions which we have nowhere found stated in terms, but which would sound something like this. Whatever is an essential part of the system, or something without which the legislature would not have adopted the balance of the system, or is essential to the orderly working of the system according to the intent of the legislature, must be regarded as mandatory. At least this
Concurrence Opinion
concurring.
I dissented from the- views of the- majority of this court overruling the demurrer to the answer.' It was sought by the answer, or return, to raise the question as to whether or not the'nominations of the relators had been certified, or whether or not a-pioper-Certificate -thereof had been duly-filed with thmproper- officer...- Although the petitions for the writ allege the nomination of the relators by a convention representing the Democratic party, as candidates for election to the House of - Representatives to the - Second- Legislature for the legislative district- composed of the counties of Carbon and Natrona; and that-the nominations were duly certified in the manner required- by law; ’ the answer or return denies these facts; I-do not- think that these matters were properly in issue -in -this- proceeding. It seems- to me that it was ■ not necessary to allege that the relators were nominated at' all. The answers severally set up that' “the said- defendants allege that the name of- the said relator was' unlawfully -printed upon the official ballots in the said counties of Carbon and Natrona as a candidate -for the House of Representatives of said State for the district composed of said counties, in this, that no certificate of nomination has ever been made or filed in any public office'-presenting the name of said relator as a candidate or nominee for such office; and that the said defendants' allege -tha-t-no- votes were • cast-.for relator- for said office in either- of- said counties.in any other Way.or-manner than by placing a cross (X) opposite the name of- relator where the same -was printed on the official -ballots.” This allegation was probably made for the purpose of showing that no' elector voting for - either of the relators had written his name on the ■official ballot, which'is permitted by statute. Suppose this fact had been denied in the reply-and an -issue had been made'
I do not see why this law should be more strictly construed than any other statute, or why different rules of construction from those invariably followed by the courts-should be adopted in construing this statute. The rigid rule-of construction adopted in England, as shown in the opinion in Price v. Lush, supra, is monstrous.
No American case, with the exception of the Montana case, has gone so far as to establish the doctrine that the failure of the officers of a political nominating convention to properly certify the facts required to be certified by statute, would deprive such a candidate of the office to which he was elected. The provisions of the statute in this respect is to my mind for the guidance of the officer who prepares the official ballot. The list of candidates must be published, and this is the notice-
In some States statutory provision is made for objecting to the certificates within a fixed period after they have been filed, but no such provision is incorporated in our law. Yet, it seems but reasonable that provisions having been made for public inspection of the nominating certificates, which must be filed a certain period before election, ample time is afforded for making objections to them or the action of the officer in accepting or rejecting them, prior to their printing and distribution. It appears to me that all such matters would be reached in the courts where the statute is silent. If no objection is made, before the printing of the ballots, and certainly if none is made before the election, I do not think it could be made after the election, and thus operate to defeat the will of the people as expressed at the ballot box.
Our election law was undoubtedly designed! to protect the elector from fraud, imposition, intimidation and debauchery; to make him absolutely free while exercising his choice for public servants. It was intended to secure honesty and freedom to the voter and to render ineffective his corruption. It was never intended to serve as a cloak for disfranchisement, and should nót be so construed as to render it possible for an official to ignorantly or designedly mislead or disfranchise any elector; if such was the intention it would have been better if the law had never been enacted. It could be no improvement on former statutes which have been invariably con
I have read with much interest and profit the case of Bowers v. Smith, 20 S. W., 101 (Missouri); Allen v. Glynn, 29 Pacific, 670 (Colorado), and I believe that the reasoning of the majority of the courts in those cases fairly applied to this case will sustain me in my views.
I concur in the result.