Lead Opinion
This is an application for a writ of mandamus directed to the secretary of state, compelling him to insert the name of Olger Burtness in the Republican column on the ballot to be used at a special election to fill a vacancy in the office of Congressman from the first congressional district of this state. Accompanying the application a petition was presented asking that the secretary of state be enjoined and restrained from causing the names of Charles W. Plain, Fred T. Guthbert, and II. G. Vick to be certified or printed upon the ballot in any form or place. Both applications having been made in the interest of Burtness as the nominee of the Republican convention, they may properly be considered together. The facts appearing in the affidavits in support of the petitions and in the returns to the order to show cause are as follows: During the month of April, 1917, a vacancy occurred in the office of representative in Congress from the first congressional district of North Dakota, occasioned by the death of H. T. Helgesen, who had represented the district for some time prior thereto. Thereafter, on the 20th day of June, 1917, a delegate convention was held for the purpose of nominating a Republican candidate to fill such vacancy. On the 25th day of May, 1917, the governor called a special election for the purpose of filling the vacancy, setting the date for the election the 10th day of July, 1917. In the governor’s proclamation calling the election it was stated that nominations should be made under the provisions of § 501 of the Political Code of 1899, wherein provision is made for making nominations by petition. After the issuance of the proclamation, and more than thirty days prior to the date set for the election, petitions were filed with the secretary of state on behalf of Olger B. Burtness, Charles W. Plain, Fred T. Cuthbert, Ií. G. Vick, John Baer, and two other persons who are not concerned in this application, each petition bearing the signatures of the requisite number of
The chief questions raised and discussed upon the argument in this court on June 26th related: First, to the legality of the delegate convention method of nominating a candidate for election at a special election to fill a vacancy; second, to the regularity of the proceedings had in calling and holding the convention; third, to the applicability of certain sections of the election laws to special elections, particularly those
The attorney general contends that, since the adoption of the primary law, no convention may be held for the purpose of making party nominations to fill any office. ITe argues that § 24 of chapter 109, Sess. Laws 1907, this being the Primary Election Law, operates to repeal entirely those provisions of the statutes which formerly sanctioned the caucus-convention system as a method of making party nominations and continuing the party organization. He fortifies the argument by emphasizing the intent and spirit of the Primary Election Law as compared with pre-existing nominating machinery, and also by specific reference to § 34, chapter 109, Sess. Laws 1907, which expressly preserves § 501 of' the Eevised Codes of 1899 as a part of the election machinery to be coexistent with the primary election system. This argument is untenable. Section 2 of the Primary Election Law (Sess. Laws 1907, § 2, chap. 109), concludes with the following sentence: “Eor special elections for the officers enumerated herein [this includes members of Congress] the nominations shall be made as otherwise provided by law.” The repeal section of the same chapter (§ 41) reads as follows : “All acts and parts of acts in conflict with the provisions of this act are hereby repealed, in so far as they relate to the provisions of this act.’ Section 34 is as follows: “Nothing herein contained shall be construed as repealing or being in conflict with § 501 of the Eevised Codes of 1905 [1899].” Erom the language above quoted from the various sections of the Primary Election Law, it is quite apparent that the legislative assembly refrained from making any provision for choosing by the primary election method party nominees for offices to be filled at special elections, and it is equally apparent that it intended that such nominations should be made as otherwise provided by law.
At the time of the adoption of the primary law other methods were provided for making nominations at special elections. According to these methods party nominees could be selected in party conventions and individual nominations could be made by petition or in mass conventions. The fact that the primary law itself makes express provision for continuing in force other existing methods for the making of individual nominations, while, at the same time, providing that nominations preceding special elections may be made as otherwise provided bj law, is
It is true that the supreme court of Minnesota, however, yielding to a custom of making party nominations in sparsely settled counties in mass conventions, has held that the nominees of mass conventions, properly called and held in obedience to such custom for the purpose of placing in nomination candidates to represent a party, were entitled to recognition on the general election ballot as the representatives of such party. See Manston v. McIntosh, 58 Minn. 525, 28 L.R.A. 605, 60 N. W. 672. But such holding in no way detracts from the general rule that the primary purpose of sections similar to § 501, R.ev. Codes 1899, which is an integral part of the Australian Ballot Law, is to secure to the electors the right to have the names of candidates placed upon the ballot to represent principles other than those advanced by regular party representatives. We can see nothing in the section of the primary law, which merely continues in force the method according to which individual nominations may be made, that in any way conflicts with the right of the adherents of a political party to secure proper recognition for the party on the general election ballot. Bearing in mind that the repeal clause of the Primary Election Law only purports to repeal conflicting acts in so far as they relate to the provisions of the primary law, and that the law itself expressly excepts .its provisions from special elec
As to the regularity of the proceedings had in calling and holding the convention, we think little need be said. This, for the reason that, in our opinion, the convention was not held in such time as to entitle the nominee thereof to a place upon the ballot as a party nominee. Furthermore this issue is not directly raised by the pleadings. The executive proclamation calling the election is dated on May 25, 1917, and it fixes the date of the election as July 10, 1917. The validity of the ■executive act in this connection is not questioned. It determines absolutely for all purposes of this application the date of the election. We are not disposed to consider the effect, from any standpoint, of calling the election for the date named. As to the functions of the state central committeemen, the chairman of the state central committee, and the national committeeman in connection with the calling of the convention, and as to the propriety or the regularity of the call made by the national ■committeeman in conjunction with certain members of the Republican state central committee of the first congressional district, and of their ignoring the chairman of the state central committee, no question properly calling for a decision is raised. But one convention was held, and no one claims a superior right to represent the Republican party as its convention nominee. Furthermore, this application must necessarily be ■disposed of adversely to the relator, by considerations wholly apart from the regularity of the convention. This leads us to the third question •discussed upon the argument.
Counsel for the relator contend that the statutory provision (Comp. Laws 1913, § 994) regulating elections in general has no application to special elections, so far as time for certifying nominations is concerned. This argument is drawn largely from § 973, Comp. Laws 1913, but in our opinion the language of this section does not warrant so broad a conclusion. This section originally appeared as § 8 of chapter 66, Session Laws of 1891. It then provided that the certificates of nominations to' be filed with the secretary of state should be filed not more than sixty days or less than thirty days before the date fixed for the holding of the election, and that the certificates of nomination to be filed with county auditors should be filed not more than sixty days, and not less than twenty days, before the election; and it contained the
It must be remembered that the sections under discussion are but parts of the original Australian Ballot Law, adopted in 1891, which was intended to apply as a whole to both special and general elections. It makes a radical change from the pre-existing laws on the subject, and it provides in considerable detail for the administration of the system therein inaugurated. It specifies that certain certificates of nomination shall be filed with county auditors and others with the secretary of state. It is specific as to the time for the filing of certificates of nomination and certifying them to other officers whose duty it may be to provide for the printing of the ballots in order that they may be in turn distributed by yet another set of officers. Bublic notice of nominations is required to be given for a period of ten days, and such notice is peculiarly important as applied to special elections. McCrary, Elections, §§ 182 — 185. The adoption of counsel’s argument would leave special elections absolutely devoid of legislative regulation in regard to many matters covered by the original Australian Ballot Law, which matters are as appropriate subjects of legislative regulation in connection with special elections as with general elections. It would require
In the defendant’s return it appears that a certificate, purporting to. certify to the nomination of John M. Baer as the nominee of the Republican party, has been presented to the defendant. The certificate purports to be that of the executive committee of the Republican state central committee, and, in support of such nomination of Baer, it is urged that if, in any event, any Republican nomination was proper to be received and filed after the time fixed by statute, such nomination of Baer is the only one that could be recognized. So little argument was advanced in support of this claim that we feel justified in saying that it was not seriously urged. At any rate, it was only presented for consideration in case it should be held that a Republican nominee was entitled to a place on the ballot in the party column. It is clear, however, that neither the executive committee nor the state central committee would have power to make an original nomination. This could only be done by convention, regularly called in accordance with the statutes and the customs and practices of the party, or by primary election, where authorized. The power of party committees to fill a vacancy on the ticket, under §§ 977 and 978, Comp. Laws 1913, is. only a power to supply a nomination where one has been made but has since become vacant.
Since, then, the provisions of our Political Code, which make it the ministerial duty of the secretary of state to receive certificates of nomination and to abide by requests of nominees as to the appearance or nonappearance of the names upon the ballots, are equally applicable to special elections and general elections, since the provisions as to the time for doing the various acts required are a proper exercise of legislative control binding upon this court as well as upon the secretary of state, and since the ministerial duties devolving upon the secretary of state in connection with the special election in question had been fully performed before the various requests hereinbefore referred to
For the reasons indicated, the mandatory writ and injunctional relief asked for by the relator and plaintiffs are denied, as is also the request made on behalf of defendant for recognition of Baer as the Republican nominee.
Concurrence Opinion
(concurring specially). This motion does not involve any dollars or cents, nor the right to an office. It is merely a contest for a party label. It is a political motion in which certain parties are sparring for an advantage at a special election for representative in ■Congress to succeed the late Mr. Helgesen. It is an attempt to resurrect the old political caucus and convention system which has been dead and buried for a score of years.
Pursuant to authority by law vested in the governor on May 25, 1917, he issued a proclamation calling for a special election to be held -on July 10, 1917; and in the proclamation it is stated that the nominations of candidates to be voted for shall be made under § 501 of the political Code of 1899, wherein provision is made for nomination by petition, and that the public and election officers take notice and act accordingly.
On May 20, 1917, the secretary of state issued a proclamation reciting that of the governor, and stating that under the ruling of the attorney general nominations must be made by petition, pursuant to § 501 of the Code of 1899,'and that all candidates will be required to file their petitions in the office of the secretary of state not less than thirty days prior to the date of the election.
Pursuant to the statute and the proclamation, Olger B. Burtness and several other parties filed certificates of nomination thirty days before the election, and in like manner John M. Baer, of Fargo, filed a certificate of nomination signed by several thousand voters. (Seven thousand it is said to be.) He also filed a certificate of nomination signed by William Lemke and others as the chairman and executive committee of the Republican state central committee. The statute provides that, not less than twenty-five nor more than thirty days before
Now it appears that at Grand Forks on June 20, 1917, twenty days before the election, there was held a convention of 196 persons, claiming to be Republican delegates of the first congressional district, and that at such convention Olger 33. Burtness was declared the nominee of the Republican party for representative in Congress, and he offered to file a certificate of such nomination with the secretary of state; and the secretary declined to file it, insisting that the nominations must be made according to the statute and the proclamation of the governor. Now, though the nominations may have been certified to the county auditors before the holding of the Grand Fox*ks convention, and though the ballots xxxay have heexx printed, the court is asked to issue a mandate to the executive department or the secretary of state commanding him, in effect, to undo all that he has done, and to permit Mr. Burtness and other candidates to decline and withdraw their nominating petitions and to file his noxnixxating certificate, and to certify such nomination to the couxxty auditors, so that the xxame of Burtness may appear on the ballot as the Republican eaxxdidate. It is claimed that the Gx*and Forks convention was held in accordance with the old caucus and convention system which has not been in use since the adoption of the Prixxxary Election Laws; but there is no proof to sustain such claim, and the presumption is against it. In fact, after the date of the governor’s proclamation, the tixne was xiot sufficient for the giving of notices, the holding of caucuses, the holding of county conventions, and the electioxx of delegates to a congressional convention. And it does not appear that the call for such a convention was made by any authorized persoxx, nor that axxy person had a right to overrule the governor and the executive department in regard to the manner of making the nominations. It was purely a political axxd party act; and the governor, the secretary of state, and the attorney general had been elected as Republi
However, it is entirely clear that the old caucus system has been wholly abrogated. At general elections all party nominations must be made in accordance with the Primary Election Laws. At either general or special elections, individual or independent nominations may be made by procuring and filing with the secretary of state a certificate of nomination signed by the requisite number of voters, as provided for by § 501, Code 1899; Laws 1891, chap. 66; Laws 1893, chap. 60; and in that way the nominations in question were duly made and certified to the county auditors, — and that is the end of the matter. The only purpose of this proceeding is to secure a party label for one of the candidates. It is not the province of the court to label them or to supervise the political, discretion and action of the executive department. Eull faith and credit must be given to the official action of the Republican central committee and its chairman, yet the nomination of John M. Baer must rest on his petition, signed by thousands of voters, in accordance with the statute and the proclamation of the executive department. We do not overlook the fact that the time limit fixed by the statute for the doing of certain things does not necessarily apply to a special election, but in this case it was necessary and proper for