139 N.W. 118 | S.D. | 1912
Lead Opinion
The people of this state presented to the Legislature of 1911 an initiative petition, seeking the enactment into law of a most comprehensive measure which, from the name of its reputed author, was and is known as the “Richards Primary Bill.” This bill was first introduced on February 1, 1911; it being sought at that time to have the Legislature enact it into a law, and with an emergency clause, so that it might go into full force and effect upon its passage by the Legislature and approval by the Governor. The bill as so introduced was finally defeated upon March 2, 1911. Upon February 25, 19x1, another bill was introduced into the Legislature, which sought the submission of this measure to the electors of the state for their adoption or rejection. This bill carried, and the measure was submitted to the vote of the electors. At the general election held on "November 5, 1912, this measure was enacted into law by the votes of the electors, and it went-into full force and effect upon the canvass of said votes, December 5, 1912. Sections 112-114 of said law (Laws 1911, c. 201) read as follows:
. “112. Official Party Indorsement — To Appointive Officers. Any party elector who wishes to become a candidate for an appointive government position, state or federal, except postmaster, which is otherwise provided for in this act, may file his written application for the official party indorsement for the office for which he is a candidate, stating therein his party affiliation with the secretary of state after" any primary election. date, and before the following general election date.
“1x3. Duty of Secretary of State — Party Indorsement Record. It shall be the duty of the secretary of state for the purpose*531 of preserving a record of applications for appointive government positions referred to in section 112 of this act to prepare and keep in his office a suitable record book of official party indorsements in which all said applications for official party indorsement shall be entered as received and from which they shall prepare and cause to be printed within ten days after the general election date, a separate list of such applicants of each party, giving the name, address and position for which each candidate has applied, and mail one copy of the same to each member of the party state central committee, including its chairman and secretary.
“114. Official Party Indorsement — How Determined. The party state central committee, interested, including its chairman and secretary and national committeeman, shall meet in the senate chamber at the state capitol at ten o’clock a. m. on the second Tuesday of December after the general election, and the members present shall constitute a quorum, and shall, at all times, act in public session and without subcommittees, as a committee of the whole, hearing applicants and receiving written recommendations from party electors, and shall proceed by ballot and majority vote to determine who shall receive the. official party indorsement as the recommendation of the party for any state and federal appointive government position. The chairman and secretary of said committee shall certify to such indorsement in writing and forward the same immediately for consideration to the person having the appointive power in state positions and to each of the United States Senators and Congressmen in federal positions as the official party recommendation, and shall send a copy of the same to the secretary of state, who shall enter the same in the record book of official party indorsements. * * * ”
“Any official party indorsement desired by any party elector as a recommendation to fill vacancies occurring during the interim of biennial meetings of the party state central cpmmittee shall be given by a majority of the party state chairman and national committeeman and the chairman of the applicant’s county, and a copy of their indorsement shall be likewise filed with the secretary of state.”
At the primary election held in June, 1912, and under the law then in force, certain .persons were chosen as the members of the Republican state central committee of this state. Some of
The respondent, answering the petition of relator, demurs thereto, and also denies that there was in existence, subsequent to December 5, 1912, any Republican state central committee. It is the contention of respondent that, upon the going into effect of the said “Richards Primary Bill,” all existing party state central committees were legislated out of existence, and that, inasmuch as no committee had been chosen under the provisions of the new law, there was no such committee in existence. Under the view we take of the case, we find is unnecessary to, and believe it would serve no useful purpose for us to, in any manner intimate our views upon this question.
It is the contention of relator that the provisions of sections X12 and 113, supra, are merely directory, and that an applicant for “official party indorsement” may file his application at any time prior to the second Tuesday of December; and it is even contended by such relator that the party committee may consider and indorse candidates for appointment who have never filed any applications under Section 1x2, supra. Respondent contends that the provisions of sections 112 and 113 are mandatory; that they provide •the only method through which there can be presented to a party
The relator takes the view that the provisions of sections 112 and 113 were enacted for the benefit of the applicant, and that therefore those things which he may do thereunder are permissive rather than mandatory. If his premise were correct, his conclusion would also be correct; but the provisions of these sections
Relátor lays great stress upon the use of the word “may” in section 112, wherein it is provided that a candidate “may file his written application. * * * ” In Dwarris on Construction of Statutes, p. 220, is announced, in a note by Judge Potter, the well established rule that “may, in a statute, means must whenever third parties or the public have an interest in having the act done which is authorized by such permissive language.” Bansemer v. Mace, 18 Ind. 27, 81 Am. Dec. 344. “Where a statute directs the doing of a thing for the sake of justice or the public good, the word ‘may’ is the same as the word ‘shall.’ ” Steines et al. v. Franklin County, 48 Mo. 167, 8 Am. Rep. 87; Rex. v. Barlow, 2 Salk. 609; Johnson v. Pole, 95 N. C. 68; Territory v. Nelson, 2 Wyo. 346; notes on page 162 of 6 L. R. A.; Bouvier’s Law Dictionary.
In closing we would state that, following the rule above announced, viz.: “A thing which is within the intention of the en-actors of a statute is as much within the statute as if it were within the letter thereof; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the enactors thereof”' — it is clear to us that, just as, under our old primary election law, a path was marked out which the candidate must follow, if he desired to be the “party” candidate for an elective office, and as, under such law, no elector could vote for any one as a “party” candidate for an office, unless such candidate had followed the path so marked out, so the present law has marked out the path which any one who seeks from his party committee an “official party indorsement” of his candidacy for an appointive office must follow, in order that he may be considered by such committee as a candidate/ and unless the road so marked out has been followed this law does not .clothe such committee with any power or jurisdiction whatever to give to him an “official party
The writ prayed for is denied.
Concurrence Opinion
(concurring specially.) I concur in the majority opinion denying the writ of mandamus in this proceeding, on the ground that the party committee now in existence has not been
Dissenting Opinion
(dissenting). To hold that the authority of the state committee is limited to persons who* have filed applications with the secretary of state requires, it seems to me, that “may,” in section 112, he changed to “must”; that the words “hearing applicants,” in section 114, be so changed as to read, “hearing applicants who have 'complied with the provisions of section 112 of this act”; and that the clause “and shall proceed by ballot and majority vote to determine who shall receive the official party in-dorsement” be changed as to read, “and shall proceed by ballot and majority vote to determine who, among such applicants, shall receive the official indorsement.” Without the interpolations indicated, or others of similar import, there is no warrant for interpreting “may” as “must” in the preceding section. On the other hand, the use of the word “may,” presumably used advisedly, indicates that the filing of a written application with the secretary of state was not intended to be a condition precedent to the consideration of any person’s qualifications for an appointive office. The power and duty of making indorsements having been expressly lodged with the state committee, without any express provisions limiting the exercise of such power to applications filed with the secretary of state, I do not think the power should be so limited by a forced construction of the statute, or by the interpolation of the words required to sustain the conclusion reached by the majority of this court. In absence of language clearly indicative of such a purpose, I could not conclude that any lawmaking body would intentionally declare that all indorsements and appointments shall be restricted to persons who seek public office. However, the question to be decided is not what the will of the sovereign power ought to be, but what it is, as expressed in the statute under consideration.
In my opinion, the application for the writ of mandamus should be granted.