199 P.2d 463 | Kan. | 1948
This was a proceeding in mandamus, on behalf of the state, to require a county clerk to place on the general election ballot as a Republican nominee for county commissioner the name of a person who had received “write-in” votes at the August primary sufficient to give him the nomination. Judgment was for the state, and the county clerk appeals. In view of the public interest involved, the appeal was heard as an emergency matter soon after it was filed on October 30, 1948, and was then promptly considered and announcement made that the judgment would be affirmed, with formal opinion to follow. The appeal is here upon findings of fact by the trial court.
At the regular August, 1948, primary election in Morton county, the names of John M. Hardwick and Jim Kelly appeared on the printed Democratic ballot as candidates for the Democratic nomination as county commissioner from the third commissioner district of the county. No one had declared as a candidate for the Republican nomination for the office and consequently no printed name appeared on the Republican ballot as a candidate for such nomination. However, in conformity with the statute, there was printed on the Republican ballot at the appropriate place the title of said office, followed by a blank line with a square, in order that Republican voters might have a chance to make a nomination by “write-in” votes. At the primary election Kelly defeated Hard-wick for the Democratic nomination. But enough Republican voters wrote in Hardwick’s name to give him the Republican nomination.
On August 6, the county commissioners met and canvassed the vote, and determined the number of votes received by the various candidates for nomination for the different offices. The county clerk recorded in the journal a tabulation of the votes received by each candidate. The canvassing board announced the number of votes received by each candidate. This procedure had been followed in the county in the canvass of votes in all primary elections by the present county clerk and by her predecessor in the office. No objection was at any time filed with the county clerk, clerk of the district court, or county attorney, to the nomination of Hard-wick as the Republican nominee for county commissioner, nor did Hardwick make application to the defendant for a certificate of nomination, prior to October 13, 1948. On October 16, 1948, the
This mandamus action in the district court followed. An alternative writ was issued, directing the county clerk to place Hard-wick’s name on the ballot or to appear on October 26, 1948,'and show cause why that should not be done. In an answer the county clerk alleged that since Hardwick had been duly enrolled, pursuant to G. S. 1935, 25-225, as a member of the Democratic party and had been a candidate for the Democratic nomination as commissioner and had filed no change of party affiliation, he was ineligible for the nomination on the Republican ticket; that no written determination that Hardwick had received the greatest number of Republican votes at the primary election had been signed by the commissioners or presented to her for attestation, filing or attachment to the abstract of votes; that she had issued certificates of nomination to other persons who had been nominated for county offices at the primary, but had issued no certificate to Hardwick and he had made
Appellant’s first contention is that Hardwick was not eligible for the Republican nomination, and in support of that contention invokes the provision of G. S. 1935, 25-306, to the effect that “no person shall accept more than one nomination for the same office.” But Hardwick did not do that. He failed to get the Democratic nomination and only seeks to accept the nomination given by Republican voters. In support of her contention that the provision of section 25-306, swpra, bars Hardwick from having his name on the general election ballot, she argues that the word “nomination” includes “nominations” of candidates for primary elections. We find nothing to support that construction of the word “nomination” as used in this connection. It does not refer to the methods prescribed for án elector to get his name printed on a party primary ballot (G. S. 1935, 25-205), but clearly refers to party nominations (G. S. 1935", 25-301, 302) made at the primary, or to “independent nominations” (G. S. 1935, 25-303, see Supp.). Appellant calls attention to the provision of G. S. 1935, 25-306 that “whenever any person shall receive two or more nominations for the same office at different dates,” etc. (italics supplied), and argues from that that the word “nomination” must include a “nomination” to become a nominee since all party nominations at the primary are made “at the same time.” But all nominations at the primary are not made at the same time. “Independent nominations” under section 25-303, supra, are not necessarily made at the same time as “party nominations” under section 25-302.
The primary election statutes expressly provide for blank lines for “write-in” votes on the primary ballot in cases where there are
In further support of her first contention, appellant calls attention to the annotation in 143 A. L. R. 603. That annotation deals generally with the constitutionality, construction, and applicability of state statutes which preclude a candidate who has been defeated for nomination for an office from having his name printed on the general election ballot as a candidate for that office. The cases cited in that annotation are not applicable here since we have no such statute.
Appellant next contends that there was no determination by the canvassing board that Hardwick had received the Republican nomination and that therefore the action should have been brought against the canvassing board and was improperly brought against the county clerk. The argument might have greater persuasion under facts or findings different from those now before us. It is apparent from the findings here, which are not attacked, that the procedure in this case was the same procedure which had been followed generally both in this and in previous primary elections in Morton county. If the failure to have a formal certificate of nomination in the instant case constituted a fatal defect, then candidates for other offices both in this and prior elections — under the court’s findings of fact — were likewise not entitled to have their names printed upon the general election ballot, and the validity of election results generally in Morton, county would be placed in doubt. In the instant case there was a finding that Hardwick received the most and the requisite number of votes. That finding was not questioned in the court below and is not assailed here. Furthermore, the county
Elections must be invalidated where there has been violation or nonobservance of statutory provisions which are mandatory, either expressly or by clear implication, or which directly affect the merits of the election. But the general rule is that unless mandatory provisions compel a contrary result election statutes, like other statutes, are to be liberally construed to accomplish their essential purposes (29 C. J. S. 27, 310; Burke v. State Board of Canvassers, 152 Kan. 826, 836, 107 P. 2d 773).
It is true, as stressed by appellant, that the statute (G. S. 1935, 25-308) provides that when a certificate of nomination has been filed, it shall be deemed valid unless objections thereto are filed within three days thereafter. From this it is argued that since no certificate of nomination was filed, objectors were given no opportunity to be heard. If parties were here asserting that votes for Hardwick were improperly counted, or attacking the validity of the determination and finding that he had received the most votes, requisite in number to give him the nomination, we might well have a different question before us. But no such contentions are here made. It is not contended that the appellant or anyone had any objections in the trial court except on the grounds of eligibility. Under the practice which had been followed, interested persons had a reasonable right to assume that Hardwick’s name would go upon
State, ex rel., v. Comm’rs of Pratt Co., 42 Kan. 641, 22 Pac. 722, involved an election to vote upon a proposed tax assessment to provide funds for purchase of a county poor farm. The validity of the election was attacked on the grounds that the abstract of votes made by the canvassing board had not been certified and signed by the county clerk as required by law. It was held that -this failure did not invalidate the election.
Lastly, appellant contends that this action was brought too late. In support, she calls attention to the provision of G. S. 1935, 25-308, that “the certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. . . . All mandamus proceedings to compel an officer to certify and place upon the ballot any name or names, and all injunction proceedings asking that said officers be restrained from certifying and placing upon the ballot any name or names, must be commenced not less than twenty days before the election.” (Italics supplied.)
Was this provision intended to apply to the state? To so hold would bring an intolerable result. By the simple process of withholding action until less than twenty days remained until the election, a county clerk could keep the name of some candidate or candidates off the ballot. We think the statute should be construed in the light of the general rule relating to statutes of limitation that makes them inapplicable to the state, unless expressly provided otherwise (City of Osawatomie v. Miami County Comm’rs, 153 Kan. 332, 110 P. 2d 748, and cases cited on page 335). Certainly it cannot be said that a general election is not a matter of fundamental public concern. •
We find no error and the judgment is affirmed.