6 N.W.2d 89 | N.D. | 1942
The petitioner Sundfor, the attorney general consenting, applied to this court for an original writ to restrain the respondent Herman Thorson, the secretary of state, from certifying the name of Charles R. Robertson as an individual nominee for the office of Representative in Congress to be printed on the ballot to be voted upon at the general election on November 3, 1942; and to restrain the respondent Schlenker, as county auditor of Burleigh county, from having Robertson's name printed on said ballot.
The pertinent facts may be shortly stated as follows: At the primary election, held June 30, 1942, Charles R. Robertson was a candidate for nomination for the office of Representative in Congress on the Republican Party ballot. He was defeated at said election and other candidates were nominated. He now seeks election to the office as an independent candidate. In that behalf petitions were circulated pursuant to the provisions of § 971a, 1925 Supplement to the 1913 Compiled Laws, providing for the nomination of individual candidates for office by petition. These petitions were presented to the secretary of state for filing pursuant to the provisions of § 973, 1925 Supplement. The secretary received and filed the petitions and certified the name of Robertson as a candidate for Representative in Congress to the county auditors as required by § 974 of the 1925 Supplement, to be printed on the general election ballot "under the designation of Individual Nominations." See § 959, 1925 Supplement. Thereupon the petitioner instituted the instant proceeding on the theory that Robertson, having been defeated as a party candidate at the primary election, was barred from becoming an individual candidate for the same office pursuant to the provisions of chapter 141, Session Laws 1939, entitled: "An act prohibiting any person who was a candidate for nomination for office at a primary election and who was defeated for said office, from being a candidate for the same office at the ensuing general election," and providing: "That any person who was a candidate for nomination for office at any primary election in any year and who was *250 defeated for said office shall not be eligible as a candidate for the same office at the ensuing general election."
The court, after consideration of petitioner's application, issued its order directed to the respondents to show cause why the restraining order should not be granted. In response to this order to show cause the respondents, admitting the allegations of the petition but resisting the application of the petitioner, moved to quash the order to show cause and have the proceeding dismissed. They urged in support of their motion that the statute above quoted and relied upon by the petitioner can have no application to candidates for Federal office whose qualifications to hold the same are fixed by the Constitution of the United States.
The contentions of the several parties with respect to this statute are, by the petitioner: that it is merely a regulatory provision; that it does not purport to fix the qualifications of candidates for office but only provides that where a candidate for nomination for an office at the primary election has been defeated, he cannot have his name placed on the general election ballot as a candidate at the ensuing general election. On the other hand, respondents contend that the statute not only bars the placing of the name of the candidate on the general election ballot, but makes him ineligible as a candidate for said office. Thus, in effect, imposing a qualification for eligibility, something that the state has no power to do with respect to officers whose qualifications are fixed by the Constitution of the United States.
The Constitution of the United States provides that "no person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen." (Art. 1, § 2.) Thus the qualifications of Representatives in Congress are fixed by the Constitution. It likewise provides that the times, places and manner of holding elections for Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations. (Art. 1, § 4.) These provisions are, of course, controlling. They are paramount and, in so far as the statutes of any state conflict with them or with laws enacted pursuant to their provisions by the *251
Congress, such statutes must fall. Ex parte Siebold,
Petitioner contends that chapter 141 is a valid and effective enactment, applicable to candidates for Representative in Congress, and that statutes identical with or similar to it have been sustained in numerous other jurisdictions. In support of this contention he cites, among others, the cases of Heney v. Jordan,
Petitioner particularly relies upon the case of State ex rel. Driscoll v. Swanson, supra. In that case the holding was that a statute providing that "no candidate defeated at the primary election shall be permitted to file by petition in the general election next following" was not subject to challenge by one who was a candidate for a state office as amounting to a hindrance or impediment to a free election guaranteed by the Constitution of the state. There the relator had been a candidate at the primary for nomination by the Democratic party for the office of secretary of state. He was defeated. Thereafter he presented nominating petitions, in due form, to the proper officer, the secretary of state, praying that his name be placed on the official ballot for the general election as a candidate for the office of auditor of public accounts. The secretary refused to accept the petitions on the ground that he could not pursuant to the provisions of the foregoing statute. Whereupon the relator sought by mandamus to compel their acceptance. The court held that the secretary had rightfully refused to accept the petitions. It is to be noted that the question there arose with respect to a state office. Subsequently, in the case of State ex rel. O'Sullivan v. Swanson,
Chapter 141, supra, the statute in question in the instant case is quite different from the Nebraska statute. It goes much farther. It does add another qualification. There can be no misunderstanding of its words. They speak for themselves and require no interpretation. There is no room for ambiguity or uncertainty. The statute prohibits any person who was a candidate at the primary for nomination for any office and who was defeated, from being a candidate for the same office at the ensuing general election. This is the clear purport of its title. And the body of the act itself emphasizes this legislative intent, because it says such an one shall not be eligible as a candidate. Words could not be made plainer. Eligible means "fitted or qualified to be chosen or elected; legally or morally suitable; as, an eligible candidate." Webster's New International Dictionary. See also 29 CJS 663, and cases cited. So considering the statute, we hold that petitioner's application must be denied and the proceeding dismissed. As supporting this holding, see Stockton v. McFarland,
Application denied and proceeding dismissed.
BURR, Ch. J., and BURKE, MORRIS, and CHRISTIANSON, JJ., concur. *254