230 P. 366 | Mont. | 1924
Lead Opinion
sitting in place of MR. JUSTICE GALEN, disqualified, delivered tbe opinion of tbe court.
Relators seek a writ of mandate to compel Charles T. Stewart, as secretary of state, to place their names as independent candidates for presidential elector upon tbe official ballot to be voted at tbe general election to be held on November 4, 1924. These persons claim they have been nominated by petitions under tbe provisions of section 615, Revised Codes of 1921. They assert they do not represent any recognized party but are pledged to vote and if elected will vote for Robert M. La Follette for President and B.\ K. Wheeler for Vice-President of tbe United States, and they say they are tbe only independent candidates for tbe office of presidential elector in tbe state of Montana.
No question is raised as to tbe sufficiency and form of tbe petitions, nor as to tbe number of signatures appended thereto. Upon tbe filing of tbe petition this court issued an alternative writ of mandate which was made returnable October 11, 1924. Tbe respondent appeared by a motion to quash. At tbe bearing John M. Johnson, claiming to be duly nominated, qualified and acting candidate of tbe Farmer-Labor party for presidential elector, asked permission to intervene in tbe action by filing a petition and praying for an injunction enjoining tbe respondent from certifying to the county clerks of tbe several counties of the state tbe names of the La Follette-Wbeeler electors. His motion to intervene was granted, where
It is urged, first, by respondent and intervener that section 673, Revised Codes of 1921, provides an exclusive method of nominating presidential electors in this state. This position is not tenable for the reason that section 673 refers to party candidates for President and Vice-President only. That this is so is disclosed by the title as well as the body of the bill which was adopted by the people as an initiated measure at the general election in 1912 (Laws 1913, p. 590) ; and it has been so declared by this court in State ex rel. Mills v. Stewart, 64 Mont. 453, 210 Pac. 465.
It is next contended that section 615, Revised Codes of 1921, does not permit the nomination of independent candidates for presidential electors. The section provides: “Candidates for public office may be nominated otherwise than by convention or primary meeting in the manner following”: and then follow the procedural requirements for a certificate of nomination by petition. This section was first enacted in 1889 (Laws 1889, p. 136, see. 5), and has been re-enacted twice since in identical form. In State ex rel. Woody v. Rotwitt, 18 Mont. 502, 46 Pac. 370, this court treated this “section of the Code as contemplating simply the candidacy of one not a nominee of a party — an independent or electors’ candidate.” That it is applicable to the nomination of independent candidates for public office is not debatable.
We are not disposed to treat as serious any argument to the effect that a citizen may not run independently for the office of President of the United States. If he may do so, a necessary corollary is that there must be presidential electors representing his candidacy. There was much said at the hearing to the effect that a candidate for presidential elector is not a candidate for public office. In this connection State ex rel. Spofford v. Gifford, 22 Idaho, 613, 126 Pac. 1060, and the case of Spreckles v. Graham, 194 Cal. 516, 228 Pac. 1040, recently
It is worthy of note that in Spreckles v. Graham, supra, the supreme court of California does not deny, but rather inclines to the view, that a presidential elector is a public officer. Whatever may be the rule in other states, under the statutes of Montana there is no doubt that such candidates are candidates for public office and that they may be nominated independently under the provisions of section 615, supra.
But it is urged that the candidacy of these persons is ■ inhibited by the provisions of section 639, Revised Codes 1921, which provides, in part: “No independent or nonpartisan candidate shall be permitted to use any word of the name of any existing political party or organization in his candidacy.”
It appears from the proof that on the twenty-second day of September, 1924, certain petitions for the nomination of the La Follette-Wheeler electors were filed with the secretary of state. In these the signers sought to nominate the persons named therein as “candidates for said offices under the designation La Follette-Wheeler Independent.” On the 25th of September, 1924, before a sufficient number of petitions to
The statute expressly permits the nomination of independent candidates. The use of the word as there employed is generic. Assuming, but not deciding, that those who compose “The Independent Party of Montana” have the right to use the word “Independent” in their party name, still they may not prohibit independent candidates from using the name “Independent.” Where the statute in so many words recognizes the right of electors to file as independent candidates, it is not reasonable to hold that by employing the words “no independent candidate shall be permitted to use any word of the name of any existing political party or organization in his candidacy,” the legislature intended to prohibit an independent candidate from using the very word which designates the character of his candidacy.
Consequently it is clear that relators are entitled to the relief sought. Respondent’s motion to quash is overruled and the relief sought by the intervener is denied. Let the writ issue forthwith as prayed for. It is ordered that this opinion be filed nunc pro tunc as of October 14, 1924.
Writ issued.
Concurrence Opinion
I concur fully in the conclusion that the La Follette-Wheeler candidates for presiden
From the admission of Montana as a state in 1889 down to the adoption of the Direct Primary Law in 1912, the only means of nominating candidates for public office were those prescribed by what are now sections 612 and 615, Revised Codes, viz., by a convention or primary meeting of an organized political party or by petition of qualified electors, and neither a political party nor electors could secure the name of a candidate to be printed on the official ballot except he be a candidate for public office (sec. 619, Rev. Codes); so that, if a presidential elector were not a public officer, there was net any means known to the law by which a candidate for presidential elector could secure his name to be printed on the official ballot, prior to the presidential election in 1916; but no one would have the temerity to argue that such was the state of the law and that the secretary of state could have refused successfully to certify the names of regularly nominated candidates for presidential elector at every quadrennial election beginning in 1892 and including 1912, for during that entire period, by a uniform construction of existing statutes by the executive department of our state government, presidential electors were included under the designation “public officers,” and the names of candidates for such office were regularly certified to the several counties and printed on the official ballot, in virtue of what is now section' 619, Revised Codes, and in that construction of the law all other departments of state government, and the people of the state as a whole, acquiesced. While the construction of a statute by another department of
The long-continued, uniform construction of existing laws, supplemented by the definition contained in section 10775, establishes to my satisfaction that the office of presidential elector is a public office within the meaning of sections 612 and 615, Revised Codes.
I do not think it is sufficient to say that the word “independent” is generic, hence it may be used as a part of a party name and also as the designation of the candidacy of one who seeks public office independently of any organized party support.
It is conceded that prior to the time the La Follette-Wheeler candidates for presidential elector were nominated by petition, an existing political party under the name “The Independent Party of Montana” had regularly nominated Sam W„ Teagarden as its candidate for United States senator. Now, if that party could rightfully appropriate the term “independent” as a part of its name or designation, it would seem to follow necessarily that no other political party and no individual could use the word “independent” in its or his candidacy, for the language of section 639 is not uncertain in meaning. That section declares: “Every political party and its regularly nominated candidates, members, and officers, shall have the sole and exclusive right to the use of the party name and the whole thereof. * * * No independent or nonpartisan candidate shall be permitted to use any word of the name of any existing political party or organization in his candidacy.”
In view of this history of our election laws, it seems to me to follow necessarily that since an elector without party support is authorized to seek public office as an independent can
It is my opinion that independent candidates as such are entitled to the exclusive use of the term “Independent” as a candidacy designation.
Concurrence Opinion
I concur in what is said by Mr. Justice Holloway.