Hughes v. Glassner , 33 S.D. 6 ( 1913 )

WHITING, P. J.

Plaintiff on December 11, 1913, presented to the defendant, for filing in his office, an Individual Candidate Proposal Petition, wherein and whereby plaintiff was, by some of the enrolled electors of the Sixth judicial circuit, proposed as a candidate for the office of judge of the circuit court of such circuit to be voted on at the primary election to be held in March, 1914. The defendant refused to receive and file such petition, and plaintiff brought this proceeding and seeks a writ of mandamus requiring1 defendant to receive and file such petition.

[1] No question is" raised as to the form of the petition nor to its sufficiency'so- far -as the number and qualification of the signers are concerned. Defendant contends- that -chapter 201, Laws 1911 (being the law under -which su-ch -petition- was presented for filing), provides- that no names" shall be counted upon a proposal petition -when such names appear to- h-ave been signed thereto more than three months prior to- the date for holding the primary election at -which the party proposed seeks to- 'be a candidate; and -ilt 'appears that all the names signed' to the petition presented were signed thereto more than three months prior to the time for -holding -such primary election. Defendant also contends -that there is no- authority of law for the filing ini his office o-f an Independent Candidate Proposal Petition proposing a -candidate for the office of circuit judge.

As noted by the court in State v. Polley, 139 N. W. 118, chapter 201, Laws 1911 — common-ly known as the “Richards Primary Act” — was enacted- into law by the vote of the people o-f -this -state under the initiatory provisions of the- state constitution. A -reading of this- law reveals -the fact that if section 50 were eliminated therefrom, and the latter parts of sections 21 and 23 were stricken o-ut, there would- be left a complete system for the proposing of parity factional and independent candidates for all state, circuit, district, and county offices, including judges of -the Supreme an-d circuit courts. Tf this law had -been enacted -by the representatives of the people, rather th-an by the people ¡themselves, we -shoul-d have no hesitancy in declaring -that section- 50 and the latter parts of sections 21 and 23 had been added to- such law .after its first presentation, and so- added! for the apparent -purpose o-f freeing candidates for contain judicial -offices' from the provision for “party recall” an-d from-the provision requiring such candidates, under certain circumstances, to- -subscribe to -a factional declaration of principles, and especially for the purpose of allowing either one or both of -the majority and minority proposal committees to endorse the candidacy of one who- -had filed -an individual Candidate Proposal Petition- for a judicial -office, an-d- of permitting the name of -one -so indorsed- to- appear more than -once on- the primary ballot. This law having been enacted iby .the .people, who from very necessity were given no opportunity far proposing amendments, it follows that the act was in its present form both when petitioned for by the electors and when afterwards enacted by them-; yet we think it is clear that the law -should be interpreted the same as if enacted by the representatives of the people. We -are therefore of the opinion that the electors intended to relieve candidates for these judicial offices- from the provisions of the “party recall” and the indorsement of the. declaration of principles of any party or faction thereof, and also intended to -allow the indorsement of such a candidate by one or both of the proposal committees- of his party. This purpose should be carried into effect if possible. To c-arry it into effect, section 50 must be sustained -in every part.

[2] Such section reads -as follows: “Sec. 50. Proposal Petition for Judges. All candidates for judges of the Supreme and circuit courts -shall file individual proposal petitions 90 clays before the primary date and- their name shall appear in the independent column- upon the official primary ballot, but may be indorsed by' either the majority or minority proposal committee. Bult no- candidate for judge of the Supreme or circuit court shall be .required to -sign .the recall declaration but shall be required -to -sign a declaration to 'the effect that he will qualify if elected.”

Section 46 of this act provides for tire filing of an independent Candidate Proposal petition for a candidate who seeks to run as an independent candidate as distinguished from a -Committee Proposal which is to- be filed when a candidate is proposed by a proposal -committee. This ■section includes, among the candidates- named therein-, candidates for judges of tire Supreme and circuit -courts and provides that - their petitions shall be filed at least 60 days -prior to the primary election. This would give u-n-til after the time for the meeting of the -proposal committees for the filing of such petitions. It was evidently in- order :to provide that the proposal petitions mentioned in section 50 should be filed prior to the -date fixed for the meetings of the proposal committees, ■that said section 50 fixed the date on or before which the petition should be filed as 90 day-s prior to- the primary election instead of 60 days prior thereto, as provided in section 46. Without this change it will be seen that the proposal petition for independent candidacy might not be on file prior to the time fixed by the. act for the meeting of committees to- propose candidates for circuit judges, at which meeting the indorsement, if any, of the candidacy of a party for the office of judge of the circuit court, must be made; -such meeting being fixed, more than 60 days- prior to the date for the ■ primary election.

Section 48 of the act provides, among other things, as follows-: “N.o name shall be -counted upon such petition unless 'the same appears * * * to have -been signed within three months prior to the holding of the primary. * * * “Three -months prior to the holding of the primary” is identical- -in period of time -covered -as “90 -days before -the -primary,” except that in leap year the "-three months” period would exceed the “ 90 days” period by one day. This provision in- section- 48 is the only one in this act which prescribes a time for the signing of an “Individual Candidate Proposal Petition,” being the class of petitions mentioned in section 46 and section 50. While this provision -leaves ample time for the procuring of signatures to a petition obtained under section 46, yet it would be unreasonable to hold that it applies to section- 50; the law shoul-d- ’ not be construed to- provide- for the doing of a certain- thing — • like the procuring of and filing -of a petition such as is mentioned in section 50 — and then so construed as to make the -doing of -same an- impossibility. We therefore hold that the above provision of secti'o-n 48 applies only to petitions filed under section 46; that the act fixes no time for obtaining -signatures to a petition to be filed- under section- 50; that, there being no time fixed by the act, petitioners should be given a reasonable time; that the electors by section- 46 and section 48 have said that 30 days is such a reasonable time. I-t follows that petitioners may sign a petition to be filed under section 50, at any time not more than T20 days prior to the date fixed -for holding the primary election.

[3] While the act in question makes no express provision for the place -of filing -the “Individual Candidate Pro-po-sal Petition” of a candidate fo-r any office, national, state, or county (other than the candidate for a legislative office in a district comprising more than one county), the law should not be nullified by such omission if by any fair implication we can determine where such petition should be filed. Section 6o of the act makes it the duty of the Secretary of State to. certify to the several county auditors a “list of independent candidates * * * for whom individual candidate proposal petitions have been under this act filed in his office.” This certainly contemplates that some such petitions are to be filed in his office, and it is certainly fair to presume that the petitions to. -be filed in such office are those of candidates for state and national offices. The office of circuit judge is a state office.

What a candidate’s rights under such a petition may be after it has been, filed under section 50, or what action, if any, can be taken by proposal committees or -whether an individual candidate proposal petition for judicial candidates can be filed under section 46, we are not called upon .to determine at this time.

The writ is granted.