State ex rel. Hitchcock v. Till , 50 S.D. 346 ( 1926 )

GATES, P. J.

(dissenting). Section 7236, Rev. Code 1919, makes it the duty of the county auditor to- place on the ballot for the general election the name of every candidate whose nomination has been certified or filed with the county auditor. Relator was proposed at the Democratic county proposal meeting for the office of state senator. Pie did not sign the declaration. Thereby a vacancy was believed to exist, and he was certified as the nominee 1o fill the vacancy. In State ex rel Picton v. Doolittle, 50 S. D. —, 209 N.W. 851, this court held on July 23, 1920, that such could not be done, although previously under a ruling by the Attorney General it had been done. There being no opposition, his name did not appear on the. primary 'ballot. After the primary election the county canvassing board, of which the county auditor is a member, certified: that he was the nominee of the Democratic party for the office of state senator. On August- 31, 1926, the county auditor prepared the ballot and sent it to the printer. This was after the time for withdrawal, and after the time for independent nomination had expired. On his own motion the county auditor on September 7, directed the printer to omit relator’s name from the ballot, and advised relator that his name would not appear thereon.

I am of the opinion that the county auditor has no such interest in, the office of state senator as would entitle him to do this. Even if the certificate issued by the canvassing board under the provisions of section 7160, Rev. Code 1919, -can only properly apply to candidates whose names are actually on the primary ballot, yet in so far as the county auditor is concerned I think it should be held to amount to a certificate issued by him under the following provision of section 7133-, Rev. Code 1919, viz.:

“Provided, that -when there is only one name filed in 'the office of the county auditor or secretary of state as a proposed candidate for nomination to any one office in any one party, then such candidate, having no opposition, shall 'be the nominee of his party for the November election for such position and shall be so certified by the county auditor without any primary vote and the name of such candidate, or the office he seeks, shall not be printed upon the primary election ballot of his party.”

Without wishing to be understood as holding that the nomination was lawfully made, or that it could not have been successfully attacked by persons interested before the time for independent nominations had expired, I cannot bring myself to the belief that the county auditor could, on his own motion, exclude relator’s name from the ballot at, the time he attempted to do so. In State ex rel. McNulty v. Glasner, 33 S. D. 241, 145 N. W. 547, we held that the duties of the secretary of state under the law then 'under consideration were simply ministerial, and that if the proposal petition was in due form he had n'd alternative than to certify the name of the candidate. I think the situation here is quite parallel to that, whether we consider the certificate of nomination to fill .vacancy' or the certificate above mentioned, issued by the county canvassing board, or both.

I therefore dissent from that portion of the majority opinion which places such dictatorial powers in the hands'.of the county auditor.