State ex rel. Coon v. Hay

Mount, J.

— This is an application to this court for a writ of quo warranto to oust the respondent from the office of lieutenant governor. The relator alleges, that the respondent was elected to the office of lieutenant governor at the general election held in November, 1908; that the votes were canvassed by the legislature as required by law, and respondent was declared duly elected, and on the second Monday of January, 1909, he duly qualified and is now holding the said office; that the respondent is incompetent to qualify or hold that office by reason of the fact that, prior to the primary election held' on September 8, 1908, at which he was a candidate for the nomination of lieutenant governor on the republican ticket, he solicited and caused certain named newspapers to publish a statement consisting of the words “ ‘Paid Advertisement,’ followed by a photograph of said M. E. Hay, said photograph being followed by the words ‘M. E. Play, candidate for the republican nomination for the office of lieutenant governor,’ ” and promised and agreed to pay, and did pay, such newspapers for such publications.

Respondent in opposing the writ presents several constitutional questions, which need not be considered, in view of the construction which we place upon the statute relating to primary elections. Section 28 of the primary election law, Laws of 1907, page 472, upon which the relator relies, provides:

“No person shall be' competent to qualify for any public office, who shall have, prior to the holding of any primary election, paid, or promised or agreed to pay, either directly or through another, or in any manner whatsoever, to the owner, publisher, manager or representative of any newspaper, any sum of money or other thing of value, for any article or published statement in a newspaper, wherein the electors are advised or counseled to vote for such candidate, or his fitness or qualifications for office are set forth, or his photograph or biography is published.”

The language here is somewhat involved, and is no doubt susceptible of the construction urged by the relator, to the effect that the mere- publication of a photograph with a statement telling whose .photograph it is disqualifies a candidate from holding office. It may also be construed as contended for by respondent, viz., as prohibiting payment for the-publication of “Any article or published statement in a newspaper wherein the electors are advised - or counseled to vote for srfch candidate or his fitness of qualifications-for office are set forth, or his photograph or biography is published.” In other words, the photograph must be published in connection with the published article or statement where the voters are advised to vote for such candidate or his fitness or qualification for office is set forth. We think this construction must be adopted. The mere statement whom the photograph represents is not such an article or statement as is prohibited by the provisions above named.

The penalty for violating this statute is severe. It should not attach unless the meaning of the language is plain and the violation is clear. The attorney general, whose duty it is to advise public officers, gave an opinion on April 18, 1908, construing the section of the primary law under consideration, in which opinion that officer said:

“That payment of money to a newspaper in the manner and for the purpose specified above, to wit: Publication of announcement of candidacy (with or without accompanying photograph) over the signature of the candidate, but without newspaper comment, does not render that candidate incompetent for public office.” Report Attorney General, 1908, p. 446, Opinion No. 343.

We do not cite this opinion as controlling upon this court, but merely to show that § 28 does not clearly make the publication of a photograph a disqualification for office. It also shows that the respondent acted in good faith. Under these conditions, where the statute is construed by an officer whose duty it is to advise public officers, and where persons advised or with knowledge of such advice follow the same, the statute should not be construed otherwise unless the language is clear and unambiguous. The following section of the statute, viz., §' 29, makes it a misdemeanor for any newspaper or other publication to accept money for advocating the election or defeat of any candidate, and then provides:

“Nothing herein shall prevent any person or persons, firm or corporation engaged in the publication of any newspaper, magazine or periodical from receiving for publication and publishing any matter, article or articles advocating the election or defeat of any candidate or candidates and receiving a consideration therefor, if such articles so published or printed have placed at the beginning thereof in plain type of black-faced Roman capitals in a conspicuous place, the statement ‘Paid Advertisement.’ But this section shall not be construed as permitting the payment for any publication prohibited by section 28 of this act.”

The word“publication” here used refers clearly to the words “article or published statement” used in § 28. The object of § 29 is to prevent the newspapers named from advocating for secret hire the election or defeat of any candidate, but newspapers are authorized to openly sell their space where the readers are advised of the fact that the matter used is an advertisement merely. The last clause of § 29 makes it clear that candidates themselves may not advocate their own election in newspapers by articles or statements which advise voters to vote for them, or where such articles set out their qualifications for office. But we think these sections are not intended to disqualify a candidate who merely publishes his picture with the statement whom the picture represents.

With this construction of the statute, it is unnecessary to consider the other questions presented. The writ must therefore be denied.

Crow, J., concurs.