State Ex Rel. Copenhaver v. Jack

OPINION This is an action brought originally in this court for a writ of mandamus to compel the Secretary of State to certify to the county clerks of the various counties the nomination of the relator as the Republican candidate for the office of Secretary of State to be voted for at the general election to be held November 7, 1944.

Mart T. Christensen, who in the year 1942 was elected Secretary of State for the term beginning the first Monday in January, 1943, and ending the first Monday in January, 1947, died October 12, 1944, twenty-six days before the date of the next general election.

The statute (§ 36-101, R.S. 1931) provides for general elections to be held on the Tuesday next after the first Monday in November each even numbered year at which there shall be elected, among others, all state officers "which are made elective by law, whenever there is a vacancy * * *; provided, however, that whenever a vacancy * * * shall occur less than twenty-five days prior to such election, then, in that case, at such election no person shall be elected to fill such vacancy." See, also, § 36-106, R.S. 1931.

After the death of Mr. Christensen, and before October 16, the republican state central committee passed a motion nominating the relator as the republican candidate for the office to fill the unexpired term of Mr. Christensen, and there were filed in the office of the Secretary of State a certificate of the nomination and a writing showing relator's acceptance thereof.

October 16, defendant took over the office of Secretary of State under appointment by the Governor and refused, and continues to refuse, to certify the nomination. This action to compel him to do so was filed October 19, and after the issuance of process had been waived, and time for briefs shortened by stipulation, oral arguments were heard and the case taken under advisement by the court October 27. Because it was thought that the right to the writ should not remain in doubt any longer than was necessary we announced our decision orally on October 28, stating that the petition for the writ was denied on the ground that the state central committee did not have authority to make a nomination of a party candidate in the disclosed circumstances.

The relator was unable to point to any statute giving the committee such authority, and this opinion might very well close with this statement, if it were not for the further contention that the committee had inherent power to make the nomination.

We think it has always been assumed in this state that the legislature may and should regulate the making of nominations of candidates for public office whose names will be printed on the official ballots. Early statutes were summarized in State ex rel. Blydenburg v. Burdick, 6 Wyo. 448, 462-463, 46 P. 854, 858-859, decided in 1896. At that time nominations could be made by conventions or primary meetings or by a specified number of electors. The only authority for making a nomination by committee was in case of a vacancy occurring in a nomination previously made by a party convention which had delegated to the committee the power to fill the vacancy, and in that respect the statutes, as they now appear in the revision, have not been changed. See sections 36-508, 36-517, 36-518, 36-519, R.S. 1931.

The statutes just referred to, permitting party nominations by conventions or voluntary primaries, were rendered inoperative in most respects by the compulsory primary act of 1911, now sections 36-601, to 36-648, R.S. 1931. This act provides for the election of county, state and judicial central committees, who (as provided in the original act, § 2519, C.S. 1920) "shall have the power to make nominations to fill vacancies occurring among the candidates of their respective parties nominated within the territory over which they respectively, have jurisdiction by the primary nominating elections; * * *"

On October 2, 1924, while the law, as quoted above was in force, Governor William B. Ross, whose four-year term of office began in January, 1923, died, and a few days later the Secretary of State asked the Attorney-General for an opinion as to what nominations for governor to fill the unexpired term should be received and certified to the county clerks. The Attorney-General's reply, insofar as it touched on the point under consideration, was that: "Under the authorities it seems clear that the state committees have no power to make an original nomination as would be necessary in this instance." In support of his opinion the Attorney-General cited Coovert v. Olcott, 81 Or. 415, 159 P. 974; State ex rel. v. Pratt,141 Ia. 196, 119 N.W. 620; Stewart v. Polley, 30 So. Dak. 54,137 N.W. 565, and State ex rel. Smith v. Duncan, 55 Mont. 376,177 P. 248. The opinion states the general rule supported by the cited cases and many others. See Anderson v. Cook, 102 Utah 265,130 P.2d 278, 143 A.L.R. 987, and note 143 A.L.R. 996. In 20 C.J. 109, § 103, and 29 C.J.S. 138, § 105, it is said that: "Unless authorized to do so by statute or party rule, or by convention, a party committee has no power to make original nominations." See, also 18 Am. Jur. 272, § 142.

Later, in 1929, the legislature amended the statute as quoted above from § 2519, C.S. 1920, by providing that such committees "shall have no power to nominate a candidate for any office for which no nomination was made by the voters of parties in the primary election." R.S. 1931, § 36-632.

Still later, at the legislative special session, held in December, 1929, there was passed "an act concerning nomination of candidates to be voted for at special elections." Session Laws, Special Session, 1929, ch. 10; Sections 36-526 to 36-532, R.S. 1931. In that act the political committees are authorized to call caucuses, meetings and conventions, but are given no new powers in the matter of naming candidates.

We think that under the statutes of Wyoming it is clear that the legislature has never recognized any power in a political committee to make party nominations, except as delegated to it either by the party convention or the legislature. See Hamilton v. Raub,131 Kan. 392, 399, 292 P. 396, 399; McLyman v. Molloy, 53 R.I. 4, 10,162 A. 849, 851. The case of State ex rel. Summer v. Mitchell,118 Fla. 513, 159 So. 775, is distinguishable because the statutes of Florida, as explained in that case and in State ex rel. Andrews v. Gray, 125 Fla. 1, 169 So. 501, recognize certain inherent or implied powers of political committees to make party nominations.

The writ prayed for will be denied.

BLUME AND RINER, J., concur.