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(230 P.) presumption arises that there is some valid | 3. Statutes en 227-General, though not inreason for the failure or refusal to pay, which, flexible, rule that negative or prohibitory if established, would likely go to the defeat of statute is mandatory. the entire debt, and thus all subsequent pur It is a general, though not an inflexible, chasers or bolders of the discredited paper are rule that a negative or prohibitory statute is put on inquiry."

mandatory. To the same effect, see Field v. Tibbetts, \ 4. Statutes Cam47, 49—Statute providing that 57 Me. 358, 99 Am. Dec. 779; Norwood v. no name shall appear on ballot more than Leeves (Tex. Civ. App.) 115 S. W. 53; Vin once not uncertain, indefinite, and unenforceton v. King, 4 Allen (Mass.) 562.

able, [3] Where the evidence is conflicting, or An objection to the validity of the provision different inferences may be drawn therefrom, of C. S. & 573, that no name shall appear on the question whether plaintiff is a holder in the ballot more than once, on the ground that due course is one for the jury, provided the it is uncertain, indefinite, and unenforceable, is

not well taken, evidence is sufficient to warrant the submission of the question to the jury. 8 C. J. 1061, 5. Elections Omw 168(4)—Law providing for $ 1376, and cases cited. Winter v, Hutchins, declination of nomination furnishes means of 20 Idaho, 749, 119 P. 883. One of the is determining which ticket candidate's sues raised by the pleadings in this case was

name shall appear. whether or not there were material altera

The provision of C. S. § 553, for declination tions made upon the face of the note, and of nominations, furnishes a means of determinwhen and by whom these alterations were ing on which ticket the candidate's name shall made. That there were alterations made is appear on the ballot, where he has been nomi

nated by more than one party, apparent. Whether these alterations were made by the maker or with his consent be 6. Elections Ons 168(4)-Candidate declining fore the note was purchased by respondent or

none of several nominations may have name thereafter, and whether respondent had no

placed on ballot of any party nominating him. tice of these alterations or infirmities in the

If a candidate is nominated by more than instrument itself, which was direct knowl

one party, and declines none of the nominations, edge or knowledge of such facts that would his name may be placed by the county auditor put it upon inquiry, or whether the action of upon the ballot on the ticket of any one of the

parties that has nominated him, but on only the respondent in purchasing the note was in good or bad faith, were all questions that should have been properly submitted to the 7. Elections en 168(4)—Where candidate nom.

inated by more than one party fails to dejury under proper instructions.

cline, request that name appear on desig[4] It therefore follows that the court

nated ticket may be complied with. erred in directing a verdict for respondent,

If a candidate nominated by more than one which being true, the judgment of the lower party does not exercise his right to decline, court must be reversed and the cause re- but, before the ballots are printed, makes a manded for a new trial. Costs are awarded request of the auditor that his name appear to appellant.

on a certain ticket, the statute does not prohibit

the auditor from complying with this request. MCCARTHY, C. J., and DUNN, WILLIAM 8. Constitutional law Om 48—Statute not held A. LEE, and WM. E. LEE, JJ., concur.

invalid unless repugnance to Constitution appears beyond reasonable doubt.

A court should not hold a statute unconstitutional unless its repugnance to the Con

stitution appears beyond all reasonable doubt. STATE ex rel. MITCHELL v. DUNBAR, County Auditor. (No. 4457.)

9. Elections C22 - Law prohibiting name on

ballot more than once held constitutional, (Supreme Court of Idaho. Oct. 15, 1924.)

The provision of C. S. § 573, that no name 1. Elections Com 168(4)-Law that no

sball appear on the ballot more than once, is shall appear on ballot more than once appli- not unconstitutional. cable where one is candidate of several political parties,

Original proceedings in mandamus by the The provision of C. S. § 573, that no name State, on the relation of Perry W. Mitchell shall appear on the ballot more than once, ap- against J. A. Dunbar, as County Auditor of plies to a case where one desires to have his Canyon County. Alternative writ quashed, name on more than one ticket as the candidate of several parties for a political office.

and action dismissed. 2. Statutes C225-Statutes in pari materia

James P. Pope, Henry Z. Johnson, and should be construed together and reconciled, William M. Morgan, all of Boise, for plainif possible.

tiff. Statutes in pari materia should be con

L. D. Hyslop, of Caldwell, and A. H. Construed together and reconciled, if possible. ner, Atty. Gen., for defendant.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
230 P.-3



MCCARTHY, O. J. This is an original, to direct in writing as aforesaid, then said proceeding in mandamus. Plaintiff officer shall add said political designations to nominated for representative in Congress by the name of said candidate in such order as

Sess. Laws 1917, the state conventions of both the Democratic said officer shall see fit.” and Progressive parties, certificates of nom

c. 93, p. 319. ination being duly filed with the secretary of

By section 31 of chapter 27 of the Political state by the chairmen and secretaries of said Code of the Comp. Laws, the above proviconventions. Plaintiff alleges that he ac- sion of the 1909 Session Laws was re-enacted. cepted both nominations, and the secretary In 1919, in an act relating to the nomination of state certified them to defendant, auditor of candidates for political offices, section 31 of Canyon county, whose duty it is to pro- of chapter 27 of Political Code of the Comvide printed ballots for use at the election in piled Laws was expressly repealed. Sess. said county. Plaintiff demanded of defend-Laws 1919, c. 107, § 46, p. 390. This act was ant that he cause plaintiff's name to be print- approved March 3, 1919. However, by a later ed upon the official ballot as candidate for act of that session, to wit, chapter 169, aprepresentative in Congress on the Democratic proved March 14, 1919, the provision of the ticket and also on the Progressive ticket, 1903 law to the effect that no name shall apwhich defendant has refused to do. Plaintiff pear on an election ballot more than once asks the mandate of this court to compel was expressly re-enacted. It is now C. S. such action on the part of defendant De

§ 573. In chapter 107 of the 1919 Session fendant demurs to the application for the Laws the following provision in regard to writ, and moves to quash the alternative writ declination of a nomination was re-enacted: heretofore issued, on the ground that the ap

"Sec. 38. Decline Nominations, Whenever plication, setting forth substantially the facts above stated, does not state facts sufficient in writing signed by him and by him acknowl

any person nominated for a public office shall to constitute a cause of action nor entitle edged before a proper officer or attested by plaintiff to the writ.

the signature of two competent wintesses, and .[1] The decision of this case requires a filed in the office in which the certificate of consideration and construction of the follow- his nomination was filed, state that he declines ing provisions of our statutes. C. S. $ 573, the nomination, such nomination shall thereprovides, inter alia:

after be of no effect. In nominations relating

to presidential electors, congressional, state "Every ballot shall contain thereon the names and district officers, declinations must be filed of every candidate whose nomination for any not less than twenty days before the election office specified on the ballot has been certified and in nominations relating to legislative, counor filed according to the provisions of this ti-ty, precinct and municipal officers such declinatle, but no name shall appear thereon more tions must be filed not less than ten days bethan once

for the election." Sess. Laws 1919, c. 107, This provision has been contained in our

$ 38, p. 387. statutes since it was first enacted at the This is now C. S. $ 553. Seventh Session in 1903. It has never been Section 27 of Sess. Laws of 1919, c. 107, p. expressly amended or changed. In 1909, in 382, provides: an act relating to the nomination of candi.

“Sec. 27. Nominees of State Convention dates for political parties at a primary elec Certified. The persons nominated shall be the tion, the following provision was enacted: duly accredited candidates of their respective

“In case a person is nominated upon more parties for the several offices and their names than one ticket, he shall file with the proper shall be printed in the proper party column, officer a written declaration indicating the par- and under the appropriate heading on the offity designation under which his name is to be cial ballot for the ensuing general election. placed on the official ballot." Sess. Laws 1909, Within five days after the adjournment of a H. B. No. 16, p. 207, § 31.

state convention there shall be filed with the

Secretary of State a copy of the platform In 1917 the general provisions of the stat- adopted thereat, certified to by the chairman utes in regard to the preparation of election and secretary of the convention and a certifiballots were amended by the insertion of

cate signed by said officers, showing the names, the following provision:

postoffice addresses and business occupations

of the candidates nominated." "If a candidate shall receive the nomination of more than one party or more than one po This is now C. S. § 542. litical designation for the same office, he may,

Section 36 of 1919 Sess. Laws, c. 107, beat any time, not less than thirty-five (35) days prior to the date of the general election, by ing now C. S. § 551, provides as follows: a writing delivered to the Secretary of State, “Not less than 30 days before an election the if the nomination is for a state office, or to Secretary of State shall certify to the several the county auditor, if the nomination is for a county auditors the names, places of residence, county office, direct in what order the several and business occupations of all persons nomipolitical designations shall be added to his name nated to be voted for at the election as shown upon the official ballot, and such directions | by certificates, the nomination papers filed in shall be followed by said officer. If, during his office, with the necessary information relatthe said time, the said candidate shall neglecting to such nominations as will enable the


(230 P.) county auditors to properly prepare the bal [3] Petitioner next contends that the above lots. * "

provision of C. S. & 573, is incomplete and

inoperative, as no means is provided for its C. S. § 572, provides:

execution. In connection with this argument "Except as in this title otherwise provided, it will be noticed that the statute is negative it shall be the duty of the county auditor of or prohibitory in form. It is a general, each county to provide printed ballots for every though not an inflexible, rule that a negative election for public officers in which electors, or prohibitory statute is mandatory. Bladen or any of the electors, within the county, par

v. Philadelphia, 60 Pa. 464; State v. Thompticipate, and cause to be printed in the ballot the name of every candidate whose name has son, 21 N. D. 426, 131 N. W. 231; Fitzmaubeen certified to or filed with the county audi- rice v. Willis, 20 N. D. 372, 127 N. W. 95; tor in the manner provided for in this title. In re McQuiston's Adoption, 238 Pa. 304, 86

Atl. 205; 2 Lewis' Sutherland, Stat. Const.

(2d Ed.) $8 611, 627, 633; Black on Interpre Petitioner contends that the words "notation of Laws (2d Ed.) § 152. There is cername shall appear thereon more than once," tainly nothing indefinite or uncertain about found in C. S. & 573, mean simply that no per- the language that "no name shall appear son shall be a candidate for more than one thereon more than once.” Nor does it need office. This construction does violence to the machinery for its enforcement and execulanguage used. There is nothing in the lan- tion. All that the officer need do to comply guage, the context, or the circumstances with the statute is to refrain from doing the which lends color to the idea that such was thing prohibited. In this connection petithe intention of the Legislature. The lan- tioner relies upon several decisions of this guage covers just such a case as the present, court. The first is Holmberg V, Jones, 7 where one desires to have his name on more Idaho, 752, 65 Pac. 563. The holding of the than one ticket on the same ballot.

court is well summed up in the first paraPetitioner next contends that under C. S. graph of the syllabus as follows: 88 542, 551, and 572, it is the imperative duty of the county auditor to print the name of and intendment merely, and a statute passed

"A county cannot be created by implication every candidate as certified to him by the apparently for the purpose of creating a county secretary of state, and it is the right of a is invalid for that purpose, when it fails to decandidate to have his name printed on the clare in express language the creation of such ticket of every party which has nominated proposed county." him. It will be noticed that C. S. $8 542 and 551, were passed by the same Legislature,

[4] The Legislature expressed the intenbeing respectively sections 27 and 36 of chaption to create the county, but the pretended ter 107, S. L. 1919. Section 572 is an older statute contained no words of enactment law, having come down through various re- creating it. The court holds that it cannot enactments from its original enactment in by judicial construction supply the substance the Session Laws of 1891. It will also be of a statutory enactment. The principle of noticed that the Legislature in 1919 by a

that decision is not applicable in the preslater enactment re-enacted the provision of ent case, because the words of enactment or 0. S. § 573, about which this controversy the real substance of the statute are not centers, to wit:

lacking. Petitioner next relies upon a de

cision of this court in State v. Kingsley, 35 "Every ballot shall contain thereon the names Idaho, 262, 205 Pac. 892. In that case the of every candidate whose nomination for any office specified on the ballot has been certified court was asked to issue its writ of manor filed according to the provisions of this title, date commanding the trustees of a school disbut no name shall appear thereon more than trict to deduct a certain amount from the once." Chapter 169, Sess. Laws 1919, p. 540. salary of each teacher to be covered into the

teachers' retirement fund. One section of the [2] Sections 542, 551, and 573 were thus act declared it to be the duty of each clerk re-enacted by the same session of the Legis- of a school district to collect such sum from lature, and are in pari materia. They should each of the teachers yearly, to be placed in be construed together and reconciled if pos- such fund. The law did not make it the sible. We think this may be done. It is duty of the teachers to pay, and did not exclearly the legislative intent that the general pressly empower the clerk to enforce collecprovision forbidding the name on the ballot tion, nor the trustees to make any deduction more than once shall be considered a general from the salaries. The only penalty providproviso, applying in all cases and limiting ed by the act for failure to pay was that it the application of the other provisions which, rendered a teacher ineligible to participate standing by themselves, would have the effect in the fund. It was urged that the provision of causing a name to appear on the ballot of the act which made it the duty of the more than once.

This conclusion is rein- clerk to collect the money necessarily imforced by the fact that this general provision plied a duty on the part of the teachers to was re-enacted in 1919, subsequently to the pay, a power on the part of the clerk to enenactment of the other sections.

force collection, and on the part of the trust

tees to hold out the money. Construing the name on more than one ticket. The ques-
act as a whole, and particularly in view of tion is: What shall he do?
the nature of the only penalty provided, the [5-7] C. S. § 553, expressly gives the candi-
court concluded that the Legislature did not date a right to decline any or all nomina-
intend to make payment compulsory.

tions. If he exercises this right by declin-
The principle of this decision does not ing all but one of the nominations, it solves
seem applicable to a statute like the one the problem and determines on which ticket
under consideration where the Legislature his name shall be placed on the ballot. He
has named a certain act and prohibited it. is not compelled by statute to exercise this
Finally petitioner relies upon the decision right. However, if he does not do so, the
in Ingard v. Barker, 27 Idaho, 124, 147 Pac. auditor may place his name on the ticket
293, in which this court held that it had no of any one of the parties which has nom-
right to make judicial amendments to the inated him. Thus the statute does provide a
statute in question by adding words thereto. method for determining how the candidate's
The act made it the duty of the Governor name shall be placed on the ballot. Whether
to consider recommendations by the state a better or more adequate method could have
horticultural association in appointing mem- been, or should have been, provided, is not
bers of the board of horticultural inspectors. for the court to determine or even to con-
The court refused to interpolate into the sider. In the light of the above facts we
statute words which would make it the legal have no right to hold that the provision of
duty of the Governor to follow such recom- the statute in question is absolutely unen-
mendations. The principle of that case is forceable and therefore void.
not applicable to the present case. Here the As a court we are concerned only with the
statute expressly forbids the doing of a cer- provisions of the statute as we find them.
tain act. To give eífect to the prohibition However, we think it proper to suggest that,
it is not necessary for the court to read any- | if a candidate is nominated by more than
thing into the act.

one party, and does not exercise his statuFinally, petitioner relies upon language tory right to decline, but, before the ballots used in Re Segregation of School Dist. No. are printed, makes a request of the auditor 58, 34 Idabo, 222, 200 Pac. 138, in which this that his name appear on a certain ticket, court said:

the statute does not prohibit the latter's com“However, the intent must be expressed by plying with the request. the words used and 'a legislative intention not [8] Having held against petitioner on his expressed in some appropriate manner has no first point that the law is unworkable, we legal existence.' (The words last quoted be- must pass upon his second point which is ing from Lewis' Sutherland, Stat. Const. (20 that the statute is generally unconstitutional. Ed.) vol. 2, § 388.)

We must bear in mind the general rule rec

ognized by all courts, and expressed by this In the present case the intent of the Leg court in State v. Omaechevviaria, 27 Idaho, islature to prohibit the act mentioned is 797, 152 Pac, 280, as follows: clearly expressed. The court is asked to ignore the express prohibition of a statute

"Courts approach constitutional questions and to order an officer to do a thing which in this respect with the greatest possible cau

with great deliberation, exercising their power the law forbids him to do.

tion and even reluctance, and should never dePursuing this thought further, however, clare a statute void unless its invalidity is, in petitioner points out that there is no express their judgment, beyond a reasonable doubt." statutory provision which makes it the candidate's duty to elect on which ticket his

[9] We must also bear in mind that our name shall appear, or which expressly con- Legislature has been expressly invested with fers upon him the right to do so. There is

broad powers and wide discretion in the matno statute which directs how the auditor ter of legislating in regard to the exercise shall determine the matter. Thus, says pe- of the right of suffrage, by Const, art. 6, 8 titioner, we are confronted by a dilemma in 4, which reads as follows: which the statutes prohibit the appearance Section 4. The Legislature may prescribe of the name more than once on the ballot, qualifications, limitations, and conditions for and yet fail to provide a method of deter- the right of suffrage additional to those premining on which ticket the name shall ap

scribed in this article, but shall never annul pear. For this reason he contends that the any of the provisions in this article contained." law is so uncertain and unworkable as to be Petitioner has not pointed us to any exvoid. It will be noted, however, that the al. press provision of our Constitution which is leged uncertainty does not inhere in the pro- violated by the law in question. hibitory provision of the statute which we Laws providing that a name may not apare considering. It arises rather from the pear on the ballot more than once have been situation resulting from an enforcement of held unconstitutional by the courts of two that prohibition. The auditor will have no states, California and New York,

Similar difficulty in obeying the prohibition of the laws have been held constitutional by the statute and refusing to place petitioner's courts of last resort of Washington, Mon

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(230 P.) tana, Michigan, Illinois, Wisconsin, Ohio, 1 be noted that the law is not aimed at any Missouri, and Utah. The California case is party. It operates evenly upon all. Murphy v. Curry, 137 Cal. 479, 70 Pac. 461, The other decision holding such a law un59 L. R. A. 97, holding that such a law is constitutional is in a New York case. Hopan invasion of the constitutional rights of per v. Britt, 203 N. Y. 144, 96 N. E. 371, 37 the political party and the nominee. Th L. R. A. (N. S.) 825, Ann. Cas. 1913B, 172. majority of the court holds that it is an un- This decision proceeds upon the ground that just discrimination against any party to say such a law invades the constitutional right that the name of one of its nominees cannot of the electors. An excellent and fair analappear upon its ticket on the ballot simply | ysis of it is given by the Supreme Court of because he has also been nominated by some Montana in the following language: other party. To this is added the argument that an unjust discrimination also arises

"It was held that the antifusion statute disfrom the fact that the ballot conveys the to vote a straight ticket and whose ticket was

criminated in favor of the man who desired false impression that the party has made no complete as against the man who desired to nomination for the office. The court also vote a straight ticket and whose ticket was not holds that the nominee has a constitutional complete on the ballot and who must therefore right to have his name appear upon the tick- make two or more marks to express his will. et of every party that has nominated him. The gist of the opinion is compressed in a The argument that such a law invades the single sentence: 'While the Constitution does constitutional right of a political party is not guarantee that the elector shall be allowed met by the Supreme Court of Washington in

to express his vote by a single mark, our posithe following language:

tion is that he is guaranteed the right to ex

press his will by a single mark if other voters “Recurring again to fundamental princi- are given the right to express theirs by a single ples, the whole argument in this behalf is mark and there is no difficulty in according the met by the undisputed proposition that the right to all.” Constitution takes no concern of political parties. The people in adopting the Constitu

See State v. Wileman, supra. The reasontions, both state and federal, wisely considered that policital parties are evanescent things, ing of the New York court does not appeal born of political emotions and of uncertain— to us as sound. It is answered by the Susometimes precarious-tenure of life, and went preme Court of Michigan in a decision upno further than to protect the elector in his holding the validity of such a law. The right to cast a ballot; not a coerced party court says: ballot, but for the candidate of his choice, whether he be upon one ballot or another." Does it (meaning such a law] destroy the State v. Superior Court, 60 Wash. 370, 381, full, free, and intelligent exercise of that pre111 Pac. 233, at page 238.

cious right which is essential to the perpetuity

of our government? To so hold would be abIt is also met by the Supreme Court of surd, and further argument cannot make it Montana in the following language:

clearer. To what extent is the voter impeded?

If he belongs to the Democratic or Prohibition "Our bill of rights applies to individuals, not cr People's party, and desires to vote for a to political parties.” State v. Wileman, 49 congressional candidate, he is required to make Mont. 436, 440, 143 Pac. 505, at page 566. two crosses or marks instead of one, If he

cannot read, he is certainly not impeded, beThe existence and rights of political par cause the parties sworn to assist him in preties are not recognized nor guaranteed by ei- paring his ballot will readily inform him upon ther the federal or the state Constitutions. the subject, and mark it according to his wish

It would be much more difficult to prepare In the course of time Legislatures found it

a ballot under the pure Australian system, necessary to recognize them for the purpose where each name must be marked. It would of regulating them and preventing or curbing be a serious reflection upon the intelligence of certain pernicious customs and practices the voters of Michigan to hold that they could which had grown up. The rights of individ- be deceived by such a ballot or impeded in the uals to meet together as political parties and right to vote. Especially is this true in view to express their views and carry on their of the means of disseminating intelligence propaganda as such are undoubtedly pro- through the newspapers, upon the hustings, by tected by the constitutional guaranties of printed posters, and the importunities of candi

dates and their friends." Todd v. Election freedom of assembly and of speech. But, so Com'rs, 104 Mich. 474, 62 N. W. 564, 29 L. far as the ballot is concerned, political par- R. A. 330. ties have no constitutional rights. The Legislature might prohibit any mention or des The New York court's argument is also ignation of party on the ballot. It cannot be answered by the following language of the reasonably contended that this law is re- Supreme Court of Wisconsin: pugnant to the Constitution because it in

“The right of the individual to vote for the vades the rights of any party. This is par-candidate of his choice is not interfered with ticularly true in view of the sweeping power by it, and that is the constitutional right guarover elections expressly conferred by our anteed.” State v. Anderson, 100 Wis. 523, 536, Constitution upon the Legislature. It will | 76 N. W. 483, at page 486 (42 L. R. A. 239).


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