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The argument that the provision in question invades constitutional rights of either the electors or the nominee is answered by the Supreme Court of Illinois as follows:

"The object of the ballot law is to afford to every legal voter the equal right with every other legal voter to cast his ballot freely for the candidates of his choice. It gives every candidate the same oportunity to have his name upon the ballot once, in the column of the party of his choice. Every voter has an opportunity to vote for him. Neither the candidate nor the voter has a constitutional right to demand more." People v. Czarnecki, 256 Ill. 320, 100 N. E. 283.

Defendant's demurrer to plaintiff's application is sustained, the motion to quash the alternative writ is granted, and the action is dismissed, with costs to defendant.

WILLIAM A. LEE, J., and BABCOCK, District Judge, concur.

BUDGE and WM. E. LEE, JJ., deeming themselves disqualified, did not sit at the hearing, nor participate in the decision.

DUNN, J. I concur in the judgment sustaining the demurrer, granting the motion, and dismissing the action. I am of the opin

In the same decision the court well de-ion, however, that, in addition to the right fines the purpose of the official ballot as follows:

"The object of the official ballot is not to furnish voters with information as to the persons who are the candidates of their respective parties, or of any party, but to enable them readily to indicate, in the prescribed form, the candidates of their individual choice."

For other well-considered decisions up holding the constitutionality of such a law against the argument that it invades the constitutional rights of the party, the candidate or the elector, see: State v. Bode, 55 Ohio St. 224, 45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696; State v. Coburn, 260 Mo. 177, 168 S. W. 956; Hayes v. Ross, 41 Utah, 580, 127 Pac. 340.

Under our constitutional provisions the Legislature has power to pass a law which bears a reasonable relation to the purpose or object of regulating and conducting elections so as to insure the public welfare. It is known to all that there are two schools of political thought, one of which lays stress upon the necessity and importance of parties and party integrity, in order that political contests may be conducted and decided in accordance with political principles and not become a mere scramble for personal preferment, the other of which minimizes, if it does not deny, the necessity and importance of parties and party integrity, and emphasizes the importance of voting for the individual-the man's the thing. Such questions of political philosophy and policy are for the Legislature to consider and determine, not for the courts. If one of the purposes of this statute be to preserve party integrity, we conclude that it is within the power of the Legislature to adopt reasonable measures to do this, so long as the law operates as the present one, evenly and impartially upon all parties. Petitioner has not pointed us to any provision of our Constitution, which the statute clearly infringes, nor to any implication necessarily and reasonably arising from the Constitution with which it conflicts. We hold the law to be constitutional.

to decline a nomination expressly granted by the statutes, a candidate has an implied right to dictate to the auditor on which ticket his name shall appear, without declining the pomination, such right to be exercised at any time before the ballots are printed. If the candidate neither declines the nomination nor elects upon which ticket his name shall be placed, the auditor, having no right to elect, should omit the candidate's name

from each ticket.

SUTPHEN v. ENKING, Auditor and Recorder of Gooding County. (No. 4458.)

(Supreme Court of Idaho. Oct. 21, 1924.)

1. Elections 126(4)—Primary law held not to forbid political party nominating nonmember as its candidate.

One of the purposes of the primary election law of this state is to secure to every political party the absolute right to control its party nominations, excluding from any part in the choosing of its candidates every nonmember of such party, but there is no provision of such primary law that forbids a political party to nominate as its candidate a nonmember of such party.

2. Elections 126(4)—Primary nomination of nonmember as candidate on party ticket does not create vacancy thereon.

The nomination of such nonmember as a candidate on a party ticket by a primary election does not create a vacancy on such party ticket.

Original proceeding for writ of mandate by D. H. Sutphen against Myrtle P. Enking, Auditor and Recorder of Gooding County. Writ denied.

Bissell & Bird and W. T. Stafford, all of Gooding, for plaintiff.

James & Ryan, of Gooding, for defendant.

DUNN, J. M. F. Ryan, of Gooding county, filed his affidavit prior to the recent primary as candidate for prosecuting attorney, setting forth his affiliation with and membership in the Democratic party. His name was printed on the Democratic primary tick

(230 P.)

et, and he received the nomination of that ticket a person not a member of the party, party for that office. No candidate had his name printed on the Republican ticket, but Ryan received 14 votes on the Republican ticket, which was the highest number received by any person for the office of prosecuting attorney on that ticket, and he was declared by the county canvassing board to be the Republican as well as the Democratic nominee for that office.

After the primary the Republican county central committee of Gooding county, claiming that a vacancy existed on the Republican ticket, met and nominated the plaintiff, D. H. Sutphen, as the Republican candidate for the office of prosecuting attorney of Gooding county, and caused a certificate of such nomination to be presented to the auditor of said county for filing. The auditor refused to file the same for the reason, as claimed by her, that no vacancy in said office existed. Thereupon the plaintiff brought this action to compel the filing of his nomination by the defendant.

[1] It is the contention of the plaintiff that the present primary law of this state provides for what is commonly known as a "closed primary," and that the person claiming to be the Republican nominee for the of fice of prosecuting attorney cannot legally be such nominee, for the reason that he is admittedly a member of the Democratic party and the nominee of that party for the office of prosecuting attorney. To establish his contention that the law of this state provides for a "closed primary" the plaintiff relies generally upon the provisions of the primary law for nominations by political parties, but specifically upon that portion of C. S. § 538, which reads as follows:

"The person of each party receiving the highest number of votes shall be the nominee for the specified office."

He insists that the expression "the person of each party" limits the power of a political party to nominate and the right to receive the nomination to a person who is a bona fide member of such party. As we understand his position it is that, even though a nonmember of the party received at the primary election the yote of every member of the party, the law would not permit such nonmember to be the nominee for the office designated.

but who, for reasons satisfactory to the members of the party, would be an acceptable candidate of the majority or of all the party is quite another question. Certain it is, if there was such legislative intent, nowhere in the statutes governing primary elections is there an explicit statement to that effect. It should be borne in mind that it was not the purpose of the Legislature in enacting the primary law to arbitrarily control the selection of the candidates of the several political parties, but rather to secure to each party absolute control of its own affairs. C. S. § 529, provides that in order to vote at any primary election the person must be duly registered in the precinct wherein he offers to vote, and be a member of the political party holding the primary at which he attempts to vote. That is, in addition to the party qualifications required of him, the person so offering to vote must be a legally qualified elector. One being a legally qualified elector and offering his vote at a general election may cast it for whom he pleases, and it must be counted exactly as he cast it. C. S. § 572. There is no authority vested in any person or set of persons legally to control his vote. We are unable to see how his rights are any more limited as to how he will vote, when he has brought himself within the requirements of a voter, at a primary election held under the law in this state. C. S. § 525, contains the following provision:

Sec. 525. "The provisions of the general laws relative to the holding of elections, the furnishing of ballot boxes and supplies, the solicitation of voters at the polls, the manner of conducting elections, the officers and duties thereof at elections, the counting of ballots and making returns of the results, the canvassing of returns, and all other provisions relating to general elections, shall apply to primary elections in so far as they are applicable and consistent with the provisions of this chapter.

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There can be no doubt, we think, that it Whether the Legislature could, if it chose, was the intention of the Legislature to pro- limit the right to vote in the party primary vide for a "closed primary" to the extent so that under no circumstances could a poof recognizing party nominations and secur- litical party nominate one on its party ticket ing to bona fide members of the political who is not a member of the party, it is not parties the absolute right to control the af- necessary to decide in this case, and we fairs of their respective parties, wholly ex- therefore do not decide it. All that we decide cluding from such control every person who on that point is that the Legislature has not is not a bona fide member of such party. so provided. Certainly we are not willing Whether the Legislature intended also to to construe an uncertain and ambiguous exforbid the bona fide members of a political pression, such as that quoted from C. S. § party to nominate for office on their party 538, as depriving voters of a party of the

40

230 PACIFIC REPORTER

right to do such a thing. If the Legislature had intended to prevent such action by a political party, we think it would have said so in clear and unmistakable terms.

The plaintiff has cited in support of his contention State ex rel. Dunn v. Coburn, 260 Mo. 177, 168 S. W. 956. This was a case in which the plaintiff, a Republican, who had entered himself as a candidate for the as circuit judge, Republican nomination sought to compel the proper authorities to enter his name also on the Progressive ticket as a candidate for that party's nomination for the same office.

Also the plaintiff cites Gardner v. Ray, This was a 154 Ky. 507, 157 S. W. 1147. case in which a Republican sought to compel the filing of his petition to become a candidate for assessor, and the court held the petition to be fatally defective, because it omitted certain declarations of party affiliations and previous support of nominees required by the law to be included in the petition. Clearly, neither of these cases is in point.

Plaintiff also cites State ex rel. Curyea v. Wells, 92 Neb. 337, 138 N. W. 165, 41 L. R. A. (N. S.) 1088, and State ex rel. Murphy v. Graves, 91 Ohio St. 38, 109 N. E. 590. Curyea v. Wells, the Nebraska case, comes more nearly paralleling the case here than any other cited. In that case the court held that the law of Nebraska provided for a "closed primary," and, without any specific provision to that effect, it construed the law of that state to forbid the placing as a candidate upon the party ticket of one not a member of such party, unless two or more political parties were affiliated for the general election, in which case a member of any one of such affiliated parties might be a candidate upon the several tickets of the parties so affiliated. There is this statement in the opinion that seems to us to distinguish that case from the case at bar, and possibly to have furnished the ground upon which the court made its holding. It says that:

"The Legislature, to carry out the idea of a closed primary, may well provide that the average voter shall not be deceived by a statement on the ballot at the general election that a candidate belongs to or affiliates with two antagonistic political parties, when those parties have not affiliated, and the candidate has declared under oath that he affiliates with one of them, and has refused and neglected to state that he affiliates with the other."

This refusal on the part of the candidate would seem to afford ground for the court's decision. Our law contains no such require

ment.

fice upon the ticket of any other party. In
that case the applicant for the writ of man-
date was a Republican who sought to com-
pel the secretary of state to put his name
upon the general election ballot as a Pro-
gressive nominee for the office of judge of
The ground
the Supreme Court of Ohio.
upon which he pressed his claim was the
fact that, at the primary election in that
state where over 8,000 votes had been cast
for the Progressive ticket, he received four
votes. In denying the right of the applicant
to the writ the court made this significant
statement:

"The right to a peremptory writ of mandamus by a relator must be predicated on the clear legal right of the relator and the inherent natural justice of his claims."

It would be exceedingly difficult for the ap

plicant in that case to stand on the facts relied on in the face of that declaration of

the court.

[2] The nomination of Ryan, a nonmember of the Republican party, did not create a vacancy on the ticket of that party.

The holding of this court in the case of State ex rel. Mitchell v. Dunbar, 230 P. 33, as to the appearance of the candidate's name on the official ballot, the rights of the candidate and the authority of the auditor is applicable to this case as to those matters.

The application for a writ of mandate is denied. Costs to defendant.

MCCARTHY, C. J., and WILLIAM A. LEE and WM. E. LEE, JJ., concur.

BUDGE, J., did not sit at the hearing nor take part in the decision of this case.

HONNOLD v. STARKWEATHER.
(No. 4080.)

(Supreme Court of Idaho. Oct. 21, 1924.)
1. Appeal and error 773 (1)—Where neither
side submits brief and only respondent ap-
pears, Supreme Court may dismiss cause,
which results in affirmance, or render judg-
ment on merits.

When a cause is reached for hearing on the calendar of this court and neither side has submitted a brief and only the respondent is represented by counsel, who makes a motion to dismiss the appeal, under Rule 48 this court may, in its discretion, either dismiss the cause, which results in an affirmance of the judgment below, or examine the record for fundamental error and render judgment on the merits. 2. Sufficiency of evidence.

Record examined, and held sufficient to support the judgment.

In the Ohio case also the court construed the primary law, without any specific provision to that effect, as forbidding a voter Appeal from District Court, Bingham who is affiliated with one party to be nominated at a primary as a candidate for of- County; Ralph W. Adair, Judge.

(230 P.)

Action by Winnie Honnold against F. A. Starkweather. From a judgment for plaintiff, defendant appeals. Affirmed.

C. R. Clute, of Los Angeles, Cal., for ap

pellant.

Action by the Charles Woodmansee Estate, a corporation, against W. H. Covington and another. Judgment for defendants, and plaintiff appeals. Affirmed.

N. J. Harris, of Ogden, Utah, and Miller

John W. Jones and Hamilton Wright, & Ricks, of Rexburg, for appellant. both of Blackfoot, for respondent.

O. P. Soule, of Salt Lake City, Utah, and C. W. Poole, of Rexburg, for respondents.

MCCARTHY, C. J. This action was brought by appellant against respondent Covington to obtain possession of one-half the

WILLIAM A. LEE, J. Respondent brought an action to recover on a promissory note executed to her by appellant. The cause was tried to the court with a jury, and both sides having offered evidence and rested, upon motion of respondent the court in-crop of wheat grown in 1922 upon 320 acres structed the jury to return a verdict for respondent. From the judgment entered on such verdict so returned this appeal was

taken.

[1, 2] When the cause was reached for hearing in this court only counsel for respondent made an appearance, no briefs having been filed, and made a motion to dismiss the appeal, advising the court that since the appeal was taken the appellant has died. Rule 48 of this court provides in

part that when a cause is reached on the calendar and only respondent is represented by counsel and neither side has submitted a brief, upon motion of respondent the judgment, order, or proceeding of the court below will be affirmed of course and without argument, or the court may examine the record and render judgment on the merits. Hecker v. Johnson, 36 Idaho, 417, 211 P.

445.

We have examined the record and find no

fundamental error therein. The judgment

is affirmed, with costs to respondent.

McCARTHY, C. J., and BUDGE, DUNN,

and WM. E. LEE, JJ., concur.

of land in Madison county, Idaho. Respondent First National Bank of Rexburg, possession of the one-half the crop in cona corporation, intervened, claiming right to the land in question, and on March 23, 1922, troversy. Appellant claimed ownership of leased it to respondent Covington, the crop to be divided between them half and half.

Respondent First National Bank of Rexburg claimed to own the land by virtue of a leased it to respondent Covington on April sheriff's deed of date April 26, 1922, and 26, 1922, on the same terms that appellant had previously leased it to him.

Up to the time of this second lease Covingon had done nothing in regard to going into possession of the premises, except to haul some seed grain and water to the place. By way of defense, respondent Covington denied that appellant was the owner of the land, and set up that it merely held a mortgage on it. He further defended on the ground that the transactions by which appellant acquired its alleged interest in the land, and leased it to him, constituted doing business within this state; that appellant

was a foreign corporation which had not complied with the laws of this state in regard to such corporations, and that therefore such transactions were void. In its complaint in intervention, the First National Bank of Rexburg set up that it was the owner of the premises, and duly and regularly leased them to respondent Covington, all of which was denied by appellant in its an1. Mortgages 37(2)-Parol evidence is ad-swer to the complaint in intervention. For missible to show assignment of certificate of sale of state land is mortgage.

CHARLES WOODMANSEE ESTATE v.
COVINGTON et al. No. 4184.)
(Supreme Court of Idaho. Oct. 22, 1924.)

Parol evidence is admissible to show that an assignment of a certificate of sale of state land is a mortgage.

2. Mortgages 32 (3)-Assignment of certificate of sale of state lands as security for debt constitutes mortgage, though patents are later taken in mortgagee's name.

Where certificates of sale of state lands are

assigned as security for the payment of a debt, the transaction is a mortgage, and continues to be so, although patents are later taken in the name of the mortgagee.

convenience sake, Covington will hereinafter be designated as respondent, and the First National Bank of Rexburg as intervener. The case was tried to the court without a jury. A receiver was appointed, who took possession of the crop in controversy. The court found that appellant was not the owner or entitled to the possession of any part of the crop in question; that it merely held a mortgage on the land which had not been foreclosed. It further found that appellant was a foreign corporation which had not complied with the laws of this state in regard to such corporations; that the trans

Appeal from District Court, Madison Coun- actions by which it acquired an interest in ty; Geo. W. Edgington, Judge.

the land and attempted to lease it to re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The transaction being a mortgage in its inception, the taking of the patents in the name of appellant would not change its nature. It continued throughout to be a mortgage. Thompson v. Burns, 15 Idaho,

spondent were therefore void. It further found that intervener was the owner of the land, and entitled to the possession of the one-half the crop in question. It accordingly entered judgment that respondent and intervener each have immediate possession | 572, 99 P. 111; Kelley v. Leachman, 3 Idaho, of one-half the crop in question, or its value, if possession could not be delivered. From this judgment the appeal is taken. There are many assignments of error, but, for reasons which hereinafter appear, the only ones which need be considered are that the court erred in holding appellant had only a mortgage on the land, and was not entitled to possession of it or to a share of the crop, and therefore erred in entering judgment for respondent and intervener.

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right to the possession of the crop. On the other hand, intervener having acquired the title by sheriff's deed, its lease to respondent was valid, and gave it a right to the one-half the crop which was in controversy. Therefore the findings of the court on this issue support the judgment which was entered.

392, 29 P. 849; Wilson v. Thompson, 4 Idaho, 678, 43 P. 557; Brown v. Bryan, 6 Idaho, 1, 51 P. 995; Hannah v. Vensel, 19 Idaho, 796, 116 P. 115. This mortgage was never foreclosed. Appellant did not acquire title to the land nor the crops, and had no right to the possession of the land or crops, or to lease the land. C. S. § 6952. Appellant contends, however, that respondent Covington, being its tenant, was estopped to deny its title or right of possession to [1, 2] The uncontradicted evidence shows the land. Be that as it may, it certainly that appellant corporation was formed by cannot be contended that the intervener was the heirs of Chas. Woodmansee to look after estopped to deny the title or right of posthe affairs of, and transact business pertain- session of appellant, and it had a right to ing to, his estate. One of the heirs, James intervene and set up its right to possession Woodmansee, who was conducting farming of one-half of the crop. Both appellant operations in Madison county, Idaho, had and intervener conceded that respondent was been unsuccessful and had incurred con- entitled to one-half the crop, and they were siderable indebtedness which he was unable litigating as between themselves the right to pay. At the suggestion of his mother, to the possession of the other one-half. Apwho was the principal stockholder, appel-pellant, being merely a mortgagee, had no lant corporation decided to pay these debts of James Woodmansee and secure the repayment thereof by a mortgage upon his property. He had contracted to buy certain state lands from the state of Idaho, and had received certificates of sale. On July 23, 1918, appellant took a note from James A. Woodmansee and his wife for $9,478.64, representing the amount that had been paid on his debts. Appellant at that time took as security a mortgage upon real estate owned by Woodmansee in Madison county, Idaho, | and an assignment of the certificates of sale to the state land. The mortgage secured the payment of the principal sum of the note, and also the payment of such further sums of money as appellant might advance to Woodmansee at any time during the continuance of the mortgage. On February 10, 1923, the balance which appellant claimed to be owing to it by Woodmansee was $18,018.40. Subsequent to the assignment of the certificates of sale, appellant paid to the state of Idaho the unpaid installments on the contract of sale, and received a patent from the state. It was upon these state lands that the crop in controversy was raised. Appellant also paid taxes on this land after the patents were issued. However, it appears that the amounts so paid to the state, and for taxes, were included in the James W. Woodmansee account and charged against him by the appellant. The above evidence fully sustains the finding of the court that the transaction by which appellant acquired the assignment of the certificates of sale was a mort

Appellant also contends that the lease from intervener to respondent was void, because in violation of R. S. U. S. § 5137 (Comp. St. § 9674), citing Standard Livestock Co. v. Bank of California (Cal. App.) 227 P. 962. The federal statute referred to provides that no national banking association shall hold possession of any real estate under mortgage, or the title and possession of any real estate purchased to secure any debts due to it, for a longer period than five years. Neither the statute nor the decision have any bearing on this case, since intervener acquired title to the land in April, 1922, and that same month leased it to respondent for a period of only one year.

The reasons stated above effectually dispose of the case, and make it unnecessary to enter upon a discussion of the many complicated questions of law discussed in the briefs, as to whether the transactions covered by the evidence constituted doing business within this state, and were therefore void, because appellant, a foreign corporation, had not complied with our statutes.

The judgment is affirmed, with costs to respondents.

DUNN, WILLIAM A. LEE, and WM. E.

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