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The argument that the provision in ques Defendant's demurrer to plaintiff's applition invades constitutional rights of either cation is sustained, the motion to quash the the electors or the nominee is answered by alternative writ is granted, and the action is the Supreme Court of Illinois as follows: dismissed, with costs to defendant.

"The object of the ballot law is to afford to every legal voter the equal right with every

WILLIAM A. LEE, J., and BABCOCK, other legal voter to cast his ballot freely for District Judge, concur. the candidates of his choice. It gives every candidate the same oportunity to have his name BUDGE and WM. E. LEE, JJ., deeming upon the ballot once, in the column of the par- | themselves disqualified, did not sit at the ty of his choice. Every voter has an oppor hearing, nor participate in the decision. tunity to vote for him. Neither the candidate nor the voter has a constitutional right to demand more." People v. Czarnecki, 256 Ill. 320.

DUNN, J. I concur in the judgment sus100 N. E. 283.

taining the demurrer, granting the motion,

and dismissing the action. I am of the opinIn the same decision the court well de- ion, however, that, in addition to the right fines the purpose of the official ballot as to decline a nomination expressly granted follows:

by the statutes, a candidate has an implied "The object of the official ballot is not to fur- right to dictate to the auditor on which ticknish voters with information as to the persons et his name shall appear, without declining who are the candidates of their respective par- the nomination, such right to be exercised at ties, or of any party, but to enable them readily any time before the ballots are printed. If to indicate, in the prescribed form, the candi- the candidate neither declines the nominadates of their individual choice.”

tion nor elects upon which ticket his name

shall be placed, the auditor, having no right For other well-considered decisions up to elect, should omit the candidate's name holding the constitutionality of such a law

from each ticket. against the argument that it invades the constitutional rights of the party, the candidate or the elector, see: State v. Bode, 55 Ohio SUTPHEN V. ENKING, Auditor and Recorder St. 224, 45 N. E. 195, 34 L. R. A. 498, 60

of Gooding County. (No. 4458.) Am. St. Rep. 696; State v. Coburn, 260 Mo. 177, 168 S. W. 956; Hayes v. Ross, 41 Utah,

(Supreme Court of Idaho. Oct. 21, 1924.) 580, 127 Pac. 340.

1. Elections Omw 126(4)–Primary law held not Under our constitutional provisions the to forbid political party nominating nonmemLegislature has power to pass a law which ber as its candidate. bears a reasonable relation to the purpose or One of the purposes of the primary election object of regulating and condueting elections law of this state is to secure to every political so as to insure the public welfare. It is party the absolute right to control its party known to all that there are two schools of nominations, excluding from any part in the political thought, one of which lays stress such party, but there is no provision of such

choosing of its candidates every nonmember of upon the necessity and importance of par- primary law that forbids a political party to ties and party integrity, in order that politi- nominate as its candidate a nonmember of such cal contests may be conducted and decided in party. accordance with political principles and not become a mere scramble for personal prefer- 2. Elections Em 126(4) -Primary nomination of

nonmember as candidate on party ticket does ment, the other of which minimizes, if it

not create vacancy thereon. does rot deny, the necessity and importance

The nomination of such nonmember as a of parties and party integrity, and empha- candidate on a party ticket by a primary elecsizes the importance of voting for the indi- tion does not create a vacancy on such party vidual-the man's the thing. Such ques- | ticket. tions of political philosophy and policy are for the Legislature to consider and deter Original proceeding for writ of mandate mine, not for the courts. If one of the pur- by D. H. Sutphen against Myrtle P. Enking, poses of this statute be to preserve party in- Auditor and Recorder of Gooding County. tegrity, we conclude that it is within the Writ denied. power of the Legislature to adopt reasonable Bissell & Bird and W. T. Stafford, all of measures to do this, so long as the law op- Gooding, for plaintiff. erates as the present one, evenly and im James & Ryan, of Gooding, for defendant. partially upon all parties. Petitioner has not pointed us to any provision of our Con DUNN, J. M. F. Ryan, of Gooding counstitution, which the statute clearly infringes, ty, filed his affidavit prior to the recent prinor to any implication necessarily and rea- mary as candidate for prosecuting attorney, sonably arising from the Constitution with setting forth his affiliation with and memberwhich it conflicts. We hold the law to be ship in the Democratic party. His name constitutional.

was printed on the Democratic primary tickFor other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

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(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 but who, for reasons satisfactory to the memname printed on the Republican ticket, but bers of the party, would be an acceptable canRyan received 14 votes on the Republican didate of the majority or of all tbe party ticket, which was the highest number re- is quite another question. Certain it is, if ceived by any person for the office of pros- there was such legislative intent, nowhere ecuting attorney on that ticket, and he was in the statutes governing primary elections declared by the county canvassing board to is there an explicit statement to that effect. be the Republican as well as the Democrat. It should be borne in mind that it was not ic nominee for that office.

the purpose of the Legislature in enacting After the primary the Republican county the primary law to arbitrarily control the central committee of Gooding county, claim- selection of the candidates of the several ing that a vacancy existed on the Republi- political parties, but rather to secure to can ticket, met and nominated the plaintiff, each party absolute control of its own afD. H. Sutphen, as the Republican candidate fairs. C. S. § 529, provides that in order to for the office of prosecuting attorney of Good- vote at any primary election the person ing county, and caused a certificate of such must be duly registered in the precinct where nomination to be presented to the auditor of in he offers to vote, and be a member of the said county for filing. The auditor refused political party holding the primary at which to file the same for the reason, as claim- he attempts to vote. That is, in addition to ed by her, that no vacancy in said office ex- the party qualifications required of him, the isted. Thereupon the plaintiff brought this person so offering to vote must be a legally action to compel the filing of his nomina- qualified elector. One being a legally tion by the defendant.

qualified elector and offering his vote at a [1] It is the contention of the plaintiff i general election may cast it for whom he that the present primary law of this state pleases, and it must be counted exactly as provides for what is commonly known as a he cast it. C. S. § 572. There is no authori"closed primary," and that the person claim- ty vested in any person or set of persons ing to be the Republican nominee for the of- legally to control his vote. We are unable fice of prosecuting attorney cannot legally to see how his rights are any more limited be such nominee, for the reason that he is as to how he will vote, when he has brought admittedly a member of the Democratic himself within the requirements of a voter, party and the nominee of that party for the at a primary election held under the law in office of prosecuting attorney. To establish this state. C. S. § 525, contains the following his contention that the law of this state pro- provision : vides for a "closed primary" the plaintiff

Sec. 525. “The provisions of the general laws relies generally upon the provisions of the relative to the holding of elections, the furprimary law for nominations by political nishing of ballot boxes and supplies, the solicitaparties, but specifically upon that portion of tion of voters at the polls, the manner of conC. S. § 538, which reads as follows:

ducting elections, the officers and duties there

of at elections, the counting of ballots and mak"The person of each party receiving the high-ing returns of the results, the canvassing of est number of votes shall be the nominee for returns, and all other provisions relating to the specified office."

general elections, shall apply to primary elec

tions in so far as they are applicable and conHe insists that the expression “the person sistent with the provisions of this chapter. of each party” limits the power of a political party to nominate and the right to re

C. S. $ 572, governing general elections ceive the nomination to a person who is a contains this provision: bona fide member of such party. As we understand his position it is that, even though tained shall prevent any voter from writing on

Sec. 572. "*

* Nothing in this title cona nonmember of the party received at the his ticket the name of any person for whom he primary election the yote of every member desires to vote for an office, and such vote sball of the party, the law would not permit such be counted the same as if printed upon the nonmember to be the nominee for the office ballot and marked by the voter. designated.

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

right to do such a thing. If the Legisla-, fice upon the ticket of any other party. In ture had intended to prevent such action by that case the applicant for the writ of mana political party, we think it would have date was a Republican who sought to comsaid so in clear and unmistakable terms. pel the secretary of state to put his name

The plaintiff has cited in support of his upon the general election ballot as a Procontention State ex rel. Dunn v. Coburn, gressive nominee for the office of judge of 260 Mo, 177, 168 S. W. 956. This was a case the Supreme Court of Ohio. The ground in which the plaintiff, a Republican, who upon which he pressed his claim was the had entered himself as a candidate for the fact that, at the primary election in that Republican nomination as circuit judge, state where over 8,000 votes had been cast sought to compel the proper authorities to for the Progressive ticket, he received four enter his name also on the Progressive tick- votes. In denying the right of the applicant et as a candidate for that party's nomination to the writ the court made this significant for the same office.

statement : Also the plaintiff cites Gardner v. Ray,

“The right to a peremptory writ of mandamus 154 Ky. 507, 157 S. W. 1147. This was a by a relator must be predicated on the clear case in which a Republican sought. to com- legal right of the relator and the inherent natpel the filing of his petition to become a can ural justice of his claims." didate for assessor, and the court held the petition to be fatally defective, because it

It would be exceedingly difficult for the apomitted certain declarations of party af- plicant in that case to stand on the facts filiations and previous support of nominees relied on in the face of that declaration of required by the law to be included in the the court. petition. Clearly, neither of these cases is

[2] The nomination of Ryan, a nonmemin point.

ber of the Republican party, did not create Plaintiff also cites State ex rel. Curyea v.

a vacancy on the ticket of that party. Wells, 92 Neb, 337, 138 N. W. 165, 41 L. R. A.

The holding of this court in the case of (N. S.) 1088, and State ex rel. Murphy v.

State ex rel. Mitchell v. Dunbar, 230 P. 33, Graves, 91 Ohio St. 38, 109 N. E. 590. Cur- as to the appearance of the candidate's name yea v. Wells, the Nebraska case, comes more

on the official ballot, the rights of the candinearly paralleling the case here than any date and the authority of the auditor is apother cited. In that case the court held plicable to this case as to those matters. that the law of Nebraska provided for a

The application for a writ of mandate is "closed primary," and, without any specific denied. Costs to defendant. provision to that effect, it construed the law of that state to forbid the placing as a can

MCCARTHY, C. J., and WILLIAM A. LEE didate upon the party ticket of one not a and WM. E. LEE, JJ., concur. member of such party, unless two or more political parties were affiliated for the gener

BUDGE, J., did not sit at the hearing nor al election, in which case a member of any take part in the decision of this case. 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 HONNOLD V, STARKWEATHER. that case from the case at bar, and possibly

(No. 4080.) to have furnished the ground upon which the court made its holding. It says that:

(Supreme Court of Idaho. Oct. 21, 1924.) “The Legislature, to carry out the idea of a 1. Appeal and error (ww773(1)-Where neither closed primary, may well provide that the aver

side submits brief and only respondent apage voter shall not be deceived by a statement

pears, Supreme Court may dismiss cause, on the ballot at the general election that a

which results in afirmance, or render judgcandidate belongs to or affiliates with two an

ment on merits, tagonistic political parties, when those parties

When a cause is reached for hearing on the have not affiliated, and the candidate has de- calendar of this court and neither side has subclared under oath that he affiliates with one mitted a brief and only the respondent is rep. of them, and has refused and neglected to state resented by counsel, who makes a motion to that he affiliates with the other."

dismiss the appeal, under Rule 48 this court

may, in its discretion, either dismiss the cause, This refusal on the part of the candidate which results in an allirmance of the judgment would seem to afford ground for the court's below, or examine the record for fundamental decision. Our law contains no such require- error and render judgment on the merits. ment.

2. Sufficiency of evidence. In the Ohio case also the court construed

Record examined, and held sufficient to supthe primary law, without any specific pro- port the judgment. vision to that effect, as forbidding a voter who is affiliated with one party to be nomi Appeal from District Court, Bingham nated at a primary as a candidate for of County; Ralph W. Adair, Judge.

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

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(230 P.) Action by Winnie Honnold against F. A. I Action by the Charles Woodmansee Estate, Starkweather. From a judgment for plain- a corporation, against W. H. Covington and tiff, defendant appeals. Affirmed.

another. Judgment for defendants, and C. R. Clute, of Los Angeles, Cal., for ap

plaintiff appeals. Affirmed. pellant.

N. J. Harris, of Ogden, Utah, and Miller John W. Jones and Hamilton Wright, & Ricks, of Rexburg, for appellant. both of Blackfoot, for respondent.

0. P. Soule, of Salt Lake City, Utah, and

C. W. Poole, of Rexburg, for respondents. WILLIAM A. LEE, J. Respondent brought an action to recover on a promissory

McCARTHYC. J. This action was note executed to her by appellant. The cause was tried to the court with a jury, and both ington to obtain possession of one-half the

brought by appellant against respondent Covsides having offered evidence and rested, upon motion of respondent the court in- crop of wheat grown in 1922 upon 320 acres

Restructed the jury to return a verdict for of land in Madison county, Idaho.

spondent First National Bank of Rexburg, respondent. From the judgment entered on such verdict so returned this appeal was possession of the one-half the crop in con

a corporation, intervened, claiming right to taken, [1, 2] When the cause

troversy. Appellant claimed ownership of

was reached for hearing in this court only counsel for re

the land in question, and on March 23, 1922,

leased it to respondent Covington, the crop spondent made an appearance, no briefs

to be divided between them half and half. having been filed, and made a motion to dismiss the appeal, advising the court that Respondent First National Bank of Rexsince the appeal was taken the appellant burg claimed to own the land by virtue of a has died. Rule 48 of this court provides in sheriff's deed of date April 26, 1922, and part that when a cause is reached on the leased it to respondent Covington on April calendar and only respondent is represented 26, 1922, on the same terms that appellant by counsel and neither side has submitted had previously leased it to him. a brief, upon motion of respondent the judg.

Up to the time of this second lease Covingment, order, or proceeding of the court be

on had done nothing in regard to going into low will be affirmed of course and without possession of the premises, except to haul argument, or the court may examine the

some seed grain and water to the place. By record and render judgment on the merits. way of defense, respondent Covington deHecker v. Johnson, 36 Idaho, 417, 211 P. nied that appellant was the owner of the 445.

land, and set up that it merely held a mortWe have examined the record and find no

gage on it. He further defended on the fundamental error therein. The judgment

ground that the transactions by which ap is affirmed, with costs to respondent.

pellant acquired its alleged interest in the

land, and leased it to him, constituted doing MCCARTHY, C. J., and BUDGE, DUNN, business within this state; that appellant and WM. E. LEE, JJ., concur,

was a foreign corporation which had not com-
plied with the laws of this state in regard
to such corporations, and that therefore
such transactions were void. In its com-

plaint in intervention, the First National CHARLES WOODMANSEE ESTATE v. Bank of Rexburg set up that it was the COVINGTON et al. No. 4184.)

owner of the premises, and duly and regular(Supreme Court of Idaho. Oct, 22, 1924.)

ly leased them to respondent Covington, all

of which was denied by appellant in its an1. Mortgages Oma 37(2)-Parol evidence is ad. swer to the complaint in intervention. For missible to show assignment of certificate of convenience sake, Covington will hereinafter sale of state land is mortgage.

be designated as respondent, and the First Parol evidence is admissible to show that an National Bank of Rexburg as intervener. assignment of a certificate of sale of state land The case was tried to the court without a is a mortgage.

jury. A receiver was appointed, who took 2. Mortgages 32(3)-Assignment of certifi- possession of the crop in controversy. The

cate of sale of state lands as security for court found that appellant was not the owndebt constitutes mortgage, though patents are

er or entitled to the possession of any part later taken in mortgagee's name.

of the crop in question; that it merely held Where certificates of sale of state lands are assigned as security for the payment of a debt, a mortgage on the land which had not been the transaction is a mortgage, and continues to foreclosed. It further found that appellant be so, although patents are later taken in the was a foreign corporation which had not name of the mortgagee.

complied with the laws of this state in re

gard to such corporations; that the transAppeal 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 reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

spondent were therefore void. It further , The transaction being a mortgage in its infound that intervener was the owner of the ception, the taking of the patents in the land, and entitled to the possession of the name of appellant would not change its naone-half the crop in question. It accord- ture. It continued throughout to be a ingly entered judgment that respondent and mortgage. Thompson v. Burns, 15 Idaho, intervener each have immediate possession | 572, 99 P. 111; Kelley v. Leachman, 3 Idaho, of one-half the crop in question, or its value, 392, 29 P. 849; Wilson y. Thompson, 4 if possession could not be delivered. From Idaho, 678, 43 P. 557; Brown v. Bryan, 6 this judgment the appeal is taken. There | Idaho, 1, 51 P. 995; Hannah v. Vensel, 19 are many assignments of error, but, for rea- Idaho, 796, 116 P. 115. This mortgage was sons which hereinafter appear, the only never foreclosed. Appellant did not acones which need be considered are that the quire title to the land nor the crops, and court erred in holding appellant had only a had no right to the possession of the land mortgage on the land, and was not entitled or crops, or to lease the land. O. S. & 6952. to possession of it or to a share of the Appellant contends, however, that respondcrop, and therefore erred in entering judg- ent Covington, being its tenant, was estopped ment for respondent and intervener,

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 right to the possession of the crop. On the of James Woodmansee and secure the re- other hand, intervener having acquired the payment thereof by a mortgage upon his title by sheriff's deed, its lease to respondproperty. He had contracted to buy certain ent was valid, and gave it a right to the state lands from the state of Idaho, and one-half the crop which was in controversy. had received certificates of sale. On July 23, Therefore the findings of the court on this 1918, appellant took a note from James A. issue support the judgment which was enWoodmansee and his wife for $9,478.64, rep- tered. résenting the amount that had been paid on Appellant also contends that the lease his debts. Appellant at that time took as from intervener to respondent was void, security a mortgage upon real estate owned because in violation of R. S. U. S. § 5137 by Woodmansee in Madison county, Idaho, (Comp. St. § 9674), citing Standard Live. and an assignment of the certificates of i stock Co. v. Bank of California (Cal. App.) sale to the state land. The mortgage se- 227 P. 962. The federal statute referred to cured the payment of the principal sum of provides that no national banking associathe note, and also the payment of such tion shall hold possession of any real estate further sums of money as appellant might under mortgage, or the title and possession advance to Woodmansee at any time during of any real estate purchased to secure any the continuance of the mortgage. On Feb- debts due to it, for a longer period than five ruary 10, 1923, the balance which appellant years. Neither the statute nor the decision claimed to be owing to it by Woodmansee have any bearing on this case, since interwas $18,018.40. Subsequent to the assign- vener acquired title to the land in April, ment of the certificates of sale, appellant 1922, and that same month leased it to repaid to the state of Idaho the unpaid in- spondent for a period of only one year. stallments on the contract of sale, and re The reasons stated above effectually disceived a patent from the state. It was up- pose of the case, and make it unnecessary on these state lands that the crop in con- to enter upon a discussion of the many comtroversy was raised. Appellant also paid | plicated questions of law discussed in the taxes on this land after the patents were briefs, as to whether the transactions coyissued. However, it appears that the ered by the evidence constituted doing busiamounts so paid to the state, and for taxes, ness within this state, and were therefore were included in the James W. Woodmansee void, because appellant, a foreign corporaaccount and charged ag ist him by the ap-tion, had not complied with our statutes. pellant. The above evidence fully sustains The judgment is affirmed, with costs to the finding of the court that the transac- respondents, tion by which appellant acquired the assignment of the certificates of sale was a mort DUNN, WILLIAM A. LEE, and WM, E. gage. There is no evidence to the contrary. | LEE, JJ., concur.

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