While I have concurred in the opinion adopted by this court, I deem it advisable to discuss certain features of the case not discussed in that opinion and to express my views.
This action was commenced by the filing in this court of a petition, the caption to which is as follows:
"In the Supreme Court of the State of Oklahoma. "M.E. Craig, W.R. Stidham, A.G. Dather, M. Shadid, Wm. Lincoln Garver, Thos. Lee Wilson, A.M. McClure, Allen C. Adams, R.O. Womack, L.W. Langwell, Alfred Reynolds, and M. Shadid, State Chairman, and Siegfried Ameringer, Secretary of the Socialist Party of the State of Oklahoma, Plaintiffs, v. Reford Bond, Chairman, John W. Hayson, Vice Chairman, and J. William Cordell, Secretary of the State Election Board, of the State of Oklahoma, Defendants, No. 24126."
The body of the petition is as follows:
"Petition. "Comes now the plaintiffs M.E. Craig, W.R. Stidham, A.G. Dather, M. Shadid, Wm. Lincoln Garver, Thos. Lee Wilson, A.M. McClure, Allen C. Adams, R.O. Womack, *Page 41 L.W. Langwell, Alfred Reynolds, and M. Shadid, State Chairman, and Siegfried Ameringer, State Secretary of the Socialist party of the state of Oklahoma, and for their cause of action, and for ground of complaint against the defendants Reford Bond, Chairman, John W. Hayson, Vice Chairman, and J. William Cordell, Secretary of the State Election Board of the state of Oklahoma, allege and state:
"(1) The plaintiffs M.E. Craig, W.R. Stidham, A.G. Dather, M. Shadid, Wm. Lincoln Garver, Thos. Lee Wilson, A.M. McClure, Allen C. Adams, R.O. Womack, L.W. Langwell, Alfred Reynolds, are each and all residents and voters of the state of Oklahoma, and the other plaintiffs, M. Shadid and Siegfried Ameringer, are likewise legally qualified and actual voters of the state of Oklahoma, and the plaintiff M. Shadid is the legally selected and acting chairman of the Socialist party of the state of Oklahoma, and the plaintiff Siegfried Ameringer is the legally selected and acting secretary of the Socialist party of the state of Oklahoma.
"(2) Plaintiffs further state that the defendant J. William Cordell is the Secretary of the State Election Board of the state of Oklahoma; the defendant Reford Bond is the Chairman of the State Election Board of the state of Oklahoma, and the defendant John W. Hayson is vice chairman of the State Election Board of the state of Oklahoma; that the said three election officials herein last named, constitute and compose, and are the legally selected, qualified and acting members of the State Election Board of the state of Oklahoma.
"(3) The plaintiffs further allege that the Socialist party is a duly constituted and authorized political party under the laws of the state of Oklahoma; and plaintiffs herein further allege that the said political party organization has been and was effected on or about the 7th day of July, 1932, and not prior to said date, and that the said organization of the Socialist party of the state of Oklahoma was not recognized by the state of Oklahoma and its duly constituted and elected officials, that is, the Secretary of the State and the State Election Board, until the 24 day of August, 1932, and thereafter.
"(4) The plaintiffs further state that, on or about the 15th day of August, 1932, a petition was filed with the Secretary of the State of the state of Oklahoma; that the said petition was signed by approximately 7,000 legal voters of the state of Oklahoma; that by the said petition, and the terms thereof, the proper officials of the state of Oklahoma were petitioned and requested to recognize the petitioners as being and constituting the Socialist party of the state of Oklahoma; that the said petition was accepted, approved by the Secretary of the State, and transmitted to the Secretary of the State Election Board.
"(5) The plaintiffs herein further allege that when or after the said petition thus filed with the Secretary of the State and certified by him, had been transmitted to the Secretary of the State Election Board of the state of Oklahoma, it became and was the duty of the said Election Board to recognize the said petitioners to be, and to constitute the Socialist party of the state of Oklahoma; and the law having imposed this obligation on the State Election Board, it thereafter became the duty of the said Election Board to place the names of the designated plaintiffs as the presidential and vice presidential electors of the Socialist party of the state of Oklahoma upon the official ballot to be voted for in the November election of the year 1932.
"(6) Plaintiffs further state that the said Secretary of the State Election Board of the state of Oklahoma; and the Chairman, and the Vice Chairman of the said State Election Board, acting in conjunction with the said Secretary, have declared that they will not place the names of these designated plaintiffs herein, upon the ballot as in the November election of 1932, as the nominees of the Socialist party of the state of Oklahoma: and these plaintiffs further allege that the said State Election Board in its assuming the attitude that it has assumed toward these plaintiffs and their petition to be placed upon said ballot, is withholding and denying to the plaintiffs their legal right as said chosen electors of the said Socialist party of the state of Oklahoma."
The prayer of the petition is as follows:
"Wherefore, the plaintiffs herein pray that all their names, except the name of Siegfried Ameringer, be placed upon the official ballot, to be voted for in the election to be held in November of the year 1932; that said plaintiffs herein designated have their names printed on the said ballot as presidential and vice presidential electors of the Socialist party of the state of Oklahoma, and for this purpose, the plaintiffs herein pray that the honorable court issue its alternative writ of mandamus directed to the said Election Board of the state of Oklahoma, composed of J. William Cordell, as Secretary, Reford Bond as Chairman, and John W. Hayson, as Vice Chairman of the State Election Board of the state of Oklahoma; commanding them, as said Board, to do and perform the acts herein prayed for, or show legal cause why they should refuse to perform said act, as the plaintiffs herein have prayed, and for such further and additional relief as may be just and proper in the premises."
The petition was verified.
The defendants waived the issuance of *Page 42 an alternative writ of mandamus and filed an answer, in which they first questioned the sufficiency of the petition of the plaintiffs by alleging that that petition did not state facts sufficient to constitute a cause of action. Because of that allegation I have deemed it necessary to set out the petition in full.
It will be noted that the plaintiffs, in their petition, prayed "* * * that all their names, except the name of Siegfried Ameringer, be placed upon the official ballot, to be voted for in the election to be held in November of the year 1932. * * *" There are 13 plaintiffs in this action. To place "all their names, except the name of Siegfried Ameringer," upon the official ballot would be to place 12 names thereon. The number of presidential electors to be elected in the state in Novmber, 1932, is 11, and the names of only 11 nominees for the office may be placed upon the official ballot.
I pass to what I consider to be a fatal defect in the petition. Nowhere in it was it alleged that any of the plaintiffs was the nominee or the candidate of any political party for presidential elector. While it was alleged therein that certain of the plaintiffs were residents and voters of the state, and that, when or or after the petition for recognition of the Socialist party in the state was filed with the Secretary of State and certified by him to the Secretary of the State Election Board, it became and was the duty of said election board to place the names of the plaintiffs upon the official ballot to be voted for in the November election of the year 1932 as presidential and vice presidential electors of the Socialist party, it was nowhere alleged in the petition that any of the plaintiffs had been nominated or selected in any manner by the Socialist party in the state of Oklahoma as its candidate for office.
Another fatal defect in the petition is that it was nowhere alleged therein that the plaintiffs who asked to have their names printed upon the ballot as nominees of the Socialist party for presidential electors are affiliated with the Socialist party or registered as such.
However, I do not desire to base my decision on the evident defects in the petition. In my opinion, the issues are of considerable public importance and should be determined upon their merits notwithstanding the failure of the plaintiffs properly to present them by the pleadings.
This is an action in mandamus. This court is asked to require the State Election Board of the state of Oklahoma to do certain things. Since the early history of this state, the rule has been that mandamus will lie to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station. Eberle v. King, Judge, 20 Okla. 49,93 P. 748. Since we are asked to require the State Election Board to perform an act, we must ascertain whether or not the law specifically enjoins the performance of that act upon members of the State Election Board.
The conclusion of the plaintiffs in their petition is that it is the duty of the State Election Board to place the names of certain of the plaintiffs upon the official ballot to be voted for in the November election of the year 1932 as presidential and vice presidential electors of the Socialist party of the state of Oklahoma, but there was no allegation of fact in the petition from which that conclusion may be drawn. From the facts disclosed by the agreed statement of facts, it appears that 12 applications were filed with the State Election Board, and the application of Alfred Reynolds was set out in the agreed statement of facts as typical of the others. That application was as follows:
"Application to place name on State Ballot
"Date Sep. 14 1932
"J. Wm. Cordell, Secretary,
"State Election Board, "Oklahoma City.
"Dear Sir:
"I hereby make formal application to have my name printed on the official state ballot, to be voted at the regular election, to be held on Tuesday, November 8th, as a candidate of the
"Socialist Party For the nomination
"(Political Party)
"For the office of
"(Presidential Elector No.
"(Name of Office)
"I have been a qualified elector of the state of Oklahoma for more than sixteen years.
"I am affiliated by registration with the Socialist party.
"My age is 64 years.
"My residence is Covington, Okla.
"My occupation is Oil worker.
"You are also notified that I have appointed and authorized __________________ of ___________________ and ______________ of ____________________ to expend money in defraying the expenses of my campaign. *Page 43 (If no one has been appointed or authorized leave blank.)
"I have not and will not authorize any person to expend money or other things of value in the interest of my candidacy, but I will, in person, account for all the money or other things of value expended in the interest of my candidacy, as required by law.
"Alfred Reynolds
"(Signed here with ink)
"Alfred Reynolds
"(Typewrite your name here)
"Subscribed and sworn to before me, a notary public this the 14th day of Sept. 1932.
"W.L. Coberly Notary Public
"My commission expires May 28, 1933
(seal)
"(This application must be signed by the candidate, in person, before a notary public.)"
It will be noted that that application was to have the name of Alfred Reynolds printed upon the official state ballot at the regular election to be held on Tuesday, November 8, 1932, as a candidate of the Socialist party for the nomination of the office of presidential elector, and not as a nominee of the Socialist party. The applicant nowhere stated that he was the nominee of the Socialist party or that he had been nominated by the Socialist party. It is apparent that the applicant used a blank form of application to have his name printed on the state ballot as a candidate for the nomination of the office of presidential elector and filled it out to show the date of the election as November 8th. It was not shown that any of the plaintiffs ever filed with the State Election Board an application to have his name printed upon the official state ballot as a candidate of the Socialist party for election to the office of presidential elector.
Since none of the applicants asked the State Election Board to place his name upon the official state ballot as a candidate of the Socialist party for election to the office of presidential elector, I am of the opinion that none of them is justified in asking this court to require the State Election Board, by mandamus, to do so. They are not entitled to have a writ requiring the State Election Board to do a thing which they have not requested the State Election Board to do.
Though the applications filed with the State Election Board had been to have the names of the applicants placed upon the ballot at the general election as the candidates of the Socialist party for presidential elector, I know of no provision of law in this state authorizing such an application to be made. There is no provision of law in this state authorizing the petitioning of the State Election Board to have the names of political nominees or independent candidates placed upon the ballot at a general election. The names to be placed upon the ballot at a general election are ascertained by the election boards from the returns of the primary election, from the petitions filed with those election boards by persons who desire to have their names printed upon the political party ticket at the primary, and from the petitions filed by nonpartisan candidates. From the information so received the election boards prepare the ballots. None of the plaintiffs in this case filed such a petition, either as a member of a political party, or as a nonpartisan, and none of them were voted on at any primary election.
But admitting for the purpose of discussion that the petition of the plaintiffs stated a cause of action and that proper applications had been made to the State Election Board, the relief prayed for must be denied for the reason that there is no law authorizing this court to grant the relief prayed for. The plaintiffs admit that there is no legislative enactment requiring the State Election Board to place their names upon the state ballot as the candidates of the Socialist party for presidential elector. They contend that a political party organized and coming into existence after the holding of a primary election has the right to have the names of its nominees for presidential and vice presidential electors placed upon the ballot to be voted on in the November election, notwithstanding the fact that there is no law enjoining that duty upon the State Election Board. In their brief they discussed the constitutional provisions with reference to political power and the exercise of the right of suffrage, but they failed to distinguish between a political power and the exercise of the right of suffrage and the legislative right to prescribe qualifications of candidates for public office. Nowhere do they cite any authority to the effect that the Legislature does not have the authority to prescribe the qualifications of candidates for public office, or the procedure to be followed by those candidates in having their names placed upon the ballot. The right to vote is one thing, and the right to be voted for is another. While every citizen may desire to become a candidate for public office and to be voted for for that position, he has no legal right to become a candidate for public *Page 44 office without complying with the legislative requirements therefor, and if he fails to comply with those requirements, he has no legal right to have his name placed upon the ballot. To hold otherwise would be to hold that one citizen of the state has rights which another citizen of the state does not have. I know of no reason why a rule which is applicable to Republicans, Democrats, and Independents is not applicable to members of any other political party. Since no Republican, Democrat, or Independent is authorized to have his name placed upon the ballot at a general election by petitioning the State Election Board therefor, I know of no reason why a member of any other political party should be accorded that privilege. The plaintiffs in this action are individuals seeking individual privileges. Any one of them could have filed a timely petition with the State Election Board to have his name printed upon the Socialist party ticket at the primary election. None of them did so. The excuse that they offer for failing to do so is that the Socialist party was not in existence in the state of Oklahoma at the time fixed by law for the filing of such petitions. They offer no proof of that statement. The Socialist party has been in existence for many years. It is one of the powerful parties in the nation. It contains among its members electors of a high type of citizenship. It serves a useful purpose in carrying on our party system of government. This court cannot accept as a fact a statement that it did not come into existence until on or about July 7, 1932. I am of the opinion that it came into existence long prior to that date. Had one of the plaintiffs, as a member of that political party, filed a timely petition to have his name printed upon the Socialist primary ticket, and had that prayer been denied he could have presented to this court a question of fact as to whether or not that party existed in Oklahoma and a question of law as to whether or not the Legislature could provide when a political party should cease to exist.
An attack is made upon the provisions of section 5649, O. S. 1931. The provisions of that section are not applicable herein for therein it is provided that that act shall not apply to candidates for presidential electors.
A political party has been defined by the Legislature as "an affiliation of electors representing any political organization which, at the next general election preceding, polled for President or Governor at least five per centum of the entire vote cast for either of said respective officers, or any such political organization which may have polled at least ten per centum of the vote of as many as three other states at the last election held in such states." Section 5648, O. S. 1931. By the provisions of that section, such political parties "shall nominate their candidates as all other political parties and be governed by laws regulating the same." It is nowhere shown in this record that the Socialist party did not poll at least ten per centum of the vote of as many as three states other than Oklahoma at the last election held in such states. This court cannot presume that a political party failed to poll that percentage of votes, and, in the absense of proof, this court cannot say that the Socialist party was not a political party within the legislative definition thereof and entitled to have candidates for presidential electors placed upon the primary ballot at the primary election in 1932.
I am of the opinion that by the language of section 5648, supra, the existence of a political party is not defeated by its failure to cast five per centum of the entire vote cast in this state and that its existence is dependent upon the vote in at least three of the states. So long as a political organization polls at least ten per centum of the vote of as many as three other states at the last election held in such states, in my opinion, it is a political party within the definition of a political party as prescribed by the Legislature of this state. It seems to me that that section, when taken as a whole, can be given no other logical construction.
It appears to me that the difficulty in which the plaintiffs find themselves is not due to any defect in the law of the state of Oklahoma; that it is not due to the nonexistence of the Socialist party at the time fixed for filing, and that it is due to the fact that no one affiliated with the Socialist party saw fit to file a petition with the State Election Board to become a candidate for nomination as presidential elector of the Socialist party within the time prescribed by the Legislature therefor. Since none of the plaintiffs saw fit to petition the State Election Board to have his name placed upon the ballot at the primary election as a candidate of the Socialist party for presidential elector, none of them is in a position to say that such a petition would have been denied. If, as contended, the legislation adopted by the Legislature of Oklahoma is inoperative, these plaintiffs must still lose, for their remedy was to bring a mandamus action to require the State Election Board to place their names upon the primary ballot. This they did not do. If this court was considering the petition of these plaintiffs to require the State Election *Page 45 Board to place their names upon a primary ballot as candidates for nomination, an entirely different legal proposition would be presented.
Under the provisions of section 1, art. 2, of the Constitution of the United States, every state is required to appoint, "* * * in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress, * * *" the time of chosing thereof and the day on which they shall give their vote to be determined by Congress. Under the provision, the manner of appointment of presidential electors is left to the Legislatures of the various states.
The Legislature has provided the manner of appointment of presidential electors. It has provided that they "* * * shall be chosen by the qualified electors of this state in the same manner as is provided by the general election laws for the election of state officers." Section 5814, O. S. 1931 (section 6272, C. O. S. 1921). That has been the rule since the adoption of chapter 31, art. 3, of the Session Laws of 1907-08.
It has provided that political parties shall nominate their respective candidates by primary election, as provided by the Legislature, and that nonpartisans may have their names printed on the official ballots, as provided by the Legislature, and that no candidate's name shall be printed upon the official ballot for any general election at which all or any of the national officers shall be elected unless such candidate shall have been nominated as specified by the Legislature. Section 5754, O. S. 1931 (chapter 241, section 1, Session Laws 1929). It will be noted that that act was an amendment of section 6093, C. O. S. 1921, which did not include national officers. An evident purpose of the amendment was to include national officers within the provisions of the act.
Section 6003, supra, was originally adopted as section 1, art. 4, chap. 16, Session Laws 1909. The language thereof was as follows:
"Section 1. Political parties in this state shall select or nominate their respective candidates for the various state, district, county, township and precinct offices by a primary election as herein provided for and no candidate's name shall be printed upon the official ballot for any general or special election at which all or any of the state, district, county, township or precinct officers are to be elected unless such candidate shall have been nominated as herein specified; provided, that this provision shall not exclude the right of nonpartisan candidates to have their names printed upon such official ballots as hereinafter provided for."
The words, "as herein specified," therein, referred to other provisions of the article and evidently referred to primary elections, for no provision for the nomination of candidates of political parties was made other than by primary elections. Section 5 of the article provided that:
"Any person desiring to become a candidate before primary elections for a political party nomination shall petition the proper officials, as hereinafter provided, to have his name so printed upon such political party ticket and this provision shall apply to nonpartisan candidates * * *"
— and that:
"All nominating petitions for presidential electors, United States Senators, Representatives in Congress, state officers, members of the Senate and House of Representatives, district judges, and for all other officers for which the electors of the entire state or subdivision thereof greater than a county, are entitled to vote shall be filed with the Secretary of the State Election Board. * * *"
Thereby those persons desiring to become candidates for presidential electors were required to petition the State Election Board to have their names printed upon the party ticket of the political party of which they sought to be nominated as presidential electors. Section 5, supra, has been carried forward as section 5755, O. S. 1931, after amendment by chapter 29, art., 1, sec. 1, Session Laws 1931, as to the form of the petition. The clear language, including "presidential electors," settles any question as to whether or not candidates for presidential electors are included therein.
Under the provisions of section 5754, supra, no candidate's name shall be printed upon the official ballot for any general or special election "unless such candidate shall have been nominated as herein specified." By the provisions of section 25, art. 2, chap. 31, S. L. 1907-08, "No person shall be allowed to become a candidate in any general election unless he shall have complied, fully and completely, with the provisions of this article." That section was carried forward as section 3041, R. L. 1910, the word "article" being changed by the revisers to "chapter," and it now appears as section 5777, O. S. 1931 (section 6110, C. O. S. 1921). Section 3032, R. L. 1910, is the provision of the 1907-08 act.
So we have a positive legislative provision that no person shall be allowed to become a candidate in any general election unless he shall have been nominated under *Page 46 a primary system, after having filed with the proper officials his petition to have his name printed upon the party ticket of the political party of which he seeks to be a candidate, or unless he has petitioned to become a nonpartisan candidate. The Legislature has provided no other method by which any person may become a candidate in any general election.
It is said that, since no method has been provided by the Legislature by which the plaintiffs herein may have their names printed on the ballot, this court should brush aside all technicalities and require the State Election Board, by mandamus, to print the names of these plaintiffs upon the ballot. To do so would be to violate the provisions of the Constitution of the United States, supra, vesting the Legislature with the power to determine the manner in which presidential electors may be appointed. That power is legislative in its nature and it is legislative by reason of the constitutional provision, supra. This court is not authorized to legislate. If no provision has been made by the Legislature for the printing of the names of candidates of political parties upon the ballot in a general election, where the political party was organized after the date of the primary election, the fault, if any, is not with this court, but with the Legislature in the exercise of its discretion.
I am not convinced that there is a fault in such legislation under our system of election procedure, for otherwise a man might be permitted to participate in the nomination of candidates for office of two political parties. He might participate, with his fellow electors, in the primary election, and then if dissatisfied with the result of that primary election, he might participate with others in the selection of the candidates of a new political party. If the election laws of this state are not applicable to all political parties, without regard to the date of the organization thereof, candidates for office of a political party organized after the date fixed by law for the holding of primary elections can become candidates for such office without being subjected to any of the penal provisions with reference to the filing of statements of campaign disbursements, etc. Under the provisions of section 5781, O. S. 1931, a candidate before the primary must file a carefully itemized statement of his campaign expenditures, and upon his failure to file the same, the state or county election board may withhold the certificate of nomination and refuse to issue the same until such report is filed. Section 5782, O. S. 1931. Can it be said that a candidate of a new political party is to have greater rights than a candidate of an old political party? Can it be said that a candidate of an old political party is required to keep his campaign expenditures within the defined limits and make sworn statements thereof and receive his certificate of nomination only after compliance with those statutes, while a candidate of a new political party may receive his certificate of nomination from the officers of the political party rather than the officers provided by law for the issuance of certificates of nomination, without regard to the amount of his campaign expenditures?
If the election laws of this state are not applicable to all political parties without regard to the date of the organization thereof, an unsuccessful candidate at a primary election may become the candidate of a new political party and thereby have a right not afforded to other electors, for, under our law, no other elector may be a candidate for nomination of two political parties. To grant the prayer of the plaintiffs herein would be to hold that these plaintiffs have greater rights than the candidates of political parties regularly nominated at a primary election and independent candidates. I do not think that this court should so hold.
In Persons v. Penn, 33 Okla. 581, 127 P. 384, this court had before it an appeal from an order denying the application for a peremptory writ of mandamus to compel the members of the State Election Board to print the plaintiff's name upon the ballot of the general election as the nominee of the Progressive party for Representative in Congress. It was disclosed that the plaintiff filed a timely petition with the Secretary of the State Election Board to have his name placed upon the Progressive party ticket as a candidate for nomination of that party for the office of Representative in Congress, No other person filed a petition therefor. The State Election Board failed to provide any ballots for the Progressive party at the primary election. The plaintiff was not nominated or voted for by the voters at the primary election. Upon the refusal of the State Election Board to print his name as a candidate for election to the office of Representative in Congress upon the ballots for the general election, the plaintiff brought an action in mandamus. This court, in an opinion by Mr. Justice Hayes, held that, inasmuch as the Progressive party had not at any primary election nominated the plaintiff as its candidate for Representative in Congress to be voted for at the ensuing general election, the plaintiff was not entitled to the writ sought. In view of that holding and the positive statutes *Page 47 hereinbefore cited, the decisions of the Supreme Court of Nebraska and Montana relied upon by the plaintiffs are not persuasive.
The petition for the writ should be denied.