The foregoing opinion arrives at its result by holding that the relator's name cannot be placed upon the general election ballot because he neither received the greatest number of votes nor the next greatest number. There are additional, and to my mind compelling, reasons for the result reached. These are that Judge Main's *Page 88 declination did not render his nomination void; that the names, John F. Main and Joseph A. Mallery, are, by the clear mandate of the legislature, required to appear upon the ballot; and that, since but two names can lawfully appear thereon, the writ prayed for by the relator must be denied.
To hold that Judge Main could lawfully decline the nomination is to hold that he lawfully could, and did, disfranchise a large section of the electorate. To so hold is to hold that our statutes permitted him, in effect, to elect his own successor by a mere stroke of the pen. To so hold is to declare that his declination allows Judge Mallery to go on the final election ballot unopposed, although Judge Mallery received but 66,752 of the 199,500 votes cast, and the statute (Rem. Rev. Stat., § 5212) plainly requires that a candidate, in order to go on the final election ballot unopposed, must have a majority of all the votes cast.
The opinion further holds — and rightly — that, in determining whether any of the candidates received a majority, the vote cast for Judge Main must be taken into account. Suppose, as might have happened, that Judge Main had received a majority of the vote, then he clearly would have been the only person entitled to go on the election ballot; but, if he could decline the nomination, then there would be no one to go on the ballot, and no final election could be had. I am unable to believe that the legislative branch of the government intended the election machinery it has set up, particularly the judicial election machinery, to work that way. The consequences are too foreign to all normal conceptions of public policy, and, as Judge Cardozo said in In re Rouss, 221 N.Y. 81, 91, 116 N.E. 782, 785:
"Consequences cannot alter statutes, but may help to fix their meaning. Statutes must be so construed, if possible, that absurdity and mischief may be avoided." *Page 89
Rem. Rev. Stat., § 5175, by virtue of which Judge Main purported to act in declining the nomination, provides that a person nominated for public office may decline the nomination provided he does so at least twenty days before the election. This statutory provision had its origin in the Australian ballot law which, some fifty years or so ago, was widely adopted in the United States. Our own state adopted it in 1890, with modifications, in chapter 13, entitled "Election Laws," Laws 1889-90, p. 400. What is now our § 5175, Remington's Revised Statutes, is § 11 of that chapter, as re-enacted in 1921. It will immediately be seen, upon reading the earlier sections of the chapter, that § 11 was intended to apply only to partisan candidates, whether nominated by convention or by primary. Section 12 of the chapter makes elaborate provisions for the prompt substitution of new candidates in case nominations are declined.
It has been held, in states having similar provisions, that one may not decline a nomination after the time fixed in the act. In so holding in Commonwealth ex rel. Hudson v. Martin, 7 Pa. Dist. 666, 667, the court said:
"Not only the candidate, but the party or body of citizensthat nominated him, has an interest in the names upon theballot. If a candidate desires to withdraw, he must declare his intention within the time fixed by the Act, in order that his party or the body of citizens that named him may have an opportunity to supply his place. This secures fair play; for if withdrawals could be made at any time, either before the ballots were printed, or before the day of election, it is manifest that a serious temptation to fraud and trickery would be presented. A withdrawing candidate could disfranchise his party by judiciously timing the date of his disappearance, and we need not suggest the dangers that lie hid in such a possibility." (Italics mine.) *Page 90
We shall, of course, be subject to all these dangers if a judicial nomination may be declined; for, as pointed out in Judge Steinert's opinion, the legislature has provided no method of substituting candidates for those who decline judicial nominations. The very fact that the legislature has not done so raises some inference that it did not intend the declination statute to apply in judicial elections.
(For other decisions on statutes similar to our § 5175, seeNapton v. Meek, 8 Idaho 625, 70 P. 945; State ex rel.Eastman v. Dewey, 73 Neb. 396, 102 N.W. 1015.)
A great deal of argument was made at the hearing of this cause to the effect that it is inferable, from prior decisions and from certain cited legislative acts, that the legislature did understand, and intend, that the declination statute should apply to judicial elections. Some of these arguments were quite plausible, but, after an exhaustive study, I have come to the conclusion that they are no more than that. I shall not enter into a discussion of this matter because, in the exact situation which confronts us, it is not controlling.
Let it be remembered that the exact question to be determined is whether § 5175 authorizes one who was nominated in the judicial election held September 8, 1942, to decline that nomination. Our declination statute, as it now appears in the current code as § 5175, is a reenactment of § 11 of chapter 13, Laws of 1889-90, in the form of an amendment of that section, making only typographical changes This reenactment was made in chapter 178, Laws of 1921, p. 701, and it reads as follows:
"Whenever any person nominated for public office, as in thischapter provided, shall at least twenty days before election, except in the case of municipal elections, in a writing signed by him, notify the officer with whom the certificate nominating him is by this chapter *Page 91 required to be filed, that he declines such nomination, such nomination shall be void. In municipal elections such declination must be made at least ten days before the election." (Italics mine.)
Note the words which I have italicized in the above quotation. Judge Main was indeed nominated for public office, but not "asin this chapter provided" (that is, chapter 178, Laws of 1921),but as provided in an act passed six years later, namely, chapter 155, Laws of 1927, p. 140, which is:
"AN ACT relating to the nomination and election of Supreme Court and Superior Court Judges, . . ."
Clearly, by its very terms, § 5175 extends only to persons nominated as provided in chapter 178, Laws of 1921, and not to the act under which Judge Main was nominated, and he was mistaken in supposing that he had the right to decline the nomination by virtue of its provisions. The mistake was natural enough since he was seriously ill at the time, and, no doubt, did not have the statutes at hand.
In enacting chapter 155, Laws of 1927, the chapter under which Judge Main was nominated, the legislature included nothing permitting or authorizing, or even intimating, that judicial candidates, nominated as therein provided, might decline nominations made under the act, but, on the contrary, provided, in the most plain, explicit, and mandatory terms, that:
"The name of the person who receives the greatest number of votes and of the person who receives the next greatest number of votes for each position, shall appear on the general election ballot under the designation for each respective office." (Italics mine.)
We, therefore, cannot issue a mandate to the secretary of state commanding her to put the name of Edwin C. Ewing on the ballot, for the legislative mandate, just quoted, is definite, clear, and unambiguous, *Page 92 and leaves nothing in doubt. It says to the secretary of state that the name of the person receiving the greatest number of votes (that is, John F. Main) and the name of the person receiving the next greatest number (that is, Joseph A. Mallery)shall appear on the general election ballot.
For the foregoing reasons, I concur in holding that the writ prayed for should not issue.