State ex rel. Donnelley v. Hamilton

By the Court,

Talbot, J.:

The question presented relates to the right of the nominee of a political party to have his name withdrawn or omitted from the general election ballot after he has been regularly nominated by a majority of the voters of his party. T. V. Eddy was so nominated at the late primary election as a candidate of the Republican party, to be voted for at the general election to be held next Tuesday, for the office of district judge of the Seventh Judicial District, comprising Esmeralda County. Having become incapacitated by inflammatory rheumatism from making an active campaign, temporarily at least, for he is now able to be delivering political addresses, he sent to the secretary of state and to the county clerk a resignation or communication, which was approved by the Republican county central committee of that county, directing the withdrawal of his name from the list of candidates to be placed upon the ballot to be used at the general election. The appeal is from an order of the district court obtained by petitioner, acting as chairman of the Republican county central committee, directing the removal of the name from the official ballot and from the list of nominees being published in the newspapers.

The learned district judge took a humane view of the case, and was of the opinion that, “where the party realized that his condition of health was such that he was unable to make either a campaign for himself or a campaign in assistance of the party, it would seem that he not only could resign, but that it was his duty, as occurred to Col. Eddy from the letter presented to the Republican committee,” and that “the affidavit that he would not resign is a requirement of a declaration of fealty to the party on the part of those receiving at its hands a nomination.” We think these are considerations of policy or expediency for the legislature, and not for the courts, and that the answer to the question presented depends upon the act and intention of the legislature. If, under the language or policy of the statute providing for primary elections (Stats. 1908-09, c. 198), it appears that the legislature intended to prevent the withdrawal from the ticket of candidates after they had been nominated by the majority of the voters of the party, the court cannot modify the statute and make any exception, and allow candidates to withdraw under particular circumstances or for deserving reasons when the legislature has intended to prohibit withdrawals and has not made any exception for special cases in which they-may be allowed.

The statute requires, by section 5, subd. 4, that each candidate upon filing his nomination papers make an affidavit stating, among other things, that he is a duly qualified elector, “and that if nominated he will accept such nomination and not withdraw, and that he will qualify as such officer if nominated and elected.” The candidate had filed that affidavit with his nomination papers preliminary to having his name placed upon the primary ballot, and he received a majority of the votes of his party at the primary election. It is provided in section 24 of the primary act (Stats. 1908-09, c. 198) that: “The person receiving the highest number (of votes) at a primary election as the candidate for the nomination of a political party for an office shall be the candidate of the party for such office, and his name as such candidate shall be placed on the official ballot voted at the ensuing election. * * * ”

Section 27 provides: “Vacancies occurring after the holding of any primary election shall be filled by the party committee of the city, county, city and county, district and state, as the case may be.” There is no provision in the act in relation to withdrawals, except the one to which we have referred, by which it is required to be stated in the affidavit of the. candidate filed with the nominating papers that if he is nominated he will accept such nomination and not withdraw.

The intention of the legislature controls the courts in the construction of statutes. (State v. Ross, 20 Nev. 61; Thorpe v. Schooling, 7 Nev. 15; Maynard v. Newman, 1 Nev. 271.)

It has also been held that it is the duty of the court to ascertain what the legislature had in view in adopting a statute, in order to secure, if possible, the object intended by the legislature. (Odd Fellows’ Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Dayton & V. & T. R. Co., 10 Nev. 155.)

In Brown v. Davis, 1 Nev. 409, it was held that in interpreting doubtful statutes the primary object is to ascertain the intention of the legislature, and that this intention is to be gathered from the language used and from the mischiefs intended to be suppressed or the benefits to be attained.

In Roney v. Buckland, 4 Nev. 45, it was held that in the interpretation of a statute the ultimate purpose is to be considered, and every sentence or section should be interpreted with reference to the general object and with a view of giving it full and complete effect and to extend to all its parts logical and legal results. It has also been held that no part of a statute should be rendered nugatory if this can be properly avoided. (Torreyson v. Board of Examiners, 7 Nev. 19.)

Another well-settled rule of construction is that, where one section of a statute treats specifically of a matter, it will prevail over other sections in which incidental or general reference is made to the same matter. (Long v. Culp, 14 Kan. 412; State v. Commissioner, 37 N. J. Law, 228.)

It is said, at sections 157, 158, in Sutherland on Statutory Construction: “When the legislator frames a statute in general terms or treats a subject in a general manner, it is not reasonable to suppose that he intends to abrogate particular legislation to the details of which he had previously given his attention, applicable only to a part of of the same subject, unless the general act' shows a plain intention to do so. Where there is in one act, or several contemporaneously passed, specific provisions relating to a particular subject, they will govern in respect to that subject as against general provisions contained in the same acts.”

If by implication section 27, providing for the filling of vacancies, could, if there was no other provision in the act relating to withdrawals, be held in a general way to include vacancies occurring by the withdrawal of a candidate when the kind of vacancies to be filled, whether occurring by death or otherwise, is not stated, still the provision would be a general one and would be modified and controlled by the special one by which it is apparent that the legislature intended to prohibit the withdrawal of a candidate after he had been nominated by a majority of the votes of his party.

Counsel for petitioner urges that the candidate may withdraw because it is nowhere directly stated in the act that the petitioner may not withdraw. It is often held that the purpose and spirit of an act will control the letter, but the wording and requirements of this statute indicate the intention of the legislature. In the absence of any direct statement that he may or may not withdraw, we feel limited to a construction of the provision that the candidate shall state in the affidavit “that if nominated he will accept such nomination and will not withdraw.” The requirement of such a declaration by the candidate, regardless of whether it must be made under oath, indicates that the legislature intended that he should not be allowed to‘ withdraw, and that he should keep and not repudiate the obligation exacted, for surely, if it were intended that he should be allowed to withdraw, and the legislature made any reference in the act to withdrawals, we must conclude that, instead of requiring an affidavit from the candidate that he would not withdraw, a provision would have been inserted allowing such withdrawal, or, if it were intended only to require a moral obligation or one to show good faith, the candidate would be required to make oath that he did not intend to withdraw, leaving him free to change his mind and withdraw. The statute requires the candidate to state in the affidavit “that he affiliated with said party at the last preceding general election, and either that he did not vote thereat or voted for a maj ority of the candidates of said party at said next preceding general election, and intends to so vote at the ensuing election, and that if nominated he will accept such nomination and not withdraw.” As he need state only his intention as to how he shall vote, but must swear positively that he will not withdraw, a distinction is clearly expressed, and it is evident that the legislature intended to require not only a statement of his intention as to how he will vote, but an unconditional and continuing assurance that he will not withdraw. This means even more than would a bare statement in the statute that the candidate shall not be allowed to withdraw, for it is reinforced by the requirement of an agreement under oath on his part, and this sworn obligation not to withdraw amounts to more than a mere promise that he will not have his name taken from the ticket. To hold that the requirement in the affidavit of the candidate that he will not withdraw implies that he may withdraw would be as inconsistent, and as contrary to the apparent purpose of the statute, as to hold that by providing that a witness shall take an oath to tell the truth, it was not intended by the legislature that he should be required to tell the truth. We cannot discredit the legislature with the belief that the obligation was imposed with the intention of having it regarded only as a moral promise, without legal effect, to be lightly ignored by the candidate as he might desire, and at his instance by the courts. We must assume that our lawmakers, selected by popular vote as representative citizens, are honest and high-minded men, and that they do not purposely waste the time of the legislative session in passing idle, useless, or noneffective enactments, and that they would not impose such an obligation upon candidates for office without an intention of having it observed. It is evident that this provision was inserted in the law for a beneficial purpose, and so that a candidate would not be allowed to trifle with the public or the voters of his party by withdrawing after he had voluntarily become a candidate and received a majority of the votes, and the state had been to the expense of a primary or other election.

Whether this affidavit of the candidate that he will not withdraw amounts to an estoppel because by making it he obtained the printing of his name on the ballot and a majority of the votes of his party at the primary election, and the incurrence of the expense of the primary election, including publishing, printing of ballots, canvassing and certifying returns, which pertained to him, and whether the agreement he made under oath may be legally enforced so as to compel him to act affirmatively, need not be determined for the purposes of this case.

The secretary of state has certified to the county clerk that he received a majority of the votes at the primary election as the candidate of his party for the office, and the clerk is following the direction in the statute that he place the name upon the ballot to be voted at the general election. The petitioner is seeking to have the court compel the clerk to omit the candidate’s name from the ballot. If, as contended by counsel, the taking of the oath not to withdraw were only a moral obligation, without legal force, and the committee of his political party is consenting and -desiring that he be allowed to withdraw, nevertheless the withdrawal in law would be based upon the act and consent of the candidate, and if allowed at all it would clearly be a breach of a sacred obligation to himself and the public, and upon well-recognized legal and equitable principles the courts cannot aid him,'nor any one who is seeking to assist him, in breaking his promise or agreement by ordering the clerk to omit his name from the ballot.

Whether, instead of requiring the affidavit, it would have been better for the legislature to have allowed candidates to withdraw after they had become nominated by receiving a majority of the votes of their party when by reason of accident, sickness, or other causes they become incapacitated after nomination to make the campaign or to fill the office, is a matter of policy for the legislature. We cannot lend assistance to the candidate or the petitioner in violating the obligation taken as required by the legislature because we may believe that it would be desirable to allow candidates to withdraw under exceptional or deserving circumstances, for the duty of the court is to construe these provisions of the statute as we find them. Otherwise we may usurp legislative functions.

Chief Justice Waite, speaking for the court in Sinking, Fund Cases, 99 U. S. 700, 718, 25 L. Ed. 496, said: “One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule. See, also, Fletcher v. Peck, 6 Cranch, 87-128, 3 L. Ed. 162; Dartmouth College v. Woodward, 4 Wheat. 518-625, 4 L. Ed. 629; Livingston County v. Darlington, 101 U. S. 407, 25 L. Ed. 1015. * * * It is not a part of their functions to conduct investigations of facts entering into questions of public policy, merely, and to sustain or frustrate the legislative will embodied in statutes, as they may happen to approve or disapprove its determination of such questions. If all that can be said of this legislation is that it is unwise or unnecessarily oppressive, * * * their appeal must be to the legislature or to the ballot box, not to the judiciary. The latter cannot interfere without usurping powers committed to another branch of government.” (Ex Parte Kair, 28 Nev. 146.)

At the common law, which we have adopted, and which prevails in this state except as specially abrogated or where unsuitable to our conditions, a citizen could be required to perform the duties of an office. We have an earlier statute allowing officers to resign; but a candidate is not an officer, and, if he were, this provision of the later act of the legislature, passed for the purpose of prohibiting candidates from withdrawing after they have voluntarily taken the oath not to withdraw, would control the earlier statute, and any former ones relating to vacancies or withdrawals from the ticket. The scope of the new primary act indicates that the legislature intended to make a radical change in the methods by which nominees for public office are to be placed on the general election ballot. Instead of being selected by a comparatively few individuals, comprising a convention or a committee, they are now to be chosen by a maj ority of the votes of their party, cast in the booth, free from any undue influence. (Piter v. Douglass, 32 Nev. 400.)

Different provisions of the act strengthen the inference that when nominees are so chosen they are to remain upon the ticket in compliance with their oath not to withdraw, and that it was not the intention of the legislature to have them break this obligation by withdrawing and thereby allowing a committee to appoint nominees different from the ones selected by a majority of the votes of the party. If we should hold that one candidate may withdraw after taking the oath, all others would have the privilege of withdrawing unless we legislate special exceptions into the statute when it contains none, and the legislative provision for this oath would become useless and in effect nullified by the court.

The case of O’Connor v. Smithers, 45 Colo. 23, 99 Pac. 46, presented by the petitioner, depended upon provisions of the Colorado statute specifically requiring the filing of an acceptance or declination by candidates. Other cases cited by petitioner are also based upon provisions different from any in force in this state.

With only one day for this decision, we áre not able to give the case as extended consideration as desired; but, from the conclusions stated, it is apparent that it is not necessary to review any other questions argued.

The order of the district court is reversed.

Sweeney, J.: I concur.