Two questions are presented for decision. The first is whether, no declaration of candidacy having been filed, a nomination may be accomplished under the primary election law, L. 1938, Sp.Sess., c. 2, by writing in the name of the voter's choice underneath the name of the office where it *Page 474 appears on the official ballot used in the primary election. The second question, to be resolved only in the event the first draws a negative answer, is whether a vacancy exists under section 17 of the primary election law to be filled by an appropriate party committee, where there was no candidate and, hence, no nomination at the primary.
The office involved is that of county clerk and the case comes up from Lincoln County. Mrs. Wayne Van Schoyck as relator asked the district court of that county to compel its board of commissioners, sitting as the county canvassing board, to meet, canvass and certify her name as the republican nominee for the office of county clerk by virtue of forty-two votes cast for her as such nominee by writing in her name on the ballot at said primary election which were duly certified by the judges and clerks thereof; or, in the event the respondent board could not lawfully be required so to do that the county clerk, also made a respondent, be required to accept and file a certificate of nomination issued to relator by the vacancy committee of the Republican County Central Committee as the nominee of said party and to accept the fee required of candidates for that office and to print the relator's name on the official ballot in the general election to be held on November 3, 1942.
The respondent board filed an answer challenging relator's right to the relief asked against it and against the individual members thereof. The county clerk, as a respondent, filed a separate answer, likewise challenging relator's right to the relief sought against him. He admitted that on or about October 1, 1942, more than two weeks following the primary election, the relator tendered to him seventy-two dollars accompanied by a purported certificate of nomination given relator by said vacancy committee, which check the respondent refused to receive and which certificate he refused to file. After hearing, the court made the following findings of fact and conclusions of law, to-wit:
"1. That W.W. Gallacher, Corbin Hester and Manuel Corona are the County Commissioners of Lincoln County, New Mexico, and as such are the Board of Canvassers of said county, and charged by law with the duty of canvassing the returns of the direct Primary Election held on September 12, 1942 for the nomination of candidates for the several national, state and county offices voted for at said direct Primary Election on said day, including the office of County Clerk.
"2. That no person filed a declaration of candidacy for the office of County Clerk of Lincoln County, New Mexico on the Republican ticket, and that the official Republican ballot for said direct primary election in said county did not contain the printed name of a candidate for the office of County Clerk of said county, but that the name of the said Mrs. Wayne Van Schoyck was written in on the said Republican ballot under the designation `for *Page 475 County Clerk' by forty-two Republican voters who voted the Republican ticket at said primary election, and that opposite the name of the said Mrs. Wayne Van Schoyck so written in on said ballot under said designation, such electors placed a square and therein marked an `X', indicating their vote for the said Mrs. Wayne Van Schoyck as a candidate for County Clerk on the Republican ticket.
"3. And the Court further finds that the Board of Commissioners of Lincoln County, New Mexico, sitting as a Canvassing Board, failed and refused to canvass the write-in votes of said Relator.
"4. The Court further finds that Felix Ramey is the duly elected, qualified and acting County Clerk of Lincoln County, New Mexico.
"5. The Court further finds that no other candidate for County Clerk on the Republican ticket was voted for at such election, and the Relator received all votes cast at said Primary Election by writing in the name of said Relator.
"6. That since said Primary Election the Republican Party met in Lincoln County, New Mexico and attempted to nominate the said Relator as the Republican candidate for County Clerk of Lincoln County, New Mexico, to fill a purported vacancy.
"7. That thereafter a purported certificate of nomination of the said Mrs. Wayne Van Schoyck accompanied by the sum of $72.00, being the fee required by law to be paid by candidates participating in the Primary Election for the office of County Clerk, was tendered to Felix Ramey as County Clerk of Lincoln County, New Mexico, for filing and was by him refused.
"Based on the Findings of Fact aforesaid, the Court makes as its
"Conclusions of Law: "I. That under the Primary law of the State of New Mexico a write-in vote is not permissible, and the Board of County Commissioners sitting as a Canvassing Board was not required or permitted under said Primary law to canvass said write-in votes.
"II. That under the Primary law of the State of New Mexico no vacancy existed in the office of County Clerk on the Republican ticket of Lincoln County, New Mexico, in the list of candidates entitled to representation on the official ballot at the next ensuing General Election, and that the action taken by the Republican Party Committee in attempting to nominate the Relator as a candidate for County Clerk on the Republican ticket to fill a purported vacancy is null and void and of no effect."
The trial court thereupon entered its judgment dissolving an alternative writ of mandamus theretofore issued and dismissing the relator's action. This appeal followed.
As to the first question, we are all agreed that the write-in method of nominating a candidate for public office is unavailable under our primary law, either *Page 476 to a political party participating in the primary or to any member thereof thus seeking to place himself on the official ballot as his party's nominee in the general election. This conclusion arises from a consideration of the Act as a whole and we are quite satisfied with its correctness. Many of its provisions suggest, while others compel, such a view.
The Act in question is known as Chapter 2 of New Mexico Session Laws of 1938, adopted at a Special Session of the Thirteenth State Legislature, approved September 1, 1938. Section 1 of the Act declares that it shall be known and may be cited as the "Primary Election Code." Section 2 provides that all candidates for elective office shall be nominated by political parties to which the Act applies at a primary election and that "the candidates of the political parties for the offices to which this act applies shall not be otherwise selected or nominated".
The last sentence of Section 5 of the Act reads: "Nomination of candidates to fill vacancies and nomination of candidates to all offices to which this act does not apply and nomination of candidates for all offices by all political parties not coming under the provisions of this act shall be made as now is or as may hereafter be provided by law."
Section 7 provides: "A primary shall be held in each county in this state on the second Saturday in September of each even numbered year at which the qualified registered electors of each political party participating in such primary shall select by secret ballot the candidates of each such party for all offices to which this act applies."
Section 8 imposes the duty on the Governor to issue a proclamation and file same with the Secretary of State on the first Monday in July of each even numbered year calling for the primary election to be held in each county and precinct in the state on the second Saturday in September of such even numbered year, giving a list of the offices for which each political party participating shall nominate candidates, and further provides that "such proclamation shall also contain the date on or before which the declarations and nominating petitions of candidates for such nominations shall be filed, and the offices wherein such declarations and petitions shall be filed, in order to entitlethe candidate for such nomination to have his name printed uponthe official ballot of his party at such primary." (Emphasis ours.)
Section 9 provides that any person desiring to become a candidate of any political party participating in the primary for any office shall at least thirty (30) days before the date of the primary file a declaration of candidacy, the form of which is set forth in said section, followed by the requirement that the candidate must, at the time of filing such declaration, file therewith a petition for nomination signed by qualified electors who are members of his political party, the form of which is likewise prescribed. The minimum number *Page 477 of signatures of qualified electors necessary on a nominating petition varies according to whether the office sought is a precinct office, county office, district office or a state office. For county offices the number requisite is twenty-five and for state offices the number is five hundred. If the office sought is a county office, the declaration and nominating petitions must be filed with the county clerk and, if a state office, with the Secretary of State.
Under the provisions of Section 10, the person seeking his party's designation as nominee for a particular office, must accompany the declaration of candidacy and nominating petitions by a filing fee amounting to 3% of the first year's salary applicable to said office. The fees thus collected are to be remitted to the county treasurer where they arise from candidacies for nominations for precinct and county offices and legislative offices comprising but one county. If they arise from candidacies for a district office extending over more than one county they are to be apportioned in a manner specified in the Act and remitted to the county treasurer of each county within the district. If they arise from candidacies for state offices they are to be divided between the various counties of the state as provided by the Act and remitted to the county treasurer of each county. The funds thus raised are to be used for defraying the expenses of the primary election in the various counties. If they be insufficient to do so, any balance required is to be paid by the various counties as in the case of general elections and any money in excess of the amount required for holding a given primary election is to remain in the "Primary Election Fund" for use in holding subsequent primary elections as the same may be needed.
The mandatory duty is imposed upon the county clerk and Secretary of State by this section to receive and file the declaration and nominating petitions of a candidate where the same are accompanied by the required filing fee "if such declarant is eligible to hold the office for which he seeks nomination under the constitution and laws of the State of New Mexico."
Section 13 of the act provides that primary elections shall be held and conducted and the voters shall vote therein and returns made in the same manner as by law provided for general elections "except as herein otherwise provided or inconsistent with the provisions of this act; and such primary elections shall in all respects conform to the laws governing general elections, except as herein otherwise provided".
In Section 15, it is provided that the person receiving the highest number of votes of his party at such primary for any office shall be the nominee of his party for such office, and it is made the duty of the officials charged by law with printing the ballots for the ensuing general election to place the name of the person so receiving the highest number of votes of his party in said primary upon the official ballot to be used in the general election, "as candidates of his or their party for the *Page 478 office for which such person or persons were candidates for nomination in the primary".
Section 18 makes provision for paying the expenses of the primary in any county where the fund arising from filing fees is insufficient to meet the same. The deficiency is to be budgeted and paid by the county in the same manner as the expenses of a general election are budgeted and paid.
Under the provisions of Section 23 "all candidates participating therein" are called upon to prepare and file an itemized statement, subscribed and sworn to by the candidate, showing a full and complete record of his expenditures of money and other things of value, which were intended to aid the success of the candidate in the election. These statements are to be filed with the officer with whom the candidate's nominating petition has been filed.
Section 28 gives to "any candidate of any party for nomination to any office to which this Act applies", the right to have the ballots cast in a questioned precinct recounted and the result in such precinct redeclared and recertified, upon making application for such recount within the time specified in said section and subject to certain other conditions therein named.
A review of the foregoing provisions of the controlling statute leaves us quite satisfied that it neither contemplates nor permits the write-in method of nominating candidates. That such a method defeats one of the main objects of a primary election, viz., that of seasonably submitting the names of candidates for consideration by the qualified electors, there can be no doubt. And as against majority selection, the desired result in all elections, it is plain that a very small minority through last minute activity could foist on a political party as its nominee for a given office, a candidate so obviously unfit and wanting in qualifications, that the mere filing of a declaration of candidacy by him in the primary would have drawn forth others to insure his defeat. This is not to intimate that the present relator is lacking in qualifications in any manner but merely to suggest ill results to follow if her construction of the statute be adopted.
One of the opening sections of the Act, Section 2, defines the legislative policy by declaring that candidates of political parties for the offices to which it applies "shall not be otherwise selected or nominated". Of course, if that language were literally applied, vacancies in nominations could not be filled as authorized by Section 17 of the Act. Nevertheless, any other method of selecting candidates represents an exception carved out of the all embracing prohibition contained in Section 2. Hence, the language relied upon to create it is to be strictly, although not unreasonably, construed. 59 C.J. 1092; 25 R.C.L. 983.
The mandatory duty imposed on the Governor to issue his proclamation calling the primary election by Section 8 contains language persuasive of the conclusion we reach. The proclamation must specify the second Saturday in September *Page 479 in each even numbered year as the date for the primary election; the date on or before which declarations and nominating petitions must be filed; and the offices wherein they must be filed "in order to entitle the candidate for such nomination to have his name printed upon the official ballot of his party at such primary." (Emphasis ours.) Certainly, this language suggests the legislative thought that one seeking a nomination must have his name printed on the official ballot and leaves the implication that failure to have it so printed denies candidacy for the nomination. The only way the candidate can place his name on the official ballot is by filing a declaration supported by proper nominating petitions.
This is followed by the language of Section 9 providing that any person "desiring to become a candidate" must file his declaration and petitions at least thirty days before the date set for the primary. Then follows the mandatory requirement of Section 10 that the declaration and petitions must be accompanied by a fee amounting to 3% of the first year's salary attached to the office sought. The fund thus raised is to defray the expenses of the primary election or do so as far as it will go. If relator's contention be correct the write-in candidate would escape payment of this fee altogether. True, she tendered the proper fee in asking that respondents be compelled to canvass the write-in votes cast and certify her as nominee but the statute provides for the fee only where a declaration is filed. Relator filed none.
Furthermore, this section imposes a duty on the proper officials to receive and file the declaration and nominating petitions only in the event "such declarant is eligible to hold the office for which he seeks nomination under the constitution and laws of the State of New Mexico." This provision undoubtedly is to avoid the confusion and complications arising where ineligible candidates appear on the ballot. If, for instance, in the case at bar the relator were herself not a qualified elector, were a nonresident, or should be seeking a third successive term to the office of county clerk, a result prohibited by the constitution, the county clerk or secretary of state upon ascertaining these facts should and would decline to receive and file the declaration. This wholesome purpose would be circumvented by permitting a write-in method of making nominations. It is no answer to say that, if so nominated, the name of the nominee could be kept off the official ballot in the general election or denied the office, if elected. It is to avoid just such complications and to assure a majority selection of nominees that the condition of filing declarations is imposed.
In Section 15 it is directed that those charged with the duty of printing the official ballots for the general election shall place thereon only the names of those receiving the highest number of votes "as candidates of his or their party for the office for which such person or persons were candidates fornomination in the primary." How can this language be said *Page 480 to embrace the relator? She was not a candidate for nomination for any office in the primary. To become such, under mandatory provisions of the act, she must have filed a declaration of candidacy supported by nominating petitions. This she failed to do.
In addition, the provisions of Section 23 requiring the filing of sworn and itemized expense accounts incurred in the primary are directed only to the "candidates participating therein". The candidate must show a full and complete record of his expenditures of money and other things of value which were intended to aid the success of the candidate in the primary election. No provision is made for the filing of such statements by others than those who have become candidates for nominations in the manner prescribed by the Act. This unquestionably, for the reason that the legislature did not contemplate candidacies of any other kind.
Similarly, the right to have a recount of the ballots of any precinct for error or fraud, as provided in Section 28, is limited by express language to "any candidate of any party for nomination to any office to which this Act applies". This cannot apply to one claiming the nomination as a result of write-in votes cast, since if actively seeking the nomination in this fashion, it is a flagrant effort to circumvent and defeat the objects and purposes of the primary law, and for this reason not to be countenanced; and, if the result of the well intentioned, even though misguided efforts of friends, it is unavailing because the subject of this kindliness was not himself a "candidate of any party for nomination to any office".
There is no need to go further. The Act abounds with requirements and provisions demonstrating beyond peradventure of doubt that it was never the intention of the legislature that a candidate could be nominated at a primary election by the write-in method of voting. Relator places great reliance on the language of Section 13 directing that such elections shall be held and conducted and that voters shall vote therein as by law provided for general elections. She reminds us that the write-in method of voting is permissible at the general election. 1929 Comp. § 41-312; N.M.St. 1941, § 56-313. It is to be noted, however, that by the express language of said section the machinery of the general election law is not to be assimilated where otherwise provided by the Primary Election Code or where inconsistent therewith. As already shown, the claimed right to nominate a candidate by the write-in method of voting is denied by the plain import of numerous provisions of the Act and is inconsistent with the whole plan and purpose of the primary method of selecting candidates of political parties in a primary election.
The following decisions, all of them cases involving efforts to secure nomination by the write-in method at a primary election, support the conclusion we have reached on this phase of the case. In re Primary Ballots, 33 Nev. 125, 126 P. 643; State ex rel. Lewis v. Board of Ballot *Page 481 Com'rs of Wood County, 82 W. Va. 645,96 S.E. 1050; State ex rel. Hott v. Ewers, 106 W. Va. 18,144 S.E. 578.
In order to meet the doubt about the legality of a nomination through write-in votes cast in the primary, the vacancy committee of relator's political party selected her as its nominee for the office of county clerk. Accordingly, she now presents and argues the alternative proposition that, if not entitled to be placed on the official ballot for the general election by reason of the first contention, she is so entitled by virtue of her selection as aforesaid to fill the vacancy in the list of candidates of her party resulting from the fact that there was no nomination for the office in question. We now consider this contention. It is based on the provisions of Section 17 of the Act, reading:
"Section 17. If after a primary election for any cause there shall be a vacancy in the list of candidates of a political party entitled to representation on the official ballot necessary to fill all the offices provided for by law at the ensuing general election, such vacancy may be filled by the political party committee of the state or county, as the case may be, by filing the name of its candidate for such office within twenty days after such primary with the officer with whom nominating petitions are to be filed, and when so filed, the name shall be placed upon the official ballot for the ensuing general election as the party's candidate for such office. Any vacancy thereafter occurring may be filled in like manner by the party committee at any time before the official ballots are printed. If a vacancy occur after the ballots are printed, the name of the person so selected as a candidate to fill such vacancy may be placed on said ballot by pasting the printed name of such candidate so selected and filed over the name of the candidate whose vacancy he fills on the official ballot."
On this contention, as well as the first, the trial court ruled against the relator and we are persuaded it was correct in so doing. The respondents urge the vacancy contemplated by the statute is one in a nomination already made; that the statute presupposes a nomination in the primary election which, subsequent thereto, becomes vacant through death, resignation or removal from the county or state as the case may be. Whereas, the relator argues that the language of the statute is broad enough to cover the case of a vacancy resulting from default in having a candidate run in the primary and, hence, no nomination therein. The weight of reason and authority, however, stand arrayed against the relator's position. In 29 C.J.S. 126, § 93 under topic "Elections", the author of the text speaks on this subject, as follows:
"Where a statute prescribes an exclusive mode of making nominations, but contains no provision for filling vacancies occurring after nominations have been made, such vacancies cannot be filled except in the manner prescribed for making original nominations. However, provision for the filling of vacancies, usually by a party committee, is commonly made either by *Page 482 statute or by party rules which are either recognized by statute or not prohibited thereby. To justify a nomination in pursuance of the power to fill vacancies, there must be a vacancy within the meaning of the statute or the rule conferring the power; andalthough there exists authority to the contrary, the vacancymust, usually, have occurred in a nomination duly made, must have resulted from a given cause, if so declared by statute or by rule, and the body assuming to fill the vacancy must be duly authorized to do so, and be duly constituted." (Emphasis ours.)
The first words of the section support the view that the vacancy contemplated is one arising on events occurring subsequent to the primary. Note the language, "if after a primary election for any cause there shall be a vacancy", etc. Now, where there is no candidate in the primary for a given office, the vacancy in the list of candidates for that office exists as well before as after the primary. It is the failure to qualify for candidacy in the primary by filing declaration, nominating petitions and paying the fee, as we have just held, that creates this vacancy, a fact which becomes known and fixed thirty days before the primary election.
We think the legislature has employed the verb "be" in the phrase "shall be" in the sense of "happen" or "occur". One of the definitions given of this substantive verb by Webster's New International Dictionary is "to take place; to occur; happen; as, the concert was last night; when and where will the conferencebe? In other words, in exactly the same sense in which the words "occur" and "occurring" appearing later in the section are employed. The context supports this conclusion. If it be correct, and we think it is, the distinction sought to be made by relator's counsel between our statute and those construed in some of the decisions cited and relied upon by respondents, is without merit.
We think the word "candidates" appearing in the phrase "list of candidates" in this section, is synonymous with the word "nominees". This is necessarily so if, as we hold, there can be no candidates of any political party arising from the primary save through the filing of a declaration and nominating petitions and payment of the prescribed fee.
It is to be observed, too, that the Act acquires no fee from the candidate supplied by a party committee to fill a vacancy. Since the law contemplates that the filing fees paid by the candidates participating in the primary shall pay the expenses of the election, this is a strange omission unless, as we think was the case, the legislature understood a fee already had been paid by the nominee whose place was being filled by the vacancy committee. It seems unlikely that the legislature intended to forgive the fee in behalf of a candidate thus chosen and thereby diminish the fund admittedly of doubtful sufficiency designed to defray expenses of the election.
We may notice judicially that one of the chief reasons for adopting the *Page 483 primary system of making nominations was to take the matter out of the hands of party conventions and committees and give it directly into the hands of the qualified electors of the parties participating therein. This recognized aim could easily be circumvented and defeated if relator's construction of the statute in this connection should be adopted. A political party whose leaders were so disposed might easily discourage the filing of candidacies in the primary as to all or the more important offices. Having thus occasioned a "vacancy", the appropriate party committee, following the primary, could meet and select candidates to oppose those already selected by the other party or parties in the primary. Knowing who the opposing candidates were, the committee selection could be made after taking into consideration every factor, geographical and otherwise, calculated to poll the largest vote for such candidate in the general election.
Thus the mandatory provisions of the primary law could be ignored, its obvious purpose defeated and the party seeking in good faith to comply with it, penalized. In the face of its positive declaration that candidates of the political parties for the offices to which the Act applies shall be nominated at a primary election and "shall not be otherwise selected or nominated", a dual system of nominations would be sanctioned — one at a primary, the other by a party committee. Remembering that selection by a party committee, at best, is an exception carved out of the prohibition in Section 2, just referred to, as already held in disposing of relator's first contention, the language relied on to create it is to be strictly construed. However, resort to strict construction is not required to arrive at the conclusion we reach.
An abundance of well reasoned decisions arising under statutes containing language of similar import to that found in ours supports our view that the vacancy contemplated by the legislature in authorizing a party committee to fill it is one occurring after the primary in a nomination made at the primary. District Party Committee of Republican Party v. Ryan,152 Kan. 509, 106 P.2d 261; State ex rel. Chamberlain v. Tyler et al., as Board of Com'rs of Volusia County, 100 Fla. 1112, 130 So. 721; Stewart v. Polley, Secretary of State, 30 S.D. 54, 137 N.W. 565; McLyman, Attorney General, v. Molloy, 53 R.I. 4, 162 A. 849; State ex rel. Pratt v. Haywood, Secretary of State, 141 Iowa 196,119 N.W. 620; Gorser v. Scott, County Auditor, 87 Minn. 313,91 N.W. 1101; State ex rel. Lamb v. Board of Ballot Com'rs of Wetzel County, 82 W. Va. 752, 97 S.E. 284; State ex rel. Pack v. Karnes,83 W. Va. 14, 97 S.E. 302; State ex rel. Hitchcock v. Till,50 S.D. 346, 210 N.W. 157.
It follows from what we have said that the judgment of the trial court dissolving the alternative writ of mandamus theretofore issued and dismissing the complaint is correct and should be affirmed.
It is so ordered.
BRICE, C.J., and COMPTON and TAYLOR, District Judges, concur. *Page 484