Ex Rel. McGill v. Oldfield

OPINION By the Court, Ducker, C. J.: Judgment was rendered by the district court of *263 White Pine County in favor of respondent, dismissing appellant’s affidavit and denying the peremptory writ of mandate prayed for therein. It appears from the affidavit upon which the application for the writ is based that appellant, Ozello E. McGill, was a nonpartisan candidate at the recent primary election for the office of short-term member of the county board of education of White Pine County, and that one George Doyle was the only other candidate at said election for said office. Appellant received 592 votes, and Doyle received 597 votes. Appellant made a demand upon respondent for a certificate of nomination to said office in order that her name appear as a nominee therefor on the official ballot for the ensuing general election to be held in White Pine County, which demand was refused by him. It appears from the record that respondent interposed a demurrer to the affidavit, on the ground that it did not state facts sufficient to constitute a cause of action or to entitle appellant to the relief prayed for or to any relief. The demurrer was sustained and judgment as aforesaid subsequently rendered, from which this appeal is taken. There is no difficulty in determining the question presented by these facts. As the office of short-term member of the county board of education is, under existing law, a nonpartisan office to which one person is to be elected at the ensuing general election, and as one of the candidates for nomination received a majority of all the votes cast for both, the case is controlled by the proviso in the last paragraph of section 22 of the act regulating the nomination of candidates for public office in this state. The first paragraph of the section relates to the nomination of party candidates, and has no bearing upon the question involved. The second paragraph reads: “In the case of a nonpartisan office, the candidates equal in number to twice the number to be elected to such office, or less, if so there be, who receive the highest number of votes shall be the candidates for such office at the ensuing election, and their names as such candidates shall be placed on the official ballot *264 voted at the ensuing election; provided, however, that in case there is but one person to be elected at the November election to a nonpartisan office, any candidate who receives at the September primary election a majority of the total number of votes cast for all the candidates for such office shall be the only candidate for such office at the ensuing election.” Section 3, p. 51, Stats. 1923. The intention of the legislature to make a nomination to a nonpartisan office equivalent to an election to such office, under the condition prescribed, is manifested in words of unmistakable import. We are not concerned with the policy of this statute, nor does appellant raise any question as to the power of the legislature to enact it. It is claimed, however, that the proviso is applicable only when there has been more than two candidates for nomination to a nonpartisan office to which one person is to be elected, and one who has received a majority of the total number of votes cast for all of the candidates. The language of the proviso affords no basis for this claim. It is merely a qualification of the second paragraph of the section. Section 22 is an amendment of the primary law of 1917 (Stats. 1917, c. 155). As the law then stood, section 22 contained this paragraph: “In the case of a nonpartisan office to which only one person can be elected at the November election, the two candidates receiving the highest number of votes shall be declared to be the nonpartisan nominees.” In 1923 the legislature eliminated this paragraph, but included the substance of it in the second paragraph of the amendment. The second paragraph, as we have seen, provides for the nomination of candidates for all nonpartisan offices, with the qualification contained in the proviso that in case there is but one person to be elected to such office, the candidate receiving a maj ority of the total number of votes cast for all the candidates shall be the only candidate. Appellant places stress upon the word “all,” used in the proviso, as indicating an intention to provide for an exclusive nomination of one candidate by a majority *265 vote only when there are more than two candidates for the nomination, but we are convinced that no such restricted meaning of the adjective employed was intended. The provision in its entirety is free from ambiguity and leaves no room for construction. As appellant’s application does not show that she received a majority vote, and does show that the other candidate did receive a majority of all the votes cast for the office of short-term member of the county board of education of White Pine County, she is not entitled to have her name placed upon the ballot for such office, and the demurrer was properly sustained. The judgment of the lower court dismissing appellant’s affidavit and denying the peremptory writ of mandate asked for is affirmed. It is so ordered.