White v. Infield

BRANSON, V. O. J. The plaintiff, OhasJ J. White, seeks relief herein by a petition' invoking thé original jurisdidtion of this; court to issue writs of mandamus. He prays, a- writ against the defendants, B. E. In-) field, E. G. Fulton, and J. W. Burrow, as the members of and constituting the county election board of Ellis county. The proprij ety of his original action herein is not qu^sl tioned, and we do not discuss it. 4 He pleads what is substantially containea *5 i in the stipulation between the plaintiff and ¿the defendants, which stipulation is in substance this: “That he is a qualified elector of said county ; that the de-endants compose the county election board thereof: that on the 10th day of June, 1926, he filed with the secretary (his written application to become a ean-idate for county assessor for nomination in [the primary, August 3, 1926: that about the 3rd of June, on the adrice of the county ttorney that a county assessor was not to ¡be elected in said county for the year 1926, ;he secretary advised him that his applica-;ion to go on the ballot for nomination tor county assessor was rejected: that there ’ as no candidate for county assessor of aid county placed on the ballots used in toe primary in said county, but that in c'er-[ain precincts a lew electors wrote the plaintiffs name upon the ballots for county as-essor, thus indicating their desire to vote or the plaintiff as the Republican nominee :or said office. That the returns showing ■5 votes cast for the plaintiff were filed with ihe county election board by the precinct lection officers; that he filed his expense icoount as required by law; that after the irimary election he demanded of the- county Section board a certificate of nomination is county assessor: that said demand was efused and that the board continues to reuse to give him a certificate of nomination, nd that without a mandamus compelling >? board to do so he is without remedy.” , The reason assigned by the board for reusing the alleged right of the plaintiff to ecome a candidate in the primary election or nomination as county assessor was given im on or about the 27th day of June, 1926. t was the fact that the provisions contained i chapter 68 of the Acts of the Legislature f 1925 prohibited an ejection of county as-esor of Ellis county until 192S. Said act f the Legislature is as follows (omitting he title and enacting clause) : [ “Section 1. In Ellis county, the tax asses->r shall b;3 elected for a term of four (4) ears: the first election of tax assessor in lid county shall be in the election in the ear 1924. “Section 2. The tax assessors now acting id qualified in said county shall hold of-e until their successors are duly elected, the regular election to be held in said unty in 1928, and qualified, and that there-Ter, all assessors in said county shall hold fice for a period of four (4) years and un-their successors are duly elected and alified.” iThe plaintiff, however, contends that, while |e defendants acted upon the said statute, fd in good faith denied or refused his ten-red filing, the said act is without legal free and effect and violative of the Constitution of the state, and particularly violative of section 59, art. 5; section 10, art. 23; section 2, art. 17; subdivision M of section 46, art. 5. It is stipulated, as above set out, that the bill in question was a special act and applicable solely to- Ellis county; that due and legal notice as required by the Constitution of the state was given before its introduction in the Legislature. The first of said provisions of the Constitution (said section 59, art. 5) provides: “Laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable no special law shall be «enacted.” Section 10, art. 23, provides, among other things: “Nor shall the term «of any public official be extended beyond the term for which he was elected or appointed.” Subdivision M of section 4'6, art. 5, provides that the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing; “«See. 46 (m). Officers — Duties—Counties —«Cities—Towns—School Districts. Creating offices, or prescribing the power and duties of officers, in counties, cities, towns, election or school districts.” The first named of said sections prohibits the enactment of a special law where a general law can be made applicable. In determining the contention of the plaintiff as to this section of the Constitution as affecting the above-quoted act we are not unaware of the holding of this court in the case of Chickasha Cotton Oil Co. v. Lamb, 28 Okla. 275, 114 Pac. 333, to the effect that the Legislature must determine whether a general law can be made applicable to the subject-matter in regard to which a special or local law' is enacted. We cannot concede that the reasoning on which this conclusion is based has any application to the instant ease, for here we find that at the time of the passage of this so-called local statute, confined in its effect solely to Ellis county, there was a general statute effective in aJU the counties of the state, including Ellis county, prescribing when county assessors should be elected and their term of office; so, if we should undertake to resort to' the adjudication of the Legislature as to the necessity of a special act and hold that adjudication is controlling, we find that the Legislature had long since adjudged that a general act could he made applicable to the subject-matter before the leg- *6 islativa body. AVe think, again, that the sa-d act is subject to- the objection made by the plaintiff as found in subdivision M of section 46, art. 5. This entire section is an inhibition against the legislative branch of the state government, and among other things prohibits its creating offices or prescribing powers and duties of officers in counties, etc. This section is subject to interpretation. It means nothing less, so iar as the matter in this case is involved, than that the Legislature shall not prescribe powers and duties of county oifici&rs by special enactments. AVe cannot agree with the contention of the defendants that the -extension of the tenure of office of a particular county officer in the state do-es not fall within the powers and duties referred to in said subdivision of said section. No doubt the said act is subject to the further objection as contained in section 10, art. 23. AVhile we are driven to the conclusion that the act relied upon by the defendants is without legal force and effect, it does not follow that the plaintiff is entitled to the relief praygd herein. Clearly he was notified in June that his attempted filing for the office of county assessor was rejected. Had he brought his action at that time to compel the board to recognize his filing for the office of county assessor, he might have been in an entirply different position. But we know of no statute that permits a few electors in the county to insert on a -primary ballot the name of a particular individual for a particular office when the election boaz-d has refused to recognize that candidates for such office are to be nominated at such primary, and then assert that he has a legal right to go on the balllot in the general election for this office. The rule well established is that a person who seeks t' ■ remedy of mandamus must show that he has a clear right thereto. This not appearing, the relief prayed is denied. NICHOLSON, C. J., and HARRISON, MASON, PHELPS, HUNT, CLARK, and RILEY, ¡LL, concur.