State ex rel. Sammon v. Chatterton

Per Curiam. In this proceeding the relator seeks a writ of mandamus requiring the Secretary of State to file certain certificates [13] purporting to nominate the relator for the office'of District Judge for the Third Judicial District, and a hearing was had upon the application for the allowance of an alternative writ. It appears by the petition that three certificates purporting to nominate the relajpr as án 'independent candidate for the office aforesaid were presented to the Secretary of State for filing, and that said official refused to file them. The petition fails to disclose the date when dhe,y were so presented other than by an allegation that they were presented “on the — day of September, 1902.” As certificates of original nomination for offices 'to be filled, at the forthcoming general election, by the electors of a district greater than a county are required to be filed not less than forty days before the day of election, it is apparent that, if they were presented after September 25, they would not have been filed in time. The petition is, therefore, insufficient, failing- to show that the certificates were offered at the proper office within the time prescribed by law. IF is insisted by the Attorney General that two of the certificates were insufficient, for the reason that they were sworn to before the relator, who was alone the interested party, and that the oath and jurat attached to the nomination papers "fail to disclose the official character of the officer certifying thereto. Without the two certificates that are sworn to before Mr. Sammon himself, he would have no standing, since the third certificate does not contain the names of a sufficient number of persons to make an independent nomination of a candidate for District Judge. The statute requires that one of the signers to each separate certificate of nomination shall swear that the statements contained therein are true to the best of his knowledge and belief, and that a certificate shall be annexed to each oath. (R. S., Sec. 230.) This is an important regulation. Only electors can make a nomination of an independent candidate for office, and, the oath required certifies to the fact among others that the parties making the nomination are electors. [14] We think it unnecessary to decide whether or not the fact that the oath was 'administered by the person nominated renders the certificates invalid, if timely objection be made. It is said to be a general rule, referring to notaries public, that if the officer is substantially interested in the transaction, or is a party to it, he is incapable of acting in that particular case. (21 Ency. L., 2d Ed., 568.) And in Illinois the court said: “The propriety of the rule that oaths and affidavits should be taken before officers who are disinterested and unbiased is too manifest to require discussion.” But in the case then before the court the officer was held to have been disinterested. (Peck v. The People, 153 Ill., 454.) We have not been cited to any case, however, holding ineffective a paper like the one in question or kindred in character sworn to before a party interested in it. Such a practice is, to say the least, of doubtful propriety. But we do not care to rest our conclusions upon that ground, nor upon the further ground that upon the face of the petition the official character of the one before whom the papers were verified is not disclosed either by a recital of the title of his office in the body of the affidavit or jurat, or following the signature. For much broader reasons we think the writ must be denied. It is alleged in the petition that the term of office, of the present Judge of the Third District will expire on the 1st day of January, 1903. No other fact is alleged that would furnish a basis for the right claimed to make a nomination for that office. The petition does not disclose when or how the present incumbent of that office was chosen, nor for what term he was elected or commissioned. The general allegation above mentioned may, however, be sufficient. We understand, indeed, that Judge Craig was in 1897 appointed to the office to fill the vacancy caused by the resignation of Judge Knight, and at the succeeding general election in 1898 was elected to the office, and that, as the term of Judge Knight would have expired in January, 1903, a question arose whether the election of Judge Craig was for the [15] balance of the unexpired term, or for the full term of six years. On the hearing it was suggested that the Secretary of State had not issued any notice for an election of Judge of the Third District; and thát there had been no proclamation for an election of one to fill that office at the ensuing general election; that the Secretary of State had acted upon the opinion of the Attorney General, that the term of Judge Craig, the present incumbent, did not expire for two years, and that the people generally of the district had acted upon the belief that no election for District Judge therein was to occur in November,' and that under the same belief no nomination had been made by either of the political parties, and the time for making nominations had expired. Although the petition is silent in these respects, we understand it to be conceded that no notice has been given, and that no other nominations have been made, and it is apparent that it cannot be alleged, even if we should allow time for an amendment, that notice has been given and proclamation made. This State has adopted what is known as the Australian ballot system of elections. It is now too late to make original nominations for the office of District Judge to be voted for-at the next general election. The fact that neither political party has nominated a candidate for the office is strongly conclusive of a general understanding that an election to that office was not to occur, and it is evident that should one now be held a large proportion of the electors of the district would be practically disfranchised, so fa-r as that office is concerned. It is true every voter is accorded the privilege of writing the name of a person he wishes to vote for upon the ballot. But in the carrying out of the system adopted in this State, a method is provided for having names of candidates printed upon the ballot. That is an important privilege. The statute recognizes political parties, and the candidates of each party having cast a certain proportion of the' vote at either of the last two preceding general elections [16] are placed in a separate column; and they may all be voted for by marking a cross in a square at the head of the column. We think it clear that if an election for Judge of the Third District should be held at the November election, under existing conditions, a very large portion of the voters of the district would be prevented from freely and fully expressing their choice. We are not prepared to hold that a previous proclamation that a particular office is to be voted for at a general election is in all cases a condition precedent to a valid election, and we do not so hold. Where, although such a proclamation has not been given, the election' proceeds, and the electors generally know that it is to occur, and the people have not been misled by the failure to give the required notice, it might be held upon good grounds that the election was a valid one. Manifestly, the people have been generally misled in this instance, if indeed there ought to occur an election for the office in question. Whether such an election should have been proclaimed and held, we do not decide. The time of the expiration of the term of office of the present incumbent has not been considered, nor do we think it can properly be considered in this proceeding. We hold that, assuming the allegation to be true that the term expires in January, 1903, a valid election to the office cannot be had at the general election this year. A consideration of our election laws has convinced us that it would be a practical impossibility to hold a fair and legal election for said' office under the conditions that would be created by requiring an election to said office to be held at this time. These views are sustained, we think by ample authority. (People v. Weller, 11 Cal., 77; Foster v. Scarff, 15 O. St., 532; Adsit v. Secretary of State, 84 Mich., 420; 11 L. R. A., 534; Cook v. Mock, 40 Kan., 472; McCrary on Elections, Sec. 147.)