State ex rel. Acton v. Penrod

Dean, J. This is an original application, commenced in this court, for a writ of mandamus to 'compel respondent to place the name of.relator upon the nonpartisan judiciary ballot as a candidate for the office of judge- of the county court.. The writ must be denied. It appears that under the nonpartisan judiciary act, namely, sections 2209-2211, Rev. St. 1913, as amended by chapter 37, Laws 1917, three candidates filed for the office in question at the primary. After the primary it became the duty of respondent, under the law, to place [735] upon the nonpartisan ballot the names of the two candidates receiving the highest number of votes. F. W. Messmoré was one of the two .successful’ candidates, but before the primary he entered the military service of the United States. About two months after the primary, which was within the time provided by statute, he filed in the office of respondent his resignation. Subsequently relator and another citizen, neither of whom were candidates- at the primary, filed their respective petitions in the .office of respondent with the view of" becoming candidates at the general election for the office. The petition in behalf of relator contained more than 300 names, and requested “that his name be placed on the .official ballot as a nonpartisan, candidate by petition.” He argues that, because his petition was the first to be filed after the resignation of Mr. Messmore, therefore section 2140, Rev. St. 1913, confers upon him the right to have his name placed on the ballot. Section 2140 provides that candidates nominated under its provisions “sháll be termed ‘candidates by petition,’ and upon the ballot upon which their names are printed shall be printed after such names , the words .‘by petition.’ ” It seems clear.to us that section 2140, in requiring the designation “ candidates by. petition” to appear on the ballot, apparently conflicts with the nonpartisan judiciary .act,' which provides that the names of judicial candidates shall appear on the ballot “without any political designation, circle or mark whatever.” Laws, 1917, ch: 37, sec. 2210. Section 2165, Rev. St. 1913, makes provision for filling a -vacancy that occurs when the nominee of - a political party declines a nomination or when a vacancy otherwise- occurs. The nonpartisan act having no such provision, and its language seeming to contemplate that there may be but one candidate at the general election, we are convinced that it was the legislative [736] intent that the candidates whose names appear on the nonpartisan ballot at the general election must be restricted to such candidates as have been nominated under that act at the primary. Of course, this does not prevent the voter from writing on the. ballot at the general election the name of any person for whom he wants to vote. Sections 2140 and 2165, Rev. St. 1913, pertain to the subject of elections generally. The nonpartisan judiciary act with its amendments is a statute complete in itself and relates to an independent subject. It is an elementary rule of construction that special provisions in an act relating to particular subject-matter will prevail over general provisions in other statutes, so far as' there is a conflict. Williams v. Williams, 101 Neb. 369. A proper observance of the rule will not permit any other conclusion than that at which we have arrived. We deem it proper to suggest that relator’s argument should' be addressed to the legislature rather than to the courts. The writ is denied, and the action dismissed. Writ denied. 'Morrissey, C. J., not sitting.