State ex rel. Hitchcock v. Till

FO'ELEY, J. At the Democratic county proposal meeting held1 in Davison county on the 22d day of December, 1925, the relator herein, Herbert E. Hitchcock, was proposed as the majority candidate for state senator from that county. No minority candidate was proposed. The chairman and the secretary of the said proposal meeting filed with the county auditor a proper certificate of the proposal of relator, within the time prescribed by section 7107, R. ''C. 1919, but relator failed to file his declaration, as required by sections 7107 and 7122. After the primary election was held in March, 1926, the canvassing board of said county issued the following certificate: “March 31, 1926. “To Herbert E. Hitchcock, Mitchell, South Dakota — Greeting: This is to certify that, under the provisions of the primary law, you have been nominated by the Democratic party as a candidate for the office of state senator, and the undersigned have certified your name as such nominee to be voted for at the November* election of 1926. In witness whereof we have hereunto placed our signature and caused the seal of the county to be affixed.” This certificate was properly signed by the county auditor, the clerk .of courts, and the county judge, as members of tihq county canvassing board. A copy of this certificate was delivered to relator on or about the date of its issuance, and the relator assumed that he was the regularly nominated candidate, and that his name would appear in the Democratic column on the ballot at the coming election. On or about the 31st day of August, 1926, the county auditor prepared the ballot, which contained the name of relator as a candidate for state senator on'the Democratic ticket, and sent it to the printer to be printed. On the 7th day of September, the auditor, upon having his attention called to the opinion of this court in the case of State ex rel Picton v. Doolittle, 50 S. D. 298, 209 N.W. 851, directed the printer to omit relator’s name from the said ballot, and [348] advised relator that he had decided not to place relator’s name thereon, and that his name would not appear upon such ballot. Relator thereupon immediately applied to the circuit court for a peremptory writ of mandamus, directing the auditor to' place relator’s name on the said ballot as the Democratic candidate for the office of state senator. The auditor answered relator’s petition, setting up his reasons for omitting relator’s name from the said ballot. The relator interposed a demurrer to said answer. The court sustained the demurrer, and, the auditor electing to stand on his answer as it was, the court, without entering a formal judgment, issued a peremptory writ of mandamus, directing the auditor to place the name of relat- or on the said ballot as the Democratic candidate for the state ¿cuate, and the auditor appeals to' this court. [r] We are met at the outset by a question of practice. The notice of appeal is as follows: “Please take notice that the above-named defendant has appealed and does appeal to the Supreme Court of the State of South Dakota from the order of the court, entered 'September 14, 1926, sustaining the demurrer of plaintiff to the answer of defendant, and from the judgment of said circuit court entered herein on the 14th day of September, 1926, and the whole of said order sustaining demurrer and of said judgment.” Respondent claims that this is an attempt to appeal from the order sustaining the demurrer, which until the entry of final judgment was an appealable order, and from the final judgment, and is therefore a double appeal, and should be held ineffectual for any purpose. When a notice of appeal attempts to appeal from two appealable orders, it constitutes a double appeal, and will be held to be ineffectual. But appellant contends that there is but one appealable order involved, and that the reason why the notice of appeal specified the order sustaining the demurrer and the judgment was befcause 'he was in doubt as to whether the peremptory writ of mandamus constituted a final judgment and was appealable; his theory being that, if the peremptory writ constituted a final judgment, then the order sustaining the demurrer was no longer an appealable order, but should be reviewed on appeal from the final [349] judgment, and the.appeal from,the order .is mere surplusage, and should be disregarded.-. On the .other hand, if the peremptory writ is not'a final-, judgment,, it..is not appealable, and the order sustaining' the demurrer retains its appealability, .and the appeal from the writ is mere surplusage, and should be disregarded. Whether the peremptory writ should be-issued', by the court and treated as a final judgment or whether the court should' issue a final judgment directing the issuance of the peremptory writ by the clerk over the seal of the court, is a question op which there seems to be some doubt among the profession. The latter method seems to have prevailed under the old practice; while the statute indicates the former method. In this instance no judgment other than the peremptory writ was issued; therefore it must be treated as the final judgment from which the appeal was taken. This brings up the order sustaining the demurrer as an intermediate- order, and the appeal from such order will be treated as surplusage, and' be disregarded. Upon the merits, had the relator'filed the declaration provided tor in sections 7107 and 7122, it would have been the d-uty of respondent, as county auditor to have certified the name ot :elator as the party candidate for the state senate. There being no minority candidate proposed, relator’s name would not have been placed on the primary ballot. His name would not have been voted on, and there would have been no vote to canvass. Where but one name is proposed as a party candidate, the canvassing board has no- duty whatever to perform, and has no jurisdiction o-ver said candidate, and a certificate of nomination issued by said board, such as was issued in this case, is a mere nullity, and confers no authority upon the county auditor to certify the relator’s name as a -candidate or to place his name on the ballot. While- it is true that the canvassing- board has jurisdiction to issue nominating certificates to candidates where the vote entitles such candidate to a certificate, it has no jurisdiction to issue a nominating certificate to a party whose name had not 'been voted o-n at the primary election, and the certificate issued to relator was a mere nullity. It conferred no authority upon appellant to regard respondent as- a candidate for office, or to place his name on the ballot. Neither was he estopped, by any conduct or circumstance disclosed by the record, from1 causing the removal of respondent’s name from the ballot, when he determined that it should! -not be there. [350] If the county canvassing board could issue a valid certificate of nomination to a party whose name had not been on the primary election ballot, and who up to that time had no standing as' a candidate, it could issue such certificate to any citizen in the county and in that manner nominate a candidate without the intervention of the proposal men or the electors of the county. Our attention is called to the fact that appellant did not ad^ vise respondent that his name would not be placed on the ballot until it was too late for him to have his name placed on the ballot by petition or otherwise. This, of course, is cause for regret, but hot a ground for estoppel, nor the basis of a legal right. No fraud or bad faith on the part of appellant is charged, nor is it claimed that he did not follow the law as he understood it at every step of the proceeding. The judgment appealed from is reversed. DILLON, J., not present.