Sears v. Kincaid

Mr. Justice Bean delivered the opinion. This is a mandamus proceeding brought by James K. Sears, who claims to be the nominee of the People’s Party for the office of state treasurer, to compel the defendant, as secretary of state, to receive and file his certificate of nomination and acceptance thereof, and to otherwise recognize him as the regular candidate of that party for said office. The alternative writ, setting forth the facts according to the plaintiff’s petition, avers, in — 217 — substance, that at a regularly called state convention of the People’s Party, held in the City of Portland on March 23, 1898, the plaintiff was nominated as the candidate of such party for the office of state treasurer, and that his certificate of nomination and acceptance thereof, copies of which are set out, were presented to the defendant secretary of state for filing, who refused to file either of such papers, and notified the plaintiff that he would not recognize their validity, and would not certify or file the same in his office, or make or transmit duplicates thereof to the county clerks of the several counties in the state or post them in his office. The writ thereupon commands the defendant to file such certificate of nomination, and plaintiff’s acceptance thereof, as of the date when the same was tendered to him for filing, and, within the time required by law, to arrange the name of the petitioner upon the form of the ballot, etc., or show cause, at a time fixed, why he has not done so. At the time required the defendant appeared, and for his return to the writ admits that a certificate of plaintiff’s nomination, and of his acceptance thereof, in words and figures as set out in the alternative writ, were presented to him for filing at the time alleged, but denies that he refused to file the same, and affirmatively avers that he had filed both of such papers prior to the service of the alternative writ upon him. He also denies that plaintiff is the regular nominee of the People’s Party for the office of state treasurer, or entitled to be recognized as such, and admits that he has and does refuse to so recognize him because he was never nominated by the. People’s Party. For a further and separate defense to the alternative writ the defendant alleges, in substance, that the plaintiff was not nominated for the office of state treasurer, or for any office, by the regular People’s Party convention, but — 218 — by a so-called convention composed in part of bolters from such regular convention. A part of the answer was stricken out, on motion, and a demurrer to the remainder was sustained, on the ground that it constituted no defense to the alternative writ, and, defendant declining to plead further, a peremptory writ of mandamus was issued, commanding him “that, after having received and filed the certificate of nomination of the plaintiff herein as the People’s Party nominee for the office of treasurer of the State of Oregon, and the plaintiff’s acceptance thereof, as alleged in the defendant’s answer herein, you certify the same, within the time prescribed by law, under the seal of the State of Oregon, and file the same in your office, and make and transmit a duplicate thereof by registered letter to the county clerk of each county in the State of Oregon within the time required by law, and that you post a duplicate thereof immediately in a conspicuous place in your office, and keep the same so posted until after the election to be held on the sixth day of June, 1898, and, in general, do all 'things required of you by the statutes of the State of Oregon, and necessary to place the plaintiff before the voters of the State of Oregon at the said election as a candidate for the office of state treasurer of the State of Oregon.” The defendant appeals, claiming that there is no law requiring or authorizing him to do any of the things which he is commanded to perform by the peremptory writ, and, if this position is sound, the judgment must be reversed. 1. A mandamus is an extraordinary writ, directed to an inferior court, corporation, board, officer, or person, to compel the performance of some particular thing therein specified, and which the law specially enjoins upon the defendant as a duty resulting from his office, trust or station — 219 — (Code, § 593, and Bouv. Law Dict.) ; and therefore great care is required in stating in the writ the particular thing commanded to be done, in order that the party to whom it is directed may know the precise duty to be performed, and because the writ must be enforced in the terms in which it is issued or not at all. The duty of the defendant, the performance of which it is the office of the writ to compel, cannot be left to outside ascertainment, nor can he be required to look dehors the language of the writ, but it is elementary law that he may look to the mandatory clause alone to ascertain what acts he is required to perform : High, Extr. Rem. §§ 531, 561; 2 Spell. Extr. Rel. § 1698; Merrill, Mand. § 260; Hartshorn v. Assessors, 60 Me. 276 ; State ex rel. v. Mobile Railway Co., 59 Ala. 321; People ex rel. v. Brooks, 57 Ill. 142. 2. Now, the mandatory clause in the writ issued in this case is perhaps susceptible of two interpretations. It either .requires the defendant to certify to the nomination of plaintiff, and to transmit to the several county clerks, and post and keep posted in his office, a duplicate of such certificate, or it commands him to certify to the certificate of such ■ nomination and acceptance thereof, and so transmit and otherwise dispose of the same. But, in either event, it requires the performance of acts not enjoined upon the defendant by law. Section 45 of what is known as the “Australian Ballot Law” (Sess.-Laws 1891, p. 33) requires the secretary of state, not less than 28 nor more than 30 days before the day fixed for the election, to arrange, in the manner provided in the act for the arrangement of names and other information upon the ballots, all the names and other information concerning all the candidates contained in the certificates of nomination which have been filed with him and accepted by the nominees, and to forthwith certify to and file the same, and — 220 — make and transmit to the several county clerks and post in his office a duplicate thereof. But there is no law requiring him to certify to the several certificates of nomination, or of the nominees’ acceptance thereof, or to transmit to the county clerks or post in his office a duplicate of such papers, nor is he authorized or required to certify to the nomination of any of the candidates, or to transmit to the several county clerks or post in his office any certificate upon that subject whatever. His duty is confined to the arrangement of the names and other information concerning the candidates contained in the certificates of nomination on file in his office, in the manner provided by law for the arrangement of the names and other information upon the ballot, and to certify to the same and transmit to the various county clerks, and post in his office a duplicate thereof. In short, he is required to certify to the names of the candidates, and to the other matters contained in the several certificates of nomination, and which are required by law to be placed on the official ballot, but not that the persons so named are, in fact, the nominees of any party; and, so far as the question has received judicial consideration, the holdings are quite uniform that, under statutes like ours, he has no power or authority in so doing to pass upon the regularity or validity of such nominations, or to inquire into the regularity of the conventions by which they purport to have been made : Shields v. Jacob, 88 Mich. 164 (13 L. R. A. 760, 50 N. W. 105); People v. District Court, 18 Colo. 26 (31 Pac. 339); People v. McGaffey, 23 Colo. 156 (46 Pac. 930); State v. Allen, 43 Neb. 651 (62 N. W. 35); Phelps v. Piper, 48 Neb. 724 (33 L. R. A. 53, 67 N. W. 755); State v. Piper, 50 Neb. 25 (69 N. W. 378); Sims v. Daniels, 57 Kan. 552 (35 L. R. A. 146, 46 Pac. 952); Robbins v. Harrity, 2 Pa. Dist. R. 163. It follows that whether we accept the defendant’s construction of the — 221 — language of the peremptory writ, or adopt that of the plaintiff, it in either event requires the performance by the defendant of acts not enjoined upon him by law, and its issuance was therefore error. Under this view, the questions raised by plaintiff’s motion to dismiss become immaterial. The judgment of the court below will be reversed, and the cause remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed .