Coovert v. Olcott

Mr. Justice Harris delivered the opinion of the court. 1. The Republican party is a political party within the meaning of the direct primary nominating elections law, which was adopted by the people in 1904, and is codified in Sections 3349 to 3391, L. O. L., and amendments, and therefore by the express terms of Section 3359, L. O. L., amended by chapter 108, Laws of 1913, it “shall nominate all its candidates for public office, under the provisions of this law and not in any other manner, and it shall not be allowed to nominate any candidate in the manner provided by Section 3333.” Section 3333, L. O. L., was enacted in 1891, and speaks of nominations by “any political party,” by assemblies, and by individual electors. Every political party which is subject to the direct primary nominating elections law must nominate all its candidates “under the provisions of this law, and not in any other manner,” because the direct primary nominating elections law furnishes the exclusive modes of nomination: Healey v. Wipf, 22 S. D. 343 (117 N. W. 521). Section 3359 continues by declaring that “the names of — 418 — candidates for public office nominated under tbe provisions of this law shall be printed on the official ballots for the ensuing election as the only candidates of the respective parties for such public office.” Being subject to the direct primary nominating elections law, the Republican party cannot nominate its candidates in the manner provided by Section 3333 or by an assembly or by individual electors; but its nominations must be made by the persons and in the manner specified by the law. The only persons who are empowered to select candidates for the Republican party are: (1) The members of the party; and (2) their representatives. A party candidate is selected by the direct vote of the members of such party at an election held for that purpose or is chosen by the representatives of the party. It was impossible for the members of the Republican party to nominate a candidate for the office of senator for the Fourteenth Senatorial District when the direct primary nominating election was held on May 19, 1916, for the reason that George M. McBride had not then resigned and his term of office extended until January, 1919. The members of the Republican party cannot now by their votes nominate a candidate for the office because another direct primary nominating election will not be held until 1918, which will be after the next biennial election for public officers. A Republican candidate could not be nominated on May 19th, and cannot now be nominated by the direct vote of the members of the party, and consequently the question for decision is whether the precinct committeemen, acting as the party representatives, had authority to nominate the petitioner as the candidate of the Republican party. — 419 — Provision is made in Section 3389, L. O. L., for the election of party committeemen. Every political party subject to the direct primary nominating elections law elects a committeeman for each election precinct, and the committeeman thus elected “shall be the representative of his political party, ’ ’ and all the committeemen of a county constitute the county central committee of such party. The county central committee elects the county members of the state central committee and of the congressional committee, and the state and congressional committees ‘ ‘ shall have the same power to- fill all vacancies * * that the county committee has to fill county vacancies. Said county and city central committees shall have the power to make nominations to fill vacancies occurring among the candidates of their respective parties nominated for city or county offices by the primary nominating election, where such vacancy is caused by death or removal from the electoral district, but not otherwise.” Assuming, but not deciding, that the committeemen from the three counties comprising the Fourteenth Senatorial District have power to fill vacancies, then the measure of that power is determined by the authority conferred upon the county central committee to fill county vacancies. Section 3389 provides for only one class of vacancies. Aside from vacancies among committeemen, the only kind of vacancies spoken of are those “occurring among the candidates # * nominated * # by the primary nominating election.” The statute affords a method for filling a vacancy among candidates who have been nominated by the members of the party, and no provision whatever is made for filling a vacancy of any other kind by committeemen. The party committeemen can nominate — 420 — a candidate to fill a vacancy caused by tbe death or removal from the electoral district of another person who has previously been nominated by the members of the party; but the representatives of the party are powerless to nominate a candidate for an office unless the members of the party have themselves first nominated a candidate for that office. Moreover, the authority of the committeemen is further restricted to vacancies “caused by the death or removal from the electoral district,” and consequently the committeemen cannot select a substitute for a person who has been chosen as a party candidate at a nominating election unless the first nominee dies or removes from the electoral district. The language of the statute is plain and unambiguous; but, apparently for the purpose of making assurance doubly sure, the framers of the enactment emphasized the limitations placed upon the power of precinct committeemen to fill vacancies by declaring that the power could be exercised as restricted by the statute which confers the power, “but not otherwise.” Analogous, although not parallel, situations have arisen in other jurisdictions, and the conclusions reached there are in harmony with what is said here: State v. Hayward, 141 Iowa, 196 (119 N. W. 620); Corser v. Scott, 87 Minn. 313 (91 N. W. 1101); Stewart v. Polley, 30 S. D. 54 (137 N. W. 565). Corroboration of the construction placed on Section 3389 is found in other sections of the statute. The direct primary nominating elections law was adopted by the people in the exercise of the initiative at an election held in 1904: Chapter 1, Laws 1905.' Sections 3343 to 3345, inclusive, L. O. L., were enacted in 1891. Section 3343 permits “any person who has been nominated and accepted some nomination” to withdraw his name from nomination by pursuing a prescribed — 421 — method. Section 3344 states that, if any person nominated dies or withdraws before the day fixed by law for the election of public officers, then the name of such candidate shall not be placed upon the ballot. Section 3345 declares that, “if the original nomination thus vacated was made by a political party,” and the party can reconvene, it may fill the vacancy, or a committee may fill the vacancy if the party has delegated the power to such committee. The provisions of Sections 3343 and 3344 are made applicable to nominations under the direct primary law by Section 3367, L. O. L., “in case of the death of the candidate or his removal from the * * electoral district,” before the date of the ensuing election, but in no other case; and in case of such vacancy by death or removal the committee may fill the vacancy. It will be noted that Sections 3343, 3344 and 3345 speak of the death or withdrawal of any person who has been nominated, and Section 3367 applies to the death or removal from the electoral district “of the candidate,” and “in no other case.” The direct primary nominating elections law provides for the election of precinct committeemen, and then specifies the powers which they can exercise, and consequently no power can be exercised by them unless it is granted by statute. The law defines in plain and unambiguous language the extent of the power of precinct committeemen to make nominations for their party, and then in language equally plain and unambiguous commands that the power to nominate candidates shall not exceed the defined authority. The statute must be taken as it is written, regardless of the results; and if there is need for enlarging the powers of precinct committeemen the right to enlarge — 422 — the authority of party representatives is exercisable by the legislative and not by the judicial department. The demurrer to the writ is sustained. Demurrer Sustained. Mr. Justice Eakin absent.