State ex rel. Brady v. Bates

JAGGARD, J. (after stating the facts as above). The essential question in this case is whether or not the respondent, Bates, was a candidate for the office of sheriff of St. Louis county at the time at which he entered into the agreement with Miles. If he was then a candidate, within the meaning of the corrupt practices act, he would not be entitled to hold the office, and other questions would be presented. If he was not a candidate at that time, and — 106 — was not within the prohibitions or requirements of'the corrupt practices act, then the relator is entitled to no relief. The corrupt practices act is chapter 277, p. 664, Laws 1895. It plainly distinguishes between a “candidate for nomination to any elective office” and a “candidate for any elective office.” Section 348, R. L. 1905, limits and defines the items of authorized and legal expenses of a candidate for nomination. Section 349 prescribes the limit which candidates for elective offices may respectively expend. Section 350 requires the filing of affidavits of expenditures by “a candidate for nomination or election to any elective office.” Section 379 makes it a misdemeanor on the part of every candidate for nomination or election to fail to file a verified statement of his expenditures. It is not material here whether, as a result of this verbal difference, the limitations provided in section 349 upon the expenses of a candidate for an elective office apply also to a “candidate for nomination” under section 348; for it must be conceded that, under either construction, the present incumbent would not be entitled to hold his office if he was, in a legal sense, a candidate when he entered into the agreement with Miles. If these were the only statutory requirements on the subject, the case at bar, apart from the constitutional question, would come within the principle of Leonard v. Com., 112 Pa. St. 607, 4 Atl. 220. At page 624 of 112 Pa. St. and page 224 of 4 Atl., Paxson, J., said : “The word ‘candidate’ in the constitution is to be understood in its ordinary, popular meaning, as the people understood it whose votes at the polls gave that instrument the force and effect of organic law. Webster defines the word to mean ‘one who seeks or aspires to some office 'or privilege, .or who offers himself for the same.’ This is the popular meaning of the word ‘candidate.’ It is doubtless 'the meaning which the members of the constitutional convention attached to it, and the sense in which the people regarded it when they came to vote. We therefore say, in everyday life, that a man is a candidate for an office when hq is seeking such office. It is begging the question to say that he is only a candidate after nomination, for many persons have been elected to office who were never nominated at all. * * * As before observed, the constitution must be construed liberally, so as to carry — 107 — •out and not defeat the purpose for which it was adopted. If we give it the narrow construction claimed for it, a candidate for office might resort to all manner of bribery and fraud in procuring his nomination, yet, if he conduct himself properly after his nomination, he could wholly evade the constitutional prohibition.” While it is clear, however, that a man may be and usually is a candidate long before he is, and although he may never be, a nominee, the time is wholly uncertain when he becomes a candidate, in the absence of statutory determination of such time. He may in his own mind be in that venturesome state for many years before any one else is apprised of such intention, and in such case his ambition would not make him a candidate. Nor does he become such if he merely counsel with his friends on the subject. , His candidacy must be manifested by some act of his own, the gist of which is that he holds himself out as a candidate. Very often he crosses the Rubicon when he publishes his formal announcement in the local press, or to an organization, or in any public manner. This, however, is not ordinarily necessary. He may become a candidate by soliciting votes, without any declaration. Combe v. Pitt, 5 Geo. III, 1 Black, 523; 1 Hawk. P. C. 315, note 4. A man may be elected to a public office without ever having been a candidate in the legal sense. In Morris v. Burdett, 2 M. & S. 212, the mere fact that a poll was going on and votes sought or given for defendant was held not to have made him a candidate. Having taken no part, directly or indirectly, and not having, by himself or by any other, held himself out as a candidate, it was held that he'could take his place in the House of Commons without being charged under the statute with the expenses of the hustings. Bayle, J., defined a candidate as a person desirous of obtaining the suffrages of the electors, and who holds himself out as such. See, however, Regina v. Chisholm, 5 Ont. Pr. 328. It is apparent, in the nature of things, as it is a familiar experience, that, in the absence of statutory prescription on the subject, the time when a man becomes a candidate is extremely vague and indefinite. The consequences of the violation of the corrupt practices act are serious, both in respect to the individual candidate, who may be punished, and to the public, whose expressed wish may be defeated. It — 108 — is important, as a matter of public policy, that its salutary provisions-should be enforced. It is essential to its successful administration that the time at which its provisions go into effect should be definitely determined. In view of the indefiniteness as to such time under the ordinary convention system of nominations, the legislature may reasonably be regarded as having intended to remedy this defect when, it legislated on the subject of direct primaries. “The words 'primary election,’ we may say, are as well understood to mean the act of choosing candidates by the respective political parties to fill the various-offices.” Olds, J., in State v. Hirsch, 125 Ind. 207, 24 N. E. 1062, 9 L. R. A. 170. The statutory provisions on “nomination by direct vote” are sections 181-203, inclusive, R. R. 1905. They provide distinctly for the election of party nominees, and prescribe the means by. which the candidates for office of the various political parties are selected. They do not, however, purport to “prevent the nomination of candidates by groups, individuals, or so-called political parties, which cannot be recognized as such by certificate of voters to the number hereinafter specified.” The law clearly defines who is a candidate under its terms, and how and the time at which an aspirant becomes a candidate. Section 184 provides that at least twenty days before a primary election any person eligible becomes a candidate by, and at the time of, filing his affidavit with a specified official, setting forth, inter alia, the office for which he desires to become a candidate. Upon the filing of this affidavit, and the payment of the required fee, “the auditor shall place such name upon the primary election ballot of the party designated.” The election law throughout, in all its sections, treats him as the only candidate with which it has to do. This is literally a statutory definition of “a candidate for nomination to any elective office,” within the meaning of the sections of the corrupt practices act previously referred to. There is an essential identity of phraseology. The corrupt practices act provides certain punishment for a “candidate for nomination.” The direct primary law defines who is a “candidate for nomination.” A party officeholder, under the ordinary electoral system, passes through two preliminary stages: (1) Where he is a candidate for nomination by his party at a convention. (2) Where he has become — 109 — his party’s nominee and is a candidate for election. A party officeholder, under the direct primary system, passes through two similar preliminary stages: (1) Where, having filed his affidavit, he becomes .a candidate for nomination by his party at a primary election. (2) Where he has been elected as his party’s nominee and is a candidate for election. In the case of the nominee of a convention, the candidate files a list of his expenses, beginning with a date which the law does -not fix, but which is determined in accordance 'with its general rules. It is apparently left to the candidate to fix that date in good faith, and perhaps at his peril. In case of a nomination by direct-primary election, the statute definitely prescribes the time, viz., when the eligible person files the affidavit of his intention. As to expenses after that date, he must file a verified statement, but as to those which were incurred before it he is not required so to do. Suppose an office seeker spends money with the intention of becoming a candidate for nomination at the approaching primary election, but changes his mind and does not file. Must he make a verified statement of his expenses ? Failing to do this, is he liable to prosecution for a misdemeanor? Clearly not. No more was the respondent required to make the statement of his expenditures anterior to the time at which he filed his affidavit and thus became a candidate. This construction is subject to the objection that it might enable the office seeker to expend large sums of money to help him secure a nomination, and, by filing as late as the law allows, to escape its penalties, and, in effect, to evade its provisions. The time of filing is, however, so long before the primary election, and that time so long before the actual election, as to make that evil seem remote. In ordinary experience, it is likely to occur that the advantage of publicity secured by filing early will overcome any disposition to delay filing with a view to reducing the expense to be reported, and candidates will continue to regulate their filings with reference to considerations of general expediency. However this may be, it is for the legislature, and not for the courts, to remedy the imperfections which may arise in the administration of the law. We have to deal with it as it has been enacted. As enacted, we think that the candidate for nomination upon whom are imposed penalties by the corrupt practices — 110 — act is, under the direct primary election law, a person who has filed his affidavit of intention, and has thereby become a candidate for nomination under its terms. Before he becomes such candidate, he is not within the provisions of the corrupt practices act. Little light is shed on this subject by the authorities. See 6 Cyc. 345; 15 Cyc. 333. State v. Bland, 144 Mo. 534, 46 S. W. 440, 41 L. R. A. 397, to which respondent cites us, has little relevancy to the subject under discussion. In the case at bar it is not material whether the respondent was-trapped into the arrangement, or whether he sought to rescind, and unsuccessfully attempted to stop the check he had given before it was cashed. He was not a candidate until he filed. What he spent before that time is a matter with which the law, so far as this proceeding is involved, has no concern. In view of this conclusion, it becomes' unnecessary to consider here questions as to the constitutionality of the law in question. The writ is discharged, and respondent allowed to retain the office of sheriff of St. Louis county, to which he has been duly elected and qualified.