Cadle v. Town of Baker

MR. JUSTICE HOLLOWAY delivered the opinion of the court. At the general election held in November, 1914, the towns of Baker and Ekalaka were rival candidates for the permanent county seat of Fallon county. The canvassing board returned that Baker received the highest number of votes, and this proceeding was instituted to contest the election. A demurrer to the petition was sustained, and contestant, electing to stand on his pleading, suffered judgment, of dismissal to be entered against him and appealed. The only question necessary to be decided is: Do the laws [1] of this state provide for a contest of an election to determine the location of a permanent county seat? That such a contest is not authorized by the general election laws of the state, or by the statutes under which new counties are created and county seats selected, is conceded at the outset. In their brief, counsel for appellant frankly state their position as follows: “This contest can be sustained only upon the ground that the initiative measure known as the Corrupt Practices Act gives the right. ’ ’ For many years we have had an effective election contest statute (secs. 7234-7249, Rev. Codes), but prior to the time the Corrupt Practices Act was adopted, in November, 1912 (Laws 1913, p. 593), an election to office was the only subject of contest. Our inquiry is directed, then, to ascertain to what extent, if at all, existing statutes upon the subject of election contests were enlarged or extended by this latter Act. A comparison of the two statutes may be made most advantageously by considering the subject under the three general heads: (a) Who may contest; (b) what may be contested; and (e) what are the grounds of contest. Section 7234, Revised Codes, provides: “Any elector of a county, town or city, or of any political subdivision of either, may contest the right of any person declared to be elected to an office to be exercised therein, for any of the following causes. * * * ” Section 45 of the Corrupt Practices Act provides: — 181 — “Any elector of the state, or of any political or municipal division thereof, may contest the right of any person to any nomination or office for which such elector has the right to vote, for any of the following causes. * * * ” So far, then, as our inquiry is directed to the subject “Who may contest,” it is answered by these statutes in identical terms: Any elector of the state or subdivision thereof where the election is held may maintain a contest, and it is apparent at once that no change in the law was intended so far as this feature of the question is involved. Section 7234, above, provides only for the contest of an election, whereas section 45, above, permits a nomination as well as an election to be made the subject of contest, and in this respect extends the law upon the subject. This addition was doubtless made in anticipation that the general primary elec-, tion law (Laws of 1913, p. 570) would be adopted, as it was. The grounds of contest under the earlier Act are enumerated in section 7234, above; under the later Act, in section 45, above. In point of fact, the change effected is slight. The later statute defines with more particularity the Acts which constitute corrupt practices, as a comparison of its provisions with sections 8124^8175, Bevised Codes, will demonstrate. Under the Bevised Codes, a violation of the election laws was punishable by fine or imprisonment, or fine and imprisonment (sections 8168, 8169, 8170, 8171, 8172, 8173); under the latter Act, by fine or imprisonment, fine and imprisonment, or forfeiture of office (sections 37, 39, 50, 51). So far as the question before us is concerned, the changes indicated above are the only ones of consequence effected by the Corrupt Practices Act. Notwithstanding the very explicit terms employed in section 45, above, which seem to limit the authority of an elector to contest only the right of a person to a nomination or election, counsel for appellant insist that when that language is considered in connection with other expressions in the Act and with the title and manifest purpose of the measure, authority may be found by virtue of which this proceeding can be main — 182 — tained. The other expressions in the Act to which reference is made are in sections 38, 39 and 40, as follows: Section 38: “Where, upon the trial of any action or proceeding under the provisions of this Act for the contest of the right of any person declared nominated or elected to any office. * * * ” Section 39: “If, upon the trial of any action or proceeding under the provisions of this Act, for the contesting of the right of any person declared to be nominated to an office, or elected to an office. * * * ” Section 40: “Any action to contest the right of any person declared elected to an office, or to annul and set aside such election, or to remove from or deprive any person of an office of which he is the incumbent, for any offense mentioned in this Act. * # # ” Instead of aiding appellant, these references apparently lend color to respondent’s contention that the authority to contest is restricted to an attack upon the right of a person, that is, a human being, declared nominated or elected to office. The term “persons,” however, is defined in section 10 of the Act, as follows: “ ‘Persons’ shall apply to any individual, male or female, and, where consistent with collective capacity, to any committee, firm, partnership, club, organization, association, corporation, or other combination of individuals.” An incorporated city or town is a municipal corporation; -and the argument is advanced that we have in these several sections recognition of authority for attacking the right of a city or town declared to have been chosen the seat of county government. The terms as employed in the definition are very broad, but we are satisfied that they were not intended to comprehend a candidate for county seat honors. The references above are all to -a person declared elected to office, and the same section also defines this term as follows: “ ‘Public office’ shall apply to any - national, state, county or city office to which a salary attaches and which is filled by the voters, as well as to the office of presidential elector, United States senator, or pre — 183 — siding officer of either branch of the legislature.” Whatever else a county seat may be, it is not an office to which a salary is attached. In their extremity, counsel for appellant are driven to urge this court to adopt and apply the definition of'“persons” as given above, but to reject the definition of “public office” found in the same section. It is true that neither of these definitions is to be used exclusively. The opening sentence of section 10 is: “Terms used in this Act shall be construed as follows, unless (some) other meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intent of the law.” Then follow the definitions given above and others not material here. It is not contended, and could not be, that a meaning of the term “public office” different from that given is clearly apparent from the language of the sections referred to or the context; but it is insisted that a construction of those sections in harmony with the definition thus given as an aid in the construction of the Act is inconsistent with the manifest intent of the law. If this be true, it would be interesting to know what purpose the definition was intended to serve. We agree with counsel that the object to be attained by this Act is to prevent corrupt practices in all elections. The same end was likewise in view in the enactment of the former Corrupt Practices Act, now found in sections 8121-8175, Revised Codes. We do not agree with counsel, however, in their assumption that the present statute seeks to accomplish its purpose in all cases through the medium of an election contest. It is clearly within the range of legislative activity to provide for a contest of every election, but that the Corrupt Practices Act does not purport to do so is fairly dedueible from its title as well as its text. The title of the Act follows: “A bill to propose, by initiative petition a law to limit candidates’ election expenses; to define, prevent and punish corrupt and illegal practices in nominations and elections; to secure and protect the purity of the ballot; to provide for furnishing information to the electors and to provide — 184 — the manner of conducting contests for nominations and elections in certain eases. ’ ’ So far as this title is indicative of legislative intention, it fails to suggest a purpose to alter or enlarge existing statutes providing for election contests. Instead of making provision for such contests, it merely indicates a purpose to provide the manner in which contests already allowed by the Codes are thereafter to be conducted, and even this Practice Act is in terms made available only in certain cases. The body of the Act does extend existing statutes by making a nomination the subject of contest and by adding an additional punishment for a violation of the election laws, but further than that it does not go.. It is interesting to note that, while counsel for appellant concede that the Code provisions do not contemplate a contest of an election for the location of a county seat, they insist that the Corrupt Practices Act does do so; and yet an examination of the two statutes will disclose that the same terms are employed in each, and in the same connection and in the same sense. For instance: In section 7234, Revised Codes, is found the language quoted above; in section 7238 is this provision, “When an elector contests the right of any person declared elected to such office,” etc. There is not anything in the history of the Corrupt Practices Act, in its title or text, to suggest a meaning for “persons” or “public office” different from that intended to be applied to the same terms when used in the Code sections above. That the Corrupt Practices Act does not expressly authorize this contest must be admitted. To hold that it impliedly authorizes it would do violence to the language employed, involve a total disregard of the definition of “public office” given therein, and convict the electors of this state of a lack of sufficient intelligence to express their intention in plain and unmistakable terms. In other states where county seat elections are subject to contest, the lawmakers have not experienced any difficulty in making their meaning plain, and we are satisfied that if it had been the intention to subject such elections to contests in this state, by the provisions of the Corrupt Practices Act or other legislation, appropriate lan — 185 — guage could have been commanded to express such intention; and since it nowhere appears, we feel justified in our conclusion that such was not the intention. The exception of this character of election from the operation of the contest statutes may have been effected designedly or it may be the result of oversight; but even so, the courts do not possess law-making power even to the extent of supplying lapses in the law. For the same reasons the proceeding cannot be sustained as one instituted under the Corrupt Practices Act to avoid the election. In passing, it is worthy of note that certain provisions of the Corrupt Practices Act appear to be in direct conflict with the [2] state Constitution. In section 19 it is provided that if upon an election contest “judgment of ouster against a defendant shall be rendered, said judgment shall award the nomination or office to the person receiving next the highest number of votes.” If by this provision is meant that a candíate who does not receive the highest number of legal votes may be declared elected, it would seem to be in hopeless conflict with the terms of section 13, Article IX of our state Constitution, which reads: “In all elections held by the people under this Constitution, the person or persons who shall receive the highest number of legal votes shall be declared elected.” While a successful candidate may be deprived of the fruits of his victory by being required to forfeit his office as a punishment for wrongdoing, we undertake to say that it is beyond the law-making power to declare elected to an office anyone who has not received the highest number of legal votes therefor. The Codes and the Corrupt Practices Act provide for certain contests; they likewise provide severe punishments for violations of the election laws, and these remedies were doubtless deemed sufficient to make the statutes effective for the purposes intended. The laws of this state do not provide for a contest of an election for the location of a county seat, and for this reason the demurrer to the petition was properly sustained. While a court of equity would intervene to prevent a city or [3] town unlawfully obtaining the county seat, in any Instance — 186 — where it did not receive the highest number of legal votes, this proceeding cannot be upheld as one instituted in equity for such purpose, for the reason that it is not alleged that the corrupt practices charged operated to influence a sufficient number of votes to change the result of the election. The judgment is affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Sanner concur.