Opinion
No. 2098
July 27, 1938
PRIMARY ELECTIONS — WITHDRAWAL OF CANDIDATE — FILLING OF VACANCY — MANDAMUS.
1. Under statute relating to the filling of vacancy existing in any office or position for which nominations are made, where candidate for office of secretary of state filed petition requesting that his name be printed on official Republican ballot at primary election, and before expiration of time allowed for filing such petition requested that his filing as candidate be withdrawn, candidate having made filing necessary to make him a primary candidate had right to resign or withdraw, since statute could not be effective unless the right to create a vacancy by withdrawal is recognized (Rev. St. 1931, §§ 36-603, 36-605, 36-630). 2. Where candidate for office of secretary of state filed petition requesting that his name be printed on official Republican ballot at primary election, and before expiration of time allowed for filing made written request that secretary of state withdraw candidate's filing as a candidate, request to withdraw filing was sufficient as against contention that there was no specific request that candidate's name be omitted from certified list of candidates to be transmitted to county clerks as provided for by statute (Rev. St. 1931, §§ 36-603, 36-605, 36-607, 36-630). 3. Where candidate for office of secretary of state filed petition requesting that his name be printed on official Republican ballot at primary election and, before expiration of time allowed for filing such petition, candidate requested that his filing as candidate be withdrawn, it became the ministerial duty of secretary of state to do those acts which would make the withdrawal effective and, on his failure to do so, mandamus would lie (Rev. St. 1931, §§ 36-603, 36-605, 36-630).
ORIGINAL proceeding in mandamus by the State, on the relation of C.J. "Doc" Rogers, against Lester C. Hunt, as Secretary of State, to require the defendant to permit the relator to withdraw as a candidate for nomination for the office of Secretary of State in Republican Primary Election to be held on August 16, 1938.
For the relator there was a brief by W.O. Wilson, A.D. Walton, Ewing T. Kerr, M.S. Reynolds and C.M. Watts, all of Cheyenne, Wyoming, and oral argument by Mr. Kerr.
The relator filed his petition for nomination as a candidate on the Republican ticket, for the office of Secretary of State. Thereafter and on July 18, 1938, he decided not to be a candidate for that office and delivered to James B. Griffith, Chairman of the Republican State Central Committee a letter of withdrawal to be presented to the Secretary of State, which said letter of withdrawal was presented to the Secretary of State within the time which candidates might file for state offices. The Secretary of State refused to accept said withdrawal by relator and would not permit relator to withdraw his name as a candidate for the office of Secretary of State on the Republican ticket. The petition for mandamus involves one question, viz., that the Secretary of State refused to permit a candidate to withdraw his name as such candidate within the time which candidates are permitted to file for nomination for state offices. Relator contends that Chapter 36, Section 630, Wyoming Revised Statutes 1931 expressly permits a candidate for any state office to withdraw at any time not later than ten days prior and before the date of the primary election. This question was presented to the Attorney General on October 18, 1928, who gave his opinion that a candidate for nomination at a primary election may withdraw prior to the time of such primary election. The Supreme Court of Colorado in the case of O'Connor v. Smithers, 99 P. 46, sustains our contention, as does also the case of Bordwell v. Williams, 159 P. 869. In the case of Sterling, et al. v. Bones, 39 A. 424, the question was whether mandamus would lie against a county clerk to require the county clerk to take a certain name off the ballot. The court held that the supervisors of election had no authority to withdraw the candidate's name without his consent. A candidate may withdraw prior to election. 20 C.J. 127. In State v. Brodigan, 142 P. 520, it was held that a candidate had a right to withdraw. It would seem from the above authorities that public policy demands that a candidate has a right to withdraw or resign prior to and before his name is placed upon the ballot. A variety of reasons might be suggested in support of such a policy. For example, a candidate might discover that he was incapable of exercising the duties of the office, or be physically incapacitated. There might be cases where a candidate found it necessary to remove from the state and change his legal residence to another state. We further contend that it is contrary to public policy to force an office upon a candidate, who does not desire to seek the office. We respectfully submit that the Secretary of State is in error, and that this court should issue a peremptory writ of mandamus compelling the Secretary of State to accept the withdrawal of relator and to omit relator's name from the list of candidates which defendant is required by law to submit to the county clerks of the several counties of the state.
For the defendant, there was a brief by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; and William C. Snow, Assistant Attorney General, all of Cheyenne, and oral argument by Mr. Shea.
The general rule is that instruments filed in a public office, where they are required to be filed, are not subject to withdrawal. Ordinarily mandamus will not require performance of an act where the legal right thereto is not clear. State v. Ellis, 37 Wyo. 124; State v. Brooks, 14 Wyo. 393; State v. Jenkins (Wash.) 58 P. 217. Writ will not issue unless the relator comes into court with clean hands. 38 C.J. 662; see also 38 C.J. 551. Section 36-607, R.S. 1931 requires the Secretary of State to transmit to the county clerks of the state twenty-five days before a primary election, the names and post office addresses of persons who have filed nominating petitions. This statute imposes a positive duty that could be controlled by mandamus. We may presume that the defendant complied with said section, hence a writ of mandate would accomplish nothing other than to compel the Secretary of State to accept and file relator's written request. 38 C.J. 66; Mortgage Company v. State Secretary (Mich.) 114 N.W. 82; People v. Olson (Mich.) 74 N.E. 785. Where the issuance of the writ would disturb official action or create confusion, it may be denied. Waddick v. Merrell, 26 Ohio Circuit Court 437. This is not a proper case for the issuance of a writ of mandate. Section 36-630 does not give directly or conclusively the right of resignation. Erickson v. Cohen, 275 N.Y.S. 901; Putnam v. Kozer (Ore.) 250 P. 625. We assume that the Kansas case referred to in the opinion of the Attorney General and mentioned in relator's brief is the case of Brown v. Potteck (Kan.) 193 P. 359. We consider the reasoning in that case to be as good as that contained in the case of Bordwell v. Potteck (Kan.) 193 P. 359, relied upon by counsel for relator. All of the justices in the Kansas cases concurred, whereas two of the justices in the California case dissented. The case of O'Connor v. Smithers, 99 P. 46, cited by relator's counsel is based on a statute differing from ours, and we also suggest that the case of Sterling v. Bones (Md.) 39 A. 424, cited by relator, is more favorable to defendant's position than to relator's contention and was in effect governed by a statute. The cases of Brower v. State and Erickson v. Cohen are also governed by statutes. Relator's petition does not show a clear violation of duty by defendant, nor a right to the issuance of the writ. The issuance of such a writ would create disorder and confusion and would be nugatory and unavailing.
Heard before KIMBALL, Justice, HARRY P. ILSLEY, District Judge, and SAM M. THOMPSON, District Judge.
This is an action for mandamus to require the defendant, secretary of state, to permit the relator to withdraw as a candidate for nomination for the office of secretary of state in the republican primary election to be held on August 16, next.
The relator, on June 21, 1938, in conformity with sections 36-603 and 36-605, R.S. 1931, filed in the office of defendant his petition requesting that his name be printed on the official republican ballots at the primary election as a candidate for nomination for the mentioned office. On July 18, before the expiration of the time for filing such petitions, relator signed and caused to be presented to the defendant's deputy this request, addressed to defendant:
"Please withdraw my filing as a candidate for secretary of state for the State of Wyoming, previously filed with your office, as I do not wish to continue as a candidate for that office."
The deputy refused to act on the request, and the defendant has persisted in refusing to recognize relator's right to resign or withdraw as a primary candidate for the office.
On July 20, this action for mandamus was commenced. The petition alleges the facts substantially as set forth above. On the filing of the petition (the parties realizing the importance of an early decision), it was agreed that an alternative writ need not be issued, and that the right to a peremptory writ should be determined after a hearing on July 26. Before the hearing, an answer and reply were filed. These pleadings contain many allegations of facts which we think are irrelevant and need not be noticed in this opinion. There is some disagreement as to the conversation in the defendant's office on July 18, but this conflict raises an immaterial issue, as it is not contended that anything was said to qualify the writing signed by relator and presented at that time as his resignation or withdrawal.
The main question is whether the relator, having previously made the filing necessary to make him a primary candidate, had the right, on July 18, to resign or withdraw. It seems that the right is given clear recognition by section 36-630 which declares:
"Should any vacancy occur or exist in any of the offices or positions for which nominations are made under this article, by reason of resignation, death or other cause, where there is only one or no aspirant for such office or position, such vacancy may be filled not later than ten days before the date of the primary election, by the regularly constituted committee of the party to which such vacancy belongs, and no petition shall be required."
This section was before the legislature twice; first, in 1911 as section 35 of the original primary election law (Laws 1911, ch. 23) and again in 1929 when it was amended (Laws 1929, ch. 115) to read as it now appears in the revision of 1931. In 1928, before the amendment, Attorney-General William O. Wilson, citing the section (then § 2517, C.S. 1920), gave an official opinion that "a candidate for nomination at a primary election may withdraw prior to the time of such primary election." O. Atty. Gen. 1927-1928, pp. 192, 193. We have not been cited to any decision holding that a candidate may not withdraw when the statute contains a provision for filling a vacancy caused by withdrawal. We should not expect to find such a decision. The statute could not be effective unless the right to create a vacancy by withdrawal is recognized. In Brown v. Potteck, 107 Kan. 737, 193 P. 359, relied on by defendant, there is a strong intimation that the case would have been decided differently if the law had provided a method for filling vacancies. See, also, State ex rel. Donnelley v. Hamilton, 33 Nev. 418, 111 P. 1026.
Other cases support the view that in the absence of statutory regulation or prohibition a candidate has a natural right to withdraw, if his application be made in time to enable the officials to have the necessary alterations put in effect. Bordwell v. Williams, 173 Cal. 283, 159 P. 869, L.R.A. 1917A, 996, Ann. Cas. 1918E, 358; Elswick v. Ratliff, 166 Ky. 149, 179 S.W. 11.
We hold that the relator, on July 18, had the right which he undertook to exercise by the writing presented on that day.
It is contended that the writing was insufficient because the relator thereby requested the defendant to "withdraw" his "filing as a candidate," and because there was no specific request that relator's name be omitted from the certified list of candidates to be transmitted by defendant to the county clerks, as provided by section 36-607. This contention hardly deserves serious consideration. There can be no doubt that the writing was sufficient to inform defendant that relator was withdrawing as a primary candidate for the office. When relator withdrew, the omission of his name from the certified list of candidates should have followed as a matter of course.
It is argued that defendant was bound to obey section 36-607 which provides that at least 25 days before the primary election, the secretary of state shall transmit to the county clerks a certified list containing among other things the name "of each person who has filed in his office such nominating petition." This section assumes, of course, that the nominating petition has not been canceled by withdrawal, as contemplated by section 36-630, supra.
It is also argued that a change in the list of candidates at this time, about 20 days before the primary election, will cause delay and confusion in the printing and distribution of ballots. We think this is a matter for the legislature to consider in fixing the time for nominations and for filling of vacancies. In enacting section 36-630 it evidently was thought that the possibility of delay and confusion would not prevent the filling of vacancies ten days before the primary. Under other statutes, vacancies can be filled even after the printing of the ballots. See §§ 36-516 to 36-522.
We think the relator, on July 18, had a clear, legal right to withdraw, which he attempted to exercise by presenting the writing announcing his purpose. It then became the ministerial duty of defendant to do those acts which would make the withdrawal effective. Mandamus seems to be the only remedy available, and relator is entitled to a peremptory writ. Defendant having signified his willingness to comply with our order, the writ need not be actually issued or served.
Peremptory writ allowed.
ILSLEY and THOMPSON, District Judges, concur.