Opinion
No. 25906
October 9, 1934.
(Syllabus.)
1. Courts — Supreme Court — Original Action for Injunction — Writ not Issued Where Shown Respondents Will Not Perform Acts in Controversy Unless Ordered by Court Irrespective of Question of Jurisdiction.
Where, in an original action in this court, the petitioner seeks only injunctional relief against alleged contemplated acts of the respondents, and the answer alleges that respondents do not intend to, and will not, perform the alleged contemplated acts, unless directed to do so by this court, the injunction will not issue without consideration of the question of the jurisdiction of this court to grant purely injunctional relief in such an action.
2. Elections — Mandatory Primaries — Constitutional Provision as to Right of Nonpartisan Candidate to Place on Ballot by Petition Held not Self-Executing.
The proviso in section 5, art. 3, of the Constitution, relating to the enactment of mandatory primary elections, that "This provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate," is not a self-executing constitutional provision.
3. Same — Statute Requiring Filing of Notification and Declaration Before Primary Applied to Nonpartisan Candidates.
Chapter 62, S. L. 1933, applies alike to partisan, nonpartisan, and independent candidates, and requires notification and declaration of such candidates to be filed not less than 65 days and not more than 100 days before the date fixed by law for primary elections except as to declarations of party affiliations.
Original action for writ of mandamus by the State on relation of Lester E. Smith against the State Election Board and others. Dismissed.
Lester E. Smith, and A.M. Fowler, for petitioner.
J. Berry King, Atty. Gen., Randell S. Cobb, Asst. Atty. Gen., Tom Anglin, S.W. Hayes, and Allen Johnston, for respondents.
Honorable Paul Walker was elected to the office of Corporation Commissioner and assumed the duties of that office on the second Monday in January, 1931. His term was six years. He resigned on July 11, 1934. On that date Honorable Reford Bond was appointed to fill the vacancy and assumed the duties of said office, which he now occupies. The regular primary election was held July 3, 1934, eight days before the vacancy in office occurred and the present incumbent was appointed. Consequently no candidates were nominated at the last primary to serve throughout the unexpired term of said office.
Section 15, art. 9, Const. of Oklahoma, provides in part:
"In case of a vacancy in said office, the Governor of the state shall fill such vacancy by appointment until the next general election, when a successor shall be elected to fill out any unexpired term."
Section 10, art. 23, Const. of Oklahoma, contains the provision:
"That all officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified."
On October 1, 1934, Honorable Lester E. Smith filed an original action in this court seeking a restraining order to prevent the State Election Board from printing the names of purported candidates of the Democratic and Republican parties upon the general election ballots for the general election to be held on November 6, 1934. It appears that the names of Reford Bond and Walter Colbert, as candidates for this office, have been certified to the State Election Board by the Central Committees of the Democrat and Republican parties, respectively, but it appears that neither these candidates nor any others were chosen at a primary election.
The election board in its response has denied that it has or will print the names of Reford Bond or Walter Colbert upon the ballot for the general election unless required to do so by order of this court.
So that, without considering the question of jurisdiction of this court, "to issue writs of injunction in cases where the relief prayed for is purely injunctional" (State ex rel. Brett, Co. Atty., v. Kenner, 21 Okla. 817, 97 P. 258), it appears that there is no occasion for the exercise of such jurisdiction. The same is denied.
By response of Lester E. Smith, mandamus is sought to require the State Election Board "to place upon the official ballot for the general election to be held Tuesday, November 6, 1934, the name of Lester E. Smith as the nominee of the Progressive Party for Corporation Commissioner, designated as the unexpired term of Paul Walker, resigned. * * *" But the relief therein sought is denied by the rule of this court stated in Craig v. Bond, 160 Okla. 34, 15 P.2d 1014 (the writer hereof dissenting therein).
On October 2, 1934, George S. Long filed a response and cross-petition whereby he sought to prevent the name of Honorable Lester E. Smith from being placed on the ballot as a candidate of the Progressive Party, and to have his own name placed thereon as a nonpartisan candidate for the office by reason of a petition said to be pursuant of art. 3, sec. 5, Const. of Okla., which, after requiring the Legislature to provide a mandatory primary system for the nomination of all candidates for all political parties, states:
"Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any nonpartisan candidate."
This proviso is not a self-executing constitutional provision. Dancy v. Peebly, 132 Okla. 84, 270 P. 311.
Chapter 62, S. L. 1933, provides regulatory provisions for candidacy for political office, amongst which is a notification and declaration to be filed not more than 100 days nor less than 65 days before the day fixed by law for the primary election. By the terms of the act the same, "except as to declaration of party affiliation, shall apply to independent and nonpartisan candidates."
The petition of George S. Long as a non-partisan candidate was not filed until long after the primary election at which he was an unsuccessful partisan candidate. There is no merit in his contention.
The respondent Reford Bond contends that petitioner and respondent Long "are entitled to no relief * * * and that the petition of the former and cross-petition of the latter should be dismissed. * * *" While the respondent Bond prays for mandamus to require his name to be placed on the ballot in oral presentation of this cause, such relief was expressly waived.
Walter Colbert made no appearance.
Cause dismissed.
McNEILL, OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. CULLISON, V. C. J., dissents. SWINDALL and ANDREWS, JJ., absent.