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State v. Brodigan

December 31, 1912

THE STATE OF NEVADA, EX REL. LEM ALLEN, PETITIONER, V. GEORGE BRODIGAN, SECRETARY OF STATE OF THE STATE OF NEVADA, RESPONDENT.


James D. Finch, for Petitioner.

Cleveland H. Baker, Attorney-General, for Respondent.

By the Court, Sweeney, C. J.:

This is an application for a writ of mandamus to compel the secretary of state to accept and file the certificates of nomination of the three regularly nominated presidential electors of the Democratic party, chosen in regular convention assembled, as the exclusive nominees for said offices of the Democratic party to be voted for at the general election in November, 1912.

It appears the secretary of state, in issuing his call for the primary election to be held in September, 1912, included in the offices to be voted for at the primary election “Three Presidential Electors.” It further appears

[34 Nev. 486, Page 488]

that the Democratic party, in a regular state convention, duly authorized, called, and convened, nominated three presidential electors who, it is contended by petitioner, are the only authorized persons legally privileged to appear on the official ballot in November to be voted for as the presidential electors of the Democratic party, and the law does not permit or authorize presidential electors to be selected at the primaries under the provisions of the primary law.

A disposal of the point in issue calls for an examination and construction of the statutes bearing upon the point in issue, wherein it appears there is a conflict of opinion by the respective parties as to the meaning of the statutes in question.

Section 2 of the original primary election law, passed by the Legislature of Nevada March 23, 1909 (Stats. 1909, 273), which pertains to the point in issue, reads as follows: “Sec. 2. All candidates for elective public offices shall be nominated as follows: (1) By direct vote at primary elections held in accordance with the provisions of this act; or (2) by nominating petitions signed and filed as provided by existing laws. Party candidates for the office of United States senator shall be nominated in the manner provided herein for the nomination of candidates for state offices. This act shall not apply to special elections to fill vacancies, to the nomination of party candidates for presidential electors; nor to the nomination of officers of the municipalities, whose charters provide a system for nominating candidates for such offices; nor to the nomination of officers for reclamation and irrigation districts; nor to school district officers or school trustees; nor shall it be construed as restricting or affecting the right of political parties to hold, under existing laws, which are hereby continued in force for all such purposes, primaries and conventions for the selection of delegates to national conventions.”

A simple reading of this section in question makes it manifest that the legislature did not intend that presi

[34 Nev. 486, Page 489]

dential electors should be included in the primary system then adopted for the purpose of electing nominees, because it is especially provided in said section, after designating that all candidates elected for public offices shall be nominated, as follows: That “this act shall not apply * * * to the nomination of party candidates for presidential electors.”

Prior to the enactment of the new primary law the mode of selecting presidential electors was by convention with the usual exceptions providing for their election, and the law pertaining thereto has in no material respect been changed from the law now governing the election of presidential electors. The legislature on March 23, 1911, passed an amendatory act to the primary law (Stats. 1911, 334), wherein, among other provisos, they amended the latter portion of section 2, above quoted, to read follows: “This act shall not apply to special elections to fill vacancies to the nomination of party candidates for presidential electors, nor to the nomination of officers of the incorporated cities, whose charters or ordinances now or may hereafter provide a system of nominating candidates for such offices, nor to the nomination of officers for reclamation and irrigation districts; nor to school district officers or school trustees; nor shall it be construed as restricting or affecting the right of political parties to hold, under existing laws, which are hereby continued in force for all such purposes, primaries and conventions for the selection of delegates to national conventions.”

In viewing section 2 of the original primary act of 1909 in the light of the amendment, it will be seen that section 2 of the original act was enlarged so as not to apply to the nomination of officers of “incorporated cities whose charters or ordinances now or may hereafter provide a system for nominating candidates for such offices”; the word “municipal” having been stricken out and the words “incorporated cities” inserted, ...


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