Sterling v. Jones

McSherry, C. J., delivered the opinion of the Court. This case was argued on October the thirtieth, eighteen hundred and ninety-seven, just five days prior to the election held on the third of last November. As the issue involved demanded an immediate decision, a per curiam opinion was filed the same day. Upon further reflection we do not perceive that any useful purpose could be served by elaborating that opinion, and we accordingly, with a few unimportant verbal changes, confine ourselves to it as the final opinion in the case.

An order was signed by the Circuit Court for Somerset County directing a writ of mandamus to issue commanding the Supervisors of Election of that county to place the, names of certain persons on the official ballot for various local offices. From that order this appeal was taken by the Supervisors. We entertain no'doubt about the correctness of the order. Under the pleadings there is but a single question involved. ¹⁴³ Certain persons were nominated for office in Somerset County by a certificate of nomination signed by more than two hundred voters of that county.

There is, and there can be no dispute about the regularity of the certificate. It was presented in due time to the Supervisors of Election of Somerset County, and under sec. 38, ch. 202, Acts of 1896, the duty was at once imposed upon the Supervisors to place the names of the candidates so nominated, under such a certificate upon the official ballot. Instead of doing this they permitted what is called a withdrawal paper signed by some seventy odd of the persons who had previously subscribed the nomination certificate to be presented.; and upon discovering that this withdrawal paper had not been verified by affidavit, they allowed it to be taken away ; and they, themselves, adjourned until the twenty-second of October—the last day upon which nomination papers could be filed. When that day arrived they again met and a majority then determined that the candidates nominated by the certificate should not go on the. official ballot, though the nomination certificate was in all respects regular and conformed in every particular to the law.

The sole ground upon which this action—this refusal—was based is given in the answer of the two Supervisors who constitute the majority, and it is this : That because some ninety of the persons who had originally signed the certificate had subsequently requested the Supervisors to erase their names therefrom, the nomination certificate was left without two hundred signatures, and was consequently no nomination certificate at all. And that it was no nomination certificate if there were less than two hundred names upon it because a nomination by certificate cannot be made under the statute by less than two hundred signatures. The question thus presented is one of law and not one of fact. In law the defence thus set up is wholly untenable.

The Act of 1896 contemplates no such proceeding as is here relied on. When the nomination certificate is filed, if it conforms to the requirements of the statute the plain and ¹⁴⁴ obvious duty of the Supervisors under sections /¡.p and jo of the same Act of 1896, is “to cause to be printed on the ballot the name of every candidate whose name has been certified to or filed with” them; and there is no provision whatever authorizing them to receive, consider or act on any withdrawal paper, except a