Opinion
August 3, 1950 —
August 7, 1950.
ORIGINAL PROCEEDING in this court upon application for a writ of mandamus. Dismissed.
Bull Biart and Benjamin H. Bull, all of Madison, for the petitioner.
Stewart G. Honeck, deputy attorney general, for the respondent.
Original action begun July 27, 1950. Perry J. Stearns, wishing to be a candidate for the office of United States senator in the September, 1950, primary election, attempted to file his nomination papers in the office of the secretary of state at approximately 5 p.m. central standard time, on July 25, 1950, the last Tuesday of the month. The secretary of state refused to accept and file them on the ground that they were not tendered within the time prescribed by sec. 5.05 (1), Stats. On July 27, 1950, Stearns applied to the supreme court for an alternative writ of mandamus requiring the secretary of state to receive and file the said papers as of good time on July 25th or show cause to the contrary. Because of the public interest in the matter and because time necessarily consumed in proceeding in any other way would of itself deny any relief to which the petitioner might be entitled, the court issued the alternative writ, to which the secretary of state made return August 3, 1950. Argument was had and it appeared that there was an issue of fact whether Stearns was present in the office of the secretary of state to file his papers at 5 p.m., as he asserted, or was not present until after that time, as alleged by the respondent. Pursuant to sec. 293.03 (1), and with consent of the parties, the supreme court ordered the issue tried forthwith in the circuit court for Dane county, the Hon. E. M. DUQUAINE, judge of the Fourteenth circuit, presiding in the absence of both Dane county circuit judges. Judge DUQUAINE found that Stearns first entered the private office of the secretary of state after 5:01 p.m. central standard time on July 25, 1950, found no one there and passed through it to the general office where public business is transacted, and there tendered his papers to the secretary before 5:02 p.m. Judge DUQUAINE made the further comprehensive finding of fact:
"5. That the relator did not file or present for filing his nomination papers to the secretary of state, in his office, until after 5 o'clock p.m., central standard time, on July 25, 1950, nor did he arrive at the office of the secretary of state in time for filing such papers at or before 5 o'clock p.m., on said date."
The findings are supported by the evidence presented at the trial and are accepted as conclusive upon the issue of fact.
Sec. 5.05 (1), Stats., provides:
"The name of no candidate shall be printed upon an official ballot used at any September primary unless not later than 5 p.m. central standard time on the last Tuesday of July of the year in which such primary is to be held a nomination paper shall have been filed in his behalf as provided in this chapter, . . ."
Sec. 5.07 (1), Stats., designates the office of the secretary of state as the place where the nomination papers of a candidate for United States senator shall be filed.
The question for determination is whether Stearns' failure to file his nomination papers not later than 5 p.m. on the last Tuesday of July requires the secretary of state to refuse them when tendered shortly thereafter and consequently to refrain from doing those things which result in placing the candidate's name on the ballot. This situation was before us in the case of State ex rel. Conlin v. Zimmerman (1944), 245 Wis. 475, 15 N.W.2d 32, and we declared, for reasons which still seem good and which are stated in the opinion in that case, that the time limit set by the legislature for the filing of nomination papers must be strictly observed.
The relator directs our attention to sec. 5.01 (6), Stats., which reads as follows:
"5.01. . . (6) This title [Title II, regulating elections] shall be construed so as to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to comply with some of its provisions."
In the action of Manning v. Young (1933), 210 Wis. 588, 247 N.W. 61, arising under the statutes applicable to the present cause, the legislature had provided twenty-one days for the circulation and filing of nomination papers but in the year in question the twenty-first day fell on a legal holiday when the office in which they were to be filed was closed. Unless the papers could be received on the day following, the candidates and electors would be deprived of one of the days which the statute authorized for such purpose, and we held that the nomination papers offered for filing On the day succeeding the holiday were properly received and filed. The statute had made no provision for legal holidays. It was necessary to construe it to discover the intent of the legislature in the situation presented and in such construction the mandate of sec. 5.01 (6), Stats., was applicable. In the present action no fact or situation appears except those contemplated and provided for by the legislature. Under such circumstances to enlarge the time which the legislature has designated for the filing of nomination papers would be to amend the statute, not to construe it. Therefore we adhere to the principle of the Conlin Case, supra. If the candidate or someone in his behalf had been present in the office of the secretary of state to tender the nomination papers not later than 5 o'clock p.m. central standard time, the secretary of state would have been obliged to accept them; but if the candidate or his representative fails, as here, to reach the office until later than the time specified, the tender comes too late. The petitioner's nomination papers were correctly rejected as not being filed within the time designated by the statute.
By the Court. — The motion to quash the writ is granted and petitioner's application is dismissed.
FAIRCHILD and BROADFOOT, JJ., took no part.