Opinion
No. 8,159.
Submitted October 3, 1940.
Decided October 11, 1940.
Mandamus — Elections — Failure of Successful Write-in Candidate to File Acceptance of Nomination — Resignation — When County Central Committee not Authorized to Fill Alleged Vacancy. 1. Where a successful write-in candidate at a nominating election failed to file his acceptance of such nomination within ten days after election (see State ex rel. Wulf v. McGrath, ante, p. 96), and therefore was not entitled to have his name appear on the official ballot, his subsequent resignation of the nomination did not result in a vacancy which the county central committee of the party to which the resigning candidate belonged could fill under Chapter 84, Laws of 1939; hence application for writ of mandate to compel the clerk to place the name of the candidate appointed by the committee upon the official ballot denied.
Mr. W.D. Kyle and Mr. Rex F. Henningsen, for Relator, submitted a brief, and argued the cause orally.
Mr. Harrison J. Freebourn, Attorney General, Mr. Lee Metcalf, Assistant Attorney General, Mr. W.E. Coyle and Mr. J.F. Emigh, for Respondent, submitted a brief; Mr. Metcalf argued the cause orally.
This is a companion case to State ex rel. Wulf v. McGrath, [1] ante, p. 96, 106 P.2d 183, this day decided. In this case the facts are that the name of one Charles Killian was written in as a candidate for representative in the state legislature for Silver Bow county and received sufficient votes to nominate him upon compliance with section 640, Revised Codes, as to acceptance. On July 31, or more than ten days after the election day, Killian appeared before the clerk of the county and presented an instrument purporting to be an acceptance of the write-in nomination and tendered his fee.
As in the preceding case, the clerk considered the acceptance to have come too late, and not within the ten-day period as prescribed in section 640, and refused to enter the name of Killian in the register of candidates. Some three days later, and on August 3, Killian filed a "resignation" of the nomination. The Republican Central Committee, under the theory that Killian had accepted within the time prescribed, proceeded under the provisions of Chapter 84, Laws of 1939, to fill the vacancy occurring by reason of Killian's "resignation" by the appointment of the relator. The relator states in his petition that if Killian was not a qualified candidate, then no resignation or vacancy occurred to be filled by the Central Committee by the appointment of the relator.
What we have said in the companion case is controlling here. Since Killian failed to file his acceptance within ten days from the election, no vacancy by resignation occurred, and the Central Committee was without power to nominate the relator to fill that vacancy.
Writ denied.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, ANGSTMAN and ARNOLD concur.