Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1901-10-31
YII ISSUE WIN WIDE
An Interesting Legal Point In
Connection With the Bal
lot Law.
State Election Board Takes View
Entirely at Variance With
Judge Wade.
Decision In johnson County
Decision In johnson County
Case Not In Accord With
MulIna's Opinion.

u
question of the validity of nomination
papers filed with the county auditor.
The state election board handed down
Its opinion yesterday in the case Of
Robert Hufschmidt of Allamakee coun-
ty, the democratic nominee for repre-
sentative in that district. The board
holds that Hufschmidt is entitled to a
place on the ballot and that when the
board sustained the objections against
the original certificate of nomination it
thereby created a vacancy such as could
code.
In this case, however, there was
radical difference from the Johnson
county case. In Allamakee county the
chairman and secretary of the demo-
cratic convention made an effort to
comply with the law requiring certif-
Gates of nomination for legislative ofii-
ces to be filed with the secretary Of
state at least thirty days before the
election. The fact the convention was
called October s, the last day for filing,
and there was not sufficient time to
send the certificate OF nomination to
Des Moines after the convention and
get it fled. led to the sending of a certi-
ficate of nomination to the democratic
state headquarters, signed in blank.
This was filed out following the con-
vention by Frank @. Stuart, after he
had received message by wire, Octo-
Der 5, that Hufschmidt was nominated.
In the Johnson county case the chair
man and secretary of the republican
county convention failed to file with
the county auditor the certificates of
nomination OF the republican county
nominees within the prescribed time.
This time, in the case of county officers.
ends twenty days before the election.
But in spite of this the executive CONF
mittee of the republican county COM
mittee issued certificate of nomination
to fill the vacancy. The auditor re-
fused to allow it to be filed. Judge
Wade held, when the case was brought
before him. that the certificate of nom
nation to fill vacancy should be filed.
He held that within the meaning of the
law the first certificate mad been hel1
.inoperative,' when the county auditor
did not file the original certificate of
w
effect was that it is not material wheth-
er a certificate of nomination is fled
within the time prescribed by law and
that the preliminary provisions of the
Australian ballot are not mandatory.
In its opinion the state election board
does not refer specifically to the john
son county case but refers to an 1lii-
nois case in which there was holding
similar to Judge Wade's. The opinion
was written by Attorney General Null
Ian. Commenting on the election
boards decision, Mr.. Mullan said yes
terday he could not agree with the con-
illusions OF Judge Wade and that he
considered the provisions of the law as
to the time of fling certificates Of nom
nation mandatory.
The opinion is lengthy one con-
siderable part of it being given over to
a statement OF the facts in the case.
Following the statement OF fact, the
board says:
THE action of the board in holding
the first certificate invalid created a
vacancy upon the official ballot and the
question to be now determined is
whether such vacancy can be filed by
the filing of nomination papers or
certificate of nomination, under the pro-
visions Of section HOP of the code. This
section provides:
".If candidate declines a nomina-
ton, or dies before election day
or in case any objection made to any
certificate of nomination is sus-
tained by the board appointed to deter
mine such questions, as hereinafter pro-
vided, the vacancy or vacancies thus
cccasioned may be filed by the conven-
ton. caucus meeting or primary, or
other persons making the original NOM
nations, or in such a manner as such |
convention, caucus meeting or primary
has previously provided. ~
THE case under consideration falls
squarely within the provisions of the
section The objections to the original
certificate of nomination We're sustained
by the board. The vacancy thus occa
stoned may be filed by the proper au-
thority, as provided by the statute.
I'VE think it was clearly the intent |
of the legislature that where vacancy
was created in either manner specified
in section 1102. that such vacancy might |
be filled by papers filed less than thirty
days prior to the election.
This construction has been given to
similar provisions of the Australian bal
lot law of other states.
Bower VS. Clemens, 5S Pacific Re
porter, page 1863.
state ex rel. Hogan. 81 Pacific Re-
porter, page 6S3.
I'm case of People vs. Powell As
Reporter. page $50, the
supreme court of Illinois has held that |
atho no attempt had been made to file
a certificate of nomination thirty days
prior to the election and where one flied |
subsequent to that time was held in
valid by the officer with whom it was
filed, that the vacancy thus created
might be afterward filed by the proper
authorities.
This board as at present constituted
does not wish to be understood as ac-
cepting or adopting the doctrine laid
down in the Illinois case. We are Of the
opinion that the preliminary provisions
of the Australian ballot system are
and should be complied with
before the name of the candidate is en-
titled to be placed upon the official ball
lot, but where an attempt has been
made by party entitled to have the
name of It's candidate placed upon the
official ballot, to be filed with the prop-EE
er fficer, a certificate of nomination, as,E
required by the statute, and such cert!
ficate is held invalid because improper
~ executed. there is no doubt that the
so made upon the official ballot I