Summary
In Carpenter, although the candidate was late with his filings, he had filed his financial statement prior to the primary.
Summary of this case from 61 Op. Att'y Gen. 378Opinion
April 16, 1949. —
April 18, 26, 1949.
ORIGINAL PROCEEDING in this court for declaratory relief.
For the petitioner there was a brief by the Attorney General and Stewart G. Honeck, deputy attorney general, and oral argument by the Attorney General and Mr. Honeck.
For the respondent Quincy V. Doudna there was a brief by Fisher, Reinholdt Peickert of Stevens Point, and oral argument by R. T. Reinholdt.
Pursuant to leave granted by this court, a petition was filed asking for a declaratory judgment construing sec. 12.10, Stats., and certain other sections of the statutes referring to elections to determine, among other matters, the rights of Quincy V. Doudna as a candidate for the office of state superintendent of public instruction at the election provided for by ch. 15, Laws of 1949, to be held on May 3, 1949, and the rights of the electors of the state of Wisconsin. The respondents Carpenter and Doudna demurred to the petition, and the parties stipulated that the petition stand as the complaint, and that the court consider the case on its merits upon the issues thus joined.
On March 2, 1949, the respondent Doudna filed in the office of the secretary of state his nomination papers for the office of state superintendent of public instruction. They were in due form and with the required number of signatures. On the same date the petitioner acknowledged such filing by letter, inclosing a copy of the Corrupt Practices Act, being ch. 12, Stats., and called attention to the fact that financial statements are required to be filed or mailed not later than 5 p.m. on the Tuesday before a primary or election. On March 21, 1949, Doudna again was informed by letter of the statutory requirements in regard to filing financial statements, and blank forms were inclosed.
The date of the primary election was April 5, 1949, and the preceding Tuesday was March 29th. On that date Doudna prepared and signed his financial statement, and the same was notarized. Doudna's secretary did not mail the statement but left it for his final inspection. He was attending a meeting and did not know that the statement was not mailed until after 5 p.m. on that day. He mailed it the following morning and the envelope in which it was inclosed contained the postmark affixed by the post office at Stevens Point, showing that it was mailed at or prior to 12:30 p.m. on March 30th. It was received in the office of the secretary of state on March 31st, and was stamped as being received and filed on the date of mailing.
On March 31, 1949, Doudna was informed by letter that his financial statement was mailed after the dead line, that it was delinquent, and that it would be necessary for him to file an affidavit and a court order pursuant to the provisions of sec. 12.10, Stats. Blank forms of affidavit and order were inclosed with the information that they should be filed on or before April 5th. Because of Doudna's absence in the interests of his candidacy he did not open the letter until April 7th. He executed the affidavit and submitted it to the Honorable BYRON J. CARPENTER, county judge of Portage county, who signed an order on April 8, 1949, directing the secretary of state to receive such financial statement on or before April 9, 1949, and to file the same, the said filing to be of the same force and effect as if filed at the proper time. The postelection financial statement was filed as provided by law.
At the time of the filing of the petition, unofficial reports of the results of the April 5th primary showed that the respondent Doudna received the second-greatest number of votes cast for the office of state superintendent of public instruction and that the respondent Arthur Jorgenson received the third-greatest number of votes cast for said office.
Arguments were heard on the issues April 16, 1949, and on April 18, 1949, because of the necessity for an early determination, the court filed the following mandate, the opinion to be filed later:
"It is adjudged and ordered that the defendant Quincy V. Doudna is entitled to have his name placed upon the ballot for the May 3, 1949, election."
Sec. 12.10, Stats., reads as follows:
"The name of a candidate chosen at a primary or otherwise shall not be certified or printed on the official ballot for the ensuing elections, unless there has been filed by or on behalf of said candidate and by his personal campaign committee, if any, the statements of accounts and expenses relating to nominations required by this chapter up to the time for such certification. The foregoing shall not prevent the placing of the name of a candidate upon the official ballot if such statement shall be filed at least sixty days before the primary, or within seven days after the latest time otherwise provided by law, accompanied by an order approving such filing, which is hereby authorized to be made by the presiding judge of any court of record of this state, upon his being satisfied of the truth of an affidavit made by the candidate or by a member of his personal or campaign committee, in his behalf and duly authorized by him, setting forth the facts with regard to the omission to file such statement and showing that such omission was not intentional, which affidavit shall accompany such order and both be filed with such statement. On the petition of any elector entitled to vote for or against such candidate such order may be reviewed and set aside in a proceeding as provided in section 12.22."
The statute is a drastic one and contains no exceptions. This section, if considered by itself and given a literal construction, would bar a successful candidate from having his name certified or printed on the official ballot for the ensuing election for any trivial violation of any provision of the statute, no matter how unimportant. In the case before us there was not a strict compliance with the statute. The financial statement was not filed in the office of the secretary of state within the time limited, nor was it mailed within the time prescribed by the statute. Had the court order been made and filed by April 5th the defect would have been cured.
It has been held by this court that sec. 5.01 (6), Stats., must be considered in matters relating to elections. State ex rel. Pelishek v. Washburn, 223 Wis. 595, 270 N.W. 541; Manning v. Young, 210 Wis. 588, 247 N.W. 61; State ex rel. Oaks v. Brown, 211 Wis. 571, 249 N.W. 50. This section reads as follows:
" 5.01 Definition of terms; liberal construction. The words and phrases in this title, shall, unless the same be inconsistent with the context, be construed as follows: . . .
"(6) This title 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."
The history of this provision is carefully reviewed in the case of State ex rel. Pelishek v. Washburn, supra. It is there pointed out that this provision was enacted by the legislature after the adoption of the Corrupt Practices Act, and that it is to be construed in connection with all of title II of the statutes, which embraces ch. 12. The legislative mandate is, therefore, that this court is required to construe the provisions of ch. 12, Stats., in the light of the provisions of sec. 5.01 (6) so as to give effect to the will of the electors, if that can be ascertained from all of the proceedings, notwithstanding informality or failure to comply with some provision thereof.
"It is to be noted that the language of the first sentence is `unless the same be inconsistent.' It is not provided `if it be in conflict.' If it so provided or were so construed the provisions of sub. (6) would be useless. The effect of sub. (6) is to relax the strict provisions of title II in all cases where the will of the electors can be ascertained from the proceedings had." State ex. rel. Pelishek v. Washburn, supra, pp. 603, 604.
The purpose of the provisions of sec. 12.10, Stats., is to give the electors information both before and after a primary or an election as to the source of campaign funds, whether they were expended by the candidate, a committee or club, the amounts expended, and for what purposes funds were expended. An examination of the financial statement shows that it was available for examination in the office of the secretary of state from and after March 31, 1949. If this statement had in fact been mailed on or before 5 p.m. on March 29th, in many post offices within the state of Wisconsin it would not in fact have started on its journey to Madison until March 30th and would not have been received there until March 31st, nor would the information it contained have been available to the public and the press prior to the time it was available to them here. If it had been accompanied by the Court order it could have been filed on the day of the primary itself and the public would have been deprived of this information prior to the primary.
The will of the electors can be ascertained from the proceedings. The electors of the state have determined by their votes that the name of the respondent Doudna be certified and placed upon the ballots for the election to be held on May 3, 1949. When the facts are viewed in the light of the will of the electors so expressed and of the legislative mandate to give a liberal construction to the provisions of sec. 12.10, Stats., we find that respondent Doudna has substantially complied with the provisions of that section as to filing his preprimary-election financial statement and is entitled to have his name certified and placed upon the ballot.
As previously stated, the mandate in this case was filed on April 18, 1949.
FAIRCHILD, J, took no part.