PRESTON, J., Dissenting.—I dissent.
Without intending to inject Holy Writ into a political tangle, I base this dissent upon the doctrine that the “Letter killeth but the Spirit giveth life.”
The word “defeated” when interpreted as in the majority opinion, corrects no evil and serves no purpose except to injure the applicant in favor of others who have in no sense been injured by him. It may curtail the prerogative of the electors of the Democratic party by refusing them the right to select their own candidate, thus favoring the opposing party nominee when no just claim to preference can exist.
Rochester’s ineligibility left no nominee for Congress of the Democratic party. There was, of course, in no true sense anyone defeated for the nomination in that party. Why not allow the second in the running or anyone other than Rochester to have the place if the committee selects him? Statutes should receive a reasonable interpretation in the light of the abuses at which they are aimed. This question was considered at length in
People
v.
Ventura Refining Co.,
304 Cal. 286 [268 Pac. 347, 349, 283 Pac. 60]; the California cases are there collated, the old law Bologna case is cited and the court then quotes with approval the following
[771]
remarks of Mr. Justice Field used in
United States
v.
Kirby,
7 Wall. 482 [19 L. Ed. 278] : “All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice or oppression or an absurd consequence. It will always be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.”
Two courts of last resort have made a proper interpretation of similar statutes. In the case of
In re Halteman
v.
Grogan,
233 Ky. 51 [24 S. W. (2d) 921, 922], Grogan, a candidate at the August, 1929, primary election for magistrate, was defeated by Mattison, who was later declared ineligible. Grogan was appointed nominee by the Democratic county committee, but it was claimed that his defeat rendered him ineligible under a Kentucky statute providing that no candidate, having filed his application, and having been defeated for the nomination thereunder, should be eligible for the same office for which he was a candidate, at any general election held during the year his application was so filed and in which he was a candidate in any primary election under the act. The Supreme Court, however, held that Grogan was not defeated for the nomination in the sense that that term was used in said statute, stating: “This provision was primarily intended to prohibit a candidate, who had filed his application . . . and who had received fewer votes than another candidate, from becoming a candidate at the general election against a candidate who had defeated him in the primary election. Grogan was not defeated by Mattison in the primary election, since Mattison was ineligible to become a candidate for the Democratic nomination for the office and all votes received by him were void.”
Again, in the case of
In re Armstrong, Secretary of State,
v.
Simonson,
84 Colo. 472 [271 Pac. 627, 628], one Stephen defeated Simonson for state senator at the primary election and thereafter died, whereupon the Republican party designated Simonson for the office. Pursuant to a statute which declared that no person defeated as a candidate in a primary election should be eligible as a candidate for the same office in the next ensuing general election, the Secretary of State refused to accept the certificate of nomination from Simon-
[772]
son. The court said: “Standing alone, the words taken literally, would seem to exclude Simonson’s name from the printed ballot. But, in construing statutes, words are not always to be given their literal meaning. In order to ascertain the legislative intent, which, when ascertained, must control, words should be considered with reference to the purpose sought to be accomplished by the statute in which they occur. ... In order to ascertain to what situation the section in question was intended to apply, we should consider the old law, the mischief and the remedy. A classic example of this manner of construing statutes is given by Blackstone. The Bolognian law, mentioned by Puffendorf, ‘that whoever drew blood in the streets should be punished with the utmost severity’, taken literally, seems to cover the ease of a surgeon who opened the vein of a person who had fallen down in the street with a fit; but it was held that the law did not apply to such a case. (1 Blackstone’s Comm. 60.) Coming now directly to the case before us, it is to be noted that the old law permitted a person who had sought a party nomination and was defeated at the party primary election to run as the candidate of a rival party in opposition to the candidate of his own party. . . . "Where a candidate who has been nominated at a primary election dies, the filling of the vacancy for those who are authorized to represent the party, and to act for it in such matter, does not create any of the mischiefs sought to be remedied by the act of 1927. On the contrary, such action is strictly in harmony with the purposes of that statute. Our conclusion is that the section in question does not operate to exclude Simonson’s name from the general election ballot and therefore that the trial court was right in making the writ peremptory. ’ ’
It is clear to my mind that here the writ should have issued as prayed.