15 S.D. 216 | S.D. | 1901
Lead Opinion
This is an appeal from an order sustaining a demurrer to plaintiff’s complaint. The appeal has been dismissed as to ‘the defendants George D. Wood and F. C. Hedger, leaving the defendant E. H. Alley the only respondent. The action was brought by the plaintiff to recover of the defendants damages for unlawfully depriving him of the office of county commissioner of Brown county. It is alleged in the complaint that in 1895-96 the defendants Wood and Alley were members of the board of county commissioners of Brown county, and that the defendant Hedger was acting county auditor of said county; that the defendant constituted the board of canvassers of said county; that in November, 1895, an election was held in the various voting precincts within the First commissioner district in said county for the purpose of electing a county commissioner for said district for the'term commencing January, 1896; that no certificate of any person as a candidate for the office of county commissioner of said county was filed in the office of the county auditor of said county 20 days prior to the election; that at said election the qualified electors of said First commissioner district of said county cast their ballots for this plaintiff and others for the said office of county commissioner by writing upon the official ballot used at said election the following words and characters, to-wit, "For County Commissioner for First Commissioner District,” followed by the name of the candidate or the person for whom such elector
It will be observed that the complaint distinctly states that no certificate of nomination of the plaintiff for the office of counly commissioner was filed in the office of the county auditor within the time prescribed by law, and that the method of voting for said plaintiff as county commissioner was by writing his name upon the official ballots used at said election, and by making a cross at the left of his name upon the said ballots. While the trial court has not stated the ground upon which the demurrer was sustained, it seems to be assumed by the appellant and we may presume that it was made upon the ground that as no certificate of the nomination of the appellant was filed in the office of the county auditor 20 days before the election, and, as his name was not printed on the official ballot, he was not legally a candidate, and that the votes cast'for him by writing ihe description of the office, his name thereunder, and a cross at the left thereof, was not a compliance with the statute, and he was not, therefore, legally elected to the office. It is contended on the part of the appellant that, notwithstanding no certificate of election was filed as required by law, the voters of that district had the legal right to write the designation of the office and the plaintiff’s name there
With these preliminary observations, we will examine the provisions of the constitution of this state that bear upon the question of the right of suffrage. Section 19, Art. 6, of the Constitution, provides, “Elections shall be free and equal, and no power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.” Under these provisions the elector cannot legally be physically restrained in the exercise of his right by either civil or military authority; nor can there be inequality, and every voter shall have the same right as every other voter. Certainly, under the laws we are considering, all electors are vested with the same rights, namely, the rights of appearing at an election and voting in the manner prescribed by law. Section 1, Art. 7, provides what shall constitute the qualifications of an elector, and one possessing these qualifications it is declared “shall be deemed a qualified elector at such election.” It will be noticed that in neither of these sections is it provided when, how, where, or under what conditions the elector shall exercise the right of suffrage. The framers of the constitution seem to have designedly left the right of suffrage at this point to be regulated and governed by such laws as the legislature might deem proper to enact. The constitutional convention and the legislature are equally the representatives of the people, and the written constitution marks only the degree of restraint which, to promote stable government, the people impose upon themselves; but whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. The legislature, just as completely as a constitutional convention, represents the will of the people in all matters left open by the constitution. Com. v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R.
The supreme court of Pennsylvania, in Com. v. Reeder, supra, has recently decided an important constitutional question very much in point in the case at bar. A law was enacted by the legislature of that state for the election of seven judges of the superior court, which provided that no elector should be permitted to vote for any number exceeding six of the judges to be so elected. It was contended by certain electors that this act was unconstitutional in that it deprived the electors of the right given them by the constitution to vote for the entire seven judges.. But the court held against this contention, and that the law was constitutional. The court in a very able opinion discussed the constitutional question at length, and in the course of the opinion, in speaking of the will of the people as expressed in the act of the legislature, says: “We peruse the expression of their will in -the statute, then examine the constitution, and ascertain if this instrument says ‘Thou shalt not/ and, if we find no inhibition, then the statute is the law simply because it is the will of the people, and not because it is wise or unwise.” In speaking of one possessed of all the qualifications of an elector, the court says, “Then he is.an elector, and entitled to vote as the law may prescribe. Being an elector, and therefore entitled to vote at all elections, the constitution of. 1874, as well as those which preceded, goes a step
The right claimed is, for all practical purposes, a mere theoretical or abstract right. This is apparent from the fact that, though the election law of this state has been in effect for more than ten years, this is the first case, so far as,the records of this
We do not deem it necessary to consider on this appeal the question as to the liability of the defendants to respond in damages, assuming that the plaintiff had been legally elected, and therefore express no opinion upon that question. It is clear, however, that had the proof entitled him to recover, he must, in any event, show that he was legally elected. Having failed to do this, the complaint fails to state any cause of action, and the demurrer was properly sustained, and the order sustaining the same must be affirmed.
The decision of this court in the mandamus proceedings be
The order of the circuit court, appealed from, is affirmed.
Dissenting Opinion
'(Dissenting.) In Chamberlain v. Hedger, 12 S. D. 135, 80 N. W. 178, all the probative facts alleged in this complaint were before the court, and it was squarely held to be the legal duty of respondents not only to canvass all votes returned for appellant at this election, but to issue a certificate in accordance with the result ascertained. If the power lies within the legislature of a state to deprive qualified electors of the right to freely express their choice as to whom they will designate governmental authority, then the sovereignty of the nation no longer resides in the people of the nation, and this court idly trifled with a serious matter when it said, concerning the identical facts now before us, that, “If the canvass had been made, and the certificate of election issued, plaintiff would have been clothed with a prima facie right to the office; and this was a substantial right, of which he should not have been deprived by the failure of defendants to perform their official duties.” In Parmly v. Healy, 7 S. D. 401, 64 N. W. 186, no constitutional question being even mooted, we could do no less than say, in effect, that the statute prohibited the writing of a name on a ticket, and provided punishment for the dismantled freeman who placed it there. The constitution guarantees to every qualified elector “the free exercise of the right of suffrage”; and, while the legislature cannot limit him to names printed on the official ballot, this court, by fallacious reasoning, has now taken away this right to vote for the person of his choice. Quoting from our constitution the provision that “elections shall be free and equal, and no1 power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage,” the writer of the majority opinion pro
Identically the same feature of the Australian ballot system as perverted by legislative enactment was recently, with other less important questions, before the supreme court of Florida in such a manner that a determination of the exact point was vitally essential to the decision, and the court say: “The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, unless the voter shall, of his o\yn free will, inform him. There is no doubt in our minds about the right of the legislature to prescribe an official ballot, and to prohibit the use of any other; and the provisions of the act in reference to printing the names of candidates regularly nominated by a convention, mass meeting, or primary election, or who run as independents, are valid. But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the constitution has guaranteed to him this right. If the legislature can restrict the voter to some candidate whose name is printed on the official ballot, then-it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice. * * *
The order sustaining the demurrer ought to be reversed.