92 Neb. 271 | Neb. | 1912
Lead Opinion
This is a.n appeal from a judgment of the district court for Lancaster county sustaining the right of the candidates of the Progressive party to have their names printed on the official ballots for the general election in 1912. The facts seem to be as follows: A mass convention to form a new party was held in Lincoln on'September 3, 1912. On the afternoon of that day the meeting was adjourned until evening, at which time Governor Johnson of California was advertised to speak. A large number of people gathei*ed and were present at the evening meeting. The chairman of the meeting read the proposed Progressive party platform, which was adopted by a viva voce vote. After the address of Governor Johnson had been delivered and a number of persons had left the hall, the persons whose rights are in dispute in this case were nominated as candidates of the Progressive party. On September 13, 1912, there were filed in the office of the secretary of state five separate documents, each bearing the following heading: “We, the undersigned qualified electors of the state of Nebraska, in mass convention assembled, do hereby associate ourselves together, and agree to form a new political party, to be designated the ‘Progressive’ party, and we do
At the hearing before the secretary of state, it was contended that the Progressive party was not legally organized, because the 500 persons who signed the agreement to form a new party were not identified as being members of the mass convention, .but this contention was virtually waived at the argument before this court. There is no definite proof that 500 electors were not present at the convention. The evidence is conflicting on this point, but seems to preponderate in favor of the decision of the secretary of state. Furthermore, there is no requirement
The provision for the organization of new parties is contained in section 45, ch. 52, laws 1907 (Ann. St. 1911, sec. 5905, Comp. St. 1911, ch. 26, sec. 118s), which is a. part of the law relating to primary elections. The section is lengthy and will not be copied here in full. It contains the requirements hereinbefore referred to that there shall be 500 electors present at a mass state convention, and the same number of signers to an agreement to form a new party. It also contains the foregoing quotation that “such new party shall be entitled to have a separate party ballot at the next primary,” etc. This section, when considered with the requirement of the statute that all nominations be made by primary elections, might justify the thought that mass conventions can only form a new political organization, and that its candidates must be named at the next primary; but a view of other sections of the statute leads to a different conclusion. Section 39 of the same act prorides: “All nominations for candidates of any political party for office to be filled at
Construing the several sections of the statute together, it seems clear that the “certificate of nomination for a new party” mentioned in section 40 applies to the necessary certificate when a nomination is made by convention, and cannot possibly apply to a nomination made by a primary election, as shown by the returns thereof, in which latter case no nominating certificate is required. The limit within which such nominating certificate may he filed with the secretary of state is much later in point of time than that fixed for canvassing the returns and for the certification to the secretary of state of the results of a primary election. It seems clear, therefore, that a new party may be formed after the time when it is possible for it to participate in the regular primary election It is proper to say that it is the duty of the courts, in construing statutes providing for printing the names of candidates of both old and new political organizations upon the ballot, to do so in the light of the constitutional requirement that “all elections shall be free; and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise.” Const.,
We are of opinion that, under the plain provisions of the sections of the statute referred to, the candidates of the Progressive party are entitled to a place upon the official ballot. The, opinion of the secretary of state and the judgment of the district court are
Affirmed.
Concurrence Opinion
concurring.
On the 28th day of September, 1912, the appellant, Andrew M. Morrissey, filed his petition in the district court for Lancaster county alleging that he was a qualified elector of Nebraska, eligible to the office of attorney general, and nominated at the primary election, April 19, 1912, as the democratic candidate for said office, and that he received his certificate of nomination and is entitled to have his name printed on the official ballot; that the defendant, Addison Wait, is the secretary of state, and that it is his duty as secretary to certify to the several county clerks the nominations of all candidates named by the political parties, in order that the names may be printed on the official ballot to be used at the November election; that at the time he was nominated there was no political party in Nebraska known as the Progressive party; that on September 13, 1912, there were filed in the office of the secretary of state certain documents, reading: “Agreement to Form New Party. We, the undersigned qualified electors of the state of Nebraska, in mass convention assembled, do hereby associate ourselves together, and agree to form a new political party, to be
It is objected by Mr. Morrissey that there is no legal authority to hold political conventions to nominate candidates for any of said offices, and that the laws of the state prohibit the making of nominations for said offices by political conventions; that said pretended convention did not represent a political party casting 1 per cent, of the votes at the last general election; that the purpose of holding said convention was to disorganize existing political parties, and to impair the value of the several nominations given to candidates for said several offices. It was further objected that the names of said candidates so claimed to be nominated should not be certified to the county clerks of the several counties as candidates of said
The case comes to this court to review the judgment rendered in the district court. It is contended that the judgment of the district court should have been in favor of said Morrissey and against the defendant, Wait, and that an order should have been ehtered enjoining the secretary of state from certifying the names of said candidates to the several county clerks to be placed upon the official ballot.
It appears from an examination of the record that there was a mass convention held in Lincoln at the city Audi.torium, September 3, 1912, and that more than 500 electors were in attendance and participating. It is contended that in the afternoon there were less than 250
A consideration of the statute would seem to dispose of the questions presented. Section 118s, ch. 26, Comp. St. 1911, would seem to furnish statutory authority for organizing a new party in the state. It provides: “Electors may form a new party. * * * In order to form a new party there shall be present at a mass convention electors to the number of at least five hundred (500) in a state convention.” Section 117f, ch. 26, Comp St. 1911, provides: “The name of no candidate shall be printed Upon an official primary ballot unless at least thirty (30) days prior to such primary” nomination papers be filed. It is provided by section 118n, ch. 26, Comp. St. 1911: “Certificates of nomination for a new party may be filed with the secretary of state or the county or municipal cleric twenty-five or twenty or fifteen days before the election, as the case may require.” The foregoing section provides that this may be done in nominations that are made by convention or committee. The foregoing sections seem to dispose of the matter. It would seem not to be the intention of the primary act to abrogate the right of electors to form a new party; but apparently the thing contemplated is to perpetuate the right to form
There is a contention made that the purpose of forming the new party is not to bear immediate fruit, and that the new party is not to have recognition until after it has voted at a primary. This is not according to the American idea, and it would be eminently unjust. It would be directly in conflict with section 22 of the Nebraska bill of rights, which provides: “All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified -voter to exercise the elective franchise.”
Secretary of State Wait acted upon the evidence brought before him. His conclusion seems to have been a proper one. It was sustained by the district court for Lancaster county. It would be unfair to many thousand electors of the state of Nebraska to prevent them from voting for the candidates of their choice.