32 Nev. 400 | Nev. | 1910
The effect of this appellate proceeding is to test the constitutionality of the law commonly referred to and known as the "Direct Primary Law” enacted March 23, 1909. (Stats. 1909, p. 273.) On the 23d day of February, 1910, the appellant herein, a taxpayer and qualified elector of the State of Nevada, instituted an action in the First Judicial District Court of the State of Nevada, in and for the County of Ormsby, against the respondent to restrain him from expending any money required to be expended or entering into any contracts required to be entered into under and by virtue of that certain law entitled "An act to provide for the direct nomination of candidates for public office by electors, political parties and organizations of electors, without conventions, at elections to be known and designated as primary elections, determining the tests and conditions upon which electors, political parties and organizations of electors may participate in any such primary election, and establishing the rates of compensation for primary election officers serving at such primary elections; providing for the organization of political parties and the promulgation of their platforms, and providing the methods whereby the electors of political parties may express their choice at such primary elections for United States senator, to provide for the registration of voters for said primary elections and the compensation of registry agents, and to provide penalties for violating the provisions of this act’’ assigning as grounds for the relief demanded constitutional defects in the law. To the complaint, setting forth the unconstitutional grounds assigned, a demurrer was interposed by respondent, regularly presented to and sustained by the lower court and judgment rendered in favor of the defendant,' respondent herein. From this judgment plaintiff appeals, and attacks the law in question as unconstitutional upon the following grounds, which we will consider in the order presented: ‘
" (1) The law is unconstitutional, in that it destroys political parties, and in so doing deprives voters of the right to form and govern political parties, which right inheres in the nature of our government and is guaranteed by the constitution of the State of Nevada.' (a) The law denies electors the right to*411 determine the political principles their candidates must espouse, and thus denies electors the right to instruct their representatives. (b) The primary law enables electors of opposite political faith to name the candidates of their political opponents.
" (2) The law is void, in that it denies certain political parties the right to participate in primary elections authorized by the act, and provides no method by which their candidates may appear upon the official ballot.
" (3) The law is void, in that it deprives political parties of the right to say who shall be members thereof, and forces each' political party to admit as a member any elector who complies with the legislative test.
" (4) The law is void, in that it restricts the elector’s right of suffrage contrary to the constitution, and denies him the privilege of voting for certain classes of electors.
" (5) The law is unconstitutional, in that it prevents one from bping a candidate for office if he has been defeated at a primary election.
" (6) The law is void, in that it prohibits certain classes of electors, constitutionally qualified, from being candidates for office.
"(7) The law is void, in that it requires the payment of certain fees as a condition precedent to becoming a candidate.
" (8) The law is void, in that it requires of officers an oath other than and different from that required by the constitution.
"(9) The law prohibits the nomination of 'independent’ candidates, and thus shows the legislative intent to confine participation in the primaries to parties having candidates at the last presidential election.
"(10) The law is unconstitutional, in this: It provides an exclusive niethod for obtaining a place on the official ballot, and further provides that only those whose names are on the ballot can be voted for, thus depriving electors of the right of suffrage.”
Before proceeding, however, to a consideration of these objections raised, we believe it will be profitable to momentarily advert to a consideration of the limitations placed upon our lawmaking bodies in the enactment of laws by our
When the people of the United States created this unexcelled government of ours, they entertained the opinion that all power is inherent in the people, in opposition to the previous theory held by the royal heads of other governments, and commonly assented to, that the people were only entitled to such rights, privileges, and power as the heads of these governments deigned to give them. With a clear understanding of and faith in the principles that all men are created equal and all power is inherent in the people as contradistinguished from the principles entertained by monarchs and kings that royal blood made them superior to their fellow-beings, and that they were endowed with all governmental power by divine right, the people of the United States, before dispossessing themselves of any power they believed inherent in themselves and binding themselves up to a constitutional form of government, seriously debated and decided what governmental principles they would profess and imbed in their new constitution. They then divided and delegated specifically an enumerated list of powers to the legislative, executive, and judicial departments, into which they divided their new republican form of government, then an experiment, but now as a form of government' a model and proven success, after which we believe in time all governments will be patterned.
-To the Congress of the United States, the legislative branch of our national government, they plainly stated in their constitution what laws they are authorized to pass; and, as a consequence, Congress has no authority to pass any laws except such as the constitution either expressly authorizes or grants by clear implication. Hence, when a law of Congress is attacked as unconstitutional for contravening any right, unless the federal constitution granting Congress the specified authority to enact the measure is broad enough to sustain the law, it is unconstitutional. On the other hand, the people, formulating the constitution of our state, gave to the legislative
The Court of Appeals of the State of Missouri, in commenting on this particular question, has the following to say: "But a state legislature, unlike the national Congress, has full legislative power wherever it is’ not restrained by the constitution, whereas Congress has power only when it is granted by the constitution. Hence the legislature does no.t need express constitutional authority to legislate on a subject, but only lack of a constitutional prohibition. 'Authority’ given by the constitution to pass a law means, therefore, more than that there is no restriction against passing a law. It means a positive constitutional direction in regard to it. It follows that the constitution of the state does not authorize the passage of
Judge Cooley, in his great work on Constitutional Limitations, states: "The rule of law upon this subject appears to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation within constitutional bounds is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. * * * Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them.” (Cooley’s Constitutional Limitations, 7th ed. 236-237.)
The Supreme Court of Pennsylvania tersely expresses the rule thus: " Nothing but a clear violation of the constitution— a clear usurpation of power prohibited — will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.” (Pennsylvania Railroad Co. v. Ribelt, 66 Pa. 169, 5 Am. Rep. 360.) Our own supreme court, in construing the legislative power of this state, held as follows : " That the legislature has the power to enact any law7 not prohibited by our constitution.” (State v. Arrington, 18 Nev. 412.) It will be unnecessary to consume any time in considering all that has been said in the arguments and otherwise, as to the wisdom, policy, or expediency of the law in dispute, further than to say that this court has, in conformity with the incontrovertible law, held that as to these matters they are solely ■within the legislative department to determine, and for this
Our first consideration, therefore, in determining whether or not the present act is unconstitutional, will be an examination of our state constitution to ascertain if any prohibition exists therein which would deprive the legislature of the right to enact a direct primary law. Section 2 of article 1 of the constitution of Nevada provides: "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. * * *” Thus we see the constitution expressly gives to the legislature the full power and authority to alter or reform the law whenever in their judgment the public good may require it. And, as before stated, as to the power, wisdom, or expediency of the law, these matters are entirely within the province of the legislative department.
Section 1 of article 2 of our constitution provides: "Every male citizen of the United States (not laboring under the disabilities named in this constitution), of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people, and upon all questions submitted to the electors at such election; provided, that no person who has been or may be convicted of treason' or felony in any state or territory of the United States, unless restored to civil rights; and no person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States, or either of them, unless an amnesty be granted to such by the federal government; and no idiot or insane person shall be entitled to the privilege of an elector.”
Section 6 of article 2 of our constitution provides: "Provision shall be made by law for the registration of the names of the electors within the counties of which they may be resi
Counsel for appellant have placed their main reliance for the nullification of this act upon three California cases, to wit, Marsh v. Hanly, 111 Cal. 371, 43 Pac. 975, Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. R. A. 196, and Britton v. Board of Commissioners, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115, all of which cases were decided by the Supreme Court of California prior to an amendment of the constitution of that state specifically authorizing the enactment of a direct primary, and which we will have occasion to refer to and analyze during the course of this opinion. The constitution of California, however, prior to the amendment, was not identical with the constitution of Nevada, nor had it as broad or specific a grant of power as contained in section 6 of article 2 of our constitution, as a careful reading will reveal, and, in consequence, these authorities in this respect are of limited value in a determination of the constitutionality of the act in question.
Section 1 of article 2 of the constitution of California, under which these cases were decided, provides as follows: "Every native male citizen of the United States, every male citizen who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and Avery male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county in which he claims his vote ninety
" The legislature shall have the power to enact laws relative to the election of delegates to conventions of political parties; and the legislature shall enact laws providing for the direct nomination of candidates for public office, by electors, political parties or organizations of electors without conventions at elections to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties or organizations of electors may participate in any such primary election. It shall also be lawful for the legislature to prescribe that any such primary elections shall be mandatory and obligatory. * * * ”
The legislature of Nevada is authorized by direct constitutional authority (1) to make provision for the registration of electors; (2) to make provision as to who shall be entitled to vote; (3) to make provision to preserve the purity of elections; (4) the manner of holding elections; (5) the manner of making returns; (6) to prescribe any rule which may be deemed necessary as a test of electoral qualifications; the only limitation being that the legislature cannot violate section 1 of article 2, wherein the constitution in terms fixes who are entitled to the right of suffrage. While it is unnecessary for us to state whether or not the old constitution of California was broad enough to sustain a direct primary law, providing the act was in consonance in other respects with the constitution, without a grant of power for this specific legislation, as held necessary by the Supreme Court of California in these cases relied upon by appellant, yet an examination of section 2%" of the California constitution, as amended, will disclose that it is not much broader, if any, in its grant of power than is the power to enact a direct primary law given expressly to
In Socialist Party v. Uhl, 155 Cal. 778, 103 Pac. 181, the Supreme Court of California sustained the right of the legislature of that state to enact a direct primary law under section 2% of the constitution of California. While the present law is a practical revolution of political methods, heretofore in vogue in this state, in the manner of selecting nominees for office, yet it is clear from an examination of our constitution that the legislature has the inherent and primal constitutional right to enact such a measure, providing it is in- other ■respects not violative of other constitutional requirements. Having determined that our legislature is not prohibited from enacting, but, on the contrary, is vested with ample authority to pass a-valid primary law, we come now to a consideration of whether or not the law, as enacted, is violative of any constitutional provision, as is contended by counsel for appellant.
1. It is urged by counsel for appellant that "the law is unconstitutional, in that it destroys political parties, and in so doing deprives voters of the right to form and govern political parties, which right inheres in the nature of our government and is guaranteed by the constitution of. the State of Nevada.” In support of this contention, counsel for appellant maintain that the "avowed object of the primary law is the destruction of political parties, for by its express terms it prevents them from nominating candidates or formulating platforms.” With this contention we disagree, believing, on the contrary, that, when the legislature enacted the primary law in dispute, it recognized the existence of political parties, and that, instead of attempting to destroy them, it simply regulated the means by which the efforts of political parties should be directed and protected in exercising their preferences in nominating their party candidates. The primary law, from first to last, teems with recognition of political parties in its attempt to regulate the methods for the nomination of the candidates of the various parties. One of the main objects sought to be acquired by this law is to preserve the integrity of political parties. In the absence of any law by the legislature to regulate the nomination of candidates of the various parties or independent
A proper administration of the affairs of a sovereign state affects vitally the welfare of the existence of its citizens, and, where such a matter of vital importance is at stake, the state has the right, under the police power vested in its legislature, to make such reasonable regulations .in the interest of public welfare for the nomination of the candidates of the various parties as it may determine. (State v. Moore, 87 Minn. 308, 311, 92 N. W. 4, 59 L. R. A. 447, 94 Am. St. Rep. 702; Ladd v. Holmes, 40 Or. 167-180, 66 Pac. 714, 91 Am. St. Rep. 457; Healey v. Wipf, (S. D.) 117 N. W. 521-523 (1908); State v. Michel, 121 La. 374, 46 South. 430; State v. Nichols, 50 Wash. 508, 97 Pac. 728; Walling v. Lansdon, 15 Idaho, 282-300, 97 Pac. 396; State v. Felton, 77 Ohio St. 554, 84 N. E. 85; People v. Dem. Com., 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674; State v. Anderson, 118 N. W. 22; State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840; Morrow v. Wipf, 115 N. W. 1121-1124; Hopper v. Stock, 69 N. J. Law, 562, 56 Atl. 1; Kenneweg v. Commrs., 102 Md. 119, 62 Atl. 249; State v. Anderson, 100 Wis. 523-533, 76 N. W. 482, 42 L. R. A. 239; De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814; Cooley, Const. Lim. 7th ed., note p. 899; State v. Moore, 87 Minn. 308, 92 N. W. 4, 59 L. R. A. 447, 94 Am. St. Rep. 902; Bacon v. Walker, 204 U. S. 311, 27 Sup. Ct. 289, 51 L. Ed. 499, 15 Cyc. 332; Dooley v. Jackson, 104 Mo. App. 21, 78 S. W. 330.)
Whether-or not the state should attempt to regulate or change the methods heretofore in vogue in the way of nominating candidates for public offices, as heretofore suggested, is
The Democratic party could, if it saw fit, issue a call for a convention as heretofore has been the custom, prepare platforms setting forth such principles as it may desire, and select and indorse whatever candidates it may desire to submit at the primary election. Such candidates selected, however, before they can become the nominees of their party, must submit to the voters of their party by direct vote to secure the proper certificates necessary to appear on the official ballot. Under the old convention method, the candidates selected became the party nominees, but under the primary law candidates for nomination must qualify before the rest of the voters of their party faith if they would be nominees of their party, unless they run independently.
One of the purposes of the direct primary law was undoubtedly to remove candidates from the influence of convention dictators or. bosses or those who manipulate the selection of candidates by a superior knowledge of politics in convention by making such candidates so selected, should a convention be held anyway, be ratified by a majority of the voters of the particular party before they become party nominees. In other words, the voters may select their candidates directly; or can
The objection of counsel for appellant that this law tends to destroy political parties is rather of a political than a legal objection, to which an appeal should be made to the people through the legislature to remedy, and not the courts. oIf the people do not like the law, the remedy is by an appeal to the legislature to repeal it rather than to the courts for judicial annulment. A careful consideration of the act in question leads us to believe that the voters, instead of being deprived of the right to govern political parties, as contended by counsel for appellant, are given greater power to govern them, for the reason that the majority of the electors of any party have the power retained in themselves to override any candidate or group of candidates selected by convention or otherwise if they do not meet with the approval of the electors.
Counsel for appellant assume m support of their objection to the act under consideration that the law deprives the electors, when collectively associated in a party, of electoral rights guaranteed them under the constitution of Nevada, because of the importance played by national parties in forming the policies and shaping the history and destinies of our government from the time of its inception, in that no law can vary the convention custom of selecting candidates and formulating platforms which have been in vogue so long, for the reason that these customs have been practically crystallized into law. No one, with any knowledge of the history of our country, will contend for a moment that political parties have not played an important part in both the political and economic history
As was succinctly said by Mr. Bryce in the. American Commonwealth: "In America the great moving forces are the parties. * * * The spirit and force of party has in America been as essential to the action of the machinery of government as steam is to a locomotive engine; or, to vary the simile, party association and organization are to the organs of government almost what the motor nerves are to the muscles, sinews, and bones of the human body. They transmit the motive power. They determine the directions in which the organs act. A description of them is therefore a necessary complement to an account of the constitution and government; for it is into the hands of the parties that the working of the government has fallen. Their ingenuity, stimulated by incessant rivalry, has turned many provisions of the constitution to unforeseen uses, and given to the legal institutions of the country no small part of their present color!’ (State v. Felton, 77 Ohio St. 569, 84 N E. 87.) But political parties, which are organizations of electors, entertaining the same political opinions, attempting through an organization to elect officers of their own party faith, and make their political doctrines the policy of the government, can have no greater rights than any elector, notwithstanding the important part political parties have played in our history, and their customs of selecting candidates must give way to the law when the legislature so decides.
Counsel for appellant fail to appreciate the fact that the elective franchise guaranteed to the electors under the constitution of the state is a mere political privilege, not a natural right nor an inherent unqualified personal or political right, and, in consequence, it naturally follows that the rights of political parties are no greater than the rights of the electors derived from the constitution. (6 Am. & Eng. Ency. Law, p. 935; Bryce, Am. Commonwealth, pp. 422, 423; Weimer v. Bunbury, 30 Mich. 214; 8 Cyc. 743; Cooley, Const. Lim. 7th ed, pp. 244, 245; Beebe v. State, 6 Ind. 501-510, 63 Am. Dec. 391; Mayo v. Wilson, 1 N. H. 53; Hale v. Everett, 53 N. H. 9, 16 Am.
Counsel contends that because section 2 of article 1 of our constitution, which sets forth that "all power is inherent in the people^’ and that section 20 of article 1, wherein it says, after enumerating the rights retained by the people, that "this enumeration of rights shall not be construed to impair or deny others retained by the people!’ therefore political parties are deprived of the rights to select candidates for office as was the custom at the time the constitution of the state went into force and effect. The fallacy of the argument is apparent, in view of the right w'hich is still retained in the people as illustrated by the fact that they have the right to either ratify or reject the candidates of the convention or any clique of politicians who may attempt to force a nominee upon them before obtaining their approval and consent. It is obvious that the very retained political spirit claimed as inherent in the people still exists and the enactment of a primary law does not, when analyzed, deprive them of any right political or otherwise which they heretofore enjoyed.
(a) The next constitutional objection interposed by counsel for appellant is that "the law denies electors the right to determine the political principles their candidates must espouse, and thus denies electors the right to instruct their representatives!’ because it is in violation of section 10 of article 1 of the constitution, which provides: "The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances.” This argument has been shown to be untenable by what we have stated in our previous treatment of the assignment just passed upon, and our illustration of how parties, if they wish, may still under this law assemble and formulate platforms and instruct any candidates they may endorse for submission to the party at the primary election.
As previously stated, there is nothing in the law which
(b) The next objection of counsel for appellant'is that "the primary law enables electors of opposite political faith to name the candidates of their political opponents” This we believe is an assumption of counsel which in no way affects the constitutionality or unconstitutionality of the law in question. Counsel for appellant in this contention, as in many others attacking this law, fail to grasp the distinction between the unrestricted
The Supreme Court of Louisiana, in sustaining the test required by the primary law in that state, said: "* * * The voter, by participating in a primary, impliedly promises and binds himself in honor to support the nominee, and that a statute -which exacts from him an express promise to that effect adds nothing to his moral obligation, and does not undertake to add anything to his legal obligation. The man who cannot be held by a promise which he knows he has impliedly given will not be held by an express promise.” (State v. Michel, 121 La. 387, 46 South. 434.)
The Supreme Court of the State of Washington, in upholding the test required in that state for those participating in primary elections, said: "Section 12 of the primary act (Laws 1907, c. 209) provides that when a voter at the primary election demands the ticket of a particular party, and his right to vote that ticket is challenged, he shall make oath or afirma
The Supreme Court of South Dakota, in sustaining the right of the legislature to prescribe a test for candidates of the various political affiliations at primary elections, said: "It is for the party to nominate; for the people to elect. The question is not who shall be chosen to any particular public office. That is for the voters of all political parties to determine at the polls. It is simply who shall represent the organization as its nominees, and certainly the determination of that question should be controlled by the action of the party itself; otherwise, party nominations are impossible. To what extent, if at all, the rights of organized political parties should be recognized and regulated by law, is a matter of public policy, to be deter
The Supreme Court of the State of Oregon, in sustaining the view we entertain, that the legislature is authorized to regulate the test of political organizations at a primary election, in passing upon this point, said: " The test prescribed for participating in a party primary is that the elector 'voted for a majority of the candidates of such party or association at the last election, or intends to do so at the next election.’ The authority of the legislature to prescribe any test whatever is challenged; that being a matter, it is contended, wholly within the discretion of the parties themselves. The California primary act of 1899 was declared inoperative because it prescribed no test whatever, and permitted parties of different party affiliations to vote for party delegates. (Britton v. Board, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115.) Hence it would seem that a test is necessary. But who shall prescribe it? Neither the legislature nor the parties can prescribe any test, it is plain, that will operate to exclude legal voters of the same political faith, nor admit any that are not legally qualified, as otherwise the election would not be free and equal. The election being authorized by law, parties cannot claim any higher authority touching the qualifications of voters thereat than the legislature. If so, they might easily subvert the will of the legislature, and render the law nugatory for any substantial purpose. So the question recurs as to whether this feature is one of regulation also. AYe think it is, and within the power of the legislature to prescribe the rules relative thereto under the constitution. The fundamental principle upon which such legislative authority proceeds, and must proceed, is that its ultimate purpose is the election of public officers by a free and equal choice of the qualified electors. A free and equal choice of such officers includes a free anfl equal choice by party members of the delegates whose function it becomes to select partisan candidates, and the legislative authority is
Counsel for appellant seemingly fail to appreciate that the electoral test of an elector spoken of in the constitution is for the election of public officers, and not for the-election at which party nominees are selected. The Supreme Court of California, in the recent case of Socialist Party v. Uhl, said: "The right and duty of the legislature to prescribe a test for electors voting at a primary cannot be questioned, nor do we perceive any reasonable grounds for questioning the validity of a test as to candidates” (Socialist Party v. Uhl, 155 Cal. 776, 792, 103 Pac. 188.) Any reasonable test of party affiliation may be required by the legislature of those who desire to participate in primary elections of the various parties. (State v. Nichols, 50 Wash. 508, 97 Pac. 728; State v. Michel, 121 La. 374, 46 South. 430; State v. Drexel, 74 Neb. 776, 105 N. W. 174; Hopper v. Stack, 69 N. J. Law, 562, 56 Atl. 1; Morrow v. Wipf, 115 N. W. 1121; Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109.) The test prescribed by our statute is practically identical with the test prescribed under the primary act of the State of New York (Laws 1899, c. 473), sustained by the New York Court of Appeals speaking through Judge Alton B. Parker, in People v. Democratic Comm., 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674.
2. It is also contended by counsel for appellant that "the law is void, in that it denies certain political parties the right to participate in primary elections authorized by the act, and provides no method by which their candidates may appear
As tersely stated by the Supreme Court of the State of South Dakota: "It is for the party to nominate; for the people to elect.” (Morrow v. Wipf, 115 N. W. 1124.)
.The Supreme Court of Minnesota, in considering the constitutional provision similar to our own, said: "If the election of candidates to the position of nominees is an election within the meaning of article 7 of the constitution, then the primary law, as above construed, is unconstitutional. It would in certain cases deprive the voter of his privilege to exercise the elective franchise. Such an occasion might arise when no candidates appear for nomination, no provision being made for filling vacancies or for leaving blank lines on the ballot to enable the voter to write in the name of some person of his choice. But it is very clear that the election of nominees provided for in the primary law is not the election referred to in the constitution. The language of article 7 bearing upon the subject is as follows: 'Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the United States one year and in this state four months next preceding any election shall be entitled to vote at such election in the elec
The legislature has the undoubted right, in the regulation of primary elections, to prescribe qualifying classifications for political parties who desire to avail themselves of the privilege of getting on the official ballot through the manner prescribed by law.
The Supreme Court of California, in the case of Katz v. Fitzgerald, in opposition to the contention made by counsel in this assignment, wherein the same question was directly presented, held that it'was a reasonable regulation for the legislature to classify such political parties then in existence as a right to appear otherwise than independently by limiting their right to a certain percentage of the votes cast at a previous election, and not a denial of any constitutional right so long as the law is uniform in providing what parties could avail themselves of the primary methods of selecting their nominees for office.. "Some classification is made necessary, else any two, three, or four men might call themselves a party, and impose the burden of placing the names of their candidates upon the ballot provided by the state law — a condition which could be easily made intolerable to the state, as well as to the voter. Classification becoming necessary, the one here adopted is rational, and does not impose any burden upon one of a class that is not imposed upon all; nor, upon the other hand, does it confer any special privilege upon parties which have cast more than three per cent of the vote, which is not conferred upon all such parties.'' (Katz v. Fitzgerald, 152 Cal. 433, 93 Pac. 114.)
In Ladd v. Holmes, supra, the Supreme Court of the State
The Supreme Court of Minnesota, in the case of State v. Jensen, 86 Minn. 19, 89 N. W. 1126, in commenting on this point, said: "We are of the opinion that the legislature may classify political parties with reference to differences in party conditions and numerical strength, and prescribe how each class shall select its candidates, but it cannot do so arbitrarily, and confer upon one class important privileges and partisan advantages and deny them to another class, and hamper it with unfair and unnecessary burdens and restrictions in the selection of its candidates. While it seems to some of us that the percentage of the vote selected as the basis of the classification in this act is larger than necessary, yet it was a question for the legislature, and we are not justified in holding that the classification was arbitrary. We hold the law as we have construed it constitutional.” See, also, 15 Cyc. 334; Schafer v. Whipple, 25 Colo. 400, 55 Pac. 180; People, ex rel. Dickerson, v. Williamson, 185 Ill. 106, 56 N. E. 1127; State v. Kinney, 57 Ohio St. 221, 48 N. E. 942; Corcoran v. Bennett, 20 R. I. 6, 36 Atl. 1122; Davidson v. Hanson, 87 Minn. 211, 91 N. W. 1124, 92 N. W. 93; Ransom v. Black, 54 N. J. Law, 446, 24 Atl. 1021, 16 L. R. A. 769; State v. Poston, 58 Ohio St. 621, 51 N. E. 150, 42 L. R. A. 237; De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814.
The answer to the contention of counsel for appellant that the law is constitutionally defective, in that no method is provided by which candidates of other parties other than those particularly designated by the act may appear upon the official ballot is that such parties or those disqualified may avail themselves of subdivision " c” of section 5, which among other things provides: "Nothing herein shall be construed as prohibiting the independent nomination of candidates to be voted for at any general election, by electors or bodies of electors, as now provided by law. * * *” (Stats. 1909, p. 278.) Section 1693, et seq., Comp. Laws, which are not repealed by the primary law and are now in full force and effect, prescribe a method by which independent candidates or new parties
3. Counsel for appellant also conten pis that " the law is void, in that it deprives political parties of the right to say who shall be members thereof, and forces each political party to admit as a member any elector who complies with the legislative test.” The right of the legislature to prescribe a test for party organizations who may desire to comply with the direct primary methods provided for the selection of their candidates we believe is thoroughly established. If, as heretofore expressed in this opinion, one of the obvious purposes of the primary law is to preserve the integrity of parties, it is manifestly proper for the legislature to impose a test on those who may desire to participate in the primary election for the selection of candidates in order that the integrity of the party may be better sustained. The test required by the law in question is a reasonable one. Even without the test, an elector is in political honor bound to support the nominee whom his vote aids in becoming the party nominee. The oath merely acts as a guaranty and an additional incentive to carry out the obligations which every man participating in a primary election morally assumes whether he takes the test or not.
The Supreme Court of California, in the case of Socialist Party v. Uhl, supra, and also in the case of People v. Griffith, held a similar objection to that now raised by counsel for appellant as untenable in primary law cases wherein this identical question was squarely raised and passed upon. (Socialist Party v. Uhl, 155 Cal. 792, 103 Pac. 181; People v. Griffith, 146 Cal. 339, 80 Pac. 68.)
4. Counsel for appellant further assigns that "the law is void, in that it restricts the elector’s right of suffrage contrary to the constitution, and denies him the privilege of voting for
That a primary election of candidates is not an election of officers within the ^meaning of the constitutional test has been sustained by an overwhelming weight of authority in states with similar constitutional provisions to those contained in the constitution of Nevada. (Line v. Board, 154 Mich. 329, 117 N. W. 730, 18 L. R. A. 412; Morrow v. Wipf, 115 N. W. 1121-1124; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840; State v. Nichols, 50 Wash. 508, 97 Pac. 728; State v. Felton, 77 Ohio St. 554-578, 84 N. E. 85; Dooley v. Jackson, 104 Mo. App. 21; 78 S. W. 333.)
The law is not mandatory in compelling candidates who may desire to get on the official ballot to submit themselves to the primary election. They have the privilege, as heretofore stated, of running independently if they desire. In the event they desire to submit themselves to the primary election, it is not unreasonable or unrighteous to make them comply with any reasonable test made by the legislature for the purpose of preserving the integrity of the party with which they desire to affiliate. Nor do we see anything unreasonable or unrighteous in limiting a man who desires to vote to cast his ballot for but one candidate for each office. This is also a salutary regulation in preserving the integrity of political parties. If, after the primary is over, an elector who has participated in the primary changes his mind and desires to vote for some
Further answering this assignment of appellant, we advert to the admission of counsel for appellant on pages 38 and 39 of his brief, wherein it is said: "It may be admitted that the legislature might require a certain qualification for office if the qualification applies to-all electors alike. A qualification for office is something that fits one for office, something •all electors must comply with before becoming a candidate.” This the act without question does. This admission of counsel tersely expresses the law on this point. It will not be questioned that the legislature has the right to add qualifications to electors desiring to become candidates for specified offices, so long as the added qualifications are reasonable, and not violative of any constitutional provision.
Laws have been enacted by legislatures and have been sustained on innumerable occasions wherein qualified electors have been required to qualify before becoming qualified candidates for the various offices throughout the state of being property holders or of having some especiál qualification for such offices. Of course, the legislature has no authority to add qualifications to candidates for federal offices created under the federal constitution, where that instrument has defined the qualifications of such officers. In the consideration of this error assigned, as in other assignments to follow, the distinction between the right to vote and the right to hold office must not be confounded or lost sight of. An elector may be constitutionally qualified to vote and yet be legislatively debarred from becoming a candidate for some official position within the state.
5. It is also contended by counsel for appellant that "the law is unconstitutional, in that it prevents one from being a candidate for office if he has been defeated at a primary election!’ The Supreme Court of California, in the recent case
We do not deem it necessary to further consider this point other than to say that it will be ample time for this court to consider this point when some appellant whose right is affected by this provision comes before the court in a proper proceeding. In view of the fact that, if the section covering this provision were declared void, it would not affect the remainder of the law, it renders it unnecessary for us to give this point further consideration.
6. The further contention is made by counsel for appellant that "the law is void, in that it prohibits certain classes of electors constitutionally qualified from being candidates for officel’ In alleging the law to be void upon this assignment of error, counsel for appellant fail to appreciate the distinction between the constitutional requirement of an elector and the constitutional qualification of a candidate to be voted for as an officer at the general election. The constitution defines the qualifications of an elector, but the legislature may prescribe reasonable qualifications for an elector who may desire to become a candidate, providing such qualifications are not in conflict with some constitutional provisions. The qualifications required by the primary law are not, as we view the constitution, violative of any such requirement. While citizenship, age, sex, and residence enter into the qualifications made necessary by the constitution to make a legal voter, yet, in addition to these, other qualifications are essential to the efficient performance of discharging the duties connected with almost every office; and these additional qualifications the legislature is privileged to impose so long as they do not con
These additional qualifications imposed have been sustained on innumerable occasions as no violation of the constitution. The cases are innumerable where qualifications not possessed by all electors are required of candidates for office. The framers of the constitution of our state did not intend, when they enumerated the qualifications of every elector, to make those qualifications the test of the eligibility of the various civil officers throughout the state, and, except in so far as the constitution has expressly provided the qualifications of the various officers, the legislature has the unquestioned right to add additional qualifications. (Darrow v. People ex rel. Norris, 8 Colo. 417, 8 Pac. 661.)
Chief Justice Beatty of the Supreme Court of California, in the case of Shostag v. Cator, in treating an objection adversely to the contentions of counsel for appellant, in that the law is unconstitutional for the reasons set forth in this assignment, very appropriately said: "These views, if. correct, dispose of several other objections urged by petitioner, and relieve us of the necessity of taking them up seriatim. We shall, however; notice some of the arguments that have been most strongly urged upon our attention. It is contended that the test prescribed by section 1366a is unreasonable, because, with the close of registration, the elector loses his right to change his party allegiance in consequence of a change in political convictions, and is precluded from taking part in the election of delegates at the convention of the party with which on the day of the election his more matured opinions would impel him to cast in his lot. This inconvenience certainly does result from the provisions of the act, but the legislature, which must be presumed to have foreseen it, probably regarded such sudden conversions during the short interval between the close of registration and the date of the primary election as likely to be of such rare occurrence as not to justify the
7. The further contention is made by counsel for appellant that "the law is void, in that it requires the payment of, certain fees as a condition precedent to becoming a candidate.” There is no merit in this contention, in view of the fact that the fee exacted is not an unreasonable one and within the discretion of the legislature to impose upon candidates who may desire to avail themselves of the benefit of the act. The right of the legislature to exact a reasonable fee from candidates for office has been sustained in practically every state where a primary law exists, upon the same principle that fees in actions at law1 and proceedings in courts and for the filing and recording of documents are sustained. These cases maintain the right of the legislature to exact fees, upon the theory that those
8. Counsel for appellant further assigns the "law is void, in that it requires of officers an oath other than and different from that required by the constitution” This contention is also devoid of merit, in that the oath required by the constitution is an oath an officer is required to take when he is about to enter office,,as distinguished from the primary election oath, Avhich is one of fealty to a party, as a candidate for office, and is not regulated or imposed by the constitution. As before stated in this opinion, a primary election is not an election in the constitutional sense of an election of officers, but merely an election of parties to select nominees to run for office.
Section 2 of article 15 of the constitution of Nevada provides: "Members of the legislature and all officers, executive, judicial, and ministerial, shall, before they enter upon the duties of their respective offices, take and subscribe to the following oath or affirmation: [The oath being set forth]!’ A reading of this section discloses that the constitution does not preclude the legislature from providing an additional oath for candidates at primary elections. (Socialist Party v. Uhl, 155 Cal. 790, 103 Pac. 181; State v. Nichols, 50 Wash. 508, 97 Pac. 728.)
The case of the State v. Findlay, 20 Nev. 198, 19 Am. St. Rep. 346, cited by counsel for appellant, is in no way applicable to the test required in this primary law. In that case this court very properly held that an act which attempted to. prescribe the qualifications of an elector by prohibiting Mormons from voting and requiring applicants for registration to take an oath that they were not members of the Mormon Church was a direct violation of section 1 of article 2 of the constitution of our state, as well as violative of the federal constitution. Unquestionably no religious test in this country
9. The next point raised by counsel for appellant is that "the law prohibits the nomination of 'Independent’ candidates, and thus shows the legislative intent to confine participation in the primaries to parties having candidates at the last presidential election.” This contention is also devoid of merit. The primary law expressly preserves the existing law (section 1693, et seq., Comp. Laws Nev.), wherein independent candidates and parties who may not be able to qualify or avail themselves of the primary law may get on the official ballot by independent action. Nowhere in the law are independent candidates prohibited from being voted for at the general election. We believe this assignment has been so thoroughly covered in previous parts of this opinion in answer to other objections raised that is undeserving of further comment.
We come now to a consideration of the fifty-seventh and last objection interposed by counsel for appellant to the validity of the act in question, setting forth that "the law is unconstitutional, in this: It provides an exclusive method for obtaining a place on the official ballot, and further provides that only those whose names are on the ballot can be voted for, thus depriving electors of the right of suffrage.” This assignment of error has ‘more or less been touched upon in its various aspects during the course of this opinion. Unquestionably the legislature has not the right to preclude any qualified elector who may be qualified as a candidate under the constitution and laws of the state from being a candidate ■ for office. The contention of counsel for appellant that the legislature cannot preclude an elector from voting for any qualified elector for any office for which such elector is constitutionally qualified is not involved in the present case, which relates only to primary elections.
We have stated in this opinion that all those candidates who may be disqualified from participating in the right to go on the official ballot by reason of coming of voting age since the last election or otherwise through the primary election, as
However, the petitioner in this proceeding is in no position to raise this point, and until such a proposition is presented to us by a qualified elector or candidate, who believes he is or has been deprived of an electoral right, guaranteed him under the constitution, we do not deem it necessary to pass upon the law in this respect until such a condition arises and is properly before this court.
In conclusion, it is proper to observe that the political conditions of the country at the present time show that there is a political evolution going on in the legislatures of the various states, attempting to regulate, strengthen, and purify our political system and bring as near to the people as the constitutions of the states of the Union will allow a more direct participation in the selection of candidates and adoption of measures believed to be for the common good. Nevada, in common with the majority of the states of the Union, is abreast of the times in this legislation. In accord with our constitution and the principles herein enunciated, we believe that the power of selecting candidates and the privilege of initiating legislation may be brought as directly in touch with the people as it is possible to do, and that, as soon as the present direct primary system now being initiated is perfected, the various states will adopt this mode of selecting its nominees for office with an equal rapidity as did practically every state in the Union, in the evolution of the effort of securing a more thorough, secret, honest, and independent, ballot, adopt the Australian ballot in substitution of the old ballot used for practically over a hundred years.
The Australian ballot law, when it first made its appearance, was attacked as freely as the direct primary measures
The judgment sustaining the constitutionality of the "Direct Primary Law” is hereby affirmed.