Sac. No. 480 | Cal. | Mar 24, 1898
This is an action to determine the constitutionality of a primary election law, passed at the last session of the legislature, and approved March 13, 1897. It is contended upon the part of the various counsel assailing this law that its enforcement will be an expensive burden upon the people; that, under the guise of a great reform, a system of elections has been devised which, by its expensive and complicated procedure, greatly increases the tendency to place the political life of the state in the hands of those who make politics a profession; that the whole theory of the law is wrong in regulating the' political action of parties, associations, and individuals, and thereby destroying that freedom of political association which has hereto
The act is entitled: “An act providing for general primary elections within the state of California, and to promote the purity thereof by regulating the conduct thereof, and to support the privileges of free suffrage thereat, by prohibiting certain acts and practices in relation thereto, and providing for the punishment
Let us test the title of this act in the crucible furnished by the foregoing provision of the constitution. The legislature, in framing this title, was above all things candid. Upon its very face the law-making power challenged the sound policy of this provision of the constitution, and, avowedly disregarding it, declared that the purpose of the act was the creation of a primary election law and “other purposes.” Under the cloak of “other purposes,” all and every conceivable ldnd of legislation could hide and thrive in the body of the act, and thus the constitutional provision be set at naught. In this state, when these words “for other purposes” are found in the title of an act of the state legislature they accomplish nothing, and in reading the title our eyes are closed to them. We then have before us, .tested by its title, an act dealing solely with general primary elections, and providing penalties for violating the law relating thereto. Any matters of legislation contained in the body of the act not bearing upon primary elections must go out; the constitutional provision quoted so declares. Weighing and measuring the legislation found in the act by this test, very many provisions have no place there. It would seem that the legislature, in using the words “for other purposes” in the title, used those words advisedly, and in good faith lived up to them fully. .For the legislation found in section after section of the act can .find no justification in its title, save under those words of boundless meaning, “for other purposes.”
Section 1 defines what are state, district, and local conventions of political parties. Section 2 declares that state conventions shall have power at their option to divide themselves into district conventions to nominate candidates for Congress, or other district nominees. Section 10 declares that, after a call for a primary election has been issued by the election commissioners, the governing body of any political party or organization desiring to secure a place upon the official ballot for its nom-
Section 1, article II, of the constitution provides: “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 every 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
‘ Before passing to an examination of the act itself for the purpose of ascertaining who are entitled to participate in the elections held thereunder, we will consider another matter closely allied to the question now under consideration. Among other things found in section 33 of the act, it is provided: “Any native born citizen who since the last general election has become of legal age, or any person who has become naturalized since the last general election, shall be entitled to vote at any primary election; providing, he has made application to have his name placed upon the precinct register of the county in which he resides, and of which he has been a legal resident for thirty days prior to any primary election.” It will be seen by this provision that all native born citizens who since the last general election have become of legal age, and who have been legal residents of the county for thirty days prior to the election, are entitled to vote.' It will also be observed that all citizens who have become so by reason of naturalization since the last general election, and are legal residents as aforesaid, are likewise entitled to vote. Under this provision citizens made so by naturalization upon the day next preceding the election would be entitled to vote. Such legislation is not a curtailment of the constitutional right of suffrage, but an enlargement of that right. That is, the legislature has attempted to extend the right of suffrage to certain classes of citizens outside of those classes mentioned in the constitution. If the legislature has such power, it could extend the right to aliens, to minors, to women. It has no such power. The legislature can no more extend the right of suffrage to persons not included in the constitutional provision than it can deprive persons there included of the right. The application of the maxim, '“Hxpressio unius est exclusio alterius,” bears with full force upon this provision of the constitution declaring who are competent to vote at elections authorized by the laws of this state. The legislation just quoted from the act bearing upon native born citizens arriving at the age of twenty-one years after the last general election, and citizens naturalized since the last general
Section 33 of the act provides: “Ho person shall be allowed to vote whose name does not appear upon the great or precinct register of the county, or the city and county, used at the last general election held before such primary election, in the precinct in which he desires to vote as a person entitled to vote in such precinct, or unless his name appears upon the supplements to such great or precinct registers.” Here is a direct, bald declaration that only those electors whose names appear upon the great or precinct registers, or the supplements thereto, used at the last general election, are entitled to vote. In section 33 we find that portion of the statute giving to certain naturalized citizens and native born citizens who have arrived at years of majority since the last general election the right to vote at the primary election, and providing the means by which they may have their names placed upon the register ; but this provision of the law we have already held void as violative of the constitutional provision bearing upon the qualification of voters. The same section also provides that an elector moving from one county to another since the last general election may secure a transfer of his registration; but there are no means provided by which he may have his name placed upon the register used at the primary election. Hence his transfer of registration avails him nothing. For no man may vote unless his name appears upon the register or supplement thereto.
Keeping in view the law’s demand that no person shall be allowed to vote whose name does not appear upon the register or supplement mentioned, we will enumerate the various classes of electors, qualified under the constitution to participate in elections, that are debarred from participating in elections held un
It will thus appear that the legislature has declared only those electors whose names appeared upon the great or precinct register of the county, or the supplement thereto, at the last general election, entitled to vote. If the legislature had enacted similar legislation as to a state or national election, it would have been so palpably void as to fall at the mere suggestion of its appearance before a judicial tribunal. Yet it would be a judicial absurdity to say that citizens of a state having the right under the constitution to participate in. state and national elections may he deprived by the legislature of-the right to participate in the elections authorized and fostered under this act. As before suggested, these elections are made mandatory by the law. Revenue is raised by the ordinary means of taxation upon all the property of the state to pay the expense of conducting them. Their exclusive conduct and management is taken from political parties, associations, and individuals, and placed in the hands of the state. Their validity can only be upheld upon the theory that they are matters of vital import to the general welfare of the state, and therefore matters in which every citizen and every taxpayer is beneficially interested. In other words, the legislature, believing a sound public policy demanded such a course, has made these elections a state institution. By the whole tenor of the act they are placed upon the plane of state elections, and in the consideration of the law bearing upon them must be so recognized. If the legislature has the power to deprive one class of constitutional electors of the right to participate therein, it has the power to deprive six classes; and, if it be conceded that it has the power to so legislate, of necessity an election thus held w'ould be a stranger
Section 17 provided that by the a»:-t oí -.:tiñg~ñi8-yofer declares as a test of Ms right to so vote a tuna fide, present intention' of supporting the nominees selected by the delegates there elected, and before voting an oath to that effect may be required. The power of the legislature to affix such a test to the right to vote will be alluded to hereafter; but, conceding the existence of the power, then all electors entitled to vote under the constitution, who are ready and willing to comply with this requirement of the law, have a common right to participate in such election, and any discrimination in favor of or against any class or individual is special legislation and prohibited by the constitution. For this reason, even if it be assumed that the elections provided for by the act are not elections recogmzed by the constitutional provisions which we have had under consideration, still the act must fall by reason of the special legislation to wMch we have here drawn attention.
The power of the legislature to establish a test for voters at any election presents a matter demanding the most serious consideration. If it were a state or national election, where state officers or presidential electors were chosen, no one would have the temerity to say that a legislative test could be invoiced. And the moment you recognize .the existence of power in the legislature to create tests in these primary elections, you recognize the right of the legislature to create any test which to that body may seem proper. While the test prescribed in this act may be said to be a most reasonable one, yet the right to make it carries with it the right to make tests most unreasonable. If the power rests in the legislature to create a test, then the power is found in a Democratic legislature to make the test at a primary election a belief in the free coinage of silver at the ratio of sixteen to one, and the same power is found in a Bepublican legis
For the foregoing reasons, the judgment is reversed and cause remanded.
- McFarland, J., Henshaw, J., Van Fleet, J., Harrison, J., and Temple, J., concurred.