74 Neb. 776 | Neb. | 1905
The relator alleges, in substance, that the socialist party of Douglas county, a county having a population of more than 125,000, held a nominating convention on the 1st day of August, 1905, composed of the members of that party, and nominated candidates for county offices to be voted for at the general election to be held in November following; that a certificate was duly prepared by the officers of such convention of the nominations so made in the manner required by section 129, chapter 26, Compiled Statutes, 1903 (Ann. St. 5768); that a request was made of the respondent, the county clerk of said county, to receive and file said certificate of nominations, which he refused to do, giving as a reason for such refusal that such certificate of nominations was illegal and void, because not in conformity with the primary election act passed by the legislature of 1905, known as “Senate File No. 47,” providing
The act, the validity of which is challenged, is entitled “An act to provide for primary elections in counties having a population of more than 125,000 inhabitants, and to regulate the same; to provide for the nomination of certain candidates for certain offices at such primary elections ; to provide for the election of delegates to state, congressional and judicial conventions; to provide for the election of members of the state, congressional and county committees of the several political parties at such primary election; to provide penalties for the violation of the provisions of this act, and to repeal sections 117, 118, 119,120, 121,122, 123, 124, 125, 125», 1256, 125c, 125(7, 125e, 125/, 125g, 1256, 125», 125/, 1257c, 1257, 126, 127, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, of chapter 26 of the Compiled Statutes of Nebraska for 1903, so far as the same conflicts with the provisions of this and all acts and parts of acts in conflict herewith.” Laws 1905, ch. 66.
1. In determining whether the primary election law is valid, which is attacked by the relator, it seems necessary to first ascertain its general scope and effect, and how, if at all, it affects or has repealed the general laws theretofore in force providing for and regulating the nomination of candidates for public office by party conventions) and printing the names of such nominees on the official ballots to be voted at the general elections at which such offices are filled, such provisions being found in chapter 26, Compiled Statutes, 1903 (Ann. St. 5600-5868), under the title
2. Section 3 of the act under consideration provides that the primary election shall be held on Tuesday, seven weeks preceding the general election in November, and it is also. therein provided that “said' day shall be the first day for the registration of voters in all cities and such counties where registration is required.” In section 19 of the same act there is found, also, the following provisions relating to .the subject of the registration of voters: “In cities wherein registration is by law required, no voter shall re
The conclusion reached in respect of the matter last discussed disposes of the objection that only those who have registered at the last general election, except first voters and those moving into the precinct since such election, are permitted to vote at a primary election as therein provided for. It does not appear to have been the legislative intent to exclude from voting at such primary election those not having registered at the last general election, nor do we think it competent for the legislature to do so. Such election must be free to all who are otherwise qualified to participate therein. Where there is a failure to register, when good and sufficient reasons exist, this fact would not justify the disfranchisement of a voter at such primary. State v. Corner, 22 Neb. 265. The provisions for registration before voting, as we have seen, contemplated a registration on the same day as the primary election, and, those provisions having been eliminated, no obstacle in the way of registration or the absence thereof can prevent a voter otherwise qualified from casting a ballot at such primary election.
3. Section 32 of the act under consideration declares: “In no case shall the candidates of any political party be
Even though the construction contended for by respondent be permissible, very serious questions would arise as to the power of the legislature to prevent the selection at a primary of the same person as a candidate for a public office by more than one of the jiolitical parties, if the voters thereof so chose to do. Of this, however, nothing-more need here be said. The act relates to the holding of primary elections. Tin section under consideration has to do with the form and makeup of the official ballot to be voted at a general election, and is therefore, and for the reasons heretofore fully discussed, not embraced in the subject matter of legislation as comprehended by the title to the act, and is invalid and of no force or effect. It is manifestly amendatory to the law regulating the form of the official ballots, and is also special legislation, in that it Avould apply only to the official ballots to be voted by the electorate in counties only having a population in excess of 125,000. Its declared invalidity in no way affects the remainder of the act, nor does it appear to be an inducement to its passage.
4. It is contended that the act is void for the reason that its provisions are limited to political parties casting one per cent, or more of the votes cast at the last preceding election. In this connection it is to be borne in mind that, under the general election laAV as it now stands, and which has stood unchallenged since its adoption, a political party, in order to be entitled to a place for its candidates on the official ballot, must have cast a certain per cent, of the total votes cast at the last preceding election. It is true, provisions are therein found for the nomination of candidates by neAV political parties and by petition, regardless of the numerical strength of the party supporting such candidates. These provisions are yet preserved, and afford a simple method by Avhich candidates of a party of insufficient numerical strength to participate in a primary, may
It is quite true, we think, that when the legislature undertakes by laws of this character to regulate and control the internal affairs of political parties, and to determine the manner and method of making party nominations for public offices, it must do so without discrimination and Avith equal consideration and benefit to all. But it is equally necessary to recognize the, existence of political parties and to classify them by some convenient standard. The law would hardly serve its purpose Avithout some limitations and restrictions as to a party’s numerical strength. To say that any number of voters, however small, may associate themselves together as the embodiment of some political principle or policy of government, and be entitled to representation on the primary ballot, is to pave the way to endless confusion, and to destroy in a large measure the objects sought to be attained by such a law. The limitation as to numbers must be fixed at some point, and the requirement of a numerical strength of at least one per cent, of the total Aotes does not seem unreasonable, nor an unAvarranted restriction on the right of the membership of a political organization to be represented on the primary election ballots. In Ohio the same question arose with reference to the right of party nominees to appear on the official ballot to be voted at the general election. The supreme court of that state hold to the víoav that “the only question is whether the requirement of section 6, that a certified nomination shall be by a political party which at the last election ‘polled at least one per cent, of the entire vote cast in the state,’ is valid. Certainly, the right of a qualified elector to vote at all elections is secured by section 1, article V of the constitu
Indeed, a greater percentage than is here required is held to be a proper and valid exercise of legislative power to classify political parties for such purposes. State v. Jensen, 86 Minn. 19, 89 N. W. 1126. The requirement as to numerical strength in the case cited was ten per cent, of the total vote. The court, in speaking on this point, observes:
“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.”
In a later case the same court again expresses itself as follows: “The law is also constructed upon the theory that if, at any time, any political party previously in existence shall have become so enervated that it has no liv
We are of the opinion that the limitation complained of is a reasonable regulation regarding party nominations at primary elections, and that it does not infringe on the constitutional safeguards invoked as an insuperable obstacle to its validity.
5. By section 19 of the act the right of an elector to vote at a primary is made to depend upon his political affiliation with the party for whose candidates he desires to cast a ballot. It is therein provided that no person shall “be entitled to vote at such primary election until he shall have first stated to the judges of said primary election what political party he affiliates with, and whoso candidates he supported at the last election, and whose candidates he intends to support at the next election.” Provisions are also made for challenging any person offering to vote at such primary election, and for his making oath to the truth of the statements above required as to party affiliation and his support of candidates of the party with whom he is offering to vote. It is difficult to perceive any valid objection to provisions' of this character, when applied to a primary election law. These laws replace party nominating conventions. The regulation of the membership of the party and of the right to participate in the nomination of its candidates, in this respect, is taken from the party and placed in the control of the legislature. The integrity of the party and the success of its principles and policies can be best maintained by the participation in its affairs of those only who are at heart in sympathy with the objects and ends to be attained by the organization, and loyal to its tenets. An indiscriminate right to vote at a primary would tend? in
6. The more serious objection to the law, as we view the act as a whole, is the requirement of section 5 with reference to the fees to be paid by those who become candidates for nomination for office at the primaries therein provided for. It is declared that the fees to be paid for filing nomination papers “shall b.e computed at one per cent, of the emolnments authorized by law for the office to which such candidate aspires, during the term for which he would serve, if elected.” It is to be observed that the amount thus required to be paid before one can have his name submitted to the voters at such primary is fixed arbitrarily, and wholly regardless of the value of the services performed in filing the nomination papers. A person aspiring to be nominated for clerk of the district court would be required to pay, perhaps, $200. A candidate for the nomination of county clerk, probably, $40, other candidates for county offices different sums, ranging between the two extremes. Is it competent for the legislature to impose burdens of this character on
“The importance of the relation of the primary to the general election must be apparent. * * * Primary elections and nominating conventions have now become a part of our great political system, and are welded and riveted into it so firmly as to be difficult of separation. * * * It is as much an election law when it strikes at the fraud at the primary election as when it arrests the fraudulent ballot just as it is ready to be dropped into the box at the general election.” Leonard v. Commonwealth, 112 Pa. St. 607.
Nominations for public office are to be considered in a dual aspect. There is involved, first, the right of every eligible person to be voted for by any elector who desires to do so, and, second, the right of each elector to exercise choice among all who are eligible. “The two rights may be protected by the same legislation, but it is important to remember that there is involved, not merely the right of an individual to be a candidate, but the right of every other person to select him for the office; practically the feasibility of independent political movements depends upon the second right. Now these rights, like the right of suffrage, depend, for their effectual exercise, upon an appointment of time, place, and manner; and the legislature has undoubted power to make regulations for protecting these rights and insuring their enjoyment.” Wig-more, Ballot Reform: Its Constitutionality, 23 Am. Law Rev. 719, 730.
We should not, of course, confuse provisions amounting only to regulation, even though an inconvenience results, with such as, in a substantial way, interfere with the free
“The provision of this law which requires that, before the name of any candidate shall be placed upon the ballot at the primary election, such candidate shall on oath declare his purpose to become such, excludes the right of the electorate of the party to vote for the nomination of any man who is not sufficiently anxious to fill public station to make such a declaration. The man who may be willing to consent to serve his state or his community in answer to the call of duty when chosen by his fellow citizens to do so is excluded, and the electorate has no opportunity to cast their votes for him. * * * The authority of the legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. Attorney General v. Detroit Common Council, 58 Mich. 213. We cannot escape the conclusion that the provision in question does most seriously impede the electors in the choice of candidates for office, and that it is in conflict with the provisions of section 1 of article 18 of the constitution. It by no means follows that reasonable provision may not be made by legislation for an initiative in placing upon ffie ballot the names of those to be voted for,*793 as, for instance, by requiring a petition by a stated percentage of the voters of the party. But this provision goes further, and precludes the voters from choosing as a candidate one who declines to himself seek the office.” Dapper v. Smith, 138 Mich. 104, 101 N. W. 60.
In the case at bar it is at once apparent that the condition imposed with reference to the payment of what is termed a filing fee most seriously interferes with the right of the electorate to freely choose from among those eligible to office whomsoever they may desire, and that this, for the reasons given, amounts to an unwarranted hindrance and impediment to the free exercise of the elective franchise. This provision must therefore fall. The act as a Avhole does not, hoAvever, necessarily fall because of the part thereof held to be invalid. It yet remains complete and capable of enforcement. Unless these provisions, held to be invalid, were an inducement to the passage of the act, and without Avhicii it Avould not have received legislative sanction, the act, as a whole, should be permitted to stand. Whether or not such invalid provisions were an inducement to the remainder should be gathered from the act itself. Before we Avould be justified in declaring the whole act void and of no force, it should be made apparent from an inspection of it, having in view the legislative purpose in its adoption, that the invalid portion operated as an inducement to the passage of the law. The rule seems to be “that where the act itself includes tAVO distinct subjects the whole act must be treated as void, from the manifest impossibility of choosing between the tAvo; but that this rule applies only in those cases Avhere it is impossible from an inspection of the act itself to determine which part is void and which valid. When this can be done the rule does not apply, unless it shall appear that the invalid portion was designed as an inducement to pass-the valid, so that the Avhole, taken together, Avill warrant the belief that the legislature would not have passed the valid part alone.” Trumble v. Trumble, 37 Neb. 340.
“Where a statute contains provisions which are uncon
Applying the rule deducible from the authorities cited, we are constrained to the view that the invalid portion was not an inducement or consideration for the passage of the valid portions, and that the statute is a valid and enforceable act of the legislature, save with reference to the provisions herein found to contravene some of the provisions of the fundamental law. It follows that the writ prayed for must be denied, and it is accordingly so ordered.
Writ denied.