178 Wis. 172 | Wis. | 1922
Lead Opinion
The following opinion was filed November 8, 1922:
Counsel for plaintiffs state:
“The relators do not question the power of the legislature to regulate, within reasonable limitations, the nominations of candidates for public office; and they do not challenge the constitutionality of the primary election law in its entirety. They do contend that so much of sec. 5.17, Stats., as was inserted therein by ch. 477, Laws 1909,, and subsequently amended, and as purports to deny the use of the party column to party candidates for any particular office when the total vote cast at the primary for all party candidates for the particular office does not equal ten per cent, of the vote cast for the nominee of such party for governor at the last general election, is unconstitutional and void . . . because violative of secs. 1 and 22 of art. I*175 and art. Ill of the constitution for the reasons that in its practical operation and effect it is (1) unreasonably restrictive of the right of suffrage; (2) class legislation.”
They say that the ten per cent, clause is unduly restrictive because it makes the continued existence of a political party dependent upon a fluctuating, inconstant, arbitrary standard which is (a) not reasonably indicative of party strength and is (b) subject to influences brought to bear by forces without the party which result in violent fluctuations. Tables are presented of election statistics showing great fluctuations in the vote for governor both on the Democratic and Republican ticket for a series of years, and it is argued that the vote for governor is not a true test of party strength. A table showing the vote for President also shows large fluctuations, as well as votes for other state officials, and it is urged that in view of such fluctuations a vote for a given candidate should not be taken as a basis of party strength. It is also urged that where there is no contest in a party primary it is wrong to penalize it for not showing a ten per cent. vote.
These arguments and others were urged more or less strenuously in the case of State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, and were treated in the opinion of the court. As the law then stood a twenty per cent, vote was required and it was held constitutional. That case rules the present one. The only really new argument .here presented is that experience has shown that a party may fail to poll the necessary ten per. cent, and hence the law is unduly restrictive, and the case of State ex rel. Dorval v. Hamilton, 20 N. Dak. 592, 129 N. W. 916, is relied upon to sustain the argument. The reasoning 'of the court in that case does not appeal to us. It is to the effect that the constitutionality of a law depends upon, what has happened under it rather than upon a consideration of general principles applicable to the question. Were that so, then a law would be constitutional one day and the next it would be un
“The constitutionality of the law is not to be determined upon a question of fact in eadh case, but the courts determine for themselves upon the fundamental principles of our constitution that the adt of the legislature or municipal assembly is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.”
This in the nature of things must be so else a law would be constitutional under the facts found in one case and unconstitutional under the facts found in another. Or it would be valid today but void tomorrow because of the happening of an extraneous event. If such a view should obtain, the statute in question has been constitutional since its enactment in 1909 and until the Democrats in 1922 failed to poll a ten per cent, vote at the primary when it became unconstitutional. Such a test of constitutionality is unthinkable. That in the course of time oft-repeated experience may modify the judicial view as to constitutionality of laws is apparent; but it should not and cannot be changed because of a few isolated instances. Besides, one may well query the utility or necessity of a law whose violation is not contemplated. The legislature in fixing the ten per cent, of the vote must have had in mind that it would at times be violated. If made so low that it would probably never be violated, then it would cease to be a regulation. It would be a mere superfluity.
It is not intended in this opinion to restate the position of the court in State ex rel. McGrael v. Phelps, 144 Wis. 1,
By the Court. — The motion to quash the alternative writ of mandamus is granted.
Dissenting Opinion
(dissenting). As now declared by the majority, the actual, practical result of the punitive feature grafted by ch. 477 of the Laws of 1909 on to the original primary election law created by ch. 451, Laws of 1903, then entitled “An act to provide for party nominations by direct vote,” is to destroy the effective right to and to annul the good-faith attempt of the Democratic party in this state to make an effectual party nomination by direct vote.
This punitive amendment, therefore, when thus put into effect is directly contrary to the expressed purpose of the act. It punishes, not the faithless or the inconstant of any particular party or those of other parties who overload such party at a preceding election, but rather those who* have been steadfast in their party allegiance. It inflicts the penalty of either permanent or temporary party emasculation upon those who have striven to preserve party virility; verily a topsyturvy in the idea of penal statutes.
There are two things in this connection to which even a court cannot be blind: first, that there is no known method by which the bulk of the voters of a party can be held within its own ranks at all times, or to protect it from invasion by the members of other parties; and second, that if many with present or former Democratic affiliations voted the Repub
This amendment should be held unreasonable and void for further reasons. It has neither justice, uniformity, nor equality in its, classifications and treatment of the parties as such or of the individual voters.
It permits the Prohibition party, which has never had in this state to exceed 10,000 votes for its candidate for governor at any election during the last ten years and but 6,047 at the election of 1920, to now vote its separate party column designation, while the Democratic party, which cast over 19,000 votes in the gubernatorial contest in the primary
Again, while the 19,000 voters in the Democratic primary-just held are now disfranchised so far as. party standing is concerned, yet if members of a new organization wished to have a column with a new party designation they would have,had apparently needed, under sub. (6) (d), sec. 5.05, Stats., but one per cent, of the total vote at the election of 1920, that is less than 8,000. So the Prohibition party can float its party designation in its separately so designated column though polling less than 7,000 votes in 1920; a new party could have the same privilege if it had 8,000 votes so designated in 1920; yet the Democratic party, then casting over 200,000 votes and now over 19,000 votes, more than the total of such other two, is declared to be officially dead.
No valid reasons can be suggested why such permitted results are reasonable requirements or regulations either as to the parties as units or the individual voters concerned.
These objections-to this portion of the primary election law before us are not based upon any unthinkable proposition such as suggested in the majority opinion that this punitive amendment is like some shuttlecock betwixt the battledore of constitutionality at one election and the battledore of unconstitutionality at another; these objections are and were inherent and present at the time of the passage of the amendment and have remained there. That occasion has not of tener presented their unfairness and injustice in the application of them in concrete form adds neither force nor weight to any argument in their favor. These very features were discussed by the late Mr. Justice Timlin and Mr. Chief Justice Winslow in their dissenting opinions in the McGrael Case, 144 Wis. 1, at pp. 51, 54, 128 N. W. 1041. What those two Justices there said by way of argument and prophecy is now a demonstration. Similar views to those thus expressed were voiced by Bruce, C. J., speak
While political parties have their grievous faults they are nevertheless a recognized .institution in this state and nation for permitting the sovereign will of the people to find legitimate expression in a democratic form of government.
Such right to party existence is still recognized,, even though it may be, as to municipal affairs, taken away. State ex rel. Binner v. Buer, 174 Wis. 120, 130, 133, 182 N. W. 855. In this last cited case it should be noted, however, that all parties were alike treated to extinction in municipal affairs, and not as here where the ax falls upon but one party neck. Here a statute is being upheld which denies to one class of voters a right which is granted to other classes of lesser numbers. It is just the kind of an unwarranted tampering with a constitutional right as was declared in the case of Hopper v. Britt, 204 N. Y. 524, 532, 98 N. E. 86, to be invalid.
For the reasons above stated I cannot join in the prose requiem expressed in the majority opinion.
I am authorized to- state that Mr. Justice Jones concurs with me in this dissent.