174 Wis. 120 | Wis. | 1921
The following opinion was filed February 16, 1921:
This is an original action brought in this court, pursuant to leave first granted, to restrain the county board of election commissioners of Milwaukee county and the board of election commissioners of the city of Milwaukee from acting under and pursuant to the provisions of sub. (8), sec. 5.26, Stats. The defendants interposed a general demurrer to the complaint.
The plaintiff contends that the section contravenes several provisions of the constitution and that by reason thereof it is null and void. The specific objections of the plaintiff to the validity of this statutory provision will be considered in detail in an opinion to be filed later. It will suffice for the present purposes to say that all objections urged by plaintiff to the validity of the law have received the consideration of the court, and it is now determined and adjudged that the said law is in all respects a constitutional and valid enactment.
The demurrer to the complaint is sustained and the complaint is dismissed on the merits.
The following opinion was filed May 3, 1921:
As stated in the per curiam memorandum heretofore filed, this is an original action brought in this court to restrain the county board of election commissioners of Milwaukee county and the board of election commissioners'of the city of Milwaukee from acting under and pursuant to the provisions of sub. (8), sec. 5.26, Stats. The
This presents an existing controversy and a situation calling for judicial cognizance independent of sec. 2687m, providing for the maintenance of equitable actions to obtain declaratory relief. No action under sec. 2687m has come before us, and when one does, questions concerning the constitutionality of the law will arise at the very threshold which will call for the most serious consideration of the court. Anway v. Grand Rapids R. Co. (Mich.) 179 N. W. 350. This observation is made for the reason that this action seems to be considered by the plaintiff as one brought under that section, and it seems best that it should be distinctly understood that the constitutionality of the law has neither been overlooked nor affirmed sub silentio.
“No candidate for any judicial, school, member of county board in counties having a population of two hundred fifty thousand or more, or elective city office shall be elected upon any party ticket, nor shall any designation of party or principle represented be printed on the ballot used at the election of any such candidate. The statement ‘a nonpartisan judiciary’ or ‘a nonpartisan superintendency,’ or 'a nonpartisan administration’ shall not be deemed a designation of party or principle within the meaning of this section. The election of members of such county boards, except as provided by subsection (5) of section 17.21 in cases of vacancy, shall be held and conducted in the manner provided for the election of judicial officers, except police justices or justices of the peace in counties having a population of three hundred thousand or more, and containing an entire judicial circuit for which more than one circuit judge is provided by law.”
Sec. 5.26 pf the Statutes provides for independent or non-' partisan nominations, and provides that such nominations shall be made by nomination papers, prescribes the form thereof, specifies where they are to be filed, etc. This is the manner in which the officers designated in sec. 6.24 are to be nominated. Sub. (8) of sec. 5.26 relates primarily to the officers specified in sec. 6.24 and provides, in effect, that where more than two candidates are nominated for the same office, a primary election shall be held two weeks prior to the regular election. The names of all those for whom nomination papers have been filed shall be placed upon the primary election ballot, and in each instance the two receiving the highest number of votes for each respective office shall be deemed 'nominated for such office, and their names and none other shall be placed upon the ballot at the general election as candidates for the offices for which they were nominated at the primary election. As it relates to members of the board of school directors in any city of the first class, it provides that this primal-y election shall be held" when
It is claimed by plaintiff that the legislation is unconstitutional because it amounts to special or class legislation, and that the classification has no basis germane to the purposes of the legislation. It is pointed out that in no other county of the state is this primary or elimination election provided for the officers mentioned in sub. (8) of sec. 5.26; that there is no substantial basis justifying a special election scheme such as is embodied in the provision under consideration for Milwaukee county. On the part of the defendants it is argued that the classification is justified by virtue of density of population in that county. This leads us to a consideration of the constitutional rights enjoyed by plaintiff as well as the power of the legislature to enact special legislation.
First, what are the rights of plaintiff' in respect to matters under consideration ? Manifestly, in the matter of elections of public officers he is entitled to the same right of suffrage that is accorded to all other electors of his election district, meaning thereby the territory from or for which a given officer is elected. He cannot be hampered or trammeled in the exercise of that right except as every other voter in the election district is likewise restricted. The law under consideration accords to him a right to vote in the same manner
“As often said and always conceded, our state constitution is not so much a grant as a limitation of powers; and hence the state legislature has authority to exercise any and all legislative powers not delegated to the federal government nor expi'essly or by necessary implication prohibited by the national or state constitution.” Bittenhaus v. Johnston, 92 Wis. 588 (66 N. W. 805), at p. 595.
Sec. 31 of art. IV of the constitution prohibits the enactment of any special or private laws in the cases therein mentioned, but there is nothing in that section which expressly or by the remotest inference prohibits the legislature from enacting special laws for the conduct of elections in the various communities of the state. In fact this was notoriously done when the legislature exercised the power of incorporating cities and villages by special act. The special charters incorporating such cities or villages included provisions for the holding of municipal elections. These were not by general laws but by special act. Sec. 31 of art.
Plaintiff refers to sec. 1 of the Fourteenth amendment of the constitution of the United States, which provides that “No state shall make-or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;” and to sec. 1 of art. I of the state constitution, which provides that “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” These constitutional provisions secure to every citizen the rights and privileges enjoyed by all other citizens similarly situated. He enjoys the right to vote for judicial and school officers of Milwaukee county in the same manner, at the same time, and with the same effectiveness that any other elector, of that county enjoys. No one except electors of that county are interested in the election of those officers. Neither is the plaintiff, who is an elector in Milwaukee county, interested in the election of similar officers in any other county of the state. He has no right to demand that an election for judicial or school
As to judicial officers and members of the county board of supervisors, it is urged that the legislation under consideration offends against sec. 23 of art. IV of the constitution, which provides: “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.” This contention, so far as it relates to judicial officers, may be disposed of by a reference to our former decisions, in which it has been settled that the judicial power of the state is separate and distinct from the system of county government referred to in sec. 23 of art. IV, and that judges are not county officers. State ex rel. Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475; Milwaukee Co. v. Halsey, 149 Wis. 82, 136 N. W. 139.
In counties having a population of at least 250,000 a supervisor is elected from each Assembly district. In other counties a supervisor is elected from each town, city, ward, and incorporated village. Sec. 59.03, Stats. Prior to the enactment of ch. 398, Laws 1907, the county board of supervisors in every county was composed of the chairmen of the town boards and a supervisor elected from each city, ward, and incorporated village. By the latter act it was
While the provision of sub. (8), sec. 5.26, Stats., relating to the election of school directors in cities of the first class is assailed as special legislation, we must confess our inability to appreciate the force of this contention. The general charter law provides for cities of the first class. Ch. 459, Laws 1907, provided that
“The public schools in every city of the first class, whether organized under general or special charter, shall be under the general management, control and supervision of a board of school directors, consisting of fifteen members from the city at large, selected as provided in this act.”
It was contended upon the oral argument that the law is unconstitutional because it provides for a nonpartisan nomination and election. In this connection it is maintained that the constitution protects and preserves political parties, and that any law providing for an election which deprives a political party of the right to put a ticket in the field and have the names of its candidates placed on the ballot in a manner to indicate their political affiliations is unconstitutional and void. The case of State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, is relied upon as firmly intrenching that principle in the jurisprudence of this state. In that case it was said that inherent in the right to vote “exists a right of persons to combine according to their political beliefs, and right, so far as not reasonably prohibited by law, of each group to possess and use freely all the machinery for increasing the power of numbers by acting as a unit — over the power acting individually, to effect a desired political end, — goes without saying. This, and all courts which have dealt with the matter, have so declared, and recognized that political parties with freedom of action, as broad as freedom of use of the elective franchise, to the end that the public welfare, for which governments exist may be best promoted, — are essential to our form thereof.” Page 16. A perusal of the opinion in that case, as well as the opinions in cases from other
The right of suffrage is secured by constitutional provision, and it is argued that in order to make this right effectual it is necessary to secure to the voter the right to express His views concerning governmental policies through the medium of a political party. This, of course, is on the assumption that group action on the part of voters, each respective group being designated as a political party, is essential under our form and scheme of government, as the establishment of principles rather than the choice of men generally enlists the primary interest of the voter. With this there can be no serious quarrel. But the question arises whether this be true if in the course of time, in the evolution of society and in the progress of governmental development, the preservation of political parties shall be deemed destructive rather than promotive of the public interest. We should bear, in mind that the express right preserved by the constitution is the right to vote. This right is coupled by implication with the institution designed and employed by society for its effectual exercise. As any interference with the instrumentality through which the right may be most effectually exercised, according to existing standards and ideals of society, impairs the right, the constitutional protection extends to such instrumentality as well as the right. The right is fixed and permanent, but as the agency through which it is exercised is an invention of society, it is subject to the changes inevitably wrought from time to time by social .and economic inventive genius. Society is in a progressive state moving on towards perfection. “The political or philosophical aphorism of one
The first legislation of this character was ch. 670, Laws 1907, which provided for a nonpartisan election in cities adopting the provisions of the law. From the optional form of the law it may be inferred that it was in response to a growing, although perhaps a divided, sentiment upon the question. The law was not compulsory upon all cities, but was made available to the municipalities where the public sentiment favored a nonpartisan administration of municipal affairs. Evidently sentiment upon the question developed rapidly, for by the provisions of ch. 11 of the special session of 1912 it was provided that “no designation of any party or. principle shall be used for any candidate for an elective office in any city on nomination papers or ballots at any general municipal election or primary therefor.” The act then provides the machinery for the conduct
In view of this unmistakable change of public sentiment, is it to be claimed that partisan politics must persist in municipal affairs because it is said that the continued existence of political parties is guaranteed by constitutional provision? We think not. We do not think an amendment of the constitution is necessary in order to substitute a nonpartisan for a partisan form of municipal election. In this we give the same force and scope to the constitutional provision under consideration in State ex rel. McGrael v. Phelps, supra, as was there accorded it. As already stated, the express right conferred by the constitution is the right to vote. This implies the right to make use of the vote in a most effectual manner. Under conditions existing at the time of that decision this implied the right to affiliate with, and to express one’s views through the medium of, a political party. So far as municipal elections are concerned, this idea is now repudiated by common consent, and the settled convictions of the people of this state now are to the effect that the end to be attained by the exercise of the right of suffrage, to wit, good and efficient government and the promotion of the general welfare, can best be attained in municipal affairs not through partisan politics but along nonpartisan lines. The same reasons, therefore, which have prompted this and other courts to say that the existence of political parties is protected by constitutional provision compel us to say that in municipal affairs a nonpartisan system of elections is likewise protected by virtue of the
Did the constitution expressly preserve the institution known as a political party, we could not arrive at this conclusion. But there is no such express provision. It is an implied provision with which we are here dealing — an implied provision which preserves to the elector the means through which the right may be effectually exercised according to the lights, standards, and ideals of the age. The constitution makes no attempt to define or give immutable shape to that instrumentality. The instrumentality, therefore, is not a constitutional device, but rather an invention of society, and as such is subject to such changes and improvements as the experience and inventive genius of society may devise. The instrumentality protected by the constitution is not one of specific and unyielding form and shape, but it is the most recent, most perfect, and most effectual instrumentality evolved by the experience and constantly increasing enlightenment of society. This court has said that implied provisions of the constitution are not as rigid and unyielding as the express commands thereof, and that they are to be interpreted in the light of the social and economic ideals of the time. This idea finds most lucid expression in the following language of the late Mr. Chief Justice Winslow in the case of Borgnis v. Falk Co. 147 Wis. 327 (133 N. W. 209), at page 349:
“Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevailing at the time of its adoption must have their due weight; but the changed social, economic, and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential*135 factors in the settlement of problems of construction and interpretation.”
This is also the reason why a decision of the supreme court of the United States declaring unconstitutional a law of the state of New York limiting the hours of labor for bakers (Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539) is not necessarily inconsistent with a later decision of that court declaring constitutional a law of the state of Oregon limiting the hours of labor of persons employed “in any mill, factory or manufacturing establishment.” Bunting v. Oregon, 243 U. S. 426, 37 Sup. Ct. 435.
The social and economic standards and ideals of the times unquestionably influenced those apparently conflicting decisions. During the interim from 1905, when the New York case was decided, to 1917, when the decision in the Oregon case was announced, scientific activity had demonstrated that there is a limit to the hours during which men and women may labor without deleterious results to health inimical to public welfare and future generations. Therefore, legislation substantially similar to that held to constitute an unwarranted interference with the right to contract in 1905, was held to be a legitimate exercise of the police power of the state in 1917.
Instances taken from the reports of judicial decisions could be multiplied to illustrate the influence which changed economic conditions and the varying ideals of society have had upon the interpretation of implied provisions of constitutions, or, perhaps more properly stated, to illustrate the character of implied provisions which the courts have read into constitutions, but to do so would prolong this opinion without serving any good purpose.
That part of the provision of sub. (8), sec. 5.26, relating to civil courts in Milwaukee county was first enacted as ch. 9, Laws 1911. It is contended that law- is unconstitutional because it was a private or local law, embracing more than one
The foregoing sufficiently indicates the reasons prompting the court in rendering the judgment heretofore entered dismissing plaintiff’s complaint.
