129 N.W. 916 | N.D. | 1910
Lead Opinion
The name of appellant was regularly upon the ballot used at the primary election of June 29th, 1910, as Democratic candidate for nomination to the office of county judge of Cavalier county. At such election he received 341 votes, and there were no votes cast for any other person as ■ Democratic candidate for nomination to such office. These facts were shown by the abstract of the county canvassing board which canvassed the result of said primary election, and within a reasonable time after the preparation and filing of its abstract, appellant demanded of the defendant to this action as county auditor of Cavalier county that his name be placed upon the official ballot to be used in said county at the next general election as Democratic candidate for the office of county judge. This the defendant refused to do, and declared his purpose to omit the name of appellant from such ballot, stating as the ground of his action in the premises and the only reason and excuse therefor, that notwithstanding the fact that appellant receivéd the highest number of votes cast for any person for nomination as Democratic candidate for the office of county judge of said county; he did not receive a vote equal to 30 per cent of the total number of votes cast for the Democratic candidate for secretary of state, in said Cavalier county, at the general election of 1908. At such general election, it appears that Joseph Mann, the Democratic nominee and candidate for secretary of state of North Dakota, received a total vote in Cavalier county of 1,152, of which 30 per cent is 346. At the primary election of June 29, 1910, more than 346 electors of said county called for and psed .Democratic primary election ballots; but such persons voted for appellant to the number only of 341, as above stated.
After a formal showing of the facts hereinbefore narrated, appellant applied to and received from the district court for Cavalier
Upon the hearing before this court the- defendant justifies his declared purpose to omit the name of appellant -from the official ballot to be prepared by him for the general election- of November, 1910, by reference to that portion of the primary election act in force at the time, in these words: “If the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 30 per cent of the total number of votes cast for secretary of state of the political party he or they represented at the last general election, no nomination shall be made in that party for such office, but if 30 per cent or more of such vote is cast, and there is more than one candidate for any such office, the person receiving the highest number of votes shall be declared the nominee of such party for such office.” Laws 1907, chap. 109, § 12. Appellant admits that if this law is operative and applicable to nominations for the county officers, its provisions would appear to warrant the acts and attitude of defendant; but claims that that portion' of the act quoted above, in so far as it authorizes .the omission of appellant’s name from the general election ballot, is an unreasonable and unwarrantable exercise by the legislature of the police powers of the state, and is therefore unconstitutional and void.
The principal question presented by this appeal is not before this court for the first time. Two years ago, in a case presenting points that, in the abstract, seem to be identical with those of- the case at bar, a majority of this court concurred in holding: (1) That the provisions of § 12, chap. 109, Laws of 1907, apply to district and
It is now well settled that under the Constitution of this state, the legislature may adopt measures regulating the exercise of the elective franchise in the nomination of candidates by political parties, as well as in the election of public officers. It is equally well recognized and settled' that such regulation, must be just and reasonable, and operate on voters and candidates of the same class with substantial equality. This latter principle was unequivocally recognized in the decision in the case of State ex rel. Montgomery v. Anderson, and we accept it without material qualification. In applying it to a determination of the facts of this case, however, it is necessary that we should delve somewhat below the principle itself and determine the constitutional fundament on which it rests.
Thus examined it will be observed that at least three important provisions of the Constitution are interwoven more or less closely with the basis of this principle: (1) Intimately associated as is the elective franchise with the general rights of citizens, all attempted regu
Viewed in these constitutional lights, the reason underlying the principle that legislative regulation of party nominations must not only be just and reasonable in its requirements, but must-bear with substantial equality upon the rights of all groups or classes of citizens affected by its operation, is at once apparent. It is clear beyond question that in the concrete application to the facts of a case such as this of the foregoing principle, the term “classes,” as therein used, includes within its scope the respective political parties, not only in their state-wide organization, but in these smaller groups comprising the party membership in the different counties. Therefore, in failing to comply with the tests prescribed by this precept, such attempted regulation falls under the ban of “class legislation” pronounced against those laws that practically operate in such manner as to affect diversely various persons or aggregations of persons not differentiated from each other by any natural or reasonable lines of demarcation.
It is doubtless true that, notwithstanding constitutional inhibitions such as those contained in §§ 11 and 20, the legislature may provide a certain classification of citizens to be differently affected by the same general rule. The limitation imposed upon legislation of this character is, however, that any classification provided as the basis for distinctive or special operation of the law must be natural, not artificial. “It must stand on some reason having regard to the character of the legislation.” Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 725, 50 N. W. 970. “It must rest on some difference which has a reasonable and just relation to the act in respect to which the classification is proposed.” “It is not necessary that a law shall operate upon all alike, but ... it must operate alike upon all
Nothing more than a casual survey of the primary election law is necessary to demonstrate that it is not designed to operate with absolute uniformity upon the rights of individual citizens. On the other hand, from a consideration of its nature and the ends it purposes to effect, it is clearly apparent that its declared purpose can be carried out only through the medium of groups or aggregations of persons with little reference to individual rights. Under a system such as this, proper classification becomes a necessity. The classification prescribed by the law is somewhat complex, regulating, primarily, the respective rights of political parties in their entirety and in their relation to each other; and, secondarily, the rights and powers of that portion of each party in the state at large and in the political subdivisions thereof, authorized to give expression to the party will, in its relation to the entire membership, state or local, as the case may be. As classification, within the limits hereinbefore mentioned is permissible, the only further inquiry pertinent to our investigation is, Are the groups defined by the law differentiated from each other reasonably, and not arbitrarily, and is the relation of each group to the basis of classification constant, just, and natural?
Applying these tests, there can be no question but that the classification primarily declared on the well-defined lines of party organization is natural and reasonable. This narrows the field of our research to a consideration of the secondary classification by which is prescribed the means of estimating the entire party strength, and the proportion thereof, that in each political subdivision may declare the party will to make a nomination under the provisions of the law.
The reason that renders expedient a provision that 30 per cent of the party strength shall be represented in order to make a party
It is readily perceived that the character of that entity which serves as the basis of classification is an important and powerful factor in determining the quality of any reasonable system of grouping. If the
At this point in our investigation appellant invites our attention to certain statistical facts now a part of our public history, with reference to the practical operation of the primary election law, which bear with direct and material force on the controlling principle of our decision. At the general election of 1908, in Bottineau county, the Democratic candidate for secretary of state received 1,148 votes. At the primary election of 1910 the- highest number of Democratic ballots called for and votes in that county was 351. By the application of the 30 per cent rule 345 votes, or 98 per cent of the highest number of that party voting at that election was necessary to enable it to make a nomination for any county office- whatever. In Stark county the entire number of votes cast for the Democratic candidate for secretary of state in 1908, was 464. The Democratic vote at the primary election of 1910 was 150. As 139 votes were necessary to nomination, it required 93 per cent of the party vote cast at this election to nominate. In Morton county the vote cast for the Democratic candidate for secretary of state in 1908 was 908. The Democratic vote at the primary election of 1910 was 201. As the number required to nominate was 212, it would require 136 per cent or 36 per cent more than the entire party vote cast at the primary election to make a nomination. A discrepancy still more highly magnified between the party strength as ascertained by the provisions of § 12,, Laws of 1907, and that shown by the practical result of participation in an election, is that returned from Adams county where the vote cast for the Democratic candidate for secretary of state in 1908 was 182. The highest Democratic vote at the primary election of 1910 was 13. The rfumber required to nominate was 55, and in order to make a nomination it was necessary for the Democratic party to cast a vote equivalent to 424 per cent of its entire strength as demonstrated
It is urged that the comparatively small use of ballots prepared for the Democratic party at the primary election of 1910 is due to the fact that in all of these counties a large proportion of the members of that party, instead of calling for and voting the ballot provided for them, became so interested in the Eepublican nominations that they voluntarily called for and used Eepublican ballots instead. There is no proof, however, of such assertion, and to accept it would require that this court should presume that reputable and law-abiding citizens in large numbers, and in all parts of the state, deliberately violated the purpose and intent of the primary election law and laid themselves liable to certain penalties. We are not permitted to indulge such presumption as this. On the other hand, the inference that properly and naturally arises is that, pursuant to the provisions of the law, the members of each party called for and used the ballots provided for that party, and that the vote cast at the primary election of 1910 was a fair indication of the strength of the party in that county as it existed at that time.
It is further apparent that the vote of a party candidate for secretary of state at a general election is much more likely to be unduly magnified or diminished by causes that operate locally than the party vote at a primary election. It is a well-known fact that any candidate for a state office, without reference to his party affiliation, receives a vote in each county which increases or diminishes in direct proportion to his personal popularity in the locality in which the vote is cast. At a general election his náme appears in a party column on the ballot which is given alike to voters of all parties.
Whether or not it be true, as sometimes stated, that the law countenances rather than discourages the voting of a split ticket, it is unquestionably true that it provides every facility for the accomplishment of that purpose by the voter. The voter, screened from observation and outside influence, with the name of the candidates of all parties on the ballot before him, in his markings, may readily pass from one column to the other,.and, by voting for a candidate of a party
Whether or not in actual' fact the measure of party strength prescribed by the primary election law, in its relation to the party group authorized to declare the party will, produces results that in this manner shock all sense of reason and justice, we think it clearly appears that the vote cast for a party candidate for secretary of state, at a preceding general election, is not a .true, just, or stable basis for estimating the existing strength of .the party at a primary election; and that the party group authorized to make a nomination, whose numbers are computed at a percentage of such voté, does not in the different counties of the state stand in true, just, constant, and uniform relation to the actual party strength, the fact on which the classification provided by the primary election law is obviously designed to rest. If the means provided by the law operated to determine with reasonable accuracy the party strength, we might hesitate to hold that the requirement that 30 per cent of that strength be necessary to constitute an expression of the party will was unreasonable. The percentage seems large, but the legislature having so declared, this court could not in a matter of expediency “run a race with the legislature” and assume that its
In view of the foregoing considerations, it becomes necessary for us to hold that § 12, chapter 157, Laws of 1907, is not a just and xeasonable regulation of the elective franchise, and does not operate ■on voters and candidates of the same class with substantial equality. We regret that this conclusion operates to overrule the holding of the court upon the same point in State ex rel. Montgomery v. Anderson. .Such holding has been the law of the state for two years and more. • It is not a rule of property, however, upon which any party -could have acted to his pecuniary disadvantage during that period. It is merely a rule of construction which for obvious reasons may be ■changed with greater facility to accord with varying conditions and ■.the somewhat broader view obtained by this court from a more ad
The order of the District Court is reversed.
Dissenting Opinion
(dissenting). This appeal presents the identical question decided in State ex rel. Montgomery v. Anderson, 18 N. D. 149, 118 N. W. 22. In that case a majority of the court held that the 30 per cent requirement in the primary election law was intended to prevent the nomination of candidates by accident, and to prevent a nomination when the party did not intend to make one; to restrain the action of voters at primary elections within the parties to which they belong; and to define and fix the number of votes necessary to constitute an expression of the party, and to determine what is the act of a party as a party, and that, while undoubtedly simpler and perhaps more effective or reasonable rules and regulations might have been .provided than this provision furnishes, yet that that was a question for the legislature, and not for the courts, as long as the method provided was not clearly unreasonable, and that the feature complained of was not so unreasonable as to justify the court in holding it to be invalid. The different political parties accepted and acted upon the decision of the court in that case until the fall of 1910, when a political exigency and the fact of this court having in the meantime been increased in numbers by the addition of two members, furnished the appellant the occasion, as well as the excuse, for reopening the question. No new reasons for holding the provision invalid were advanced on argument, and it has been conceded that the position of the appellant and the opinion of the present majority of the court is without support by any reported authority. It is also conceded that the question of per cent is at most of trifling significance; that the same principle would be involved and the law equally invalid if the per cent were either considerably greater or materially less. The arguments presented were confined almost literally to the suggestions of Judge Fisk, made in the dissenting opinion in the Anderson Case. I construe them analyzed as resolving into at most
The proposition that the law is invalid because the legislature has not provided the most efficacious and the simplest method of arriving at or enforcing the principles in view, and the object sought to be attained by the provision questioned, requires but brief comment. If the legislative assembly were required to discover and only provide the wisest, most efficacious, or the simplest plan known for accomplishing the object sought to be attained, in all the numerous laws from time to time enacted by it, particularly those relating to the administration of the fiscal affairs of state and its various subdivisions, and the exercise of the right of franchise, one would be left in some, doubt as to the validity of most of our laws relating to such subjects. If any legislature ever attains that degree of superior wisdom and perfection which enables it in all such cases to see and affirmatively act upon the wisest method, it may well be held up to the attention of the civilized world as the only perfect and allwise legislative body known to history. I am unable to grasp any such principle. Apply this test to our revenue laws, as well as to many others, and I fear that they would shortly cease to operate, and the state and all its subdivisions would be found bankrupt. The logical, as well as practical, effect of adhering to this doctrine, would only result in disaster, as must be clearly apparent.
It is said in the majority opinion that, “by adopting this measure and declaring a constant ratio of 30 per cent between the number so determined and the number necessary to make a nomination applicable alike to state, district, and county offices, as before suggested, the legis
Notwithstanding the decrease shown in the vote of one party between the 1908 election and the 1910 primary, the members of that
Applying the reasoning of the majority opinion to these facts leads-to the further conclusion that the regulation or classification complained of was unreasonable in June, 1910, but on the return of the-voters to the party in November, 1910, this provision became reasonable again. If the question is one of determining when the party census must be taken on which to base a decision of the question whether a party has acted, or expressed its opinion as to candidates-for nomination, then it is purely a question of judgment. No party is likely to complain that it east a large vote at a general election. Its ground for complaint is not against the law when its membérs desert the party and participate in the nomination of the candidates of another party at the primary. Its primary remedy lies in the-direction of the advocacy of principles and the nomination of candidates which appeal to its members to lend them their support. The-logic of the situation is that the appellant in this case appeals to the-court to relieve him from the defeat occasioned by the inconstancy of the members of his party, or for the unattractiveness of the program which it presented to the -voters, or, what is more probable, disapproval of his candidacy. He asks this court to nominate him for
The vote at the general election of 1910, as compared with that at the general election of 1908, hardly indicates that an appeal on the second ground mentioned is necessary, but when the vote in November, 1908, and 1910, are compared with the primary vote of 1910, a shocking lack of party loyalty seems to be disclosed in a few localities. It happens on this occasion to apply to one of the great parties, but it is just as likely to apply to the other some other time. For this reason I am unable to discover that the mere circumstance of this applying to one party at this time, and placing it at a disadvantage in certain localities in certain matters only, is fatal to the law. As far as we know it may at this time apply to the other party also. As a matter of classification it is not questioned that some regulation is necessary, otherwise the number of party ballots to be printed at public expense would be innumerable. Any classification of this nature is in a sense arbitrary. The legislature might with just as great reason have fixed it at 29 or 31 per cent. The difference would be so inconsequential as to be unnoticed. But in my apprehension this question of classification has been reached from an erroneous standpoint by the majority of this court. The question is: Is a classification provided which operates with substantial uniformity as between the parties ? Not as between counties. Tet it does operate with substantial uniformity between counties or other subdivisions, because the same conditions effect the same result in one county as in another. The fact that one county casts less than 30 per cent, and another more, at the primary does not destroy the uniformity of application of the provision complained of. If neither casts 30 per cent, a candidate for neither party is nominated by the primary method. If the failure to nominte in any subdivision of the state resulted in a total failure of candidates for a party, or in the prevention of the organization of new parties, a different question might be before us, but as held in State ex rel. Hagendorf v. Blaisdell, — N. D. —, 127 N. W. 720, the law provides for new parties, and secures them the same privileges at elections that old parties have, and ample means, is provided for placing the names of candidates with their party designation on the ballot used at the general election, irrespective of the
The supreme court of Minnesota in State ex rel. Fitz v. Jensen, 86 Minn. 19, 89 N. W. 1126, passed upon a statute where the principle involved was identical with this, but the percentage was 10 per cent of the entire vote of the state, and the provision was held constitutional and in concluding its opinion that court says: “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 Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036, a case’ decided in 1910, the supreme court of that state passed upon a provision that excluded from the benefits of the primary election law, political parties casting less than 10 per cent of the entire vote of the state at the preceding November general election, and held that such classification and exclusion was not unreasonable, arbitrary, capricious, or partial.
See also Ladd v. Holmes, 40 Or. 167, 91 Am. St. Rep. 457, 66 Pac. 714.
These are only a few of the many authorities which might be cited,. Sustaining the decision in the Anderson Case, and they conflict with
Chief Justice Marshall said many years ago: “Let tbe end be legitimate; let it be within tbe scope of tbe Constitution, and all means wbicb are appropriate, wbicb are plainly adapted to that end, wbicb are not prohibited but consistent with tbe letter and spirit of tbe Constitution, are constitutional.”
Tbis principle must apply with far greater force to tbe powers of a legislature of a state, than those of Congress.
Another reason for affirming tbe judgment here appealed from is presented in respondent’s brief. Under circumstances of this case, I express no opinion regarding tbis point, but must call attention to tbe principle and some authorities sustaining it. Tbe principle is laid down, that where tbe statute bas been held to be constitutional by tbe appellate court, tbe community bas a right to expect with confidence that, in subsequent cáses, tbe court will adhere to its former decision, made after full argument and upon due consideration; and by some courts tbis principle is emphasized where an attack is renewed after a change in tbe personnel of tbe court. Fisher v. Horicon Iron & Mfg. Co. 10 Wis. 355; Gibbons v. Ogden, 17 Johns. 488; Amoskeag Mfg. Co. v. Goodale, 62 N. H. 66; Stout v. Grant County, 107 Ind. 343, 8 N. E. 222. Mr. Justice White, now chief justice of tbe Supreme Court of tbe United States, discussed tbis subject, in Pollock v. Farmers’ Loan & T. Co. 157 U. S. 608, 39 L. ed. 828, 15 Sup. Ct. Rep. 673, and I quote briefly from bis opinion:
“A distinguished writer aptly points out the wrong which must result to society from a shifting judicial interpretation. He says:
“Tf results and maxims of law were to ebb and flow with tbe taste of tbe judge, or to assume that shape wbicb in bis fancy best becomes
“The disastrous consequence to flow from disregarding settled decisions thus cogently described must evidently become greatly magnified in a case like the present, when the opinion of the court affects fundamental principles of the government by denying an essential power of taxation long conceded to exist and often exerted by Congress. If it was necessary that the previous decisions of this court should be repudiated, the power to amend the Constitution existed, and should have been availed of . . . the conservation and orderly development of our institutions rest on our acceptance of the results of the past, and their use as lights to guide our steps in the future. Teach the lesson that settled principles may be overthrown at any time, and confusion and turmoil must ultimately result. In the discharge of its function of interpreting the Constitution, this court exercises an august power. It sits removed from the contentions of political parties and the animosities of factions. It seems to me that the accomplishment of its lofty mission can only be secured by the stability of its teachings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its membership, it will inevitably become a theater of political strife, and its action will be without coherence or consistency. There is no- great principle of our constitutional