127 N.W. 720 | N.D. | 1910
This is an original application in the name of the State on the relation of Arthur Hagendorf and other citizens of North Dakota, for the issuance by this court of its writ commanding the •secretary of state to cause to be printed upon the official primary election ballot to be used at the primary election to be held throughout the state on the 29th of June, 1910, the names of the relators as candidates of the Socialist party for nomination to the several congressional and state offices, and directing the secretary of state to file the petitions of the relators, and print an official ballot of the Socialist party for such primary election.
Hule xxxix, requires a memorandum of authorities to accom■pany such application. The relators have filed a memorandum brief, but it cites no authorities in support of their contention and in no manner aids the court in reaching a decision of the very important •constitutional questions sought to be raised. No one appeared in behalf of the respondent. Under such circumstances this court would be .amply justified in declining to consider the application, and particularly so in view of the fact that it was not brought to the’attention of the •court until three or four days before the date when the ballots for "the primary election are required to be printed. Other courts have refused to decide grave constitutional questions in a summary manner on applications of this nature when no excuse was shown for postponing the application until a day so late that it became impossible to give it that consideration and devote to the subject that research which such questions require, and which the court is entitled to have the opportunity to make except in rare and imperative instances. Our first impression was that we would decline to issue the writ on this ground alone, but in view of the overwhelming weight of authorities .against the position taken by the relators and the apparent soundness of the reasoning of the several courts which have passed upon these or .analogous questions, we have concluded that we may as well settle it at this time on the merits. We, however, deem it proper to call the •attention of the bar to the propriety and the necessity of presenting applications which require the determination of questions of serious import, and particularly the construction of constitutional provisions, where nothing stands in the way of doing so, a sufficient length of time before a decision is necessary, so the court may fairly consider such
The legislative assembly in 1907 enacted a law providing for the nomination of party candidates for office in years when general elections are held by the people, in lieu of party caucuses and conventions. If we were to consider the object sought to be accomplished by the legislative assembly through such enactment, the reasons for our conelusions in the case at bar would be emphasized, but we deem it unnecessary to enter upon a discussion of the objects which the legislature sought to effect by the measure in question. They are well understood by the public. Much misapprehension and misconception of the primary election law is prevalent. The writer has heard it remarked many times that voters ought to have the privilege of voting for members of any party, or for members of no party, at the primary, and that votes cast for Democrats by Republicans ought to count toward the nomination of candidates of the Democrat party. All such ideas are beside the mark. The law is not intended to, and does not, provide for nonpartisan nominations. Its sole purpose is to provide for and regulate the nomination of candidates by political parties. Those who belong to no party or to parties not casting the percentage of votes necessary to bring them within the terms of the primary election law as parties, may proceed in another manner, as provided by statute, and their rights to become candidates, or to make nominations within their respective parties or political circles, are not infringed.
As we read the memorandum brief filed by the relators, we gather from it that it is sought to raise the question of the constitutionality, of § 10 of the primary law, chapter 109, Laws of 1907, which reads: “Any citizen, otherwise eligible by law, affiliated with or representing the principles enumerated in the national platform of the following parties, are eligible to nomination under this act; the Republican, the Democratic party, or any party designation that cast 5 per cent of the votes cast for governor at the last general election, and it shall be unlawful for any person to call for or vote a ballot at the primary election herein provided for, except a ballot representing the party or principle with which he affiliates. . . .”
It is apparent that this section limits the application of the primary
The question must he looked at from a practical standpoint. It appears in the application before us that the Socialist party cast less than the required 5 per cent for any of its candidates at the last general election, and there is no claim that, if the provisions of § 10 under consideration .are valid, their petition should be filed and a ballot printed as representing the Socialist party. It is urged that by the provisions of the primary law and of the Australian ballot law, which has-a similar limitation, the formation of new parties is prevented, and that on the organization of a new party, regardless of the percentage' of electors who compose it, it can never have a ballot representing such party at the primary or a separate party column on the ballot used at the general election. If this is correct we might be justified in holding the provision invalid, but we do not so construe the two laws. Section-501, Rev. Codes 1899, is still in force, and provides that candidates for. public office may be nominated by means of a certificate of nomina
We are disposed to think that tbe provision might also be sustained on tbe ground that it is a reasonable classification of parties. It has been sustained for that reason in some states. But it is not necessary to enter upon a discussion from that standpoint. See People ex rel. Breckon v. Election Comrs. 5 A. & E. Ann. Cas. 565 and authorities cited in note; Note 4 A. & E. Ann. Cas. 144.
Tbe application is denied.