120 Wis. 203 | Wis. | 1904
Lead Opinion
It is urged on the part of the relator that the democratic mass convention which nominated the defendant as its candidate for sheriff was an unlawful gathering, held in violation of ch. 341, Laws of 1899; that, being unlawful, there was, in fact and law, no nomination made by that convention, and consequently that the ballots cast for the defendant were improperly canvassed and should be disregarded. Omitting what is not here applicable, the particular provisions of the act relied upon declare that:
“Caucuses and meetings of political parties held for the purpose of nominating candidates or choosing delegates to assemble in convention to nominate any person for any public office, to be voted for at any general . . . election . . . and all meetings for nominating candidates or choosing delegates to conventions to nominate candidates to be voted for at such elections, commonly called caucuses unless held under the provisions of this act, are hereby declared to be unlawful, and no political party shall have its political ticket placed upon the official ballot, or canvassed at such election, unless*212 tbe nomination of its candidates are made in accordance with the provisions of this act.”
It is claimed that these provisions are mandatory and constitutional, and that they were improperly disregarded by the trial court.
Counsel for the defendant make two answers to such contention. One is to the effect that if the act must be construed as claimed on the part of the relator, then that it is repugnant to the constitutional right secured to every “qualified elector”' to vote “by ballot” for sheriff and other county officers, and by implication prohibits the legislature from, “excluding from the right of suffrage” any “qualified elector” except for crime. Secs. 1, 3, 6, art. III, Const., and see. 4, art. VI,, Const. The other answer is to the effect that the whole act, when fairly considered, only relates to the election of delegates and caucus conventions, and has no reference to mass, conventions, such as nominated the defendant, and that this is especially so when considered in the light of other legislation on the subject.
Such legislation seems to have commenced in 1893. In that year the legislature passed an act entitled “An act to regulate caucuses and conventions,” applicable, however, only to Milwaukee county. Ch. 249, Laws of 1893. A few days afterwards the same legislature passed an act entitled “An act.to consolidate and revise the statutes of'the state, relating to general elections, the conduct, canvass and returns of the same, and to secure the secrecy and purity of the ballot, and for other purposes.” Most of that act is still in force, as will lie found by reference to secs. 12-94/, Stats. 1898. Ch. 288, Laws of 1893. Two years afterwards another act was passed entitled “An act to regulate the nomination of candidates,” applicable, however, only to Milwaukee county. Two years-afterwards another act was passed entitled “An act to regulate the nomination of candidates,” and relating to “caucuses and meetings of political parties . . . commonly called.
Such were the general circumstances under which ch. 341, Laws of 1899, was enacted. The significance of that act is expressed in its title, which is, “An act relating to caucuses, and amending sec. 11a to sec. lli, inclusive, of chapter 5 of the Statutes of 1898.” As appears from the above quotation from the first section of the act, it deals with “caucuses and meetings of political parties . . . commonly called ■caucuses.” It defines caucuses, and prescribes the manner of calling -them and the length of time they shall be held open. Sec. 1. Every political party desiring to nominate candidates as therein provided is required to do so in the manner therein prescribed. Sec. 2, Id. It requires the respective committees to determine when and where the conventions of the political party it represents shall be held, and also the day upon which the caucuses of such political party shall be held. ‘Sec. 2, Id. Every section of the act pertains to caucuses. At all caucuses held under the provisions of the act all votes are to be by ballot. The duties of caucus officers and the canvass of votes cast at caucuses, and the manner of certifying the result, are prescribed, and punishment for bribery and failures of duty is provided. The act only provides for the amendment of the provisions of the statutes relating to caucuses. Ch. 341, Laws of 1899, made no reference to sec. 30, Stats, of 1898, which provides that “candidates to be voted for” at general elections “may be nominated . . . by a convention or primary meeting held for the purpose,
But there are other reasons why tbe act should not have such broad construction. Tbe next day aftér tbe governor approved ch. 341, Laws of 1899,= be approved another act, entitled “An act relating to tbe form of official ballots for general elections, and amending secs. 37, 38, 40, 51, 52 and subds. 1 and 3, sec. 57, Stats. 1898,” being cb. 349, Laws of 1899. If secs. 30, 31, and 41, Sta'ts. 1898, mentioned, are to be regarded as amended by implication, as claimed by counsel for tbe relator, then it is singular that no reference was therein made to either of those sections in a chapter ex-
“Candidates to be voted for at tbe elections to which this title applies may be nominated. . . . by a convention or primary meeting held for tbe purpose, consisting of an organized assemblage of electors.”-
Two years after that enactment, tbe legislature passed an act entitled “An act to amend sections 36, 37, 38 and 40 of tbe Statutes of 1898, as amended by chapter 349 of tbe Laws of 1899, relating to tbe form of official ballots for general elections,” being cb. 457, Laws of 1901; and yet no reference was made therein to secs. 30, 31, or 41 of tbe Statutes of 1898. Besides, in construing a statute, regard is to be bad to its purpose and object.
One of tbe objects of such caucus statutes manifestly was to secure to every political party having one per cent, of tbe entire vote cast in tbe county a place on tbe official ballot for tbe election of county officers'. Tbe statute goes further, and “in case of a division in any political party, and a claim by two or more factions thereof to tbe same party name,” maltes provision for securing a place on tbe official ballot by each of such factions. Sec. 35, Stats. 1898. In tbe case at bar there was no such division of the democratic party in Adams county. Nor was there any controversy as to tbe official ballot. That ballot was prepared by tbe county clerk in tbe form and in tbe manner prescribed by law. The name of tbe relator was upon it as tbe republican candidate for sheriff, and tbe name of tbe defendant was upon it as tbe democratic candidate for sheriff. All parties and all electors, appar
This makes it unnecessary to consider whether cb. 341, Laws of 1899, -would have been constitutional if construed as contended for on tbe part of the relator.
By the Gourt. — Tbe judgment of tbe circuit court is affirmed.
Concurrence Opinion
I concur in tbe affirmance of tbe judgment appealed from, but dissent from tbe reasons given in tbe opinion of tbe court. To my mind it seems plain that in cb. 5, Stats. 1898, was a complete scheme for tbe nomination of party candidates so as to entitle them to have their names placed on tbe official ballot, and for tbe preparation of official ballot forms and tbe use thereof by tbe electors. Sec. 30, though not using tbe name “caucus,” used what was understood to be an equivalent thereto and what was intended to include all methods of nominating party candidates that should be deemed lawful. Ob. 341, Laws of 1899, deals witb tbe same subject. It contains a complete scheme in respect thereto as regards tbe nomination of party candidates, and repealed all acts and parts of acts in conflict therewith except as regards counties having a population of 200,000 or more, and contained this unmistakable language as to whether it was exclusive or not:
“No political party shall have its political ticket placed upon tbe official ballot, or canvassed at such election, unless*217 tbe nominations of its candidates are made in accordance with tbe provisions of this act.”
By cb. 349, Laws of 1899, a companion law, cb. 5 of tbe statutes, aforesaid, in respect to tbe official ballot, was amended, revised, and re-enacted. By wbat authority can tbe court change tbe prohibition referred to, made, as it is, in language as plain as English words can express it, by reading out of sec. 30, Stats. 1898, a method for making party nominations not found in tbe act of 1899, and add it to tbe prohibitory clause thereof? I know of none. If tbe court may thus enter, as it seems it does, tbe domain of legislation, and make a good law out of a bad one, then the declaration -often found in our books, on tbe subject of tbe function of tbe court being confined to a declaration of tbe law and tbe ■enforcement thereof, not tbe making of tbe same, should be materially modified. I confess that this method of treating 'the subject is not legitimate if tbe law of 1899 is open to construction. My brethren assume that it is.' I am entirely unable to look at it that way. They refer to tbe approval by tbe .governor of cb. 349, Laws of 1899, the day after bis approval of cb. 341 aforesaid, as evidence that it was not intended by tbe latter to change that feature of sec. 30 of tbe ■statutes, upon which reliance is placed by appellant. But it 'is easily seen, as before indicated, that tbe two acts were companions. One related to tbe method of making party nominations in order to entitle tbe nominees to have their names placed upon tbe official ballot; and tbe other revised, amended and re-enacted the existing law on tbe subject of such ballot. Both together merely cover those two subjects in a different form than they were covered by cb. 5 of tbe statutes. Tbe obvious reason why sec. 30 was not otherwise referred to than by tbe prohibitory and general repealing clauses, is because it also covered tbe subject of individual nominations, which was not disturbed by tbe new law.
Beference is made to tbe fact that the day after tbe ap
It is said that the obvious purpose of ch. 349, Id., was to secure to every political party casting one per cent, of the votes at any election the right to be represented upon the official ballot at the succeeding election by complying with the law in respect to making nominations, indicating that it was not the legislative purpose to change that part of sec. 30 under discussion. Why so ? we may well inquire. My brethren do not seem to say why. I see no reason why such purpose is significant at all, since the same feature was fully covered by ch. 5 of the statutes. Nothing in that regard was added to existing laws by the new act. A new method of securing such purpose was provided for. That is all. I cannot understand how any significance whatever can be legitimately attributed thereto.
Again it is said that by ch. 457, Laws of 1901, the legislature acted on the subject of the form of the official ballot, without referring to sec. 30 of the statutes, and that such circumstance is significant. Why so ? The subject of the law of 1901 did not relate to the manner of making party nominations at all. It was confined to the form of the official ballot. It wa's amendatory of ch. 349, Laws of 1899, as the
The act of 1899, as above indicated, provided how party-nominations should be made, expressly declaring that if made in any other way they should be deemed unlawful and the-ticket should not rightfully have a place on the official ballot; and that if wrongfully placed thereon it should not be canvassed. That act should be taken as the legislature made-it, since it is so plain as not to be open to construction under the rules covering that subject. The responsibility therefor,, if it is unreasonable or violates constitutional limitations,, should rest where it belongs. One feature which is vital to this case, in my view of it, is that by which the legislature attempted to so provide that the votes of electors, though honestly cast in the manner provided by law, without any notice-to them of any infirmity in the execution thereof, should be-rejected as void in case of their being for party nominees whose names appeared in due form on the officia’* ballot, if' for some want of compliance with the statutory requisites in that regard they were not entitled to be there, notwithstanding the fact of the ballot being placed before the voter by state-agencies as being in all respects in conformity with law. The voters, in the instance before us, were compelled to make their ballots by using the form provided for them, and to treat such form, in expressing their will, in the precise manner therein indicated. Having done so, I think, barring fraud' participated in by such voters, all questions as to the right of the party voted for to have his name upon the ballot are foreclosed. They cannot, after the votes are cast, be inquired' into for the purpose of nullifying the voters’ will. So far-as the law in terms declares otherwise, it is a palpable violation of the constitutional right of every voter to cast his vote-for whomsoever he sees fit, and to have it counted. The decisions elsewhere to that effect, so far as they go, in my judg
The spirit of the above decisions, which I heartily indorse, is well stated in McCrary on Elections, § 706, cited by appellant, thus:
“These decisions proceed upon the principle that, in the absence of fraud, the voter who has had nothing to do with the preparation of the ballot, nor with matters preliminary to the election, should not be deprived of the right to have his vote counted because of the errors or wrongful acts of election officers.”
The adjudications thus far on the subject, though going in the main upon rules of construction or the doctrine of ■estoppel, as to contesting candidates for the office, might well be put upon the higher ground that the constitutional right of the elector to participate with effect in elections, so far as having.his choice of candidates regarded, is so far removed from legislative interference that he cannot rightfully be required, by any legislative act, to use a particular form in a particular way for indicating his choice, and thereafter have that choice disregarded because, perchance, of its being in favor of one whose name was not rightfully on the ballot form placed in his hands as correct; the wrong of the matter being wholly chargeable to public agencies. The feature of the act of 1899 attempting to do that, and upon which appellant relies, should be condemned as not law, though it is such in form. The right of suffrage is not a creature of the legislature, nor subject to its interference except by reasonable regulations to secure its safe, honest, intelligent, independent, unbiased exercise. Some regulations are necessary to the effectiveness of the constitutional guaranty, and of course are legitimate. However, attempts, under the guise of regulating the exercise of the elective franchise, which go beyond
“The constitution vests every person having certain qualifications at the time of any elections with the right of suffrage at such election. . . . Every one having the constitutional qualifications then, may go to the polls, vested with the franchise, of which no statutory condition precedent can deprive him. . . . Statutes cannot impair the right, though they may regulate its exercise. Every statute regulating it must be consistent with the constitutionally qualified voter’s right of suffrage when he claims his right at an election;” the theory thereof being “to guard against the abuse of the elective franchise, and to preserve the purity of elections.”
Speaking with regard to the effect of failure of public officers to properly execute the registry law prior to the election, upon the voter’s right, he said, substantially: If he were by the act made responsible for its execution so as to lose his right by nonfeasance or misfeasance of the public officers, of: which hé had no notice, it might be impossible to sustain it. Such nonfeasance or misfeasance could have no effect to impair a personal, vested, constitutional right.
Applying the foregoing to the facts of this case, the votes cast for respondent were properly counted, regardless of the-prohibition in the law of 1899 to the contrary. They were the result of the exercise of the elective franchise in the only manner permitted by law. The ballot form used was in effect;
