144 Wis. 1 | Wis. | 1910
Lead Opinion
The following opinion was filed December 14, 1910:
The first ground of demurrer, counsel assume was passed upon on the application for leave to sue in this court. Not so, except so, far as to enable the parties to raise all questions by appropriate pleadings. However, no reason occurs to the court why it should not exercise jurisdiction, and, as counsel have not argued the matter, it is passed as usual without more than an incidental notice.
The second ground of demurrer challenges the constitutionality of ch. 477, Laws of 1909, in that it precludes any person from having his name appear on a general election official ballot as a party candidate unless he shall have received at least a plurality of the votes cast for the place at the preceding primary, and unless the aggregate of all his party votes for can
Tbe law must be considered witb reference to tbe requirement that tbe form known as tbe Australian ballot shall be used at an election.
This is tbe exact language to be examined:
“If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in tbe aggregate twenty per cent, or more of tbe vote cast for nominee of such party for governor at tbe last general election, tbe person receiving tbe greatest number of votes at such primary election as tbe candidate of such party for such office, shall be tbe candidate of that party for such office, . . .
“If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in tbe aggregate less than twenty per cent, of such votes so cast at such last general election, no person shall be deemed to be tbe party nominee for such office, but tbe person receiving tbe greatest number of votes at such primary as tbe candidate of such party for tbe office shall be deemed an independent candidate for such office, and bis name shall be placed on tbe official ballot in tbe column of individual nomination and be shall be denominated in such column as 'independent.’ ”
Thus no party can, in a special column, be represented by a candidate for an office at one election, unless, first, it shall have bad a party candidate for governor at tbe preceding general election; second, it has sufficient members in tbe election district in question, who have sufficient interest in party integrity to and do poll at tbe primary for all persons there competing for first place as tbe party choice for such office to stand as such on tbe official ballot, equal to twenty per cent, of the political party vote cast for governor at such preceding election.
It is suggested that tbe words “twenty per cent.” as written, point to tbe total vote in tbe state, and so make tbe law entirely unworkable and void. Manifestly, taken literally, tbe
The scope of judicial power of construction is strikingly illustrated in Neacy v. Milwaukee Co., post, p. 210, 128 N. W. 1063. A word expressing an idea, very obscurely, considering its location, was expanded by the addition of other words, the whole then transferred to its proper location as a qualifying clause, and another clause was transposed to its proper location, so that the collection of words which, read literally, was senseless, was made to serve the purpose intended.
The construction now required is not difficult. In one view the law does not need construction at all. It is a cardinal principle for reading statutes that words not used, but necessarily implied from those which are used, are as clearly a part
If the foregoing states the case too strongly in favor of the net, there are .other rules which accomplish the same result.
A highly unreasonable purpose; one which would clearly render a legislative enactment void for uncertainty or uncon•stitutionality, is never to be attributed to the lawmaking power if that can reasonably be avoided. It must be presumed as to a written law that some sensible legal end and some sensible legal means of accomplishing that end were in view. Therefore, regardless of how crude and obscure may be the forms of expression used by the legislature, the court should not tire of searching for its purpose and some sensible way of so translating the legislative language as to express it, without having exhausted all judicial power to that end.
To discover the legislative purpose in an enactment, hidden in obscurity, as has often been said, the court can and should consider the “surrounding circumstances, the existing condition of things, the evils to be remedied, the objects to be attained ” (Clark v. Janesville, 10 Wis. 136), “look at the whole and every part of the statute and the apparent intention derived from the whole, to its subject matter, to its effects and consequences, and to the reason and spirit, and thus ascertain the true meaning of the legislature.” Harrington v. Smith, 28 Wis. 43. Having discovered the evident legislative intent, the letter should be sacrificed, within the uttermost boundaries of reason, to effect it. Haentze v. Howe, 28 Wis. 293; State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N. W. 544; Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W. 422; Rice v. Ashland Co. 108 Wis. 189, 84 N. W. 189. To that end a disjunctive may be turned into a conjunctive, Att'y Gen. v. West
True, in construction, the boundaries between the judicial and legislative field must not be passed. The letter must not be unreasonably violated. In sacrificing it the court, to reach the intent, must proceed with reason. While it may supply obvious omissions, make transpositions, expand obscure words, reject unnecessary or improperly or inadvertently used words, and view words broadly or narrowly or commonly, according to circumstances, in the ultimate, the law’s vitality must be found in it and to have been reasonably placed there by the lawmaking power.
It is so very plain that the legislature did not intend any such absurd and revolutionary result as would follow from giving literal effect to its visible words; did not intend to speak of the gubernatorial vote with reference to the respective election districts, — the words suggested as in place, though not writ
It may be that too much time and space has been given to the subject of construction. But such attention was given thereto in considering the case, that it was thought best to treat the matter with considerable fulness, following' in that regard the points decided and promulgated before the writing of this opinion.
We now come to the points urged by counsel. The major proposition and the one dominating the whole, is that the law of 1909 materially impairs the right to vote, and is, therefore, an unconstitutional interference with such right.
In a logical treatment of such major proposition the nature of the right involved may well be considered. Without adequate understanding thereof one can hardly discover and appreciate its constitutional safeguards.
It is often said by judicial and elementary writers that the right to vote is not a natural right; that it is a mere privilege which may be granted or not, or granted upon condition and when granted taken away or modified; all according to the discretion of the lawmaking power, in the absence of express constitutional inhibition to the contrary. Eew are found who have ventured to challenge the doctrine that the right to vote is.more than a mere legislative privilege, in the absence of a grant in the fundamental law, which may not be strictly correct as it is generally understood.
The idea that the right to vote is no more than a mere privilege was announced early as a justification for legislative interference therewith, and has been unqualifiedly reiterated over and over again and with growing emphasis as such interferences have progressed in severity. Thus it was said by a divided court in Healey v. Wipf, 22 S. Dak. 343, 117 N. W. 521:
“The election franchise is not a natural right. It is a privilege which may he taken away by the power that conferred it; and the only limitations upon the power of the legislature*12 ■to regulate its exercise and. enjoyment are the express limitations found in the federal and state constitutions.”
The history of the subject shows that the idea is of foreign •origin. It existed here prior to the Revolution under our then borrowed system. It is a relic of the old world systems. Thus it 'will be seen in Frieszleben v. Shallcross, 9 Houst. (Del.) 1, the court reasons from the prevailing ideas and con■ditions prior to 1116.
The difficulty seems to have been in failing to distinguish ‘between fundamental limitations which the people, in forming .a government, may place upon a right and the creation of the right itself. So the idea took root that, — the change from the •old to the new system marked by the Declaration of Independence, the basic features of which have been incorporated into •every written constitution in this country and in none more significantly than our own, — did not change the nature of those things which had been commonly the subject of unbridled legislative interference, as if they were the mere creatures •of sovereign authority. So the idea persisted that the right in question, like the right to inherit and transmit property upon the death of its possessor, was in no sense a natural or inherent right. Such idea has been reiterated over and over .again and only been, if at all, doubtingly referred to now and then. The error as to the latter was repudiated by this court in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 621. I repeat what I wrote on that occasion, changed to fit the case. Error has often had the most distinguished of supporters. If it were true that error could be sanctified by mere weight of numbers or ability of its advocates, and given the character of infallible truth by the mere force of repetition, then the idea that the right to vote is not a right at all, except in the sense of a creature of law; that it has no inherent quality, — would long ago have taken such deep root that no one, much less a court, would hardly venture to make an effort to dislodge it.
Had the all-pervading concept of the Declaration, which
Formerly, in general conception, there were no rights,, strictly so called. There were privileges which came, directly or indirectly, by grace from sovereign authority. That was the crowning mischief of the Colonial period which was-sought to be removed. Hence, at the start, things essential to our welfare which had been enjoyed, so far as enjoyed at all, as privileges, were claimed as inherent rights, only surrender-able by the people, or subject to limitation by them by fundamental law. There the standard was reared of a new era, one of inherent rights, instead of sovereign graces. To emphasize and make that clear it was declared that all men are “endowed with certain inalienable rights,” specifying some, but not attempting to specify them all.
The word “inalienable” was, doubtless, not used in the-strict sense, because some rights referred to were commonly parted with or modified by consent. Appreciating that, doubtless, in most constitutions, ours included, the term “inherent” was substituted for inalienable, to denote, more accurately, the functional character of rights of members of a community in an unorganized state.
That the right, in the beginning, here to participate in governmental affairs by reasonable exercise of the elective franchise, was inherent, within the meaning of the fundamental declaration in the bill of rights, seems pretty plain. Hot inherent in the sense of inalienable and inseparable from the individual. Hot natural in one view, but, inherent in the same-sense as the right of self-defense and the right to acquire, hold, and transmit property are. Thus, it is conventional in the
The fundamental declaration referred to is the substructure upon which our whole constitutional system is bottomed. It breathes the all-pervading purpose of the whole body of fundamental law. Around and upon it are clustered all other things as subsidiary in a complete structure.
So when we come to see. 1, art. Ill, of the constitution,— in form granting the right of suffrage to every male person of the age of twenty-one years or upwards, under specified conditions, — it is to be read, in conformity to the general nature of state constitutions; as a limitation rather than a grant, and a prohibition as to all persons not recognized as falling within the limitation. Expressio unius est exclusio alterius. This general idea that the grant, in form, is really a limitation to one class and a prohibition to all others, conventionally agreed to in the formation of the government, has been many times judicially asserted in connection with the idea that the right to vote is not a natural right, but is a conferred right; the real logic of the whole being that, in so far as the right is constitutionally confined to a class, it is a created right; People v. Pearce, 27 N. Y. 45; People v. Baker, 48 Hun, 198, a right created by the people as a whole, acting fundamentally; exercising the function which is inherent in the people as a whole to limit, at least some rights, in their nature, inherent in the individual, especially that which, for the benefit of the whole, must be subservient to the right of society to conserve and promote the general welfare.
So the right to vote is one reserved by the people to members ■of a class and as so reserved, guaranteed by the declaration of
Thus is given the right to vote a dignity not less than any •other of many fundamental rights. So it has been rightly said by judicial writers, “It is a right which the law protects and enforces as jealously as it does property in chattels or lands. . . . The law maintains and vindicates” it “as vigorously as it does any right of any kind which men may have or enjoy.” State v. Staten, 46 Tenn. 233, 241. It is commonly referred to as a sacred right of the highest character and then again, at times, as a mere privilege, a .something of such inferior nature that it may be made “the football of party politics.” We subscribe to the former view, placing the right of suffrage upon the high plane of removal from the field of mere legislative material impairment. It has been not in-aptly characterized in these lines:
“A weapon, that comes down as still As snowflakes fall upon the sod;
But executes a freeman’s will,
As lightning does the will of God.”
Giving to the right to use the elective franchise its proper ignificance, it is yet subject to regulation like all other rights.
“No one can be so ignorant as not to appreciate the value,, indeed the necessity, of opposing political parties in a government such as ours. . . . No statement is needed in'the declaration of rights to the effect that electors holding certain political principles in common may freely assemble, organize themselves into a political party, and use all legitimate means to-carry their principles of government into active opei*ation through the suffrages of their fellows. Such a right is fundamental. It is inherent in the very form and substance of our-government, and needs no expression in its constitution.” Britton v. Board of Elec. Comm'rs, 129 Cal. 337, 61 Pac. 1115.
The rights involved, however, said the court in effect, are-within the constitutional guarantees, state and national. “Self-preservation is the right of political parties as well as individuals.” Freedom to do those things reasonably, appropriate to the effectual maintenance of party organizations; and use thereof to accomplish legitimate party ends, — cannot be abridged any more than can the right to vote. The limit of legitimate interference, as to the latter, is necessarily the-limit as to the other, so far as the question of power is concerned.
It has become elementary that constitutional inhibitions of legislative interference with a right, including the right to vote and rights incidental thereto, leaves, yet, a field of legis
It is further elementary that, the extent to which the legislature may go in the field of police power, is primarily a matter for its judgment. As to the case in hand, the same as others, it could not properly go beyond reasonable regulation. However, what is and what is not reasonable, is primarily for legislative judgment, subject to judicial review. Such review does not have to do with expediency. It only deals with whether the interference, from the standpoint of a legitimate purpose, can stand the test of reasonableness, all fair doubts being resolved in favor of the proper exercise of lawmaking power.
In the exercise of police power two questions are involved. First. Is the purpose legitimate ? Second. Are the means employed to effect the purpose legitimate ? If the former be legitimate and the latter reasonably adapted to effect the former, the law is entitled to judicial approval, otherwise not.
The first essential mentioned is wholly within the judicial field. That is, whether a legislative effort has relation to a proper subject of police authority, the court must decide. True, such a degree of care to avoid unduly putting up a barrier to the exercise of lawmaking power, is to be used, as not to raise the standard of constitutional prohibition iu any doubtful case. The second essential, as suggested before, is particularly legislative discretion. So the range of methods of interference is necessarily as broad as the uttermost boundaries of reason. Abuse of discretion so clear in the field of fact as
The foregoing leads up to the question, peculiarly, as said, within the judicial field, viz.: "Was the purpose of the act in. ■question legitimate ?
It was not supposed that there was doubt but what party •representation upon the ofiicial ballot is a proper subject of police regulation. Granted, as we do, that the right of such representation exists and that it is within constitutional guarantees as necessarily incident to the right to vote, it was thought that the incidental matter, as well as the primary one, was not independent of reasonable legislative control. Counsel for plaintiff do not seem to insist to the contrary; contenting themselves with contending that the mannep of regulation is destructive. But, it has nevertheless been suggested that the right of regulation does not extend to discriminating between political organizations in respect to their use of the ballot, according to significance in membership; especially so far as to make the party vote at one election for a particular candidate a standard by which to measure sufficiency of party membership, as evidenced by the showing at the succeeding primary, — to entitle the favored party candidates at such primary to party location upon the official ballot at the succeeding election; thus affording party use of the ballot to some organizations with the obvious advantage of facilities for team work and denying it to others. The idea is that a party organization, however small, representing principles fairly differentiating it from others, is entitled, as matter of constitutional right, to equality with any other, however large, as regards use of a party ballot.
The idea suggested, should it prevail, would, in all circumstances, nullify any legislation affording a different use of the ballot to some political organizations than to others. It is a radical proposition which has not been passed without consid
That doctrine is not without its attractiveness. It makes a strong and disturbing appeal to the conscience and the reason of the writer and his ideals of a people’s government of their own creation as enshrined in our constitutional system. The standard of fundamental liberty and equality which I believe to have been planted in such system, as to the time-honored method of promoting and vitalizing cherished governmental policies by party organizations, and party efforts, and party methods of party representation upon party ballots, I would not voluntarily lower any more than I would consciously violate my oath of office. Whether legislation has not in some cases, and whether it has not in this case, endangered, if not lowered that standard, admits of doubt. I say this for myself alone.
In considering the question of whether there may properly be limitations of some sort to party enjoyment of a party ballot, we must face the fact at the outset, that the use of an official ballot, the so-called Australian form, containing all parties as well as individual or independent appeals to the favor of voters, — has been generally recognized as fundamentally right. The contrary is not claimed by counsel for plaintiff and is not claimed, as I understand it, by any member of the court who disagrees with the majority. On the question of whether ballot reform did not go too far in preventing politi
In view of tbe foregoing it bas commonly been thought that •some test of party capacity, having reference to numbers, for ■representation on tbe official ballot is necessary. Otherwise tbe number of parties and names of candidates might be so great as to render tbe single ballot sheet unsuitable for exer•cise of tbe constitutional right to vote. As we understand it, •counsel for plaintiff concede this and cite cases to that end. Nevertheless we are led not to pass over tbe subject without attention, because of questions raised here. This branch of tbe case, it seems, is not open to fair controversy, if we may properly consider tbe door closed by decisions elsewhere. In State ex rel. Hagendorf v. Blaisdell (N. Dak.) 127 N. W. 720, it was very recently decided that a legislature may, within reasonable limits, determine bow many voters, acting together for tbe purpose of making nominations, shall be entitled to a party ballot. Tbe court reasoned that otherwise
It follows, logically, that the legitimacy of legislative regulation, in the field under discussion, must be tested with reference to appropriateness of ends sought to be attained and also of means to such ends. We would not venture to suggest all the ruling ideas which the legislature indulged in, but several, it is thought, are quite plainly apparent, including the one already suggested, and as regards minor districts as well as the state at large, as we will argue a little later on.
Looking at “the surrounding circumstances,” the “existing condition of things,” “the evils to be remedied” or prevented, “the objects to be attained,” the history of the particular subject, the recognized importance to the public welfare of opposing political parties representing differing governmental policies with such high degree of fidelity of membership to principles as to incline them to promote principles rather than mere personal ends, and of electors intelligently and conscientiously using their valuable constitutional right as well as possessing it; these three purposes stand out in bold and unmis
That a legislative minimum of political significance to entitle a party to a special place on tbe official ballot, is necessary to keep, so far as practicable, tbe ballot sheet witbin a workable size, as before suggested, seems not to need vindication by argument. Conceding that, then, clearly, such minimum should not be so large nor of such character as to unreasonably prevent tbe formation of new parties, or necessarily tend to afford one of substantial character, as to numbers, less opportunity for efficient existence or competition for tbe favor of voters at large, than any other, however large, by reason of inequality of capacity to use a party ballot. Such inequality of right, as we have seen, would, of itself, be a fatal interference with fundamental rights. Likewise would such interference with reference to relative significance as to materially impair tbe essentials of equality of opportunity; so long as it operated to exclude tbe smallest party of substantial membership and significance from enjoying the party ballot, or tbe smallest group of electors, rightly regardable as of substantial significance as to numbers, from forming and efficiently maintaining a party organization, and to that end competing for public favor by party candidates presented on a party ballot, as by having its special party column on tbe official ballot sheet. All that is contended for on behalf of plaintiffs. Tbe principle itself meets with our unqualified approval. Citations in support thereof from other jurisdictions are unnecessary. ¡We deem it to be elementary. Any
Assuming, for the time being, that restrictions upon the liberty of party candidates for office for the respective election districts voted for at the primary to have their names placed on the official ballot, fairly and substantially, promote restriction of the general election ballot sheet, to a reasonable compass, which was doubtless the legislative idea, — is the minimum of representative party significance, written into the law of 1909, excessive ?
How large the membership of a political party organization should necessarily be, as regards a particular election district, in order to be fairly regarded as substantial, and how long-such organization should at least have existed before it can fairly be regarded as having substantial existence as to the respective election districts; are questions of much difficulty. Por that reason the range of legislative discretion is necessarily large; and the boundary between the unreasonable and the beyond room for fair doubt, and the extent of the region of mere doubtful; is not easy to discover.
In the judgment of the writer, the somewhat neutral ground in this instance was invaded by the legislature. In the extreme to which the act goes, the lawmaking power traveled beyond the line of danger. Whether they did not even traverse the region thereof and beyond into the field of fatal impairment of sacred rights, I do not consider free from difficulty.
The law, as we have seen, makes an aggregate of votes cast at a primary for all candidates for a particular office in a particular election district, equal or more than twenty per cent, of the total votes cast in such district for the party’s nominee for governor at the preceding general election, — the standard by which to test substantial party status. It assumes that if party fealty does not so persist, or exist, as to efficiently move an elector in any district to record his vote at his primary, he should not be counted in determining such status. Is that
Some standard of comparison is certainly necessary. That is tbe logic of every situation to be measured. As principles are not supposed to spring up or pass out of existence suddenly, or, in general, to be momentarily tbe basis of worthwhile political organizations, but to yield slowly to new conditions having naturally a considerable period of development into recognizable materiality, and applying differently, but changing slowly in that regard, to changing importance of old conditions; a party vote in the state at large would seem not to be an unfair point of view from which to view the field, and the party vote for the office most likely to indicate the maximum of party members not to be unfair as a basis from which to determine the unit of measurement. Can the party membership, so far as represented by its candidate for any particular office in an official district, fall below one fifth of such maximum and still be said to persist as a substantial organization of such significance as to numbers, as regards such district ?
If the questions suggested were to depend on the general trend of analogous legislation and judicial approval elsewhere, they would have to be resolved in favor of the law before us. In State ex rel. Hagendorf v. Blaisdell (N. Dak.) 127 N. W. 720, a numerical test to entitle an organization to a party ballot and name party candidates, equal to five per cent, of the total vote for all candidates for governor at the previous general election, was held reasonable. Prior thereto,
In DeWalt v. Bartley, 146 Pa. St. 529, 24 Atl. 185, a law requiring a party, in order to have party representation on tbe official ballot, to have polled ten per cent, of tbe total vote at tbe last general election, was sustained. It was said that some sucb regulation was absolutely necessary, as an accompaniment to tbe law requiring use of tbe Australian form of ballot; that tbe right to vote is an individual right; that tbe right to nominate is primarily a party right, and necessarily requires, in order to have substantial significance, that there should also be a party of significance, otherwise a few persons could assume to be a party and successfully demand use of a party ballot, — as tbe Three Tailors of Tooley Street assumed to be tbe “People of England,” — resulting in tbe scheme of an official ballot being a failure “as tbe ballot would become tbe size of a blanket.”
In Miner v. Olin, 159 Mass. 487, 34 N. E. 721, a similar law was sustained by tbe procéss of reasoning indulged in by tbe Pennsylvania court.
In State ex rel. Fitz v. Jensen, 86 Minn, 19, 89 N. W. 1126, a law was sanctioned requiring a political party to poll ten per cent, of tbe total vote, at one general election, in order to have a party place for its candidates on tbe official ballot at tbe succeeding general election.
So it will be seen that precedents are wanting as to the precise question under discussion. Really, precedents could not well be helpfully controlling under the circumstances. The question must be decided on principles applied to the peculiarities of our own law. In that respect we are unable to conclude either that the basis for measuring party significance at the election preceding the primary, or the basis for measuring its significance in prcesenti, is so manifestly destructive of party integrity and individual rights to efficiently participate in collective political effort, as to be fatal to validity. Here again I feel constrained to record my judgment that the legislature traveled upon dangerous ground in going as far as it did.
We cannot doubt but what the particular feature of the law ’ under discussion was thought by the legislature to be means of promoting reasonable restriction of the size and complica-1 tions of the ballot sheet. It may well be thought that such' idea was the dominant one. It has been suggested that it was such; that it is illegitimate because it will not promote the end in view at all; as does a law providing that a political party
The position last indicated is not so free from difficulty that we can well pass it without serious attention. Erom the viewpoint of party solidarity for the state, only, one may reasonably come to the conclusion suggested. But we must face the condition the legislature had to deal with. A condition respecting political parties, not so important from the standpoint of minor official districts, as from that of the major thing; the state as a whole, yet one which could not be abolished by the legislature.
The condition above referred to is that, in general, a political party is made up of units down to those severally composing the smallest official district each of which, while forming •part of a state-wide organization, has an individuality of its own. A political party of the state, as a rule, means a like party for each congressional, senatorial, and assembly district, and for each county, town, city, and village. Whether these minor individualities, for mere local purpose, though having very much less of the importance, or, generally, none thereof, which make state and national parties proper subjects of legal protection, in that the latter only have to do with shaping of public policies; might well be a very fruitful source of expanding the official ballot sheet beyond all reason, — the legislature undoubtedly thought so. It would not be our province to condemn its judgment in that regard unless it appeared to be manifestly wrong. But on this, with due deference to the views of those who think to the contrary, we do not regard it as involved in the region of doubt.
A regulation restricting use of a party place on the official ballot to the local party unit, according to whether the organization, locally, has a legislative minimum of significance,
It must be remembered that party existence does not cease merely because the party at a particular primary election does not cast votes enough to elect a candidate with competency to have his name placed on the official ballot at the succeeding election, as its duly elected candidate for governor. The way is still open to the party to secure a place for its candidate with his party designation, and if he receives, at the election,, one per cent, of the largest vote for his party for presidential elector at the last preceding presidential election, that will give the party the requisite status to compete at the next primary for a party place on the succeeding election official ballot. Thus it will be seen, representation on an official ballot at one general election by a party column filled with party candidates,, is not necessary to continued party existence. The law provides that “Any political organization which at the last preceding general election was represented on the official ballot by either regular party candidates or by individual nominees, only,” may have recognition as a party on the official ballot at the next primary in any district — where “any of its candidates or individual nominees received one per cent, of the total vote cast at the last preceding general election” — by complying with the ordinary conditions. Oh. 451, Laws of 1903. This we may say, in passing, is a fairly good answer to the suggestion that there is no way of forming a new political party under the present system. It will be seen that not.only is there a way for the creation of party status without pre-party representation in a special column on the official ballot, but a way by which a very small showing of strength at one election will create capacity to compete for all the advantages of a party ballot at the next primary and the next general election.
If the disposition thus made of what seems to have been the
One of the most significant cases of condemnation of a primary election law as unconstitutional, was because of its not providing safeguards against members of one party invading the primaries of the other. Britton v. Board of Election Commissioners, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. With our common knowledge of the intensity of interest which members of a party take in maintaining its importance "before the people, it is not difficult to see that the menace of not having the party ticket on the official ballot, in the absence ■of a specified showing of strength made at the primary, would naturally be very forceful in preventing them from violating their party faith for the time being, quite as efficiently to the desired end, if not more so, than many o'f the regulations to such end found in the various statutes on the subject. It may "be that this particular purpose, itself, might be a sufficient reason for not condemning the law as manifestly unfair.
The third minor province of the regulation law; that of stimulating exercise of the elective franchise at the primary, is entitled to much weight. This again might, itself, be sufficient to at least place the validity of the law in the realms of ■doubt and save it from judicial disapproval.
The trend of constructive thought is in the direction of stim-;
So we need not, necessarily, rest the law upon the legitimacy and sufficiency of what may have been the dominant legislative reason for it. Lay that aside, if we may, though we think we cannot, yet, we cannot condemn the law within the rules governing the subject. Taking the three reasons discussed, and it is not unreasonable to suppose there may have been others, in legislative contemplation, we can well say that the extreme of legislative discretion was not overstepped.
All objections to the law suggested by counsel or in our consultations we have endeavored to treat. The idea that the purpose of the law was not regulative, but was to destroy. minority parties, retard or prevent formation of new parties, and promote the supremacy of the one in power in prcesenti, has not passed without notice. True, no law should be spread upon the statute books by the force of one party because of its-happening to be for the time being in control, having the semblance, from any fair viewpoint, of perpetuating its supremacy, or materially interfering with the good-faith organization and efficient existence of any other party composed of a substantial number of citizens, or which will necessarily or materially have that effect. If the ostensible purpose of the law of 1909 were manifestly not its real purpose, it would emphatically meet with judicial disapproval. In case of serious
This does not need to be closed by a formal order for judgment sustaining the demurrer and dismissing the complaint as such order was made following an announcement of points decided in advance of the preparation of this opinion.
The following opinion, entitled both in the case of State ex rel. McGrael v. Phelps and in that of State ex rel. Hanna v. Frear (see post, p. 58), was filed December 14, 1910:
Dissenting Opinion
(dissenting). These are two actions commenced in this court under the original jurisdiction thereof to. require the names of relators to be placed in the Democratic party column upon the official ballot at the ensuing election, notwithstanding the requirements of ch. 477, Laws of 1909, alleged to be unconstitutional. One of the actions is for a writ of mandamus against the secretary of state, the other against the county clerk and the board of canvassers of Milwaukee county. They may be considered together.
I readily agree with the majority of the court that — ■
“The declaration of rights contained in sec. 1, art. I, of the constitution is a prohibition, by necessary implication, of legislation inconsistent therewith.”
“The right of suffrage includes the right of voters to separate into groups according to their political beliefs respecting governmental policies, and the right of every group to organize and have all the machinery in that regard not reasonably prohibited by law for making the organization effective as regards declaring the policy of its members, and vitalizing such policies by electing officers in harmony therewith to legislate and execute law to that end.”
*34 “Every legislative interference with freedom on the part of voters to form political organizations and to act under their chosen party names to accomplish the purposes of the organizations, is at the same time an interference with the right to vote, so the limit of [legislative] power as to the one is substantially the limit of [such] power as to the other.”
“The office of regulation of the right to vote and the rights incident thereto being to conserve and promote efficiency, any so-called regulation which goes clearly beyond the boundaries of conservation into the field of impairment or destruction, is unreasonable and inhibited by the constitutional guaranty of the rights of suffrage and [the] inhibition of interference with inherent rights.”
If the decision of the court were in conformity with these declamatory statements there would be no occasion for this dissent. The actual disposition of the case, however, tends to subvert rather than protect these rights. I am not one of those who believe that the perpetuity or solidarity of any particular political party is essential to free or beneficent government. At the same time a political organization in which electors of common political belief mass themselves in favor of or against some man or measure is in a populous republic necessary to the full and effective exercise of political power by the people. In this sense “party” is desirable and necessary. It is only in the crudest form of representative republican gov-eminent that the electors vote merely for men. It is only the most ignorant and undesirable vote that is given merely from motives of personal loyalty to a chief. The way of progress is in the direction of voting for or against measures rather than men. In the great enlightened countries of the world this is accomplished by the institution of a responsible ministry representing the political party in power. This ministry proposes legislation, and the legislators in voting thereon pass, quite freely from one party to the other according to their views on the proposed measure. If the differences are serious and the party in power is defeated the parliament is dissolved and the parties go to their constituents upon the merits of the proposed law. This law is thoroughly discussed by the candi
“All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the eon-*36 stitutional right of citizens to yote, or unnecessarily to impede its exercise; if they do, they must be declared void.” Cooley, Const. Lim. (7th ed.) 907, 908.
Does the legislation in question unnecessarily impair tbe exercise of tbe elective franchise on tbe part of any voter? In order to examine this question we cannot confine ourselves solely to tbe act of 1909, because tbe effect of that statute as impairing tbe efficient exercise of the right to vote is accentuated by other statutory requirements.
Eirst, in order that a candidate for office have bis name placed on tbe official ballot in tbe nominating or primary election be must file with tbe secretary of state or county clerk,, as tbe case may be, a nomination paper in a prescribed form and signed witbin a stated time; if be is a candidate for a state office, by at least one per cent, of tbe voters of tbe party of sucb candidate in at least each of six counties in tbe state and in tbe aggregate not less tban one per cent, nor more than ten per cent, of tbe total vote of bis party in tbe state; if for a representative in Congress, by at least two per cent, of tbe vot'ers of bis party in each of at least one balf tbe counties of tbe Congressional district and in tbe aggregate not less tban two per cent, nor more tban ten per cent, of tbe total vote of bis party in sucb district; if for an office representing less tban a Congressional district in area or a county office, by at least three per cent, of tbe party vote in at least one sixth of the election precincts of sucb district and in tbe aggregate not less than three per cent, nor more tban ten per cent, of tbe total vote of bis party in sucb district. These percentages are to be computed upon tbe party vote for tbe presidential elector receiving tbe largest vote at tbe last preceding presidential election. Tbe nomination paper is required to contain a declaration on tbe part of each signer that be intends to support tbe candidate named therein. After these nomination papers are filed, notice of tbe primary or nominating election is given and an official ballot is printed at public expense for use in
“At all primaries there shall be an Australian ballot made mp of the several party tickets herein provided for, all of which shall be securely fastened together at the top and folded, provided there shall be as many separate tickets as there are parties entitled to participate in said primary election.” 'Subd. 3, sec. 11 — 12, Stats. (Supp. 1906: Laws of 1903, •ch. 451).
There is no ticket for a new organization which cast no votes in the county or precinct for presidential electors at the last presidential election, neither is there any ticket for an existing party which had no presidential nominee and which has polled no such vote at the last presidential election, or which had such candidate but polled no vote for presidential electora in the county or district. The elector is handed this ballot consisting of several tickets, and he selects one of the party for whose nominees he intends to vote and returns the others to the inspectors. The elector must vote this ticket or not at all, •except that he may write in a name instead of the printed name; but if he should in doing so insert the name of one who is a candidate for the same office on another party ticket, his vote would be counted for such person only as a nominee of the party on whose ticket it was written. Superadded to these stringent requirements is ch. 477, Laws of 1909, which provides:
“1. If all candidates for nomination for any one office voted for on any party ballot shall receive in the aggregate twenty per cent, or more of the vote cast for nominee of such party for governor at the last general election, the person re*38 ceiving tbe greatest number of votes at sucb primary election as tbe candidate of snob party for sucb office, shall be tbe candidate of that party for sucb office, and bis name as sucb candidate shall be placed on tbe official ballot at tbe following, election.” Subd. 1, sec. 11 — 18, Stats.
“2. If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in the aggregate less than twenty per cent, o f such votes so cast at such last general election, no person shall be deemed to be tbe party nominee for sucb office, but tbe person receiving tbe greatest number of votes at sucb primary as tbe candidate of sucb party for tbe office shall be deemed an independent candidate for' sucb office, and bis name shall be placed on tbe official ballot in tbe column of individual nominations and be shall be denominated in sucb column as ‘independent.’ ” Subd. 2,. sec. ll — 18, Stats.
Tbe ballot last referred to in subd. 2 above is tbe official ballot required to be used at tbe general election wbicb follows tbe primary or nominating election. Individual nominations may be made by nomination papers signed and filed by a prescribed percentage of tbe electors, but tbis is aside from tbe primary election, and. no political party as a party can make sucb individual nominations. Tbe form of tbe official ballot to be used at tbe ensuing general election is also-provided for, and no other can be used. Tbis contains as-many party columns as there are political parties receiving tbe requisite number of votes at the nominating or primary election and also a column for independent candidates. The-elector may at tbe general election vote tbe whole party ticket by making one cross at tbe bead of tbe column, or be may-make a cross or mark after sucb names on tbe ticket as he wishes to vote for, and be may in tbis way vote for part of the candidates of one political party and part of another. But' no pasters are allowed on tbe ticket or counted as votes. The-names of persons nominated otherwise than at tbe primary-election are to be placed in one or more columns designated “independent.” But these must necessarily be voted for sep
Before considering in detail the defects of the statute in question (ch. 417, Laws of 1909), it is well to consider the foundation precedents and the reasons given for supporting the constitutionality of the laws first above referred to requiring the percentage of the vote there stated in order to obtain a place upon the official ballot.
In DeWalt v. Bartley, 146 Pa. St. 529, 24 Atl. 185, 15 L. R. A. 771, a requirement of three per cent, of the entire party vote cast in order to entitle the nominees of that party to a place on the official ballot was upheld. It was said:
“The use of official ballots renders it absolutely necessary to make some regulations in regard to nominations, in order to ascertain what names shall be printed on the ballots. ... It follows, if an official ballot is to be used, nominations must be regulated in some way; otherwise the scheme would be impracticable, and the official ballot become the size of a. blanket.”
In Ransom v. Black, 54 N. J. Law, 446, 24 Atl. 489, 1021, 16 L. R. A. 769, justifying a similar requirement of five per centum, it was said :
“Now, the plan of providing official ballots, which plan is the keystone of the secret ballot system, involves necessarily some limitation upon the number of party tickets and the number of party candidates. ... If it was left in the power of each voter, or each coterie of three voters, to adopt a party name and demand that an official ballot should be printed at public expense, and distributed to each voter at the polls, the polls would probably be littered with ballots ‘thick as autumnal leaves that strew the brooks in Vallombrosa.’ Great expense, labor, and inconvenience would result, without any ap>-preciable benefit to the voter or to society. These regulations may not be the wisest that could have been adopted, still they are regulations which do not seriously impair the right of any citizen to vote. They are intended to restrict the number of*40 party tickets within reasonable limits, while, at the same time, permitting any body of citizens whose number is sufficient to give importance to a concerted political movement to organize as a party.”
In State ex rel. Plummer v. Poston, 58 Ohio St. 620, 51 N. E. 150, 42 L. R. A. 237, it was said of a similar requirement:
“Some restriction upon the right to have nominations printed upon the blanket ballot is necessary to render it practicable. In view of the small ratio of voters required to make a certified nomination, aid in view of the right to have nominations made by papers or petitions signed for that purpose, and of the right conferi’ed by the act upon every voter to supply the names of all persons for whom he may desire to vote, we cannot say that the exercise of the right is unreasonably impeded.” From this one of the ablest members of the Ohio bench dissented.
See, also, State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482, following the foregoing cases.
In State ex rel. Webber v. Felton, 77 Ohio St. 554, 84 N. E. 85, where the fraction required was ten per cent, and exceeded largely the percentage required in any of the preceding cases, the court said:
“One man cannot constitute a political party; and the abuses that it was intended to prevent depend largely upon the number of those who constitute the party, and this makes it perfectly proper for the legislature to limit the application of the law according to number. The Australian ballot laws limit the party tickets that may appear on the printed ballot, by a percentage of the vote cast at a previous election, and in nearly every case in which objection has been made on that ground such laws and legislation have been upheld.”
This was said in a suit to enjoin the state supervisor and inspector of elections and others from incurring any expense in the preparation for and holding of a primary election and from holding such primary election. In all the statutes considered in the foregoing cases there are also, I think, alternative provisions for placing a party candidate on the official
These pioneer cases-are cited to show for what reason such statutes were upheld where there was an official ballot and under what circumstances and for what reasons such statutes were held invalid. Under the statutes of this state first above referred to the candidate of a political party must obtain a stated percentage of the voters of his party at the last presidential election in order to be placed upon the official primary ballot. When the legislature has enacted this requirement and, pursuant thereto, the candidate has obtained the required percentage and qualified himself for a place on the official primary ballot, can the candidate be required to procure an additional and increased percentage thereafter to entitle this candidate to a place on the official election ballot ? The reasons given for sustaining similar regulatory statutes in the •above cited cases would seem to answer this in the negative. The legislature, having acted on the subject and prescribed a regulation to which the candidate must conform, has exhausted its police power of regulation with reference to percentages of the party vote if this power is grounded on the considerations' stated in the foregoing precedents. It has fixed what it has considered a reasonable number in order to ■entitle the candidate to have his name on the official ballot.
Witb reference to tbe second ground of support, it requires an extraordinary stretch of credulity to arrive at tbe conclusion that this benevolent purpose towards its adversary actuated tbe dominant party in tbe passage of tbe law. But it is unnecessary to speculate On this, because the second consideration is no valid ground for tbe exercise of tbe police power. Tbe welfare of party and whether or not a voter will continue to act in that party is for tbe voter to decide. If development or resuscitation of tbe party be once recognized as a proper basis for police regulation, that will from thenceforth be tbe principal care of tbe legislature. Therefore tbe statute cannot-be upheld on this ground, granting, as we must, that it does to a considerable extent impair tbe effective exercise of tbe right to vote.
Tbe third ground of support is insufficient because tbe act has only a remote and indirect tendency to accomplish this purpose and because it seeks to accomplish this, if at all, by impairing tbe suffrage rights of those who have not attempted to vote in tbe party of tbe opposition as a punishment for those who did so vote or attempt to vote. If this be tbe ground of support, tbe statute is for this reason an unconstitutional restriction of their right of suffrage. Camp v. Rogers, 44 Conn. 291. Those who go to tbe primary and vote their party ticket have been guilty of no negligence or breach of duty, and their right thereafter to vote tbe same party ticket cannot be
.With these considerations applying to the law as a whole we come down to an examination of the act in detail. This act of 1909 excludes from the official ballot for the general election as party candidates all persons in all cases where all the candidates on the official primary ballot for any one office received less than twenty per cent, “of the vote cast for nominee of such party for governor at the last general election.” If the statute is to be taken literally, it requires each candidate to receive at the primary twenty per cent, of the total party vote for governor at the last preceding election. Because there are II counties and 100 assembly districts in this state, few of the counties and probably no assembly district could upon a full poll muster twenty per cent, of such vote. Taken. literally, then, the statute is void and unconstitutional on its face. Assuming that the legislature could not have intended
I think it much moré reasonable to construe this statute as .applying only to state officers, and this construction would require no interpolation of words. This construction would grant the writ to some of the relators. But having got into the statute the saving words by a process euphemistically called construction, the statute is still unconstitutional. Because in the first place the percentage required is based not on the party vote but on the vote for one candidate. It often occurs that the best service which a voter can render to his party and to the state is to vote against a nominee of his own party. When the party offers as a candidate for governor a man who is notoriously unfit or corrupt, or who has bought his nomination with money, it is the duty as well as the right of all members of that party to vote against this candidate. This is a
Again, with the words above quoted, whether their addition be matter of construction or interpolation, the act permits the elector to vote a party ticket for member of the state assembly in all cases where within this assembly district there was cast at the primary twenty per cent, of the vote for that party candidate for governor at the last preceding gubernatorial' election. It however denies to this same voter the right at the same election to vote a party ticket for representatives in Congress where at the same primary there was cast in the-Congressional district less than twenty per cent, of the same-party vote in that Congressional district for governor at the-last preceding gubernatorial election. The voter in that case-can have no party representative in Congress. Although he has the right to favor and vote to advance the principles or measures of one party in state affairs and those of a different party in federal affairs, he is barred from any participation in the selection of a candidate for Congress because he conscientiously prefers the policy or attitude of the other party in state-affaii’S and desires to act with it. Here he must yield up one right or the other, and he cannot lawfully be compelled to-yield either at the legislative whim. But in case the voter desires to associate himself with a political party in both state
“In using woi’ds to express the party or principles represented by a candidate nominated by a nomination paper, if the same name is used as pertains to some political party making a nomination by convention, the words ‘nomination paper* shall be used as a part of such designation.” Sec. 30, Stats. (1898).
At the general election following the nominations no ballot except the official ballot can be voted. There the regular party tickets nominated at the primary election are to be printed each in a separate column. This last statute as it now stands includes the words “nominated by conventions,” but these words are rendered nugatory by the later statute (ch. 666, Laws of 1907), which provides (sec. 11 — 2, Stats.) that all candidates must be nominated either at the primary or by nomination papers. The statute also provides: “The names of persons nominated by paper nominations shall be placed in' the one or more columns [of the official ballot] designated independent.” There is no way to ascertain how many voters of any party voted for either one of these independent candidates, consequently in such case the statute relative to percentages could not thereafter be complied with. Construing the statute in question to apply to candidates for county and district offices, the party voters would lose their right to vote a party ticket at one election, but about two years thereafter, at the primary election folkvwing the next gubernatorial vote, appear at the primary and endeavor to poll twenty per cent.
The following opinion was filed December 14, 1910:
Dissenting Opinion
(dissenting). I agree fully with Mr. Justice TiMLiN’s views as to the merits of these cases; I do not share his doubt as to the meaning of the law. I am quite well satisfied that it can and must be construed as applying as well to every subordinate election district in the state as to the state at large, and means that in each election district a candidate for an office limited to the district must receive at the primary election at least twenty per cent, of the vote cast by his party for governor in that district at the last preceding general election in order that his name may be placed in the party column on the official ticket
In view of the importance of the case and the utterly indefensible character of this law, as it seems to me, I desire to add some comments of my own in as few words as I may, without elaboration or citation of authorities. We are guaranteed a republican form of government. That means a government where the sovereign power rests in the qualified electors and is actually exercised by officers chosen by them. ."When, therefore, the constitution defines the qualifications of electors, there is at once conferred upon those electors the right to vote, and that right no legislature can take away. There needs to bé no express guaranty of the right in the constitution; it is
There may be legislative regulation of this fundamental right for the purpose of preventing corruption or coercion of the electorate, for the purpose of making it impossible for illegal votes to be cast, and for the purpose of securing an orderly, speedy, and honest casting of the votes and ascertainment of the result.
All legislative restraints, conditions, or impediments to the-voter’s freedom of action which do not tend to accomplish one of these purposes, but which make it difficult for him to cast his vote with- the fullest practicable effect, either for principles or men in either state or national elections, have no constitutional justification for their existence. The weapon that “executes a freeman’s will” must be free if the man who-wields it is to be truly a freeman. It is true that political' parties as such have no constitutional rights guaranteed to them, and hence the specious argument is made that this law cannot be held unconstitutional because it affects or regulates, only the party and not the voter himself. This argument I regard as absolutely fallacious.
We all know that a republican government is and must be a government by party. Whether it would be better if it were otherwise is beside the question. All human experience up to the present time has shown that it cannot be otherwise so-long as human nature remains as it is. No significant change in governmental methods, no program of reform which is
If, by legislation nominally directed against parties only, the individual voter stands in danger of being deprived of his ■effective voice in either state or national affairs, such legislation cannot be justified any more than direct legislation ■against the voter himself which has like effect can be justified. That such is the character of this legislation seems to me certain. While in terms aimed at a party, in effect it is likely at any time to deprive the diligent member of a great minority party of his right to effectively vote for the principles he believes in, because other members of his party are not diligent. This court has decided that no registration law can absolutely deprive a constitutional voter of his right to vote because of his own neglect to register his name, but must give him an ap-portunity to cast his ballot on proving his qualifications. Dells v. Kennedy, 49 Wis. 555, 6 N. W. 246, 381. Here, however, we have a law which is likely at any time to deprive •a legal voter of the possibility of easting an effective vote, not because of his own neglect, but on account of the neglect of others. I say “effective” vote, because it is common knowledge, so far as state or national elections are concerned, that the privilege of casting a vote in the independent column and not in any party column is of no value. Such votes are mere shots fired in the air. They are votes in fonn. They may •satisfy the unthinking voter, but they accomplish nothing. They are practically votes thrown away.
The member o'f a minority party is the person who is ■chiefly in danger of thus losing his power of effective voting. This is very plain, as it seems to me. Whether any considerable number of voters get out to vote at the primaries must always depend upon the interest felt by the voters in the re-
In my judgment the legislature cannot thus impair the diligent voter’s right to cast an effective ballot. If it be desirable to enact legislation to keep the voters of one party out of the primaries of the other party, there are ways in which it may be done without penalizing the voter who has performed his whole duty. The punishment should be fitted to the crime and should be inflicted on the guilty party and not upon his innocent neighbor.
The act is wrongly entitled. It should be called “An act to ensure the gradual extinction of all minority parties.”
The following opinion was filed December 19, 1910:
The law under discussion may have been intended to accomplish any one of several purposes. I do not assume to know what its real object was. It may have been and probably was intended to prevent members of one party from voting for the candidates belonging to some other political faith in the primaries. If this be the object of the act, it is easy to imagine how its purpose could be more fairly and more effectively carried out by the enactment of a law of an entirely different character. But the legislature is not bound to adopt any particular means of bringing about such a result, and I am not prepared to say that the legislature was not acting within the field of its discretion in attempting to remedy the incongruity aimed at in the particular way in which it did. Assuming that the right existed to reasonably regulate primary elections in the manner attempted, the percentage adopted is not so high as to clearly indicate bad motives or sinister purposes. I reached the conclusion arrived at by the majority of the court, although by a somewhat different process of reasoning. I do not desire to do more than state my
The constitution nowhere recognizes political parties. It provides that every male person of the age of twenty-one years or upwards, belonging to any of the several classes enumerated, who shall have resided in the state, and in the election district in which he offers to vote, the required length of time, “shall be deemed a qualified elector at such election.” Sec. 1, art. Ill, Const. This is the only provision of the constitution which it is argued is violated by the so-called “twenty per cent, law.” The constitution simply prescribes what qualifications the elector must have before he is entitled to vote. It purports to confer no right except that to vote where the elector possesses the requisite qualifications. The twenty per cent, law does not undertake to prescribe any qualification for the elector, nor does it assume to prevent him from voting for any person or persons whom he wishes to vote for. It simply
This court adopted the rule at an early date that a law may be declared void though it violate no specific provision of the constitution. Durkee v. Janesville, 28 Wis. 464. This rule has been subsequently followed. At best it is a rule that should be sparingly applied. That deference which one coordinate department of the government owes to another forbids the exercise of such power except in extreme cases. It is only where a law operates unequally and perpetuates plain and palpable injustice, incompatible with the natural and inherent rights of the individual, that it should be held void where it does not run counter to any constitutional guaranty. I do not think that ch. 417, Laws of 1909, falls within this category of legislative acts or that it runs counter to the preamble or declaration of rights in the constitution, assuming that those provisions can be construed as having any applica