143 P. 565 | Mont. | 1914
delivered the opinion of the court.
At the primary election held on August 25, George Metcalf was duly nominated for state senator, Samuel Clark for sheriff, and Hugh T. Cummings for representative, for Granite county by the Progressive, Republican and Socialist parties. The county clerk of Granite county refuses to print their names on the official ballot for the general election in more than one party column ; hence this .proceeding.
1. The Act of the Tenth Legislative Assembly known as the
That the two statutes now under consideration do not fall within the scope of the rules above is manifest. The anti-fusion statute deals exclusively with the official ballot to be used at the general election. The primary law deals exclusively with nominations of candidates to public office. The ballot law of which the anti-fusion statute is a part has nothing to do with nominations, but accepts those legally made, whether by convention, primary or direct petition. The primary law has nothing whatever to do with the official ballot to be used at the general election. It provides only for nominations, leaving all questions of ballot regulation to existing laws. These two statutes do not treat of the same subject and do not have the same object in contemplation. Furthermore, their provisions are not in irreconcilable conflict, or in conflict at all.
It may be conceded that under section 20 of the primary law, a person may be legally nominated for the same office by two or more parties. So, likewise, a person might have been nominated for the same office by conventions representing two or more parties, at any time between 1907 and 1912, and still he could have had his name printed on the official ballot but once. This precise qúestion was disposed of so ably by the supreme court of Illinois, that we quote as follows: “Repeals by implication are never favored, and a subsequent statute will never be held to have repealed a prior statute by implication unless the inconsistency between the two is irreconcilable. The Ballot Act and the Primary Act deal with different subjects. The former relates primarily to the printing and distribution of ballots and the conduct of the general election. It recognized existing methods of nominating candidates by political parties, provided a method for making nominations independent of parties, and concerned itself no further with nominations. It provided that the ballot should be formed from nominations so made, but that a candidate’s name, by whatever method he might be nominated,
2. It is further contended that, if the anti-fusion statute was
Nearly every state in the Union now has the Australian ballot system in more or less modified form. In the absence of a statute prohibiting it, a candidate may rightfully have his name printed on the official ballot in the party column of every party nominating him. (Simpson v. Osborn, 52 Kan. 328, 34 Pac. 747; Fisher v. Dudley, 74 Md. 242, 12 L. R. A. 586, 22 Atl 2; Miller v. Pennoyer, 23 Or. 364, 31 Pac. 830; Payne v. Hodgson, 34 Utah, 269, 97 Pac. 132.) But it is an interesting historical fact that after experimenting with laws under which a candidate might have his name printed on the official ballot more than once, many of the states having the Australian system have adopted anti-fusion statutes prohibiting such a thing. Indeed, the people of Montana by direct vote voiced their approval of the anti-fusion principle, for in section 20 of the primary election law they specifically prohibit a candidate before the primary having his name printed on more than one of the several party tickets which make up the primary ballot. Under our election laws the voter is required to express his choice of candidates by a separate mark before the name of everyone for whom he desires to vote; and this may be said to impose some inconvenience upon him. So, likewise, does the law requiring a registration, the law requiring a voter to vote in the precinct of his own residence, the law arbitrarily fixing a time for opening and closing the polls; and, indeed, every measure looking to greater security and purity of election interferes to a greater or less
In State ex rel. Scharnikow v. Hogan, 24 Mont. 383, 62 Pac. 5833, this court in considering section 1 of Article III of the state Constitution, said that the declaration: “All political power is vested in and derived from the people,” refers as well to the right of naming candidates for public office as it does to the right of the electors to vote for the candidates at the polls. However, our anti-fusion statute does not interfere with either right. If the election is by ballot and is open and free, and every voter has an opportunity to express his choice equally with every other, no complaint can be made legitimately, and regulations designed to protect the ballot and secure fair elections cannot be disregarded merely because they operate to the inconvenience of some voter.
In People ex rel. Grinnell v. Hoffman, 116 Ill. 587, 56 Am. Rep. 793, 5 N. E. 596, it is said: “Elections are free, where the voters are subjected to no intimidation or improper influence, and where every voter is allowed to east his ballot as his own judgment and conscience dictate. Elections are equal, when the vote of every elector is equal, in its influence upon the result, to the vote of every other elector, — when each ballot is as effective as every other ballot.” When the question now under consideration was presented to the supreme court of Utah, that court said: “By the great weight of authority it was within the power of the legislature to declare that the name of a nominee or candidate shall be placed but once on the official ballot.” (Hayes v. Ross, 41 Utah, 580, 127 Pac. 340.)
In each of the following eases an anti-fusion statute similar to our own was upheld: State ex rel. Bateman v. Bode, 55 Ohio St. 224, 60 Am. St. Rep. 696, 34 L. R. A. 498, 45 N. E. 195;
In the absence of some constitutional provision which our anti-fusion statute clearly trespasses, it is our duty to uphold the law. The motion to quash the alternative writ of mandate is sustained and the proceeding is dismissed.
Dismissed.