246 Mo. 34 | Mo. | 1912
Relators Punch and Wilson are members of the “Progressive Party,” a political organization born since the Republican National Con
I. The questions presented compel a thorough view of onr primary laws as well as some previous laws as to nominations. Respondents Kortjohn and Blodgett contend that under onr Primary Act of 1909', no person can he a candidate for any office of the character here involved and have his name on the official ballot, unless such person is nominated at the biennial primary, for the year in which he expects to run for such office. Of course they make no such claim as to offices especially excepted in this Primary Act of 1909, nor to persons nominated to fill vacancies after such primary, hut as to an office of the class to which the office here in question belongs, such is their contention. They argue that the Act of 1909 operated to repeal other methods of nominating candidates for public office. To this contention we do not fully agree.
Eespondents (and when we use the term respondents here we refer to respondents Kortjohn and Blod-gett) rely upon section 5855, Revised Statutes 1909, which reads:
“Hereafter all candidates for elective offices shall be nominated by a primary election held in accordance with this article. This article shall not apply to special elections to fill vacancies, nor to county superintendents of schools, to.city officers not elected at a general state election, to town, village, or school district officers.”
This section comes to the body of our laws from the Act of 1909. [Laws 1909, p. 481.] In 1889 (Laws 1889, p. 105) under the head of elections, there was passed an act entitled, “An Act to provide for the printing and distributing of the ballots in elections for public officers at public expense, and to regulate elections of public officers,” the second section of which reads:
*38 “Sec. 2. Any convention of delegates or primary election as hereinafter defined, held for the purpose of making nominations to public office, and also electors to the number hereinafter specified, may nominate candidates for public offices to be filled by election within the state. Such nomination shall he made by filing a certificate of nomination, executed with the formalities prescribed for the execution of an instrument affecting real estate.”
This section has remained upon the statute books ever since and is now Sec. 5833, R. S. 1909. "When passed in 1889, this section was the one which defined and pointed out the sources of nominations. They were three in number, i. e., (1) a convention of delegates, (2) a primary election, and (3) a petition by electors. In the early case of Atkeson v. Lay, 115 Mo. 538, this court held that such electors might designate a party name, and under that name have their candidates’ names printed. Thus the door was opened for the formation of a new party by any considerable portion of the electorate of the State. This remained the fixed policy of the law until 1909, and is the fixed policy of the law now, unless such policy has been changed by the Act of 1909 or previous intervening acts. In determining the legislative intent it is proper to consider the public history of the times. It will be noted that in this Act of 1889 the primary system is recognized as one of the methods of naming candidates. About that time and even prior thereto public sentiment was divided as to the better method of making party nominations. The convention system had its advocates and the primary system had its advocates. As between the two the fight proceeded, but from neither side was there evinced a disposition to bar any independent candidates named by the electors or the formation of new parties by the electorate of the State. The absorbing topic was, shall the convention system survive, or shall it be displaced entirely
A careful reading of the Act of 1907 shows that the legislative mind was bent upon the method of nominations by political parties and had no thought of disturbing the Act of 1889 so far as it related to nominations by electors, which portion of the Act of 1889 we had, in Atkeson v. Lay, so construed as to make it the, avenue for the formation of new political organizations, as well as the avenue for independent, nonpartisan nominations. Indeed, the very title of the Act of 1907 would indicate that there was no legislative intent to disturb that portion, of the Act of 1889
Tbe Act of 1909 re-enacts most of tbe salient features of tbe old act, and in places elaborates and makes tbe provisions clearer, but a careful reading of tbe Act of 1909 shows/ as its title indicates, that it in fact was dealing with tbe method of making party nominations and not especially with other matters covered by tbe original Act of 1889. Tbe repealing section of tbe Act of 1909 reads: “That an act entitled, ‘An act to provide for party nominations by direct vote,’ approved March 18, 1907, Session Acts 1907, page 263, together with all other acts or parts of acts inconsistent or in conflict with tbe provisions of this act, be and tbe same are hereby repealed. ’ ’
In other words, this Act of 1909 does not attempt to deal with tbe subject of nominations made by electors, and is therefore not inconsistent with that portion of tbe Act of 1889, and of course does not repeal that portion of such act. To my mind both tbe Act of 1907 and tbe Act of 1909 were only intended to eliminate from tbe Act of 1889 that portion which authorized a party nomination by a convention of delegates. That was tbe question politically and legislatively discussed during those years, and that is tbe evil tbe new laws were intended to remedy. There was- no intent to take from tbe electorate of tbe State tbe right to designate a new party name and candidates on such ticket by a petition of electors, or to prevent tbe naming of an independent, nonpartisan candidate by such electorate. -As said before tbe legislative purpose was, using a slang phrase, to “kill off” political conventions for nominating purposes and not to prevent tbe
II. By the same reasoning it is clear that they are not entitled to go thereon by reason of the nominating certificate from the Progressive party convention. As said before the very purpose of all legislation subsequent to the Act of 1889 was to do away with nominations by conventions. Such legislation to my mind had no other purpose except in addition to perfect a system of conducting party primaries. As to this method, relators’ contention must fail.
III. Lastly we take the nomination made by the Progressive party committee. In our judgment rela-tors were entitled to a place on the official ballots by reason of this act of the party committee. There may be more obstacles in the way of reaching this conclusion, but in my way of thinking the conclusion is well grounded in legal principles. We have here a political party, nation-wide, organized after the time for taking the preliminary steps for the August primary had expired. Such party, therefore, could not participate in the primary, although it came into existence prior to the primary. The preliminary steps had to be taken prior to June 6, 1912, at which time there was no such political organization, but it did have a national and state organization prior to August 6, the date of the primary. Such party although actually in existence had no candidates for office running at such primary. In the Act of 1909 (Sec. 16, Laws 1909, p. 485), it is provided: “Vacancies occurring after the holding of any primary or where no person shall offer himself as a candidate before such primary, shall be filled by the party committee of the district, "county or
This section is broad enough to permit the party committee of such party to fill any and all vacancies upon their party ticket. But it was urged that there was no party committee elected in the manner provided by law. In my judgment there are two answers to this question. First, there was a party committee de facto, whether there was one de jure or not. Call it merely a political committee de facto, yet when we have committeemen and a committee actually performing the duties prescribed by law and claiming to act for the party by authority, with a duly organized political party as we have here, can.the election commissioners in a matter of this kind question the authority of the body to act? We think not. If, under the law, they are usurping authority, the law affords a remedy, but their acts cannot be Called into question in a collateral proceeding as was this before the board of election commissioners. They purported to be a po-. litical comujittee for an existing party, and that board is not empowered to hear and determine the rights of conimitteemen or a committee to act.
But we need not rest the case upon this ground alone. There is nothing to be found in the statute laws of Missouri preventing the organization of a new political party at any time the electors of the State see fit to so organize and declare principles. It may be true that we have made no express provision for an emergency of this kind, but it is equally true that from a legislative standpoint we have not placed a ban upon the organization of a new party, and personally I do' not think we could place such a ban without treading dangerously near the constitutional inhibitions. We may regulate political parties, after their organization in the exercise of the police power of the State, but
. For such new organization there must he a starting point, and because the law makes no express provision for the starting point, it does not follow that the citizens believing in given principles cannot meet and organize in the old and accustomed ways, but when organized they must follow the regulations as prescribed by law. The committee of the Progressive party could not have been selected at the August primary, and no doubt was selected by electors belonging to that party in the old way. This we think sufficient. Had there been a party organization in time for the August primary, committeemen should have been selected thereat. But even then there would have had to have been a provisional committee previously selected in some manner to have enabled candidates on such ticket to have taken the preliminary steps in that primary. It is hard to conceive how a new political party can be organized except we concede the right to have a provisional committee to run the affairs of the party up to such time as it can elect a committee under the statutes.
Political committees are the head and front of political organizations. They are the managing and guiding officers. In fact there can be no organization without officers, and if our laws contemplate that new political parties may be formed, as we think they do, then such laws must contemplate that, when such new political organization is perfected, it will designate the usual managing officers and committees, which will .act until such time as officers and committees may be elected under regular statutes. We should always bear in mind that our statutes in this regard are statutes of regulation and not statutes of prohibition. For these two reasons we. are of opinion that relators were entitled to go upon the official ballot under their nomination by the committee of the Progressive party.
The respondents were in error in refusing to place the names of relators upon the official ballots and our order heretofore made for a writ of mandamus compelling them to place such names upon the official ballot was right.