118 N.W. 141 | N.D. | 1908
Lead Opinion
The relator, who is a qualified elector of Hettinger county, makes application to this court, in the name of the state, for the issuance of a prerogative writ to enjoin the defendant, as Secretary of State, from certifying to the various county auditors the names of certain persons as candidates for the office of United States Senator from this state, for the purpose of having such names printed on ¡ballots to be used at the ensuing general election, to determine the choice of the Republican;electors as between such candidates. Relator prays that, if such names have already been thus certified by defendant, he be required and commanded to cancel such certificate. In his affidavit, upon which the application is based, relator avers that he requested the Attorney General to make application for such writ, but he refused. Upon the filing of relator’s said affidavit an order to show cause was issued, requiring defendant to show cause, if any there be, on OJctober 23', 1908; why the writ prayed for should not issue. Upon the return day of such order to show cause defendant filed a motion to quash such order, and to dismiss the proceedings on specified grounds, only three of which it will be necessary to notice. First, it is defendant’s contention that “no question of public right, or one affecting the sovereignty of the state, its franchises, or prerogatives, or the liberty of the people” is presented or involved by relator’s application; second, that the affidavit upon which said order to show cause was issued affirmatively discloses that the relator has not sufficient interest in the ¿ubject-matter of the proceeding, or the determination of the questions sought to be adjudicated, to enable him to institute or carry on same as plaintiff; and third, that it 'affirmatively appears from said affidavit that plaintiff has been guilty of laches in making the application, and -hence is not entitled to the equitable relief prayed for. Answering briefly these contentions, we decide that the first and second points are not tenable. The questions involved clearly are publici juris, and some of them at least pertain directly to the sovereignty of the state, its franchises and prerogatives, and the liberty of its people, and the relator, being a citizen and elector, may institute and prosecute the proceedings when, as in this case, he has requested such proceedings to be instituted by the Attorney
The constitution of the state of Michigan contains an -oath in substance the same as that required by section 211 of our -Constitution, and provides, as does our ¡Constitution that, “no other oath, declaration or test shall ¡be required as -a qualification for any office or public trust.” And in the case of Dapper v. Smith, 138 Mich. 104, 101 N. W. 60, the court said: “Kent ¡county primary election law (section 3), requiring that before the name of a candidate §hall be placed on -the ballot at a primary election, such-candidate shall on oath -declare his purpose to becom-e su-ch, is a violation of the Constitution (article 18 § 1), prescribing the oath which shall be required of public officers, and providing that no other -oath shall be required as -a qualification for any public office, since thereby the voters are precluded from -choosing as a candidate one who declines -himself to seek the office.” Later on -in the opinion it is said: “This provision is not one designed for the benefit of the aspirant for public station alone. It is in the interests of -the electorate as well. The provisions of thi-s- law which requires that, before the name of any- candidate shall be placed on the ballot at the primary election, such candidate shall on oath declare his purpose to become such, excludes the right -of the electorate of the party to vote for the nomination of any man who is not sufficiently anxious to fill public station to make such a declaration. The man who may be willing to consent to serve his state or his community in answer to the call of duty, when chosen by his fellow citizens to do so, is excluded,'and the electorate has no- opportunity to cast their votes for him. It is- not an answer to this reasoning to say that the electors may still vote for such a man by
It is, of course, plain that the provision of our statute exacting the pledge aforesaid is much more vicious than the Michigan provision, which was condemned in the foregoing case. The candidate is required 'by such pledge to obligate himself to discharge certain of his public duties, if elected, in a certain way. He by such pledge divests himself of all discretion and freedom of action in the discharge of a portion of his official duties, if elected. This necessarily operates to hamper and restrict persons in becoming candidates for such office, and is therefore void. It is nq answer to this to say that the statute merely forces upon him a moral obligation in respect to the matters covered by the pledge, and that such an obligation would rest upon him: ini the absence of such statute. This would not necessarily be true where the candidate had not seen fit to voluntarily make such a pledge to his constituents. We conclude that the requirement of such a pledge violates section 211 of our Constitution, in that it exacts an additional test in contravention thereof. But does it necessarily follow from this that all other portions of chapter 109, relating to the election of United States Senators, and giving the electors of each party an opportunity to express their choice for the candidates for such office, are void also? We think not. The pledge requirement is but one step to effectuate the main object sought to be accomplished, to wit, the selection of a United States Senator in accordance with the choice of a majority of the members of the political party with which he affiliates. Another and entirely independent step or method looking to the accomplishment of this object is the provision permitting the voters of each party to record their choice at the primary, and, in certain cases, at the general election. The
This logically brings us to a consideration of relator’s third proposition, which is that the entire act, so far as it relates to candidates for United States Senator, is void under the Constitution of the United States. Much of the argument of relator’s counsel upon this branch of the case is based upon the assumption that the pledge feature of the law, when considered in connection with the provisions permitting the members of each political party to designate their 'choice as to senatorial candidates, in effect operates as an election of United States Senators by popular vote, instead of by the Legislature, as the federal Constitution requires. If, therefore, the pledge feature of the statute is eliminated because unconstitutional, much of counsel’s argument ceases to have any force. It certainly cannot be contended that the provisions permitting the voters of each political party merely to designate their choice for senator amounts to an election of such senator, as it amounts to nothing more than the right of petition, a right of which they cannot be deprived. The legislative member is in no manner obligated or required, except perhaps morally, by reason of party
But, conceding, for the sake of argument, that the provisions of this primary law contravene the provisions of the federal Con-, stitution relating to the election of United States Senators, it by no means follows- that this relator can raise the question, or that this court has jurisdiction to pass upon it. The federal Constitution provides by section 5, art. 1, that: “Each house shall be the judge of the elections, returns and qualifications of its own members. * *” Manifestly, therefore, the question Whether a senator has been elected in the constitutional way is not a judicial question for the courts to determine, but rests entirely with the United States Senate. If -this court should decide that the provisions of the statute in question are -constitutional, such decision would in no manner be controlling, and the senate could say that a person -elected by our Legislature at the coming session was not legally elected, and could refuse him a seat. The question is a federal one exclusively, and -the tribunal to determine the same is -designated in the federal Constitution to be the United States Senate. This identical question was before the Supreme -Court -of Louisiana in the recent case of State v. Michel, 46 South, 430; and the court very summarily disposed of the question as -follows. “The next objection has reference to the promise which the voters at the primary are required to make that they will support -the nominee. It is said that by this promise the nominees at -said primary- and members of the Legislature find themselves pledged- to- vote for the nominee of-the same primary for United States Senator, and that that is contrary to the duty imposed upon them by the Constitution of the United .States in voting for United States Senators. Suffice it to say on -this ground that the engagement in question is precisely the -same as that which the member of a political -caucus enters into, and that no member of -any legislative caucus has ever -thought that -he violated his duties, under -the said provision of the Constitution, by becoming a member of the caucus and binding 'himself to abide by the result.” No- right is guaranteed to the -citizen iby the federal Constitution pertaining to the election) -of United States Senators. Hence relator has no standing in this court -to -complain that -the provisions of the primary law relating to the election of United States Senators is '-obnoxious to -the federal Constitution.
Counsel say in their printed brief: “All tests are required under the theory that party preservation justifies such tests as may he necessary to prevent members of other political parties from participating in the primaries of parties of which they are not members, and yet this section provides for the determination of the republican candidacy for United States Senator by the act and vote
But a word with reference to the secrecy of the ballot at the general election. As we have said, what takes place at the general election with reference to recording the voter’s choice as to his party’s -candidates for the United States Senate is a mere continuation of the June primary, and may be correctly said to- be a part of the primary. This being true, the following provisions of the act are as applicable to such primaries held at the time of the general election as to the primary held in June: “The judges and inspectors of election when handing a ballot to a voter shall inform him that he must vote for the candidates of the political party such ballot represents -only, and the voter shall -call for the ballot representing the party -or principles with which he affiliates and he shall receive such ballot and' no other.” Also-: “It shall be unlawful for any person to call for or vote a ballot at the primary election herein provided for except a ballot representing the party or principle with which he affiliates, and any person who has reason to believe that the ballot called for by the voter does not represent the party -or principle with which said voter affiliates, may challenge such voter and he shall not be entitled to cast his ballot unless he malees and files with the inspector of such primary election an affidavit to the effect that such ballot represents the political party with which he affiliates.” The words “primary election herein provided for” refer, not only to the June primary, but the continuation thereof held at the general election. If the
Another point urged by relator’s counsel is that the act is a delegation of power expressly granted to the Legislature. This contention is devoid of merit. In the first place it does not amount to a delegation of power. The Legislature still elects the senator, and the act merely gives the voters of .each party an opportunity to- express their choice of candidates, as we have heretofore observed. Furthermore, if it does, in effect, delegate such power, this relator is not the one to complain. As before stated, that is a federal question, with which -this court has nothing to- do. Again, conceding that -i-t is a delegation of power, it is not a delegation of legislative power, as the Legislature, in electing a -United States Senator, does not act in a legislative way at all. It merely acts as an elective body, and we know of no provision of our state Constitution -which thus limits the Legislature.
Lastly, it is said that the act attempts to bind successive Legislatures. Our answer to this is that each Legislature has plenary-power when not restricted by the state or federal Constitutions, and hence may repeal the entire primary law at any time it chooses to do so. Furthermore, it is not true, as stated, that the act thus operates. It does not bind the Legislature to do anything. It merely permits an expression of choice by the voters, and by its
Entertaining the foregoing views, it follows that the writ prayed for must be denied, and it is so ordered.
Dissenting Opinion
(dissenting in part). With much of the opinion of my associates I agree. If, however, I were acting alone, I should not entertain the application in this proceeding at this late date. It is,an application to this court on its equity .side, and the relator does not come before us with the clean hands which should be presented when seeking equitable relief. I do not mean that he is guilty of fraud, but that he has been guilty of gross laches, which should deprive him of standing in a court of equity. Under the primary law (Laws 1907, p. 151, c. 109) petitions of candidates, who desired their names placed upon the primary ballot, .were required to be .filed with the Secretary of State by the 25th day of last May. On that day this relator knew that six persons were candidates for nomination .to the office of United States Senator in this state. He could have then taken steps to test the validity of the senatorial provisions of the statute, and, had they been held void, much waste of effort would have been prevented. Again, when the vote was canvassed, and he ascertained that his favorite, whoever it may have been, was unsuccessful, an opportunity was open for application for the relief which he demands, without putting the candidates who had the highest number of votes to the expense, and the people to the inconvenience, of preparing for again submitting the question at the November election. Not doing so, the two candidates have been permitted to continue the campaign
On the, merits of the proposition I can concur with most that is said in the majority opinion. No doubt can exist that the Senate of the United States is the final judge of the election of its own members, and that any decision which we reach in the premises will not control or influence that body, yet this fact, as -it appears to me, should not, and does not, prevent or excuse the courts of a state from passing upon the validity of state laws which involve directly or indirectly the election of senators. The state courts are not courts of last resort on federal questions in any instance. My associates have arrived at a conclusion, however, upon one question, which, with my present light on the subject, I am unable to concur in. And it is a very important question in this election. Not important as to future elections, because it can readily be amended by the Legislature. I refer to their construction of section 13, p. 157, Primary Election Law 1907. That' section in part reads as follows: “The candidate receiving the highest number of votes at such primary election shall be the nominee of his party for the office of United States Senator at the succeeding session of the legislative assembly which is to elect a United States Senator; provided, however, that in case no candidate receives forty per
This construction is fortified by further consideration of the section. It continues, “such ballot shall ibe prepared in the same manner as the general election ballot is prepared. It does not read “such ballots,” as it undoubtedly would have been made to read had the Legislature contemplated a separate ballot for the senatorial candidates of each party which had failed to nominate at the June primary. And it continues, “The candidates of each party are to be placed upon such ballot under their proper party heading.” It does not read, as it otherwise would have read, “upon such ballots.” In each place the plural should have been used rather than the singular. “Under their proper party heading,” refers to the headings of the columns devoted to the different parties, clearly contemplating that, in case two or more parties failed to nominate a candidate for senator in June, there should be one senatorial ballot containing a separate column, with a party heading, like the party heading in the Australian ballot, for each party. In other words, it appears clear to me that the meaning of this provision is that, when the candidates of one or more parties fail to receive 40 per cent, of the vote in June, the names of the two highest candidates of each of such parties go upon one ballot, known as the “senatorial
Primary election laws have several objects. Among them are the protection of the public against the corruption of the ballot, and the nominations of candidates by small fractions of the party, and the preservation of party organization. If a law permits people to vote indiscriminately, without reference to their party affiliation, for candidates representing a party to which they do not belong, the whole purpose of a primary law is subverted. Instead
This question was passed upon by the Supreme Court of California, in Britton v. Board of Election Com’rs, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. It says: “Active political parties —parties in opposition to the dominant political party — are, as has been said, essential to the very existence of our government. The right of any number of men holding common political beliefs or governmental principles to advocate their views through party organization cannot be denied. As has been said, ‘Self-preservation is an inherent right of political parties, as well as of indivduals.’ Whipple v. Broad, 25 Colo. 407, 55 Pac. 172. A law which will destroy such party organization, or permit it fraudulently to pass into the hands -of its political enemies, cannot be upheld. The procedure of political parties may be regulated, and the wisdom of the Legislature may well be exercised, in devising methods to. check political corruption and fraud; but the Legislature itself, under the guise of regula-tión, cannot be permitted to throw open the doors to these very abuses. A law authorizing, or even permitting, the
Of course, if the law contemplated the nomination of United States Senators or the expression of a preference by the people as between the different candidates by voters of all parties, it would present a different question, but that is not the purpose of this law, its purpose being to provide for party nominations, and if my construction of this section is correct, the vice of the law lies in that it permits the voters of a party which succeeds in making a nomination in June to participate in the nomination of a candidate representing a party to which they do not belong, or with which they do not affiliate in November, for the same position. Even if section
In brief, my opinion is that, because the Legislature has attempted to regulate party-primaries and nominations, it must do it in a manner which, with reasonable certainty, prevents the participation of any but members of a party in its management or nominations; that if it has failed to do so, or if the language of the act is so involved, or its meaning so obscure, that most men of fair intelligence would, on reading its provisions, fail to find any method provided for party protection, it must fail. This in my judgment applies to that part of the law relating to the November nominations of senatorial candidates.
For these reasons, inadequately expressed, but as fully discussed as the brief time at my command, before the opinion must be filed to render it of any effect in the coming election, will permit, I conclude that the provisions of chapter 10-9, p. 151 of the Laws of 1907, relating to the vote for the nomination of a candidate for United States Senator at the same time and place as the general election is held, are invalid, and, to that extent, I dissent.