State ex rel. Dorval v. Hamilton , 20 N.D. 592 ( 1910 )

Ellsworth, J.

The name of appellant was regularly upon the ballot used at the primary election of June 29th, 1910, as Democratic candidate for nomination to the office of county judge of Cavalier county. At such election he received 341 votes, and there were no votes cast for any other person as ■ Democratic candidate for nomination to such office. These facts were shown by the abstract of the county canvassing board which canvassed the result of said primary election, and within a reasonable time after the preparation and filing of its abstract, appellant demanded of the defendant to this action as county auditor of Cavalier county that his name be placed upon the official ballot to be used in said county at the next general election as Democratic candidate for the office of county judge. This the defendant refused to do, and declared his purpose to omit the name of appellant from such ballot, stating as the ground of his action in the premises and the only reason and excuse therefor, that notwithstanding the fact that appellant receivéd the highest number of votes cast for any person for nomination as Democratic candidate for the office of county judge of said county; he did not receive a vote equal to 30 per cent of the total number of votes cast for the Democratic candidate for secretary of state, in said Cavalier county, at the general election of 1908. At such general election, it appears that Joseph Mann, the Democratic nominee and candidate for secretary of state of North Dakota, received a total vote in Cavalier county of 1,152, of which 30 per cent is 346. At the primary election of June 29, 1910, more than 346 electors of said county called for and psed .Democratic primary election ballots; but such persons voted for appellant to the number only of 341, as above stated.

After a formal showing of the facts hereinbefore narrated, appellant applied to and received from the district court for Cavalier county an alternative writ of mandamus requiring defendant, as auditor of said county, to place his name upon the official ballot to be used at the general election of November, 1910, or to show cause why he should not be required to do so. The county auditor, as such defendant, thereupon interposed a demurrer to the allegations of said alternative writ on the ground that the same did not state facts sufficient to constitute a cause of action, and are not upon their face sufficient to authorize the granting of the relief mentioned in the alternative writ or any relief whatever. TJpon a hearing duly had the district court sustained defendant’s demurrer, and directed that the alternative writ of mandamus issued to him be quashed and dismissed. From such order of the district court this appeal is taken.

Upon the hearing before this court the- defendant justifies his declared purpose to omit the name of appellant -from the official ballot to be prepared by him for the general election- of November, 1910, by reference to that portion of the primary election act in force at the time, in these words: “If the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 30 per cent of the total number of votes cast for secretary of state of the political party he or they represented at the last general election, no nomination shall be made in that party for such office, but if 30 per cent or more of such vote is cast, and there is more than one candidate for any such office, the person receiving the highest number of votes shall be declared the nominee of such party for such office.” Laws 1907, chap. 109, § 12. Appellant admits that if this law is operative and applicable to nominations for the county officers, its provisions would appear to warrant the acts and attitude of defendant; but claims that that portion' of the act quoted above, in so far as it authorizes .the omission of appellant’s name from the general election ballot, is an unreasonable and unwarrantable exercise by the legislature of the police powers of the state, and is therefore unconstitutional and void.

The principal question presented by this appeal is not before this court for the first time. Two years ago, in a case presenting points that, in the abstract, seem to be identical with those of- the case at bar, a majority of this court concurred in holding: (1) That the provisions of § 12, chap. 109, Laws of 1907, apply to district and county as well as state offices; and (2) that as a regulation of the elective franchise its requirements are reasonable, and not within the inhibition of any constitutional limitation. State ex rel. Montgomery v. Anderson, 18 N. D. 149, 118 N. W. 22. With the first holding this court as at present constituted fully agrees, and in its application to the case at bar we simply reiterate our adherence to that principle. Highly important and in a sense controlling in the disposition of the case at bar, however, are considerations that were not present in the case of State ex rel. Montgomery v. Anderson. At the time of the decision of that case but one election had been held under the primary election law enacted in 1907, and the survey of its practical operation then presented to the court was obviously limited and obscure. The court, from the very necessity of the case, was compelled to form its judgment largely upon abstract principle, and to base the same upon facts that might be expected to arise out of the practical operation of the law, rather than on those that had arisen. While, therefore, we still adhere to much of the general principle announced in the case of State ex rel. Montgomery v. Anderson, a majority of this court, under the additional facts now brought to its consideration, feel impelled to a conclusion materially at variance with that therein announced.

It is now well settled that under the Constitution of this state, the legislature may adopt measures regulating the exercise of the elective franchise in the nomination of candidates by political parties, as well as in the election of public officers. It is equally well recognized and settled' that such regulation, must be just and reasonable, and operate on voters and candidates of the same class with substantial equality. This latter principle was unequivocally recognized in the decision in the case of State ex rel. Montgomery v. Anderson, and we accept it without material qualification. In applying it to a determination of the facts of this case, however, it is necessary that we should delve somewhat below the principle itself and determine the constitutional fundament on which it rests.

Thus examined it will be observed that at least three important provisions of the Constitution are interwoven more or less closely with the basis of this principle: (1) Intimately associated as is the elective franchise with the general rights of citizens, all attempted regulation necessarily comes within the scope of the immutable Declaration of Eights contained in § 1 of the Constitution; (2) all legislative regulation of the elective franchise throughout the state is a general law, that must bear with substantial equality upon parties, candidates, and all classes of citizens, or, in other words, must have a uniform operation as required by the Constitution, § 11; (3) while ris-' ing as a corollary from the last preceding proposition, is the constitutional guaranty that “no citizen or class of citizens shall be granted privileges or immunities which upon the same terms shall nbt be granted to all citizens.” Const. § 20. ;

Viewed in these constitutional lights, the reason underlying the principle that legislative regulation of party nominations must not only be just and reasonable in its requirements, but must-bear with substantial equality upon the rights of all groups or classes of citizens affected by its operation, is at once apparent. It is clear beyond question that in the concrete application to the facts of a case such as this of the foregoing principle, the term “classes,” as therein used, includes within its scope the respective political parties, not only in their state-wide organization, but in these smaller groups comprising the party membership in the different counties. Therefore, in failing to comply with the tests prescribed by this precept, such attempted regulation falls under the ban of “class legislation” pronounced against those laws that practically operate in such manner as to affect diversely various persons or aggregations of persons not differentiated from each other by any natural or reasonable lines of demarcation.

It is doubtless true that, notwithstanding constitutional inhibitions such as those contained in §§ 11 and 20, the legislature may provide a certain classification of citizens to be differently affected by the same general rule. The limitation imposed upon legislation of this character is, however, that any classification provided as the basis for distinctive or special operation of the law must be natural, not artificial. “It must stand on some reason having regard to the character of the legislation.” Edmonds v. Herbrandson, 2 N. D. 270, 14 L.R.A. 725, 50 N. W. 970. “It must rest on some difference which has a reasonable and just relation to the act in respect to which the classification is proposed.” “It is not necessary that a law shall operate upon all alike, but ... it must operate alike upon all who are in like situation! The law need not have a universal operation, but it must be uniform. Proper classification is permitted, but arbitrary and unreasonable discrimination is forbidden.” Beleal v. Northern P. R. Co. 15 N. D. 318, 108 N. W. 33. It must “rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 155, 41 L. ed. 668, 17 Sup. Ct. Rep. 255; Powers Elevator Co. v. Pottner, 16 N. D. 359, 113 N. W. 703.

Nothing more than a casual survey of the primary election law is necessary to demonstrate that it is not designed to operate with absolute uniformity upon the rights of individual citizens. On the other hand, from a consideration of its nature and the ends it purposes to effect, it is clearly apparent that its declared purpose can be carried out only through the medium of groups or aggregations of persons with little reference to individual rights. Under a system such as this, proper classification becomes a necessity. The classification prescribed by the law is somewhat complex, regulating, primarily, the respective rights of political parties in their entirety and in their relation to each other; and, secondarily, the rights and powers of that portion of each party in the state at large and in the political subdivisions thereof, authorized to give expression to the party will, in its relation to the entire membership, state or local, as the case may be. As classification, within the limits hereinbefore mentioned is permissible, the only further inquiry pertinent to our investigation is, Are the groups defined by the law differentiated from each other reasonably, and not arbitrarily, and is the relation of each group to the basis of classification constant, just, and natural?

Applying these tests, there can be no question but that the classification primarily declared on the well-defined lines of party organization is natural and reasonable. This narrows the field of our research to a consideration of the secondary classification by which is prescribed the means of estimating the entire party strength, and the proportion thereof, that in each political subdivision may declare the party will to make a nomination under the provisions of the law.

The reason that renders expedient a provision that 30 per cent of the party strength shall be represented in order to make a party nomination is discussed at considerable length in State ex rel. Montgomery v. Anderson; and the conclusions there grouped under three different heads might, we think, be summarized in the general principle, that the legislative purpose in inserting this clause was to define what in the operation of the law shall be- accepted as an expression of the will or intent of a political party to make a nomination for a certain office; and, incidentally, to restrain the action of voters within the lines of the party to which they belong. The purpose is legitimate and proper, but its expression in the law introduces a certain difficulty by making it necessary for the legislature to further enact some means of forming a just estimate of party strength at a given period. If it were practicable to take a census of the different political parties, at stated intervals, a safe and sure method of determining their numerical strength within the state and its political subdivisions would be thus provided. As there is not, and from the very nature of the case probably could not be, a census of this kind, it follows that some other means of determination must be.devised. Through this impossibility of exact computation, the legislature was driven somewhat into the realm of conjecture, and there compelled to select a measure of party strength whose best promise was that of reasonable approximation to actual fact. The total number of votes cast for the candidate for secretary of state of each political party at the last preceding general election was fixed as the standard of party strength. By adopting this measure and declaring a constant ratio of 30 per cent between the number so determined and the number necessary to make a nomination applicable alike to state, district, and county offices, as before suggested, the legislature has declared a classification of objects upon which the law shall operate not only in the state at large, but in each county of the state. It therefore becomes necessary, in order that the statute may not be violative of the constitutional principles that serve as landmarks to our investigation, that the party fraction authorized to make a nomination shall in each county of the state bear a constant, just, and uniform relation to the basis upon which it is classified, or, in other words, to the party strength in that county.

It is readily perceived that the character of that entity which serves as the basis of classification is an important and powerful factor in determining the quality of any reasonable system of grouping. If the basis is logical, natural, and real, the entire classification will partake of tbe same character. If the basis is shifting, inconstant, arbitrary, or artificial, it is apparent that any grouping founded thereon is as a house built on the sand, without stability, strength, or uniformity. In determining the character of this classification, we will test it by resort to governing principles applied in the light of special facts attending the operation of the law in those instances in which its practical workings are brought to our notice.

At this point in our investigation appellant invites our attention to certain statistical facts now a part of our public history, with reference to the practical operation of the primary election law, which bear with direct and material force on the controlling principle of our decision. At the general election of 1908, in Bottineau county, the Democratic candidate for secretary of state received 1,148 votes. At the primary election of 1910 the- highest number of Democratic ballots called for and votes in that county was 351. By the application of the 30 per cent rule 345 votes, or 98 per cent of the highest number of that party voting at that election was necessary to enable it to make a nomination for any county office- whatever. In Stark county the entire number of votes cast for the Democratic candidate for secretary of state in 1908, was 464. The Democratic vote at the primary election of 1910 was 150. As 139 votes were necessary to nomination, it required 93 per cent of the party vote cast at this election to nominate. In Morton county the vote cast for the Democratic candidate for secretary of state in 1908 was 908. The Democratic vote at the primary election of 1910 was 201. As the number required to nominate was 212, it would require 136 per cent or 36 per cent more than the entire party vote cast at the primary election to make a nomination. A discrepancy still more highly magnified between the party strength as ascertained by the provisions of § 12,, Laws of 1907, and that shown by the practical result of participation in an election, is that returned from Adams county where the vote cast for the Democratic candidate for secretary of state in 1908 was 182. The highest Democratic vote at the primary election of 1910 was 13. The rfumber required to nominate was 55, and in order to make a nomination it was necessary for the Democratic party to cast a vote equivalent to 424 per cent of its entire strength as demonstrated by its vote at tbe primary election. As these statistics are selected at random from a list of the counties of the state, it is a fair inference that conditions thus shown to prevail in any county obtain in every county, differing only in degree.

It is urged that the comparatively small use of ballots prepared for the Democratic party at the primary election of 1910 is due to the fact that in all of these counties a large proportion of the members of that party, instead of calling for and voting the ballot provided for them, became so interested in the Eepublican nominations that they voluntarily called for and used Eepublican ballots instead. There is no proof, however, of such assertion, and to accept it would require that this court should presume that reputable and law-abiding citizens in large numbers, and in all parts of the state, deliberately violated the purpose and intent of the primary election law and laid themselves liable to certain penalties. We are not permitted to indulge such presumption as this. On the other hand, the inference that properly and naturally arises is that, pursuant to the provisions of the law, the members of each party called for and used the ballots provided for that party, and that the vote cast at the primary election of 1910 was a fair indication of the strength of the party in that county as it existed at that time.

It is further apparent that the vote of a party candidate for secretary of state at a general election is much more likely to be unduly magnified or diminished by causes that operate locally than the party vote at a primary election. It is a well-known fact that any candidate for a state office, without reference to his party affiliation, receives a vote in each county which increases or diminishes in direct proportion to his personal popularity in the locality in which the vote is cast. At a general election his náme appears in a party column on the ballot which is given alike to voters of all parties.

Whether or not it be true, as sometimes stated, that the law countenances rather than discourages the voting of a split ticket, it is unquestionably true that it provides every facility for the accomplishment of that purpose by the voter. The voter, screened from observation and outside influence, with the name of the candidates of all parties on the ballot before him, in his markings, may readily pass from one column to the other,.and, by voting for a candidate of a party other than his own, perform an .act that is not censurable, and is, in many instances, creditable. An honest and law-abiding citizen may, therefore, at a general election, freely vote for the candidate of a party other than his own, without incurring either a consciousness of having failed to observe the law, or any penalty for its violation. The result is, it will be noted, the exact converse of a like act performed at a primary election. It is therefore fairly inferable that the entire party vote cast at a primary election in any county is a much more reliable measure of the party strength, at that time, than the vote received by the candidate of that party for secretary of state at the general election held more than eighteen months before. If the vote at the primary election be regarded as the true standard of party strength at that time existing, however, it is at once apparent that in practical operation the primary election law outrages party rights, as, in instances such as those cited above. In order to make a nomination that will be officially recognized, a party must in some counties cast votes that exceed in numbers many times its entire strength, and in others produce a percentage of its strength so large as to be clearly unreasonable.

Whether or not in actual' fact the measure of party strength prescribed by the primary election law, in its relation to the party group authorized to declare the party will, produces results that in this manner shock all sense of reason and justice, we think it clearly appears that the vote cast for a party candidate for secretary of state, at a preceding general election, is not a .true, just, or stable basis for estimating the existing strength of .the party at a primary election; and that the party group authorized to make a nomination, whose numbers are computed at a percentage of such voté, does not in the different counties of the state stand in true, just, constant, and uniform relation to the actual party strength, the fact on which the classification provided by the primary election law is obviously designed to rest. If the means provided by the law operated to determine with reasonable accuracy the party strength, we might hesitate to hold that the requirement that 30 per cent of that strength be necessary to constitute an expression of the party will was unreasonable. The percentage seems large, but the legislature having so declared, this court could not in a matter of expediency “run a race with the legislature” and assume that its act was unwarrantable. If the percentage was greatly advanced and fixed at 60 per cent, however, all fair-minded men would agree, we think, in declaring it excessive; and certainly if 75 per cent was the number required, there could be no question but what all reasonable bound was exceeded. Yet, here we have a provision of law that, while it apparently contemplates a number equivalent to but 30 per cent of the estimated party strength as necessary to give expression to the party will, yet, as is shown by practical operation, by means of an arbitrary, false, and inconstant standard established as - a measure of the basis of classification, may result in requiring in one county 98 per cent, in another county 136 per cent, and in another 424 per cent, of the entire party vote as cast at an election actually held, to be given to the candidates for a certain office, before the party can nominate a candidate for that office. Any feature of an election law that in its practical operation produces results such as these can only be regarded as an unreasonable regulation of the elective franchise. Therefore, while the requirement that that portion of a party authorized to make a nomination shall bear a ratio of 30 per cent to the actual party strength may not be unreasonable, the system of classification adopted in determining therefrom the numbers of the party group that may act in making a nomination, in practice produces results that lack reasonable uniformity in the different counties of the state; and under which the basis of classification does not bear to the thing classified that natural, constant, and unvarying relation required by the Constitution.

In view of the foregoing considerations, it becomes necessary for us to hold that § 12, chapter 157, Laws of 1907, is not a just and xeasonable regulation of the elective franchise, and does not operate ■on voters and candidates of the same class with substantial equality. We regret that this conclusion operates to overrule the holding of the court upon the same point in State ex rel. Montgomery v. Anderson. .Such holding has been the law of the state for two years and more. • It is not a rule of property, however, upon which any party -could have acted to his pecuniary disadvantage during that period. It is merely a rule of construction which for obvious reasons may be ■changed with greater facility to accord with varying conditions and ■.the somewhat broader view obtained by this court from a more advanced standpoint. We believe that a proper regard for the constitutional guaranties and safeguards of our citizens requires that this feature of the primary election law should be held inoperative. The other provisions are, of course, unaffected by this holding.

The order of the District Court is reversed.

All concur, except Morgan, Ch. J., and Spalding, J., who dissent.