Morrissey v. Wait

Letton, J.

This is a.n appeal from a judgment of the district court for Lancaster county sustaining the right of the candidates of the Progressive party to have their names printed on the official ballots for the general election in 1912. The facts seem to be as follows: A mass convention to form a new party was held in Lincoln on'September 3, 1912. On the afternoon of that day the meeting was adjourned until evening, at which time Governor Johnson of California was advertised to speak. A large number of people gathei*ed and were present at the evening meeting. The chairman of the meeting read the proposed Progressive party platform, which was adopted by a viva voce vote. After the address of Governor Johnson had been delivered and a number of persons had left the hall, the persons whose rights are in dispute in this case were nominated as candidates of the Progressive party. On September 13, 1912, there were filed in the office of the secretary of state five separate documents, each bearing the following heading: “We, the undersigned qualified electors of the state of Nebraska, in mass convention assembled, do hereby associate ourselves together, and agree to form a new political party, to be designated the ‘Progressive’ party, and we do hereby agree to affiliate with said party, and to support its nominees at the next general election.” These papers were bound together and filed with the secretary of state as one document. The total number of signatures thereon exceed 500 in number. There was also attached an affidavit by one Yan Meter in substance stating that he is a qualified elector; that at the mass convention, at which the Progressive party was organized as a new party, he had charge of and witnessed the signatures, and saw the electors sign the same and agree to support its nominees at the next general election, and that he verily believes them all to be qualified electors of the state. On the same day a certificate of nomination and oath in proper form were filed in the office of the secretary of state, signed by Arthur G-. Wray, as chairman, and John C. Sprecher, as secretary of the convention. Within three days after the filing of this certificate of nomination, the plaintiff, who is a candidate for the office of attorney general on the ticket of the Democratic party, filed written objections challenging the legality of the formation of the new party and the validity of the certificate of nomination. The secretary of state fixed a time and place for a hearing, and notified the several candidates. At the hearing evidence was taken, and the objections were overruled. A bill of exceptions was prepared and an appeal taken to the district court for Lancaster county, which affirmed and sustained the action of the secretary of state.

At the hearing before the secretary of state, it was contended that the Progressive party was not legally organized, because the 500 persons who signed the agreement to form a new party were not identified as being members of the mass convention, .but this contention was virtually waived at the argument before this court. There is no definite proof that 500 electors were not present at the convention. The evidence is conflicting on this point, but seems to preponderate in favor of the decision of the secretary of state. Furthermore, there is no requirement in the statute that the 500 electors who sign the agreement must be the identical persons who were present at the convention. Appellant concedes that the primary law of 1907 is in force, except as modified by chapter 46, laws 1911, but argues that the Progressive party is not entitled to a place upon the ballot at the 1912 election, for the reason that section 45, ch. 52, laws 1907, provides: “Such new party shall be entitled to have a separate party ballot at the next primary election held thereafter.” He says in this connection that “the legislature did not intend that such new party shall be entitled to a party ticket at the next general election,” but that it would be entitled to a party ticket “at the first primary held thereafter ” and that, if the party was not organized in time to get its ticket in the field by means of a primary election before the general election, it must wait until the next primary, so that it may get its ticket in the field through the regular channel. This view would bar these candidates from the 1912 election.

The provision for the organization of new parties is contained in section 45, ch. 52, laws 1907 (Ann. St. 1911, sec. 5905, Comp. St. 1911, ch. 26, sec. 118s), which is a. part of the law relating to primary elections. The section is lengthy and will not be copied here in full. It contains the requirements hereinbefore referred to that there shall be 500 electors present at a mass state convention, and the same number of signers to an agreement to form a new party. It also contains the foregoing quotation that “such new party shall be entitled to have a separate party ballot at the next primary,” etc. This section, when considered with the requirement of the statute that all nominations be made by primary elections, might justify the thought that mass conventions can only form a new political organization, and that its candidates must be named at the next primary; but a view of other sections of the statute leads to a different conclusion. Section 39 of the same act prorides: “All nominations for candidates of any political party for office to be filled at a special election or any other office to he filled by the electors, excepted from the provisions of this act, shall be nominated by a convention or committee of their political party,” etc.; and provides, further: “It is the intention that the manner provided in this section for the nomination of officers named herein, by a convention or committee, shall apply only where such officers are to be chosen at a special election,” etc. Section. 40, in substance, provides that, when nominations are made by a convention or committee as provided for in section 39, the certificates of nomination to be filed with the secretary of state shall be filed not less than 25 days before the election; but it provides, further: “Certificates of nomination for a new party may be filed with the secretary of state or the county or municipal clerk twenty-five or twenty or fifteen days before the election, as the case may require.”

Construing the several sections of the statute together, it seems clear that the “certificate of nomination for a new party” mentioned in section 40 applies to the necessary certificate when a nomination is made by convention, and cannot possibly apply to a nomination made by a primary election, as shown by the returns thereof, in which latter case no nominating certificate is required. The limit within which such nominating certificate may he filed with the secretary of state is much later in point of time than that fixed for canvassing the returns and for the certification to the secretary of state of the results of a primary election. It seems clear, therefore, that a new party may be formed after the time when it is possible for it to participate in the regular primary election It is proper to say that it is the duty of the courts, in construing statutes providing for printing the names of candidates of both old and new political organizations upon the ballot, to do so in the light of the constitutional requirement that “all elections shall be free; and there shall be no hindrance or impediment to the right of the qualified voter to exercise the elective franchise.” Const., art. I, sec. 22. The legislature may regulate the manner of nomination of candidates whose names shall he printed at public, expense upon the official ballot. It may, and patently does, recognize the existence of political parties, and the formation of new parties in this connection. Its regulations in this respect are, within its powers, provided that they are reasonable and do not unnecessarily hamper or impede the right of a voter to vote for whomsoever he releases at the general election.

We are of opinion that, under the plain provisions of the sections of the statute referred to, the candidates of the Progressive party are entitled to a place upon the official ballot. The, opinion of the secretary of state and the judgment of the district court are

Affirmed.