Kelso v. Cook

• Citation: 110 N.E. 987,184 Ind. 173
• Decision Date: 05 January 1916
• Docket Number: 22,977,22,996
• Parties: Kelso v. Cook, Secretary of State, et al. and Cassady v. Mote
• Court: Supreme Court of Indiana

110 N.E. 987

184 Ind. 173

Kelso v. Cook, Secretary of State, et al. and Cassady v. Mote

Nos. 22,977, 22,996

Supreme Court of Indiana

January 5, 1916

From Floyd Circuit Court; John M. Paris, Judge.

From Marion Circuit Court (25,858); Louis B. Ewbank, Judge.

Action by Charles D. Kelso against Homer L. Cook, Secretary of State, and others, and from a judgment for defendants, the plaintiff appeals. Also an action by Carl H. Mote against Horace G. Cassady, in which defendant appeals from a judgment for plaintiff. The actions were consolidated on appeal for the purposes of argument and decision.

Affirmed.

Charles D. Kelso, for appellant Kelso, and Evan B. Stotsenburg and Carl H. Weyl, for appellant Cassady.

Evan B Stotsenburg, Abram Simmons, Horace M. Kean, Leslie R Naftzger, Omer S. Jackson, Michael A. Sweeney and Wilbur T Gruber, for appellees Cook, et al.

Addison C. Harris and W. H. Thompson, for appellee Mote.

Edward R. Lewis, Willitts A. Bastian and Elias D. Salsbury, Amici Curiae.

Morris C. J. Erwin, J., dissents; Spencer, J., concurs in conclusion; Lairy, J., concurs.

OPINION

Morris, C. J.

The above appeals, involving the constitutional validity of the Primary Election Law of 1915, were consolidated for oral argument and decision.

Appellant Kelso, as a taxpayer of Floyd County, filed his complaint against Cook, secretary of state, Miller as auditor, and Johnson as clerk of the circuit court, of Floyd County, to enjoin them from the performance of certain acts required of them by designated sections of the primary act (Acts 1915 p. 359), because of the alleged invalidity of the law. The trial court adjudged the entire act valid, except that portion of § 13, relating to fees of candidates, which was held unconstitutional. Appellees Cook, et al., have here assigned cross errors based on the court's ruling on said provision of § 13.

Mote, appellee, in his appeal filed his complaint for himself and others similarly situated, against appellant Cassady, in the Marion Circuit Court alleging, among other things, that appellee is forty years old and is a citizen of the United States and has resided for more than a year in a certain precinct in Center Township, in Marion County, and expects to maintain his residence there until the end of the year 1916; that at the last registration he was duly registered as an elector in such precinct; that at the general election of 1914, he voted in said township for a majority of the candidates of the Progressive party, and was then an adherent of such party; that afterwards, but more than a year ago, he withdrew his membership in the Progressive party and since then has been, and intends to be, a member of the Republican party and intends to vote for a majority of the candidates on the Republican ticket at the general election in November, 1916, and desires, and intends, to participate in the March, 1916, primary election, and vote in said precinct for his choice of candidates of the Republican party, and further intends at the ensuing general election to vote for the candidates on the Republican ticket. It is further alleged that appellant Cassady is now, and long has been, and will continue to be, during the year 1916, a duly qualified and registered voter in said precinct; that he has been for years, is now and will continue to be, during the year 1916, a member of the Democratic party; that he voted the Democratic ticket in 1914, and will do so in 1916; that he intends to participate in the primary election in March, 1916, in said precinct, and threatens to, and will, unless enjoined, challenge appellee's right to vote for Republican candidates at such primary for the reason that appellee did not, at the 1914 election, vote for a majority of the candidates on the Republican ticket; that because of the provisions of § 10 of the primary law such challenge must be sustained, and appellee will thereby be prevented from participating in the choice of Republican candidates. Section 10 of the act is set out and averred to be unconstitutional and void, and an injunction is prayed for, enjoining appellant Cassady from challenging appellee when he offers to vote at the coming primary. Appellant Cassady's demurrer to this complaint was overruled. He declined to further plead and judgment was rendered for appellee, and enjoining Cassady from challenging Mr. Mote on account of the fact that he had not voted in 1914 for a majority of the party nominees on the Republican ticket.

The act in question provides for a State-wide primary election for the selection of candidates of any political party that cast as much as ten per cent of the total State vote at a preceding general election. Its provisions include nominations for township, city, county, congressional, and judicial offices, and Governor and United States Senator. It also provides for the selection by each of said parties, of precinct committeemen and delegates to State conventions, but requires nominations of State officers, other than Governor and United States Senator, to be made by delegates at State conventions. At the present time the act applies only to the Democratic, Republican and Progressive parties. The act requires a separate primary for each participating political party with separate, different colored tickets and ballot boxes for each, but all such primaries must be held at the same time and place, and under the control of a single set of election officials.

Section 10 prescribes the qualifications of voters, and reads as follows: "Each qualified voter of the precinct who, at the last preceding general election, voted for a majority of the regularly nominated candidates of the party holding such election, shall be entitled to vote at such election, provided such elector was registered as a voter at such previous general election; and Provided, further, That if such elector was not so registered, he shall make the affidavit hereinafter provided for. It shall be the duty of the county auditor to furnish to the inspector of elections in each of such precincts a copy of the book of the registration of voters of such precinct for the preceding general election. If the name of such person offering to vote at such primary shall be found on such registration book, it shall be sufficient evidence of his right to vote, unless he be challenged as hereinafter provided for. Any person who will be a qualified elector at the election for which such primary is being held, whose name does not appear on such book of registration, shall be entitled to vote if he shall make affidavit that he is a qualified voter of such precinct. Any qualified legal voter in such precinct may challenge any voter or person who shall offer to vote at such election, and when so challenged, such person shall not be entitled to vote unless he shall make an affidavit that he is a qualified legal voter of the precinct; that at the last preceding general election he affiliated with the party for whose candidate he proposed to vote in such primary, that he voted for a majority of the regular nominees of such party; and that he intends to support and vote, for the regular nominees of such party at the coming election. Provided, That any qualified legal voter who was under twenty-one years of age at the last preceding election, and who will have attained the age of twenty-one years prior to the ensuing election shall be entitled to vote at the primary of the party with which he intends to affiliate, and whose candidates he intends to vote for at the approaching election, and whenever any such person last named is challenged, it shall be sufficient if he shall make affidavit that he will be a qualified legal voter of the precinct at the next general election, and that he intends to support and vote for the regular nominees of the party for whose candidate he proposes to vote for in such primary."

Section 13, among other things, requires each candidate for nomination to pay into the State or county treasury a sum equal to one per cent of one year's salary for the office which he aspires to hold, and in default of which his name can not be printed on the official ballot.

Section 22 provides that the elector shall state his name and party affiliation to the election clerks who shall thereupon deliver to him the proper ballot. Section 23 authorizes him to express his first and second choice for candidates for each office. Section 38 fixes a penalty for voting, or offering to vote, without legal qualifications. Section 58 makes applicable to these primaries consistent provisions of the general election laws. Section 59 repeals the Primary Election Law of 1907.

It is urged by appellant Kelso and appellee Mote that § 10 of the act, fixing the qualifications of primary election voters, violates § 2 of article 2 of our Constitution which provides that, "In all elections not otherwise provided for by this constitution every male citizen of the United States, of the age of 21 years * * * who shall have resided * * * in the township sixty days, and in * * * the precinct thirty days, immediately preceding such election * * * shall be entitled to vote in the * * * precinct where he may reside, if he shall have been duly registered * * *". Kelso further insists that if said § 10 be invalid the whole act must fall, because of the dependence on such section of other vital provisions of the law. We concur in this latter view. That § 10 supra, fixes qualifications different from those prescribed in said § 2 of article 2, and, read in connection with other provisions, limits participation in the primaries to voters adhering to parties theretofore casting a definite minimum vote, is manifest and conceded. Does this constitutional provision control the voters'...