Barr v. Cardell

• Citation: 155 N.W. 312,173 Iowa 18
• Decision Date: 16 December 1915
• Docket Number: No. 30680.,30680.
• Parties: BARR v. CARDELL.
• Court: United States State Supreme Court of Iowa

173 Iowa 18

155 N.W. 312

BARR

v.CARDELL.

No. 30680.

Supreme Court of Iowa.

Dec. 16, 1915.

Appeal from District Court, Dallas County; Lorin N. Hays, Judge.

This is a contest to ascertain who was elected superior judge by the voters in the city of Perry November 3, 1914. Robert S. Barr was the only candidate for nomination at the primary in June preceding, and, of course, was duly nominated, and his name printed in the nonpartisan judicial ticket on the ballot used at the election. He received 214 votes. The name of W. W. Cardell was written in such ticket by the electors, and in that way 440 ballots were cast for him. Cardell was declared by the board of supervisors, acting as canvassers, to have been elected. Barr filed his statement of intention to contest with the county auditor, and a court was organized as provided by section 1201 of the Code for the trial of contested county elections. The grounds of contest were: (1) That the incumbent was not a practicing attorney at law at the time of said election; and (2) that he was not nominated at the primary election, and for this reason was not eligible, and votes cast for him by writing in his name might not be counted. The incumbent challenged the jurisdiction of the court of contest for that, as was alleged, the office of superior judge is not a county office, and he also asserted that Barr was not a resident of Perry. The incumbent Cardell was held to have been elected, and the cause carried to the district court. It decided in favor of the contestant, Barr, and Cardell has appealed to this court. Reversed.John B. White, of Adel, Harry Wifvat and Dugan & Dugan, all of Perry, and Parsons & Mills, of Des Moines, for appellant.

H. G. Giddings, of Mitchell, S. D., and E. J. Kelly, of Des Moines, for appellee.

LADD, J.

[1] At the general election of 1914 Robert S. Barr was candidate for the office of superior judge in the city of Perry, and, as he had been nominated at the preceding primary, his name was printed on the nonpartisan judicial ticket. He received 214 votes. W. W. Cardell had not been nominated, but many electors wrote his name on the ballot, and in this way he received 440 votes. Barr contends that even on this showing Cardell is not entitled to the office, for that only those nominated at the primary are eligible to election, and relies on chapter 2b of title 6 of the Code Supplement. Cardell insists that such a construction would render the act unconstitutional, and for this reason should be avoided if it will bear a construction such as will permit electors to insert names of persons of their choice. Section 1087b thereof provides:

“That from and after the passage of this act, all candidates for the office of judge of Supreme, district and superior court, of the state of Iowa, shall be nominated at the regular primary election, and elected at the general election in November, in the manner hereinafter provided.”

The section following prescribes how persons may become candidates for Supreme, district, or superior judge at the primary, and declares that a person desiring to become a candidate for the office of superior judge shall file in the office of the auditor of the county in which the court is located a petition to that effect, signed by 250 qualified electors of the municipality in which said court has been established.

Section 1087b2 directs that the ticket entitled “Nonpartisan Judicial Ticket” be printed on the ballots of each political party without party designation and some other matters not relevant to the issue.

Section 1087b3:

“At the general election in November there shall be placed on the ballots a separate ticket entitled ‘nonpartisan judicial ticket,’ upon which shall be placed the names of the candidates nominated for judges of the Supreme Court, district, or superior courts in the state, and in the several districts and cities who have been nominated as herein provided. The names of all candidates shall be placed on said ticket and in the same order as far as possible as other candidates and with the same provisions with reference to alphabetical rotation and the number of candidates for each office to which the elector is entitled to vote. The candidate or candidates on such judicial ticket receiving the highest number of votes shall be considered elected.”

Section 1087b4:

“The method of withdrawal, filling vacancies, conducting such primary and general elections, of preparation of the ballot, of canvassing the vote, of announcing the result, of recounting the ballot, of publishing notice of nomination and election, and the penalty for the illegal voting, misconduct of the election officials, and the making of the sworn return of nomination and election expenses, shall, so far as applicable, be the same as now provided for the regular primary and general election laws of Iowa.”

The last section thereof repeals all acts or parts of acts inconsistent thereof.

[2] The manifest design of the Legislature was to eliminate all considerations of partisanship in the selection of candidates for the office of judge at the primary and the subsequent election. To effect this purpose the ticket is designated “nonpartisan,” and the names placed on the ticket without party designation, and even the ticket is placed by itself on the ballot. The word “ticket” has no well-defined meaning, there being many varieties, but, as here used, it evidently has reference to the list of candidates for nomination to the offices of judge at the primary, and thereafter to those nominated to be submitted to the voters at the general, election. These tickets are to be printed on the respective ballots such as provided by the primary and election laws. The several provisions relate to the nomination of candidates, the printing of the ticket, and the like, but have no reference to the exercise of the right of franchise by the elector. Neither the method to be pursued nor the object to be attained is necessarily inconsistent with unlimited freedom on his part in the selection of those for whom he will vote. Our Constitution declares that “all elections by the people shall be by ballot.” How this ballot shall be prepared and cast and all matters relative to the manner and place of elections are left to legislative regulation. The problem always is how best to conserve the purposes of popular government. The objects exacting most attention are the exclusion of unqualified persons and shielding the elector from the influences of coercion and corruption. So long as the statutes enacted are calculated to facilitate and secure, rather than subvert or impede, the right to vote, they are quite generally upheld. State v. Black, 54 N. J. Law, 446, 24 Atl. 489, 1021, 16 L. R. A. 769;Cole v. Tucker, 164 Mass. 486, 41 N. E. 681, 29 L. R. A. 668. Such statutes, in so far as tending to limit the elector in exercising the right of franchise, are to be construed liberally in his favor. Salcido v. Roberts (Cal.) 67 Pac. 1077;Eckerson v. City of Des Moines, 137 Iowa, 452, 115 N. W. 177.

[3][4] And, too, courts lean toward that construction of statutes which is in harmony with, rather than antagonistic to, the Constitution. Rowley v. Clarke, 162 Iowa, 732, 144 N. W. 908. To deny the elector the right to vote for any other than names printed on the ballot would be, according to the weight of authority, inconsistent with that freedom of choice accorded him by the Constitution. Section 2 of article 1 thereof declares that “all political power is inherent in the people.” This is tantamount to saying that such power exists in those who under the Constitution are privileged to exercise the elective franchise. Cooley, Constitutional Lim. 57. Certain classes are excluded from such privilege in prescribing the qualifications of those who may exercise it. Concerning the propriety of these qualifications differences of opinion may exist. That qualifications of some kind definite in terms and easy of application should be required all agree. The aim generally in accomplishing this has been not to limit the right of suffrage to the wisest or purest or best-educated or those with property, but to extend it to the ignorant as well as to the learned, the poor as well as the rich, irrespective of character, to the end that all shall participate in governing, and this on the broad principle that:

“The best government for mankind is not the government which the wisest and best would select, but which the average man would select.”

Section 1 of article 2 provides that:

“Every male citizen of the United States of the age of 21 years, who shall have been a resident of this state six months next preceding the election, and of the county in which he claims his vote, sixty days, shall be entitled to vote at all elections which now or may be hereafter authorized by law.”

[5] These qualifications may not be modified by the Legislature, but are alone determinitive of the right of suffrage. Coggeshall v. City of Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 221. And the principle is fundamental that, unless otherwise specially provided, none but qualified electors can hold elective offices. State v. Van Beek, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397.

Upon the qualified electors, then, is conferred all political power, and this must be exercised through the ballot. If the electors are to exercise such power, if their will is to be expressed and effective, the ballot must be free and unhampered. Otherwise the Legislature may by restrictions as to candidates for office or methods of nomination deprive the electors of exercising the political power declared to be inherent in the people. Any limitation of their right to vote for any person eligible to office for such office would be inconsistent with that governmental power conferred on the electors. Says Judge McCrary in his work on Elections (page 700):

“The statutes of most of the states expressly...