Dewalt v. Bartley. (2)

• Decision Date: 02 May 1892
• Parties: H. DEWALT ET AL. v. W. BARTLEY ET AL. (2) E. H. RIPPLE v. LACKAWANNA CO. ET AL. A. J. MEREDITH ET AL. v. LEBANON CO. ET AL.
• Court: Pennsylvania Supreme Court

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146 Pa. 529 H. DEWALT ET AL.
v.
W. BARTLEY ET AL. (2)
E. H. RIPPLE
v.
LACKAWANNA CO. ET AL.
A. J. MEREDITH ET AL.
v.
LEBANON CO. ET AL. Supreme Court of Pennsylvania. Argued April 20, 1892. Decided May 2, 1892.

Before PAXSON, C. J., STERRETT, GREEN, WILLIAMS, McCOLLUM, MITCHELL and HEYDRICK, JJ.

APPEALS BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY, AND THE COURTS OF COMMON PLEAS OF LACKAWANNA AND LEBANON COUNTIES, RESPECTIVELY.

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Mr. Amos Briggs, for DeWalt and others, appellants in No. 411:

The constitution expressly guarantees to all electors two things: (1) The right of suffrage, and (2) that the manner or means by which the right is to be exercised shall be free and equal: § 5, article I.; §§ 1, 7, article VIII. If the act of 1891 is discriminating, and not equal and uniform in its operation upon all the qualified voters of the state, it clashes with these constitutional provisions and must fall: Buckalew on Const., 201.

1. The ground of our complaint against the act is, not that

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it denies the right of suffrage but that it abridges the freedom of voting, and in its practical operation destroys constitutional equality and uniformity in voting, by discriminating against some voters and in favor of others, notwithstanding all of them are alike qualified under the constitution. It deals with the electors as associated together in party groups, and makes the respective numbers in different political associations the basis for conferring on some voters the freedom, equality, and uniformity assured to every elector by the constitution, and for denying these to others.

2. As to the making of nominations, and the privilege of voting for candidates in a group, the act produces odious inequality and unjust discrimination. It is really an act to stifle independent voting and strangle small political parties. If the legislature has power to draw a per-centum line between voters, under the pretext of regulation, it may put the line just where it pleases, — at thirty or sixty per cent, instead of three. The maxim, de minimis, has no application to constitutional law, nor, indeed, to any law mandatory in effect. Testing this law by the results of the last election, the voters of the Republican and Democratic parties have privileges under it which are absolutely denied to those of the Prohibition party. This is a palpable violation of the freedom and equality assured by the constitution.

3. A large percentage of the voters of small political parties will practically be disfranchised. They are allowed but three minutes in which to recollect and write the names of the thirty-two presidential electors, and the various candidates for state and county officers for whom they wish to vote; and laboring men, whose fingers are not flexible and who handle a pen with difficulty, will find it impossible to complete their ballots in that time. Nor can these difficulties be obviated by the use of printed adhesive slips. The entire trend of the act leads to the conclusion that there can be no printed names put on the official ballot, except those which the commissioners have caused to be printed on it. Moreover, the fact that in § 12 the act provides for the use of printed slips in one instance, excludes the idea of their use in any other, and this is the conclusion reached by the official compiler of the Pamphlet Laws, as indicated by his marginal notes to § 14.

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Mr. Charles C. Binney and Mr. Charles F. Warwick, for the appellees in No. 411:

1. A statute will not be declared unconstitutional except in a very clear case: Moore v. Houston, 3 S. & R. 169; Sharpless v. Philadelphia, 21 Pa. 147; Speer v. School Dir., 50 Pa. 150; Penna. R. Co. v. Riblet, 66 Pa. 164; Powell v. Commonwealth, 114 Pa. 265; Cooley on Const. Lim., 192, 197; Erie R. Co. v. Casey, 26 Pa. 289. As to the meaning of "free and equal elections," see Cooley on Const. Lim., 47; Patton v. Coates, 41 Ark. 111; People v. Hoffman, 116 Ill. 587 (56 Am. Rep. 793); Buckalew on Const., 10. To secure them, secrecy is necessary: Wigmore's Australian Ballot, 1-67; Common Council v. Rush, 82 Mich. 532; and the term "ballot," used in the constitution, implies secrecy: Cooley on Const. Lim., 760; Temple v. Mead, 4 Vt. 535; Williams v. Stein, 38 Ind. 89 (10 Am. Rep. 97); Jones v. Glidwell, 53 Ark. 161; People v. Cicott, 16 Mich. 283 (97 Am. Dec. 141); Common Council v. Rush, 82 Mich. 532; Brisbin v. Cleary, 26 Minn. 107; State v. Hilmantel, 23 Wis. 422; Commonwealth v. Woelper, 3 S. & R. 29; Kneass' Case, 2 Pars. 553; but the old form of ballot was not secret, and the absence of secrecy permitted abuses to remedy which was the object of the act of 1891.

2. The act concerns matters within the legislature's power to regulate: Patterson v. Barlow, 60 Pa. 54. The use of official ballots necessitates some regulation of nominations: Chateau v. Election Commissioners, (Mich.) 50 N. W. Rep. 102. The regulations on this subject, in the act of 1891, are as favorable to the voters of small parties as those enacted in other states which have adopted the Australian ballot. The language of the statute does not exclude the use of "stickers;" and it is well known that under the Massachusetts act of May 29, 1888, the language of which is the same, they have frequently been used. The regulations contained in the act are reasonable; in such matters, the convenience of the few must yield to that of the many: Cook v. State, 90 Tenn. 407. But, even if the provision as to the percentage of electors required to make a party nomination be unconstitutional, this will not affect the rest of the act, and it can operate with the restriction eliminated: Cooley on Const. Lim., 210; Rogers v. Jacob, 88 Ky. 502; Common Council v. Rush, 82 Mich. 532.

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Mr. P. P. Smith and Mr. I. H. Burns, for Ezra H. Ripple, appellant in No. 429:

1. The act of June 19, 1891, is a special and local law. It cannot go beyond its title, which is confined to the "nomination and election of public officers;" and therefore it can have no operation as to other elections, e. g., upon a proposition to amend the constitution, or to increase municipal indebtedness. But, if it does not apply to all elections, it offends against § 7, article III. of the constitution, forbidding local or special laws regulating the conduct of elections, and also against § 7, article VIII., requiring all laws regulating elections to be uniform. The moment we admit that it is not good as to all elections, it becomes a special law...