Fisher v. Masters, 6630

Decision Date29 September 1938
Docket Number6630
Citation59 Idaho 366,83 P.2d 212
PartiesHARRY L. FISHER, Plaintiff, v. IRA H. MASTERS, Secretary of State of the State of Idaho, BARZILLA W. CLARK, Governor of the State of Idaho, HARRY C. PARSONS, Auditor of the State of Idaho, MYRTLE P. ENKING, Treasurer of the State of Idaho, and J. W. TAYLOR, Attorney General of the State of Idaho, Constituting the State Board of Canvassers of the State of Idaho, and IRA H. MASTERS, Secretary of the State of Idaho, Defendants, CHARLES F. KOELSCH and CHARLES E. WINSTEAD, District Judges of the Third Judicial District, State of Idaho, Intervenors
CourtIdaho Supreme Court

ELECTIONS - ELECTION OF JUDGES - PRIMARY ELECTION-NONPARTISAN NOMINATION-FINAL ELECTION-RIGHT OF SUFFRAGE-POWERS OF LEGISLATURE-CONSTITUTIONAL LAW.

1. A provision in the Constitution that the legislature may prescribe qualifications, limitations, and conditions for the right of suffrage authorizes the legislature to prescribe additional qualifications, limitations, and conditions for the exercise of the right of suffrage. (Const., art. 6, sec 4.)

2. The "right to vote" is not a natural or unalienable right, but is a franchise or privilege only resulting from and conferred by organized society.

3. The holding of elections is in control of the "political" department of government, the word "political" having reference not to partisanship or political parties but rather to the control, management and operation of government.

4. A statute providing for nonpartisan nomination of district judges under which any qualified elector could participate in placing a candidate in nomination by securing the requisite number of signatures of qualified electors and the consent of the nominee to run did not place an unconstitutional limitation on the right of an elector to vote for anyone whom he might desire by provision that ballot should not contain names not certified by the secretary of state and that no blank spaces for writing a name should appear on the ballot. (Sess. Laws, 1935, chap. 12, pp. 29 30, secs. 3, 6; Const., art. 6, secs. 2, 4 and 7, as amended see Sess. Laws, 1935, p. 374.)

5. A statute providing for nonpartisan nomination of district judges was not objectionable for alleged doubt created in mind of elector respecting whether he was merely nominating a candidate or voting for his final election, because of provision that there should not be any subsequent election following the primary for such office unless no candidate or a sufficient number of candidates to fill the offices to be filled, received a majority of all the votes cast. (Sess Laws, 1935, chap. 12, p. 31, sec. 7, as amended by Sess Laws, 1937, chap. 106.)

6. Where statute providing for nonpartisan nomination of district judges required that signer of petition placing a candidate for judge in nomination certify that signer was a qualified elector and provided elsewhere that an "elector" offering to vote at primary which would be final as to such candidates unless an insufficient number of candidates for the offices to be filled received a majority of the votes cast be given a judicial nominating ballot, statute was not open to objection that it permitted persons to vote who were not then electors but who would be electors at ensuing general election, notwithstanding provision in general primary election law purporting to permit anyone to vote at primary election who would possess qualifications of an elector at time of the general election. (I. C. A., sec. 33-613; Sess. Laws, 1935, chap. 12, pp. 28, 30, secs. 2, 6.)

7. "Elector" as used in statute providing for nonpartisan nomination of district judges and requiring that an "elector" offering to vote shall be given a judicial nominating ballot, refers to an "elector" in the constitutional and legal sense and not merely to a person not so qualified who might be allowed to vote at a primary election. (Sess. Laws, 1935, chap. 12, p. 30, sec. 6; I. C. A., sec. 33-613.)

8. Under statute providing for nonpartisan nomination of Supreme Court justices and district judges, an elector who votes a judicial ballot at the primary election but declines to receive the political party ballot is not disqualified from participating in a convention of his party as elsewhere provided by statute. (I. C. A., sec. 33-639; Sess. Laws, 1933, chap. 16, sec. 7.)

9. Under statute providing for nonpartisan nomination of Supreme Court justices and district judges, a qualified elector is entitled to vote a judicial ballot at the primary election although he does not vote for partisan candidates. (Sess. Laws, 1933, chap. 16, sec. 7.)

10. A statute providing for nonpartisan nomination of district judges under which the primary constituted a general judicial election without any subsequent election for such offices unless no candidate or sufficient candidates to fill the offices to be filled received the majority of all votes cast was not open to objection that election could not be considered an election as distinguished from a nomination because statute made no provision for contesting a primary election, since election did constitute an "election" as to any candidate who received a majority and the highest number of votes cast and as to such candidate the contest statute was applicable. (Sess. Laws, 1935, chap. 12, p. 31, sec. 7, as amended by Sess. Laws, 1937, chap. 106; I. C. A., sec. 33-1701 et seq.)

Original application for peremptory writ of mandate. Alternative writ quashed and case dismissed.

Alternative writ quashed and case dismissed.

Harry L. Fisher, Plaintiff, pro se.

Since the provisions of sections 33-613 and 33-707, I. C. A., permit persons to register and vote at a nominating election who do not then possess the qualifications of electors prescribed by the Constitution, all the provisions of section 7 of chapter 12 of the Session Laws of 1935, are unconstitutional and void. (Spier v. Baker, 120 Cal. 370, 52 P. 659, 41 L. R. A. 196; State v. Nichols, 50 Wash. 508, 97 P. 728, 731; People v. Strassheim, 240 Ill. 279, 88 N.E. 821, 22 L. R. A., N. S., 1135; People v. Board of Election Commrs., 221 Ill. 9, 21, 77 N.E. 321, 5 Ann. Cas. 562; Attorney-General v. City of Detroit, 78 Mich. 545, 44 N.W. 388, 18 Am. St. 458, 7 L. R. A. 99; State v. Huntley, 167 S.C. 476, 166 S.E. 637; Rouse v. Thompson, 228 Ill. 522, 81 N.E. 1109, 1115; Johnson v. Grand Forks County, 16 N.D. 363, 113 N.W. 1071, 125 Am. St. 662, 666, 670.)

A primary election statute which attempts to subtract from or add to the qualifications of an elector as fixed by the Constitution is unconstitutional and void, unless power to do so is provided in the Constitution itself. (Spier v. Baker, supra; State v. Nichols, supra.)

The case of Spier v. Baker, supra, is a pioneer case in construing primary election laws and is squarely in point in this proceeding.

In the case of Knight v. Trigg, 16 Idaho 256, 100 P. 1060 this court said:

"In the first place, the act provides in specific terms that 'all persons registered as voters at the last general election' shall be qualified to vote at the special election. Now, it must be apparent at once that a great many, perhaps hundreds, of persons who were registered and qualified to vote at the last general election are not now residents of the county in which they are registered. Under the constitution they would not be entitled to vote. (Sec. 2, Art. 6.) This provision would therefore be repugnant to the constitution. The legislature could not authorize persons to vote who have ceased to be citizens of the county and state, even though they be registered."

J. W. Taylor, Attorney General, and E. G. Elliott and L. B. Quinn, Assistant Attorneys General, for Defendants.

Jess Hawley and E. P. Barnes, for Intervenors.

Section 2 of article 6 of the Idaho Constitution prescribes the qualifications of electors, and gives the right to qualified electors to vote. We must consider this section in connection with section 4 of article 6, Idaho Constitution, which is as follows:

"The legislature may prescribe qualifications, limitations, and conditions for the right of suffrage, additional to those prescribed in this article, but shall never annul any of the provisions in this article contained."

It therefore appears that it is the right of the legislature to prescribe the details necessary in its opinion to effect a fair election. It is invested with broad powers and wide discretion in the matter of legislating in regard to the exercise of the right of suffrage. (State v. Dunbar, 39 Idaho 691, 230 P. 33; Shepherd v. Grimmett, 3 Idaho 403, 408, 31 P. 793; Wiggin v. Lewiston, 8 Idaho 527, 69 P. 286; Adams v. Lansdon, 18 Idaho 483, 110 P. 280; Koelsch v. Girard, 54 Idaho 452, 33 P.2d 816.)

J. P. Reed, Amicus Curiae.

It is not within the power of the legislature to restrict electors in their choice of candidates or to prohibit them from voting for persons whose names are not on the ballot, or to make it impossible to vote for other persons by excluding blank spaces from ballots. (Cohn v. Isensee, 45 Cal.App. 531, 188 P. 279; Stewart v. Cartwright, 156 Ga. 192, 118 S.E. 859; Jackson v. Norris, 173 Md. 579, 195 A. 576; 20 Corpus Juris, pp. 140, 141; 9 R. C. L., pp. 1053, 1054.)

The constitutional guaranties of the right to vote and the freedom of elections demand that each voter be put upon equal terms with every other voter, and that no restraint or inconvenience shall be imposed on one more than on another. (9 R. C. L., pp. 983-985; 20 Cor. Jur., pp. 62, 63; Callaghan v. Vooris, 252 N.Y. 14, 168 N.E. 447; McAlpine v. Dimick, 326 Ill. 240, 157 N.E. 235; De Walt v. Bartley, 146 Pa. 529, 24 A. 185, 28 Am St. 814, 15 L. R. A. 771; Ex parte Wilson, 7 Okla. Cr. 610, 125 P. 739, at p. 746; Brewer v. McCleland,...

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    ...merit. ( State v. Taylor, 58 Ida. 656, 78 P.2d 125; Idaho Gold Dredging Co. v. Balderston, 58 Ida. 692, 78 P.2d 105; Fisher v. Masters, 59 Ida. 366, 83 P.2d 212; Ada County v. Wright, Ida. 394, 92 P.2d 134; State v. Headrick, 65 Ida. 148, 139 P.2d 761.) The judgment of the trial court there......
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    ...154 P. 497 (1916). Art. 1, § 2 guarantees equal rights, privileges and immunities to all persons within the state. Fisher v. Masters, 59 Idaho 366, 83 P.2d 212 (1938). The appellant argues that art. 1, § 2 is a limitation of art. 1, § 8. We disagree. When construing separate constitutional ......
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    ...other member of the Court joining that opinion. Two years after Johnson v. Diefendorf, Justice Ailshie's opinion in Fisher v. Masters, 59 Idaho 366, 83 P.2d 212 (1938), was joined by all four of the justices who had split in the Johnson case. That case, while it has no direct bearing on tod......
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