Johnson v. County of Grand Forks
| Decision Date | 13 November 1907 |
| Citation | 113 N.W. 1071,16 N.D. 363 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Grand Forks county; Templeton, J.
Action by Henry J. Thompson against the county of Grand Forks and Hans Anderson, county auditor. Judgment for defendants. Plaintiff appeals.
Reversed.
Bangs Cooley & Hamilton, for appellant.
Under section 129 of the constitution the legislature can regulate elections. Parvin v. Wimberg, 30 Am. St. 254; State v. Saxon, 32 Am. St. 46; Taylor v Bleakley, 49 Am. St. 233; Talcott v. Philbrick, 20 A. 436; Atty. General v. City of Detroit, 44 N.W 388; Cooley, Const. Lim. (6th Ed.) 758.
The constitutional right to vote can neither be enlarged or restricted. Spier v. Baker, 52 P. 659; 41 L. R. A. 196; People v. English, 29 N.E. 678; McCafferty v. Guyer, 59 Pa. 109; State v. Findlay, 19 P. 241; Levisley v. Litchfield, 83 P. 142; State v. Denoyer, 6 N.D. 586, 72 N.W. 1014.
Every elector has a constitutional right to become a candidate for office. State v. Drexel, 105 N.W. 174.
A primary election is an "election." Spier v. Baker, supra; State v. Baker, supra; People v. Board of Election Commissioners, 77 N.E. 321; State v. Scott, 108 N.W. 828; State v. Drexel, supra.
J. B. Wineman, for respondent.
A law, otherwise invalid, will be sustained if the party objecting to it has, by prior acts, precluded himself from being heard in opposition. 8 Cyc. 791; Pierce v. Somerset Railway, 171 U.S. 641; State v. Moore, 92 N.W. 4; Ferguson v. Landram, 96 Am. Dec. 350; Montgomery v. Chelf, 82 S.W. 388.
Participation in the elective franchise is a privilege, not a right. Cooley on Con. Lim. (6th Ed.) 752.
This action was brought to recover fees paid by two candidates for nomination for treasurer and one for clerk of court of Grand Forks county at the primary election held on the 19th day of June, 1906. The complaint sets forth the necessary qualifications of the persons affected to entitle them to become candidates for the offices named, and that each presented a petition, complying with all the requirements of chapter 109, page 207, Laws N.D. 1905, known as the "primary election law," to the county auditor of that county, and demanded that their names be printed on one of the ballots to be used at such election as candidates for such offices. The complaint alleges that the county auditor demanded of each of them a fee equal to 2 per cent of the annual salary of the offices to which they respectively aspired, namely, from each of the candidates for treasurer $ 48, and from the candidate for clerk of court $ 40, and that he refused to print their names on such ballots unless paid such sums; that they paid the amounts demanded to procure their names to be so printed but that they paid the same under protest, and so notified the auditor. No claim is made that he demanded a greater sum than that required by law referred to. Two of the claims were, before this action was brought, assigned to the plaintiff, he being the third candidate. The defendants demurred to the complaint on the ground that it did not state a cause of action against them or either of them. This appeal is from the order sustaining such demurrer, and it raises the question of the constitutionality of those provisions of section 4 of the act in question (section 555, Rev. Codes 1905), requiring candidates for nomination for county and district offices at the primary election to pay certain fees to the county to entitle them to have them names printed on one of the ballots to be used at the primary election.
The fee required of candidates for nomination for county and district offices, except for some of the minor offices, is fixed by that section at 2 per cent of the annual salary of the office, except candidates for the state senate, who are required to pay the sum of $ 30, and representatives, the sum of $ 10, and candidates for sheriff, who pay the same as those for county auditor. The section referred to also provides that the money so received shall be covered into the general fund of the county. Prior to the enactment of this law, nominations had been made by the caucus and convention system. A caucus held in each precinct in which the voters of a party desired to participate in the nominations of candidates for the various offices at the ensuing election, and delegates were elected to a county or district convention, as the case might be. This county or district convention composed of delegates elected by the various caucuses, made the nominations of candidates, whose names, on being certified to the county auditor by the officers of the convention, were printed as the party nominees to the various offices on the official ballot to be used at the general election. The same system prevailed for the nomination of representatives in congress, judges and state officials, except, as to them, the county convention elected delegates to the state or judicial convention which placed the candidates in nomination for the party. The methods pursued in such caucuses and conventions, it was believed, had become unrepresentative and unfair, if not corrupt, and the people demanded the enactment of a law under which direct nominations could be made, hoping thereby to eliminate many of the abuses which were thought to have become a part of the old system. Chapter 109, Laws 1905, was the result. This provides for the nomination of county and legislative candidates and the election of delegates to state conventions at a primary election to be held in June of each year at which a general election may occur. The objects of this chapter, though we think not of the provisions complained of in this action, were sought to be stated in the first section, which says: "It is the intention of this act to purify and reform the methods by which organized political parties shall make nominations of candidates for the several public offices, to perpetuate and strengthen political parties by eliminating therefrom the evils hereby sought to be corrected, and to secure each individual member and delegate of such party an absolute freedom and independence in the expression of his preferences relating to nominations by such parties and to prevent and prohibit the use and influence of methods, similar to that known as the unit rule, and this statute shall be so construed as to give force and effect to this expressed intention."
In trying to arrive at a decision of the questions at issue, it may be well to consider some of the principles underlying a republican form of government, and particularly those principles recognized by the people of this state in the organic law which they enacted, and which must serve as a guide, not only to them, but to their representatives and agents in the legislative, executive and judicial departments of the state. This law is the warrant under which they all act, and to the legislative department it is a limitation of authority. In determining its scope and meaning it often becomes necessary to consider what its terms imply, as well as what it says. Even if an act is not prohibited by the strict letter, it may still conflict with the objects sought to be attained, as gathered from the whole instrument in connection with a study of contemporaneous history. If so, it is equally as invalid as though the conflict was in express terms. In a republic the people are sovereign. They express this sovereignty through the ballot, by means of which they select their agents by whom it is exercised. The elective franchise is the most valuable right of the American citizen and should be most sacredly treasured by them and as sacredly protected by the courts. The acts of the lawmakers are the acts of the people themselves, except as they may conflict with the limitations prescribed in the constitution, or necessarily implied from its language and purpose. The constitution prescribes the qualifications and requisites to entitle a resident or citizen of the state to use the franchise. Sections 121 and 127 define these qualifications in the following language: Section 121: Section 127: "No person who is under guardianship, non compos mantis, or insane, shall be qualified to vote at any election; nor any persons convicted of treason or felony unless restored to civil rights; and the legislature shall by law establish an educational test as a qualification, and may prescribe penalties for failing, neglecting or refusing to vote at a general election." The provisions of the constitution are mandatory and prohibitive, unless by express words they are declared to be otherwise. Const., section 121. It is unquestioned that the legislature can neither enlarge nor diminish the qualifications necessary to entitle one to vote at a constitutional election. It cannot add to the term of residence required, either in the state, county or precinct; neither can it lessen either of these periods, nor by creating classes of voters deprive one qualified under the constitution from voting, or make one a voter not so made by such provision. The people in adopting the constitution containing these provisions recognized the necessity of stability and...
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