Ladd v. Holmes

• Decision Date: 25 November 1901
• Citation: 66 P. 714,40 Or. 167
• Parties: LADD et al. v. HOLMES, County Court Clerk.
• Court: Oregon Supreme Court

66 P. 714

40 Or. 167

LADD et al. v. HOLMES, County Court Clerk.

Supreme Court of Oregon

November 25, 1901

Appeal from circuit court, Multnomah county; M.C. George, Alfred F Sears, Jr., and John B. Cleland, Judges.

Suit by William M. Ladd and others against Hanley H. Holmes, as clerk of the county court of Multnomah county. From a decree in favor of defendant, plaintiffs appeal. Affirmed.

This is a suit to enjoin the clerk of the county court of Multnomah county from incurring any pecuniary liability in behalf of the county under the acts passed by the legislative assembly at its last session for the regulation of primary elections within the city of Portland, known as the Morgan and Lockwood acts; the evident purpose being to test the constitutionality of both acts. The circuit court declared the Morgan act invalid, but sustained the other, and the plaintiffs appeal.

Wallace McCamant, for appellants.

Charles H. Carey and Charles E. Lockwood, for respondent.

WOLVERTON J.

The defendant not having appealed, there are left for our consideration the questions presented as they have relation to the Lockwood act only. The plaintiffs are all taxpayers of Multnomah county, and reside within the city of Portland, except Bain, who lives outside of the city limits. McKercher belongs to the Prohibition party, which polled less than 3 per cent. of the entire vote cast in the county at the last general election, while Bain has no party affiliations. Thus are brought into the record all classes of individuals affected by the act in question, as it respects their personal rights and privileges under the constitution. The act provides, inter alia, that "elections hereafter held in any incorporated city of the state containing a population of ten thousand or more, as shown by the last state or federal census, by any voluntary political association or party, for the purpose of selecting delegates to any convention to nominate candidates for public office, shall be held under the provisions of this act, and such elections shall be styled primary elections." Sess.Laws 1901, p 317. But it is not to be construed to affect direct nominations without conventions, or nominations by assemblages of electors, as may otherwise be provided for by law. It is made the duty of the county clerk to designate a day, not less than 60 days before any general election, to be known as "Primary Day." Any and all political parties or associations which at the election next preceding polled a sufficient percentage of the entire vote in the state, county, city, precinct, or other electoral district for which nominations are to be made by the convention, to be entitled to make nominations as a political party or association under the laws of the state governing general elections, shall be entitled to vote at such primary election for delegates to their respective party conventions. No nomination made by any convention of delegates shall be deemed lawfully made, or be printed upon the sample or official ballot for use in any general or municipal election unless such delegates were selected by a primary election held in accordance with this act. Not less than seven days before the time designated for holding the elections the managing committee of the political party desiring to hold a convention of delegates shall cause notice to be given designating the number of delegates to be selected, and the apportionment thereof to each election precinct. Provision is made for the nomination of delegates, and for having them certified by the county clerk and placed upon the official ballot, which is the only one that may be used at the polls. The judges and clerks of the general election, as selected by law, are required to serve at the primary election. If an elector is challenged, an oath may be administered, and he may be examined touching his qualifications as an elector at that election, and as a member of the political party or association whose ticket he may desire to vote; and, in determining his residence and qualification, the judges shall be governed by the rules for the conduct of general elections, so far as applicable; but no person is entitled to vote a ticket of any political party unless he resides in the precinct and shall have complied with the requirements of the law relating to the registration of electors, "nor unless, if challenged, he shall swear or affirm that he voted for a majority of the candidates of such party or association at the last election, or intends to do so at the next election." Id. p. 323. The names of the electors voting are to be counted, and the number written in each of the poll books and certified by the judges and clerks; and the returns are to be canvassed by the county clerk with the assistance of two justices of the peace, who shall certify and publish the names of the persons having the highest number of votes, and those only shall be entitled to sit in the convention. Parties are entitled to make provision as they may deem proper for the election of delegates for outside precincts. One committeeman may be selected by each city or county convention from each election precinct, who shall be the representative of his party in and for such precinct, and the committeeman from all parts of the county shall constitute the county central committee. The term of office is two years from the date of the first meeting, immediately following the election, and, in case of a vacancy occurring, the remaining members may fill it.

To pursue logically the inquiry presented by the record, we have first to consider whether the act is special or local, and within the inhibition of article 4, § 23, subd. 13, of the constitution, as to the passage of any law "providing for opening and conducting the elections of state, county, or township officers, and designating the places of voting," because, if it is, there is no necessity for looking further, as it disposes of the case at once. It is insisted that by the express provisions of the act it was intended to have operation in the city of Portland alone,--that being the only city with a population of 10,000,--and that it can never extend to or include other cities, should they come to have or possess as great or larger population. If such is the true intendment of the act, the point would be well taken, as it would then be local, or, as the term is defined by Mr. Sutherland, "special as to place." Suth.St. Const. § 127. "A local act," says Mr. Justice Lord in Maxwell v. Tillamook Co., 20 Or. 495, 500, 26 P. 803, 804, "applies only to a limited part of the state. It touches but a portion of its territory, a part of its people, or a fraction of the property of its citizens." A law may be general, however, and have but a local application, and it is none the less general and uniform, because it may apply to a designated class, if it operates equally upon all the subjects within the class for which the rule is adopted; and, in determining whether a law is general or special, the court will look to its substance and necessary operation, as well as to its form and phraseology. People v. Hoffman, 116 Ill. 587, 5 N.E. 596, 8 N.E. 788, 56 Am.Rep. 793; Nichols v. Walter (Minn.) 33 N.W. 800. This is the accepted rule everywhere.

Referring to a provision in the constitution of North Dakota of similar import to the one here invoked, Mr. Chief Justice Corliss says: "To say that no classification can be made under such an article would make it one of the most pernicious provisions ever made in the fundamental law in the state. It would paralyze the legislative will. It would beget a worse evil than unlimited legislation,--grouping together without homogeneity of the most incongruous objects under the scope of an all-embracing law." Edmonds v Herbrandson, 2 N.D. 270, 273, 50 N.W. 970, 971, 14 L.R.A. 725, 727. The greater difficulty centers about the classification. It may not be arbitrary, and requires something more than a mere designation by such characteristics as will serve to classify. The mark of distinction must be something of substance, some attendant or inherent peculiarity calling for legislation suggested by natural reason of different character to subserve the rightful demands of governmental needs. So that, when objects and places become the subject of legislative action, and it is sought to include some and exclude others, the inquiry should be whether the distinctive characteristics upon which it is proposed to found different treatment are such as in the nature of things will denote in some reasonable degree a practical and real basis for discrimination. Suth.St. Const. §§ 127, 128; Nichols v. Walter, supra; Edmonds v. Herbrandson, supra; Richards v. Hammer, 42 N.J.Law, 435; People v. Board of Sup'rs of Adams Co., 185 Ill. 288, 56 N.E. 1044. Accordingly it was held that a law general in its scope, framed upon a classification governed by these distinctive principles, is not special or local because there happens to be but one individual of the class, or one place in which it has actual and practical operation. Van Riper v. Parsons, 40 N.J.Law, 1; s.c. (second appeal) 40 N.J.Law, 123, 29 Am.Rep. 210. A statute, however, which is plainly intended to affect a particular person or thing, or to become operative in a particular place or locality, and looks to no broader or enlarged application, may be aptly characterized as special and local, and falls within the inhibition. Of such is State v. Mitchell, 31 Ohio St. 592. There the act complained of was made applicable to "cities of the second class having a population of over thirty-one thousand at the last federal census"; the language quoted being construed as signifying the federal census last taken prior to the passage of the act, which made it...