Morrison v. Mccarthy

• Decision Date: 29 March 1949
• Docket Number: Nos. 915, 916, 918, 919.,s. 915, 916, 918, 919.
• Citation: 65 A.2d 217
• Parties: MORRISON et al. v. LAMARRE et al. McCARTHY et al. v. LAMARRE et al. FLEISCHER v. COTE, Secretary of State. FLEISCHER v. LAMARRE et al.
• Court: Rhode Island Supreme Court

65 A.2d 217

MORRISON et al.

v.LAMARRE et al.

McCARTHY et al.

v.LAMARRE et al.

FLEISCHER

v.COTE, Secretary of State.

FLEISCHER

v.LAMARRE et al.

Nos. 915, 916, 918, 919.

Supreme Court of Rhode Island.

March 29, 1949.

Certiorari proceedings by Joseph W. Morrison and others against Albert J. Lamarre and others, by Lawrence A. McCarthy and others against Albert J. Lamarre, and others, by Nathan Fleischer against Armand H. Cote, Secretary of State, and by Nathan Fleischer against Albert J. Lamarre and others, to quash rulings of the State Board of Elections denying the petitioners the right to use certain devices on voting machines, commonly known as master levers, and to quash ruling of the Secretary of State denying to Nathan Fleischer the use of a party emblem in the election.

Petition for certiorari in each case denied and dismissed.

CAPOTOSTO and BAKER, JJ., dissenting.

Edward Geremia, of Providence, for petitioners Joseph W. Morrison and others.

McCarthy & Flynn and Lawrence A. McCarthy, all of Pawtucket, for petitioners Lawrence A. McCarthy and others.

Nathan Fleischer, of Newport, for petitioner Nathan Fleischer.

John H. Nolan, Atty. Gen. and Archie Smith, Asst. Atty. Gen., for respondents.

O'CONNELL, Justice.

These are four petitions for certiorari, the first, second and fourth seeking to quash rulings of the state board of elections which denied the petitioners, in the election of November 2, 1948, the right to the use of certain devices on the voting machines, commonly referred to as master levers, whereby a voter by means of a single operation may vote for all candidates of a political organization. The third petition seeks to quash the ruling of the secretary of state denying to the petitioner the use of a party emblem in said election.

The rulings complained of were based upon General Laws 1938, chapter 318, §§ 2, 6, 9, as amended by chap. 2151 of the Public Laws passed at the January session 1948 and approved May 6, 1948.

The pertinent language of G.L.1938, chap. 318, as thus amended, reads as follows:

‘§ 2. * * * The term ‘party’ or ‘political party’ shall mean any political organization which at the preceding general election polled at least 5 per centum of the entire vote cast in the state for governor.'

‘§ 6. * * * In the preparation of all ballot labels, sample ballots, absentee ballots and war ballots, to be used at any state or town election (which terms shall not include any primary) the secretary of state shall cause to be printed at the top of each column containing the names of candidates of a political party, as defined in section 2 hereof, over the name of the political party whose candidates appear in such column, the emblem of such political party. The emblem of the democratic party shall be the representation of a star. The emblem of the republican party shall be the representation of an eagle. The emblem of any political organization qualifying as a political party, as defined in section 2 of this chapter, shall be selected by the state chairman of said party; provided, however, that the emblem shall be entirely different for each political party, and may be any appropriate symbol; but neither the coat of arms or seal of any state or of the United States, the national or state flag, any religious emblem or symbol, the seal of any society, the portrait or likeness of any person, or the representation of a coin or of the currency of the United States, shall be chosen as an emblem. Whenever any emblem shall have been selected and used upon official ballots and ballot labels for any political party, it shall not thereafter be used for any other political party.’

‘§ 9. * * * In the preparation of the voting machines for use in every state or town election, (which terms shall not include any primary) the board of elections shall cause the party devices, commonly referred to as party levers, over each of the columns containing candidates of political parties, as defined in section 2 of this chapter, to be adjusted so as to permit any voter to vote for all candidates of the respective party whose names appear in said column by means of a single operation. All such devices over columns which do not contain candidates of political parties, as defined in section 2 of this chapter, shall be locked in such manner as to prevent voting by use of such party devices.’

All the petitions are based on the contention that chap. 318, as amended, is unconstitutional in that it is repugnant to article XIV, section 1, of Amendments to the Constitution of the United States, and to article I, sec. 2, and article II, sec. 6, of the Constitution of the state of Rhode Island, in that said act is discriminatory and not of equal force and effect as to all candidates seeking elective office. Petitioners also contend that the definition of a ‘political party’ under chap. 2151 should not be construed to apply in the election of November 2, 1948, because a contrary construction would make the statute retrospective or retroactive.

These petitions were heard on briefs and oral arguments on October 22, 1948 and the court was advised by the respondents that they would have to start sending the voting machines to the respective polling places at twelve o'clock noon on the following day to insure a full, free and fair election on November 2, 1948 in accordance with the provisions of law. Because of such necessity the court, after as full consideration of the issues involved as was possible within such a short time, gave a memorandum decision on October 23, 1948, denying and dismissing each petition and refusing to quash the rulings complained of. However, at that time it was indicated that since the issues raised were of importance, a formal opinion would be filed later giving in more detail the reasoning and authorities upon which the decision was based.

Before passing upon the constitutional questions involved, we shall dispose of the contention that chap. 2151, so far as the definition of a political party and the use of party emblems are concerned, must be held to be retroactive or retrospective, and should not apply until the next general election in 1950.

It appears to be well settled that unless a contrary intention plainly appears, a statute operates prospectively only and is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends, or some of them, are drawn from a time antecedent to the enactment. Reynolds v. United States, 292 U.S. 443, 54 S.Ct. 800, 78 L.Ed. 1353. In State ex rel. Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 182 So. 18, it was held that an insurance law was not retroactive merely because it looked to the past for the purpose of information on which a computation was to be made to ascertain an amount to be effective for future operation; and in Chicago, Burlington & Quincy R. Co. v. State of Nebraska ex rel., 47 Neb. 549, 66 N.W. 624, 627, 41 L.R.A. 481, 53 Am.St.Rep. 557, the court said: ‘A statute does not operate retroactively from the mere fact that it relates to antecedent events.’

It is conceded that if the law is to be considered as operating prospectively, none of the petitioners qualify as a political party under the definition thereof in chap. 2151. They are therefore not entitled as a matter of right to the use of party levers or party emblems, unless the act should be held unconstitutional.

Before the passage of chap. 2151 the statute defined the terms ‘party’ or ‘political party’ as any political organization or group of citizens which at the next preceding election of state officers had polled at least 2 per cent of the entire vote cast in the state for governor. One group of petitioners contended that they had polled at least 2 per cent but less than 5 per cent of the entire vote cast in the state for governor at the last preceding election and therefore had such a vested right as a political party that the legislature could not increase the percentage to 5 per cent until after another general election had intervened. All the petitioners were local organizations, had no state-wide status, and had presented no candidates for state-wide elective office at the preceding election.

Without deciding whether the legislature intended to apply this 2 per cent. or 5 per cent. yardstick only to a political party which had a state-wide organization and had cast votes for governor or other state officers at the last preceding general election, and assuming merely for the purpose of argument that any such petitioner would be qualified as a political party on the 2 per cent. basis, we see no merit in the contention that the legislature could not increase the percentage figure to become operative before another general election.

In State ex rel Fitz v. Jensen, 86 Minn. 19, 89 N.W. 1126, 1127, it appears that the statute had given certain privileges to political parties polling at least 1 per cent. of the entire vote cast for general officers. The Prohibition Party had cast more than 1 per cent. and less than 10 per cent. of the entire vote cast at the last election. The legislature then changed the act and defined a political party as ‘one which shall have cast at least ten (10) per cent. of the total vote cast at the last preceding election for its leading candidate * * *.’

The court held that the relator, a candidate of the Prohibition Party, was not entitled to have his name placed upon the official ballot at the next election as such Prohibition Party was not qualified as a political party under the amended act. The court said: ‘While it seems to some of us that the percentage of the vote selected as the basis of the classification in this act is larger than necessary, yet it was a question for the legislature, and we are not justified in holding that the classification was arbitrary. We hold the law as we have construed it constitutional.’

In State ex rel. v. Blaisdell, 20 N.D. 622, 127 N.W. 720, the court decided...