Morrow v. Wipf
| Decision Date | 23 April 1908 |
| Citation | 22 S.D. 146,115 N.W. 1121 |
| Parties | QUINCY LEE MORROW, Plaintiff, v. D. D. WIPF, Secretary of State, Defendant. |
| Court | South Dakota Supreme Court |
Original Proceedings
Writ Denied
Aubrey Lawrence
Attorney for plaintiff.
S.W. Clark, Attorney General
Attorney for defendant.
Opinion filed April 23, 1908
An application for a writ of mandamus commanding the defendant as Secretary of State to receive and file the certificate of nominations of certain candidates of the Prohibition Party for state offices, and to certify the names of such candidates to the auditors of the several counties for the purpose of having them printed on the official ballots to be voted at the coming general election, in accordance with the provisions of article 6, c. 19, Rev. Pol. Code, having been presented, the court, agreeably to the practice heretofore followed in such cases, issued an order directing the defendant to show cause why a peremptory writ should not be granted as prayed by the plaintiff. In response to this order, the Attorney General appeared specially on behalf of the defendant, and objected to the jurisdiction of the court, on the ground that, as no alternative writ had been issued, the notice given by the order to show cause was insufficient to authorize the granting of a peremptory writ. It appearing that 10 days’ notice had not been given, the court announced that the application would be regarded as one for the issuance of an alternative writ, and that the defendant might offer any objections he desired, or an alternative writ would issue returnable at an early date, when the issues involved would be considered. Thereupon the defendant filed a demurrer or statement of objections to the application containing several grounds, only one of which will require attention, namely, that the facts stated do not entitle the plaintiff to any relief whatever, and the questions of law thus presented were ably and exhaustively argued by the counsel of the respective parties.
It appears from the application that the plaintiff is a qualified elector of Brookings county; that he is a member of the Prohibition Party, a duly organized and existing political party, having a state and county organization which has existed for 12 years last past; that such party has for 12 years last past participated in general elections in this state, having its candidates printed on the official ballots voted at such elections; that at the general election of 1906 its candidate for Governor received 3,398 votes; that during the time mentioned such party has held state conventions for the purpose of electing delegates to national conventions, for the purpose of nominating presidential electors and for the purpose of adopting a party platform; that upon due call according to the usages and customs of such party and in accordance with article 6, c. 19, Rev. Pol. Code, a convention for the nomination of candidates for state offices, the selection of delegates to the national convention, and the adoption of a platform was held at Miller, in Hand county, April 7, 1908, composed of duly selected delegates from the various counties of the state; that F. J. Norton was the duly selected chairman, and the plaintiff was the duly selected secretary of such convention; that such convention so organized duly nominated as candidates of the Prohibition Party for state offices to be voted for at the coming general election the persons named in the certificate of nominations, a copy of which is appended to the application; that thereafter the plaintiff, as secretary of such convention, presented such certificate of nominations to the defendant for filing, according to the provisions of the Revised Political Code heretofore mentioned; and that the defendant refused to receive and file the same. In brief, it appears from the application, a mere outline of which has been given, that the Prohibition Party, in making and certifying its nominations, complied in all respects with the provisions of the Revised Political Code; that the plaintiff was, by reason of his position as secretary of its convention, charged with the duty of securing the filing of its certificates of nominations, to the end that the names of its candidates might be printed on the official ballots to be voted at the coming general election, and that it was the duty of the defendant to receive and file such certificate, provided the law under which the proceedings of the Prohibition Party were taken is still in force. Such law is still in force, except in so far as it conflicts with an act of the last Legislature relating to primaries. Laws 1907, p. 309, c. 139, § 77; State v. Drexel (Neb.) 105 N.W. 174. This is conceded by the plaintiff, but he contends that the later law is unconstitutional; that an unconstitutional statute is of no force or effect, and that, therefore, the former law has not been abrogated. The contention that the former law is still in force if the later one has no validity is manifestly correct, so the question arises whether the act of 1907 has any validity whatever. If it has, plaintiff’s application must be denied, as the act of 1907 expressly provides that hereafter all party nominations, such as were attempted to be made by the Prohibition Party, shall be made in accordance with its provisions. Laws 1907, p. 286, c. 139, § 3. The doctrine that a statute will not be declared unconstitutional unless it so plainly and palpably conflicts with some principle of organic law as to leave no rational doubt of its invalidity, has been frequently approved and followed by this court. Another universally recognized rule has been stated thus:
6 Am. & Eng. Ency, Law, 1088. On the same subject this court has said: “A portion of a statute may be unconstitutional and stricken out, and if that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, the statute must be sustained.” State v. Morgan, 48 NW 314. Having these elementary principles in mind, we proceed to consider plaintiff’s objections to the statute in question.
The act provides for the holding of a primary election, at public expense, in every voting precinct in the state, at a time designated therein, to be conducted by judges appointed by the county auditor; printed ballots and a ballot box being furnished for the separate use of each political party. Each elector offering to vote is required to state in “a distinct and audible voice” his own name, and the name of the party of which he is a member. Thereupon the judges hand him an official ballot of the party of which he is a member. He retires to a booth, marks his ballot, returns and delivers it to the judges, who deposit it in the box of the party to which the voter belongs. If any judge knows or has reason to believe that the person offering to vote is not a qualified voter of the precinct, or is not a member of the party whose ballot he is attempting to vote, it is the duty of the judge to challenge the right of such person to vote, and “any person may challenge the right of any person to vote the ballot of the party making the challenge.” If the challenge be on the ground that the voter is not a qualified elector of the precinct, the judges are required to tender him the oath used at general elections in a similar case. If the challenge be on the ground that he is not in good faith a member of the party whose ticket he is attempting to vote, he shall be tendered the form of oath prescribed by section 33, which contains, in addition to his qualifications as an elector, these declarations:
“That you are now in good faith a member of the party and a believer in its principles as declared in its platform in the last preceding national and state conventions; and that you do now in good faith intend to support the principles of that party and the candidates nominated by it at the primaries now being held.”
If the person challenged refuses to take the oath so tendered. his vote must be rejected, It is contended that section 33, in so far as it requires a declaration of present intention to support the candidates nominated by the party whose ballot a challenged elector desires to vote, adds to the qualifications of an elector as prescribed by the Constitution, and is to that extent invalid. The contention is not tenable. It ignores the substantial distinction between the nomination of a candidate and the election of a public officer. Regarding legislative control of party nominations this court has said:
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