Oughton v. Black

• Decision Date: 08 May 1905
• Docket Number: 214
• Citation: 61 A. 346,212 Pa. 1
• Parties: Oughton, Appellant, v. Black
• Court: Pennsylvania Supreme Court

61 A. 346

212 Pa. 1

Oughton, Appellant, v. Black

No. 214

Supreme Court of Pennsylvania

May 8, 1905

Argued October 12, 1904

Appeal, No. 214, Jan. T., 1904, by plaintiffs, from decree of C.P. No. 5, Phila. Co., June T., 1904, No. 1127, dismissing bill in equity in case of John Oughton, J. Claude Bedford John Story Jenks, Walter C. Lippincott and Walter F. Hall v Hugh Black, Jacob Wildemore and Charles P. Donnelly, city commissioners. Affirmed.

Bill in equity for an injunction. Before RALSTON, J.

From the record it appeared that the complainants were candidates for several offices in the city of Philadelphia. The bill prayed "for an injunction to restrain the defendants from printing the ballots for the election to be held on November 8, 1904, in the county of Philadelphia in such form that 'there shall be printed on the extreme left of the ballot, and separated from the rest of the ballot by a space of at least one half inch, a list of the names of all the political parties or groups of nominees represented on such ballot, and presenting candidates to be voted for at such election,' and so printed that 'a square, of sufficient size for the convenient insertion of a cross mark, shall be placed at the right of each party name or appellation.'"

The defendants demurred to the bill.

The court in an opinion by RALSTON, J., sustained the demurrer and dismissed the bill.

Error assigned was decree dismissing the bill.

The decree is affirmed and the appeal dismissed at the costs of appellants.

Charles C. Binney and George W. Guthrie, with them Clinton Rogers Woodruff, Charles H. Bergner and N. Dubois Miller, for appellants. -- The legislature is empowered to regulate the method of voting at elections, but only to secure equality, not to destroy it: Independence Party Nomination, 208 Pa. 108.

The provision that "elections shall be equal" means that all qualified voters are entitled to equal facilities for voting, and all candidates to equal facilities for receiving votes, in as far as the law undertakes to regulate such facilities: Wood's App., 75 Pa. 59; Com. v. Reeder, 171 Pa. 505; People v. Hoffman, 116 Ill. 587 (5 N.E. Repr. 596).

The relief sought is warranted by precedent: Eaton v. Brown, 96 Cal. 371 (13 Pac. Repr. 250); Craig v. Brown, 114 Cal. 480 (46 Pac. Repr. 870); Com. v. Martin, 6 Pa. Dist. Rep. 645.

No precedent for refusing the relief sought can be found in any state whose constitution requires that "elections shall be equal."

Alex. Simpson, Jr., for appellees. -- The act is constitutional: Independence Party Nomination, 208 Pa. 108; DeWalt v. Bartley, 146 Pa. 529; Patterson v. Barlow, 60 Pa.54; Wood's App., 75 Pa. 59; Com. v. Reeder, 171 Pa. 505; Cohens v. Virginia, 19 U.S. 264; Earp v. Cummins, 54 Pa. 394; Allen v. Glynn, 17 Colorado, 338 (29 Pac. Repr. 670); Ritchie v. Richards, 14 Utah 345 (47 Pac. Repr. 670); Todd v. Election Commissioners, 104 Mich. 474 (62 N.W. 564); State v. Anderson, 100 Wis. 523 (76 N.W. 482); People v. Hoffman, 116 Ill. 587 (5 N.E. Repr. 596); Moers v. Reading, 21 Pa. 188.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and THOMPSON, JJ.

OPINION

MR. JUSTICE BROWN:

At the threshold of the elaborate argument in support of their appeal the appellants distinctly admit that the Act of June 10, 1893, P.L. 419, as amended by the Act of April 29, 1903, P.L. 338, is "perfectly complete and perfectly constitutional," if a proviso in the amended fourteenth section and a clause in the twenty-second section, as amended, be eliminated. The proviso is: "Provided further, that each voter may have the opportunity of designating his choice for all the candidates, as nominated by one political party, there shall be printed on the extreme left of the ballot, and separated from the rest of the ballot by a space of at least one-half inch, a list of the names of all the political parties or groups of nominees, represented on such ballots and presenting candidates to be voted for at such election. Such names shall be arranged in the order of the votes obtained, at the last presidential election, by the candidate at the head of the respective tickets of the parties or bodies nominated, beginning with the party that received the highest vote cast. Following the names of such political parties, shall be the names of the parties or principles not presented on the ballot at the last presidential election, arranged alphabetically, according to the party name or political appellation. A square, of sufficient size for the convenient insertion of a cross-mark shall be placed at the right of each party name or appellation. Every mark within such square shall be equivalent to a mark against every name designated by that political appellation, or party name, including candidates nominated by more than one party, or group of citizens. At the head of every ballot shall be printed the following instructions: 'To vote a straight party ticket, mark a cross (X) in the square opposite the name of the party of your choice, in the first column. A cross-mark in the square opposite the name of any candidate, indicates a vote for that candididate.'" The clause in the twenty-second section, as amended, is: "If he desires to vote for every candidate of a political party, he may make a cross-mark in the appropriate square, opposite the name of the party of his choice, in the straight party column on the left of the ballot, and every such cross-mark shall be equivalent to a vote for every candidate for the party so marked."

The position of the appellants, as they themselves announce it, is: "It is these provisions giving to voters who wish to vote for all the candidates of one political party the special privilege of doing so by a single cross-mark which occasions the inequality of which the appellants complain, and are also unconstitutional as authorizing a method of voting for political parties, not for men. Without these provisions the act is perfectly complete and perfectly constitutional, so that complete relief can be given by simply declaring the unconstitutionality of these particular provisions without touching the rest of the act. . . . It is this special privilege given to straight-ticket voters and denied to others which injures the plaintiffs, who, as candidates, are opposed by other candidates who can be much more easily voted for. . . . The appellants do not seek to have the whole amended act of 1893 set aside, nor even any single integral feature of that act, but merely to have a single provision, a wholly superfluous and unconstitutional excrescence, declared to be void, this provision being found in two sections only, and its elimination from the act leaving the rest complete in itself and perfectly effectual for the purpose of regulating elections in a constitutional method."

The proviso and clause are assailed as being unconstitutional because, it is contended, they interfere with the freedom and equality of elections, sec. 5, art. I, of the constitution being "elections shall be free and equal." The single narrow question before us is, Does the manner in which an elector is permitted by the statute to designate the ticket for which he wishes to vote interfere with the freedom and equality of elections?

By declaring that elections shall be free and equal the constitutional guaranty is not only that "the voter shall not be physically restrained in the exercise of his right by either civil or military authority:" Com. v. Reeder, 171 Pa. 505; but it is that by no intimidation, threat, improper influence or coercion of any kind shall the right be interfered with. The test of the constitutional freedom of elections is the freedom of the elector to deposit his vote as the expression of his own unfettered will, guided only by his own conscience as he may have had it properly enlightened. Tried by this, the only test, it cannot reasonably be said that because one voter may more quickly prepare his ballot than another the election is not free to both alike. Each votes as freely as the other, but, in doing so, the one who, in a spirit of independence, and in the exercise of his absolute right to be independent, makes up his own ballot, must and does consume more time than the other. This, however, is no interference with his freedom as an elector. It is the very freedom of the election that enables him to mark his ticket just as he pleases, or to make it up without regard to any name that may appear as a candidate on the ballot handed to him. This need be pursued no further and the only question to be considered is the alleged inequality of elections.

What is the real complaint of the appellants? Whether we confine ourselves to their bill, beyond which we ought not to go in looking for it, or search for it in the elaborate briefs of their learned counsel, it is not that the acts of 1893 and 1903 deprive them, as candidates, of the right to be voted for by qualified electors, or that the latter are deprived of the right to vote. It is simply that certain electors in going into the election booths, possessing no higher, but just the same right to freely cast their votes and have them counted that every other elector in the commonwealth possesses, may mark their tickets more readily and quickly than the elector who, in wishing to assert his absolute right of independence of any political party, makes up his own ticket, and, in doing so, necessarily is required to consume more time. In other words, because those voters who insist upon making up their own tickets, as is their unquestioned right, must necessarily make a number of marks, the contention of the appellants is that elections are not equal if other electors may indicate the candidates of their choice by making fewer marks. ...