Riter v. Douglass

• Decision Date: 03 June 1910
• Docket Number: 1,890.
• Citation: 109 P. 444,32 Nev. 400
• Parties: RITER v. DOUGLASS, Secretary of State.
• Court: Nevada Supreme Court

109 P. 444

32 Nev. 400

RITER v. DOUGLASS, Secretary of State.

No. 1,890.

Supreme Court of Nevada

June 3, 1910

Appeal from District Court, Ormsby County.

Action by Henry Riter against W. G. Douglass, Secretary of State. From a judgment for defendant, plaintiff appeals. Affirmed.

L. A Gibbons and James T. Boyd, for appellant. R. C. Stoddard Atty. Gen., L. B. Fowler, Deputy Atty. Gen., and Geo. D Pyne, for respondent. H. V. Morehouse and Horatio Alling, amici curiæ.

SWEENEY J.

The effect of this appellate proceeding is to test the constitutionality of the law commonly referred to and known as the "Direct Primary Law," enacted March 23, 1909. St. 1909, p. 273. On the 23d day of February, 1910, the appellant herein, a taxpayer and qualified elector of the state of Nevada, instituted an action in the First judicial district court of the state of Nevada, in and for the county of Ormsby, against the respondent to restrain him from expending any money required to be expended or entering into any contracts required to be entered into under and by virtue of that certain law entitled, "An act to provide for the direct nomination of candidates for public office by electors, political parties and organizations of electors, without conventions, at elections to be known and designated as primary elections, determining the tests and conditions upon which electors, political parties and organizations of electors may participate in any such primary election, and establishing the rates of compensation for primary election officers serving at such primary elections; providing for the organization of political parties and the promulgation of their platforms, and providing the methods whereby the electors of political parties may express their choice at such primary elections for United States Senator, to provide for the registration of voters for said primary elections and the compensation of registry agents, and to provide penalties for violating the provisions of this act," assigning as grounds for the relief demanded constitutional defects in the law. To the complaint, setting forth the unconstitutional grounds assigned, a demurrer was interposed by respondent, regularly presented to and sustained by the lower court and judgment rendered in favor of the defendant, respondent herein. From this judgment plaintiff appeals, and attacks the law in question as unconstitutional upon the following grounds, which we will consider in the order presented:

"(1) The law is unconstitutional, in that it destroys political parties, and in so doing deprives voters of the right to form and govern political parties, which right inheres in the nature of our government and is guaranteed by the Constitution of the state of Nevada. (a) The law denies electors the right to determine the political principles their candidates must espouse, and thus denies electors the right to instruct their representatives. (b) The primary law enables electors of opposite political faith to name the candidates of their political opponents.

"(2) The law is void, in that it denies certain political parties the right to participate in primary elections authorized by the act, and provides no method by which their candidates may appear upon the official ballot.

"(3) The law is void, in that it deprives political parties of the right to say who shall be members thereof, and forces each political party to admit as a member any elector who complies with the legislative test.

"(4) The law is void, in that it restricts the elector's right of suffrage contrary to the Constitution, and denies him the privilege of voting for certain classes of electors.

"(5) The law is unconstitutional, in that it prevents one from being a candidate for office if he has been defeated at a primary election.

"(6) The law is void, in that it prohibits certain classes of electors, constitutionally qualified, from being candidates for office.

"(7) The law is void, in that it requires the payment of certain fees as a condition precedent to becoming a candidate.

"(8) The law is void, in that it requires of officers an oath other than and different from that required by the Constitution.

"(9) The law prohibits the nomination of 'Independent' candidates, and thus shows the legislative intent to confine participation in the primaries to parties having candidates at the last presidential election.

"(10) The law is unconstitutional, in this: It provides an exclusive method for obtaining a place on the official ballot, and further provides that only those whose names are on the ballot can be voted for, thus depriving electors of the right of suffrage."

Before proceedings, however, to a consideration of these objections raised, we believe it will be profitable to momentarily advert to a consideration of the limitations placed upon our legislative making bodies in the enactment of laws by our federal and state Constitutions, and to the power of the judiciary to declare legislative action void, and to such rules of statutory construction as may be proper in the determination of the constitutionality of questioned legislative acts.

When the people of the United States created this unexcelled government of ours, they entertained the opinion that all power is inherent in the people, in opposition to the previous theory held by the royal heads of other governments and commonly assented to that the people were only entitled to such rights, privileges, and power as the heads of these governments deigned to give them. With a clear understanding of and faith in the principles that all men are created equal and all power is inherent in the people as contradistinguished from the principles entertained by monarchs and kings that royal blood made them superior to their fellow beings, and that they were endowed with all governmental power by divine right, the people of the United States before dispossessing themselves of any power they believed inherent in themselves and binding themselves up to a constitutional form of government seriously debated and decided what governmental principles they would profess and imbed in their new Constitution. They then divided and delegated specifically an enumerated list of powers to the legislative, executive, and judicial departments, into which they divided their new republican form of government, then an experiment, but now as a form of government a model and proven success, after which we believe in time all governments will be patterned.

To the Congress of the United States, the legislative branch of our national government, they plainly stated in their Constitution what laws they are authorized to pass; and, as a consequence, Congress has no authority to pass any laws except such as the Constitution either expressly authorizes or grants by clear implication. Hence, when a law of Congress is attacked as unconstitutional for contravening any right, unless the federal Constitution granting Congress the specified authority to enact the measure is broad enough to sustain the law, it is unconstitutional. On the other hand, the people, formulating the Constitution of our state. gave to the legislative branch of our stategovernment unreserved authority to pass any legislation which was not expressly prohibited by the Constitution they framed or in violation of our national Constitution. Therefore, when a law of our state is attacked as unconstitutional, it is presumed to be constitutional until it is declared otherwise by a court of competent jurisdiction, as in contravention of the Constitution of the United States or that our state Constitution expressly prohibits the passage of the act in question. To sustain an act of Congress, we must examine the Constitution of the United States, and find a grant of legislative power upholding the act as constitutional; but to sustain an act of our Legislature, alleged to be in contravention to our state Constitution, we must examine our state Constitution, and find therein no prohibition of authority to enact the measure before it can be declared unconstitutional. In short, in considering the constitutionality of a federal or state act, there is a great difference in the legislative power conferred on Congress by the national Constitution and the power conferred on the Legislature by our state Constitution to be considered, which must be kept in mind. Congress is authorized only to enact such laws as the national Constitution expressly grants it or is clearly implied with the grant; while the lawmaking power of the state is authorized to enact legislation on all subjects which are not expressly prohibited by our state Constitution or in contravention of the federal Constitution.

The Court of Appeals of the state of Missouri, in commenting on this particular question, has the following to say: "But a state Legislature, unlike the national Congress, has full legislative power wherever it is not restrained by the Constitution, whereas Congress has power only when it is granted by the Constitution. Hence the Legislature does not need express constitutional authority to legislate on a subject, but only lack of a constitutional prohibition. 'Authority' given by the Constitution to pass a law means, therefore, more than that there is no restriction against passing a law. It means a positive constitutional direction in regard to it. It follows that the Constitution of the state does not authorize the passage of an act regarding primary elections, although such an act of the Legislature is valid for it is not prohibited by the Constitution." Dooley v. Jackson, 104 Mo.App. 30, 78 S.W. 333. Judge Cooley, in his great work on Constitutional Limitations, states: "The rule of law upon this subject appears to be that, except where the...