State ex rel. Baldwin v. Strain

• Decision Date: 25 May 1950
• Docket Number: No. 32821,32821
• Citation: 152 Neb. 763,42 N.W.2d 796
• Parties: STATE ex rel. BALDWIN v. STRAIN.
• Court: Nebraska Supreme Court

Page 796

42 N.W.2d 796

152 Neb. 763

STATE ex rel. BALDWIN v. STRAIN.

No. 32821.

Supreme Court of Nebraska.

May 25, 1950.

Syllabus by the Court.

1. The proclamation of the Governor convening an extraordinary session of the Legislature to amend, revise, and supplement the election laws so as to facilitate absentee voting is sufficient to sustain changes as to time in the procedures set forth in the election laws in order to accomplish the stated purpose of the proclamation.

2. An act which purports to amend an unconstitutional statute may be held to be amendatory of the valid statute, if such there be, which the unconstitutional act purported to amend and repeal.

3. The Legislature under its police power may properly declare occupants of positions and employees of the state and federal governments ineligible as candidates for delegates to party conventions and caucuses.

4. An act of the Legislature, section 32-1172.02, R.S.Supp., 1949, making a person ineligible to be a delegate to a county, state, or congressional pre-primary convention, who holds a position or employment under the state or federal government, is not violative of Article I, sections 1, 3, and 22, of the Nebraska Constitution.

5. All things necessary or proper to carry out the general object stated in the title of a legislative act are deemed to be within the scope of such title.

6. Legislative Bill No. 167, Laws 1949, contains but one subject and the same is clearly expressed in the title, within the meaning of Article III, section 14, of the Nebraska Constitution.

7. The absence of a definition of the words 'position or employment' contained in Legislative Bill No. 167, Laws 1949, does not invalidate the act. If doubt arises as to their meaning it can be determined upon judicial inquiry.

Waring & Waring, Geneva, Fraser, Connolly, Crofoot & Wenstrand, Omaha, for relator.

Clarence S. Beck, Atty. Gen., Robert A. Nelson, Asst. Atty. Gen., Walter E. Nolte, Deputy Atty. Gen., for respondent.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action in mandamus brought originally in this court by relator to compel the respondent, the county clerk of Thayer County, to accept the filing of relator as a candidate for delegate to the Democratic county pre-primary and post-primary conventions for the years 1950 and 1952.

The action involves the constitutionality of section 32-1172.02, R.S.Supp., 1949, which provides: 'No person shall be eligible to be a delegate to either county, state, or congressional pre-primary convention who holds a position or employment under (1) the government of the United States, or (2) this state.' The relator was, at all times here involved, the county attorney of Thayer County, Nebraska, and a member of the Game, Forestation and Parks Commission of the State of Nebraska. It is not disputed that relator is qualified to become a candidate for delegate to the Democratic county pre-primary and post-primary conventions unless he is prohibited from so doing by the quoted provision of the statute.

The provision in question was enacted in 1949 as an amendatory act purporting to amend portions of an act passed at the extraordinary session of the Legislature in 1944. It is contended that the act passed at the extraordinary session was broader than the proclamation of the Governor convening such session of the Legislature and that it therefore contravened Article IV, section 8, of the Constitution of Nebraska, which provides: 'The Governor may, on extraordinary occasions, convene the legislature by proclamation, stating therein the purpose for which they are convened, and the legislature shall enter upon no business except that for which they were called together.' The proclamation of the Governor convening the extraordinary session, bearing date of March 21, 1944, insofar as it is pertinent to the issue before us, stated: 'To amend, revise and supplement the laws of the state relating to elections so as to facilitate and afford greater opportunity for the exercise of the elective franchise by absent voters.' Nebraska Legislative Journal, 57th Extraordinary Session, 1944, p. 2.

It is contended that the proclamation of the Governor, insofar as it is pertinent here, limited the call of the extraordinary session of 1944 to the express purpose of facilitating absentee voting, but that Chapter I, Laws 1944, enacted by such extraordinary session of the Legislature, amended and revised the election statutes beyond the scope of the Governor's call. It is pointed out that Chapter 1, section 29, Laws 1944, purports to amend section 32-1135, C.S.Supp., 1941, which deals with the formation of new political parties. We point out that the only amendment made which in any way changes the meaning of the former section designated the period prior to a primary or general election at which a convention to form a new political party could be held as 70 days instead of 50. This was clearly done as part of the plan to advance the date of such conventions in order to facilitate absentee voting by those serving in the armed forces in foreign lands. Such an amendment was clearly within the scope of the Governor's call.

It is urged also that Chapter 1, section 30, Laws 1944, purports to amend Chapter 77, section 2, Laws 1943, having to do with rotation of names on the ballot and the time when the county clerk shall prepare the primary ballot and have it ready for distribution to absentee voters. The amendment merely changes such time from 14 to 40 days before the primary election. Such amendment is clearly for the purpose of facilitating absentee voting and is within the scope of the Governor's call.

Chapter 1, sections 31, 32, 33, and 34, Laws 1944, likewise amend statutes by changing the time to canvass returns and notify candidates and county clerks. Such amendments clearly facilitates absentee voting.

It is likewise contended that Chapter 1, section 35, Laws 1944, amends Chapter 77, section 4, Laws 1943, providing for post-primary and pre-primary conventions. Chapter 1, section 36, Laws 1944, amends section 32-1201, C.S.Supp., 1941, having to do with nominations on the nonpolitical ballot. The amendments change the time for filing for nonpolitical offices in order to provide more time for absentee voters to obtain and return their ballots. The amendments made are within the scope of the Governor's call.

We conclude that the amendments enacted by the extraordinary legislative session held in 1944, which have been here advanced, are within the scope of the Governor's proclamation and that Chapter 1, Laws 1944, does not contravene Article IV, section 8, Constitution of Nebraska. Consequently, section 32-1172.02, is neither an amendment of an invalid law nor in contravention of either Article IV, section 8, Constitution of Nebraska, or the proclamation of the Governor made pursuant thereto.

But even if the statute in question did in fact purport to amend an unconstitutional statute, as the relator here contends, it would be valid for another reason. If Chapter 1, Laws 1944, were unconstitutional for any reason, the previous acts on the subject would remain in full force and effect. Section 32-1172.02, R.S.Supp., 1949, would then become a valid amendment to Chapter 77, section 4, Laws 1943. In Sullivan v. City of Omaha, 146 Neb. 297, 19 N.W.2d 510, 21 N.W.2d 510, we said in our opinion on motion for a rehearing at page 307, 21 N.W.2d 511, 512, as follows: 'When L. B. 327 was enacted for the purpose of amending sections 35-201 to 35-203 inclusive, Comp.St.1929, followed by the repeal of the old sections amended, the amending statute simply designated the place where the existing and constitutionally effective language might be found which it specifically attempted to amend. Consequently, L. B. 327 did not simultaneously repeal and reenact an unconstitutional statute, although it had the apparent appearance of having done so.' See, Cass county v. Sarpy County, 63 Neb. 813, 89 N.W. 291; State ex rel. City Water Co. v. City of Kearney, 49 Neb. 325, 68 N.W. 533. We conclude that the contention of relator that section 32-1172.02, R.S.Supp., 1949, is void as an attempt to amend an unconstitutional act, Chapter 1, Laws 1944, is without merit.

The relator contends that the Legislature is prohibited by the state and federal Constitutions from making a person who holds a position or employment under the federal or state governments ineligible to be a delegate to a county, state, or congressional preprimary convention. It is urged that such an enactment by the Legislature is violative of the provisions of the Constitution of Nebraska guaranteeing equal rights (Art. I, § 1), due process (Art. I, § 3), and the rights of qualified voters to exercise the elective franchise (Art. I, § 22).

The exercise of the elective franchise is a right which the law protects and enforces as jealously as property rights. It is afforded constitutional protection against legislative impairment. Inherently in it is the right of persons to combine according to their political beliefs and to possess and freely use all the machinery for increasing the power of numbers by acting as a unit to effect a desired political end. The right to vote in a primary election and to participate in party activities is amply protected by constitutional provision. But even so, the right to use the elective franchise is subject to regulation the same as all other rights. It is elementary that the extent to which the Legislature may go in the exercise of the police power is primarily a matter of legislative judgment. It cannot properly go beyond reasonable regulation. What constitutes reasonable regulation is primarily for the Legislature to determine, subject to judicial review. If the purpose of the regulatory measure is legitimate and the means employed to effect it are reasonable, the regulation is entitled to...