State ex rel. Dorval v. Hamilton

• Decision Date: 24 December 1910
• Citation: 20 N.D. 592,129 N.W. 916
• Parties: STATE ex rel. DORVAL v. HAMILTON, County Auditor.
• Court: North Dakota Supreme Court

20 N.D. 592

129 N.W. 916

STATE ex rel.

DORVAL

v.HAMILTON, County Auditor.

Supreme Court of North Dakota.

Dec. 24, 1910.

Syllabus by the Court.

The primary election law of this state, in common with all general laws regulating the elective franchise, is in all its parts within the constitutional requirements that it must be just and reasonable, must have a uniform operation throughout the state, and must bear with substantial equality upon parties, candidates, and all classes of citizens.

In case it is apparent that from the nature of a general law and the ends it purposes to effect that its aims can be attained only through the medium of groups or aggregations of persons, a certain classification of objects to be affected differently by the operation of the law, may be made. Such classification, if made, however, must rest upon some difference which bears a true and just relation to the act in reference to which the classification is proposed, and must be reasonable and natural, not artificial or arbitrary.

A standard prescribed by a general law for the determination of a basis of classification that is from its nature and character unstable, illogical, inconstant, and arbitrary, cannot serve as a means for the computation of groups that must bear to it and to each other the natural, constant, and unvarying relation required by the Constitution; and a law that operates diversely upon classes so determined cannot have a just, reasonable, and uniform operation.

Under the provisions of the general primary election law, the classification provided by the requirement of section 12, c. 109, Laws 1907, to the effect that no nomination shall be made unless the vote cast for state, district, or county offices is at least 30 per cent. of the total number of votes cast for the candidate for Secretary of State of each political party at the last general election, is arbitrary, unnatural, and lacks uniformity in the different counties of the state, by reason of the fact that the standard provided for determining the basis of classification places the party group authorized to make a nomination in each county in a relation to the actual party strength and to each other that is unstable, inconstant, and without uniformity in the different counties of the state. Such provision of the law is therefore unconstitutional and void. On this point the holding of State v. Anderson, 18 N. D. 149, 118 N. W. 22, is overruled.

Appeal from Cavalier County Court; W. J. Kneeshaw, Judge.

Mandamus by the State, on the relation of H. E. Dorval, against J. K. Hamilton, as Auditor of Cavalier County. From an order denying the writ, relator appeals. Reversed.

Morgan, C. J., and Spalding, J., dissenting.Jeff M. Myers and W. B. Dickson (Engerud, Holt & Frame, of counsel), for appellant. W. E. McIntyre, J. B. Wineman, and F. E. Smith, for respondent.

ELLSWORTH, J.

The name of appellant was regularly upon the ballot used at the primary election of June 29, 1910, as Democratic candidate for nomination to the office of county judge of Cavalier county. At such election he received 341 votes, and there were no votes cast for any other person as Democratic candidate for nomination to such office. These facts were shown by the abstract of the county canvassing board which canvassed the result of said primary election, and, within a reasonable time after the preparation and filing of its abstract, appellant demanded of the defendant to this action as county auditor of Cavalier county that his name be placed upon the official ballot to be used in said county at the next general election as Democratic candidate for the office of county judge. This the defendant refused to do, and declared his purpose to omit the name of appellant from such ballot, stating as the ground of his action in the premises and the only reason and excuse therefor, that notwithstanding the fact that appellant received the highest number of votes cast for any person for nomination as Democratic candidate for the office of county judge of said county, he did not receive a vote equal to 30 per cent. of the total number of votes cast for the Democratic candidate for Secretary of State, in said Cavalier county, at the general election of 1908. At such general election, it appears that Joseph Mann, the Democratic nominee and candidate for Secretary of State of North Dakota, received a total vote in Cavalier county of 1,152, of which 30 per cent. is 346. At the primary election of June 29, 1910, more than 346 electors of said county called for and used Democratic primary election ballots; but such persons voted for appellant to the number only of 341 as above stated.

After a formal showing of the facts hereinbefore narrated, appellant applied to and received from the district court for Cavalier county an alternative writ of mandamus requiring defendant as auditor of said county to place his name upon the official ballot to be used at the general election of November, 1910, or to show cause why he should not be required to do so. The county auditor as such defendant thereupon interposed a demurrer to the allegations of said alternative writ on the ground that the same did not state facts sufficient to constitute a cause of action and are not upon their face sufficient to authorize the granting of the relief mentioned in the alternative writ or any relief whatever. Upon a hearing duly had the district court sustained defendant's demurrer, and directed that the alternative writ of mandamus issued to him be quashed and dismissed. From such order of the district court this appeal is taken.

Upon the hearing before this court the defendant justifies his declared purpose to omit the name of appellant from the official ballot to be prepared by him for the general election of November, 1910, by reference to that portion of the primary election act in force at the time in these words: “If the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 30 per cent. of the total number of votes cast for Secretary of State of the political party he or they represented at the last general election, no nomination shall be made in that party for such office, but if 30 per cent. or more of such vote is cast and there is more than one candidate for any such office, the person receiving the highest number of votes shall be declared the nominee of such party for such office.” Section 12, c. 109, Laws 1907. Appellant admits that if this law is operative and applicable to nominations for county officers, its provisions would appear to warrant the acts and attitude of defendant; but claims that that portion of the act quoted above in so far as it authorizes the omission of appellant's name from the general election ballot is an unreasonable and unwarrantable exercise by the Legislature of the police powers of the state, and is therefore unconstitutional and void.

The principal question presented by this appeal is not before this court for the first time. Two years ago, in a case presenting points that, in the abstract, seem to be identical with those of the case at bar, a majority of this court concurred in holding (1) that the provisions of section 12, c. 109, Laws 1907, apply to district and county as well as state offices; and (2) that as a regulation of the elective franchise its requirements are reasonable and not within the inhibition of any constitutional limitation. State v. Anderson, 18 N. D. 149, 118 N. W. 22. With the first holding this court as at present constituted fully agrees, and in its application to the case at bar we simply reiterate our adherence to that principle. Highly important and in a sense controlling in the disposition of the case at bar, however, are considerations that were not present in the case of State v. Anderson. At the time of the decision of that case but one election had been held under the primary election law enacted in 1907, and the survey of its practical operation then presented to the court was obviously limited and obscure. The court, from the very necessity of the case, was compelled to form its judgment largely upon abstract principle and to base the same upon facts that might be expected to arise out of the practical operation of the law rather than on those that had arisen. While, therefore, we still adhere to much of the general principle announced in the case of State v. Anderson, a majority of this court, under the additional facts now brought to its consideration, feel impelled to a conclusion materially at variance with that therein announced.

It is now well settled that under the Constitution of this state, the Legislature may adopt measures regulating the exercise of the elective franchise in the nomination of candidates by political parties as well as in the election of public officers. It is equally well recognized and settled that such regulation must be just and reasonable and operate on voters and candidates of the same class with substantial equality. This latter principle was unequivocally recognized in the decision in the case of State v. Anderson, and we accept it without material qualification. In applying it to a determination of the facts of this case, however, it is necessary that we should delve somewhat below the principle itself and determine the constitutional fundament on which it rests.

Thus examined, it will be observed that at least three important provisions of the Constitution are interwoven more or less closely with the basis of this principle: (1) Intimately associated as is the elective franchise with the general rights of citizens, all attempted regulation necessarily comes within the scope of the immutable declaration of rights contained in section 1 of the Constitution; (2) all legislative regulation of the elective franchise throughout the state, is a general law that must bear with substantial equality upon parties, candidates,...