State ex rel. Ekern v. Dammann

• Decision Date: 01 May 1934
• Citation: 215 Wis. 394,254 N.W. 759
• Parties: STATE EX REL. EKERN ET AL. v. DAMMANN, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

215 Wis. 394

254 N.W. 759

STATE EX REL. EKERN ET AL.

v.DAMMANN, SECRETARY OF STATE.

Supreme Court of Wisconsin.

May 1, 1934.

Original proceeding for declaratory relief by Herman L. Ekern and others.

Petition by the State, on the relation of Herman L. Ekern and others against Theodore Dammann, Secretary of State, for leave to institute an original proceeding for a declaratory judgment.--[By Editorial Staff.]

Leave granted and declaratory judgment rendered.

Request for leave to institute an original proceeding for a declaratory judgment pursuant to section 269.56, Stats. The petition, which was filed April 6, 1934, alleges that the plaintiffs are adult residents and electors of the state of Wisconsin; that the defendant, Theodore Dammann, is the duly elected and qualified secretary of state of the state of Wisconsin, whose duty it is to receive and file nomination papers for candidates for state, senatorial, congressional, and United States Senate offices, at both primary and general elections, and for certain assembly offices; that it is his duty to receive and file petitions for new political parties, and to prepare, make, and distribute the official ballots for the primary and general elections in the state of Wisconsin.

It is alleged that on March 3, 1934, a statewide conference of more than 400 representative leaders of the political group known as “Progressives” was held in the city of Madison for the purpose of considering the formation of a new political party in the state; that from the conference and from the reports it appears that a large number of electors in Wisconsin are desirous of organizing a new political party in the state. At this conference the defendant, Theodore Dammann, appeared in person and advised the conference that under the interpretation he felt obliged to make of the pertinent provisions of chapter 5 of the Statutes of 1933, it was a practical impossibility to organize a new political party and obtain therefor a party ticket and column in and for the primary and general elections of 1934; that plaintiffs, pursuant to instructions of the conference and other representative organizations, through William T. Evjue, as chairman, requested from the defendant, Theodore Dammann, as secretary of state, a formal and official ruling upon the question of obtaining a new party column for state, congressional, senatorial, and county offices, and United States Senator, at the primary and general elections of 1934. Since this ruling will necessarily be examined in detail in disposing of the merits of the controversy, it will not be set forth here except to state that the rulings are alleged to erroneously construe the statutes in such a manner as wrongfully to deprive a large number of citizens of the state of the right to form a new political party, to act under their chosen party name, and to elect officers of government under and as a part of their political party organizations.

By stipulation it is agreed that, in the event leave is granted to commence the original action, this court may proceed to render a declaratory judgment upon the basis of the allegations of fact appearing in the petition, without further pleadings.

Such further facts as are essential to an understanding of the questions presented will be stated in the opinion.Walter D. Corrigan, Sr., of Milwaukee, Herman Severson, of Iola, Joseph Padway, of Milwaukee, Thomas Amlie, of Elkhorn, John Thiel, of Mayville, Edward E. Browne, of Waupaca, Herman L. Ekern, Fred L. Holmes, and Philip F. La Follette, all of Madison, and Herbert Steffes, of Milwaukee (Walter D. Corrigan, of Milwaukee, filed a separate brief), for petitioners.

James E. Finnegan, Atty. Gen., Joseph G. Hirschberg, Deputy Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and William H. Spohn, of Madison, for respondent.

WICKHEM, Justice.

[1][2] The first question involved is whether the petition discloses a justiciable controversy. It is the rule, too well established to warrant extended discussion, that this court will not entertain an action for declaratory relief in the absence of a genuine controversy. Heller v. Shapiro, 208 Wis. 310, 242 N. W. 174, 87 A. L. R. 1201;Village of Sun Prairie v. Wisconsin Power & Light Co. (Wis.) 251 N. W. 605;In re Breidenbach (Wis.) 252 N. W. 366. The question in this case is whether the action for declaratory relief is not premature. Since the secretary of state has been asked to perform no official duty with respect to giving the new political party a separate ballot, it may be contended that there is at present no controversy in any such sense as the declaratory judgments law contemplates; that the relief asked is simply an advisory opinion based upon the hypothesis that the party is formed, seeks to qualify at the general election of 1934, and is refused such right by the defendant. The matter is not free from difficulty, but we have concluded that it sufficiently appears from the petition that there is a determination upon the part of the group seeking declaratory relief to form a new political party, and that in response to a request for an official ruling, this defendant has indicated that he will make such rulings as will render the organization ineffective, at least in so far as opportunity to support its candidates at the 1934 fall election is concerned. In view of the decision to form such a party and the ruling of the defendant, it must be held that a controversy exists. This is especially true in view of the subject-matter of this action. It deals with the electoral franchise and with the rights of citizens to express their political opinions through the medium of a political party. It goes without saying that the term “controversy,” as applied to the rights of the great mass of citizens, must receive a somewhat more liberal definition than when applied to the ordinary relations of individuals with each other. The right of a large body of citizens holding similar political views to so organize as to make these views effective is an important one. Where there exists a genuine determination so to organize, and a threatened obstacle to the accomplishment of this purpose in the form of an official ruling, a controversy exists. To hold otherwise would require the group to go to the expense and labor incident to organization, with no assurance that any of these steps would be presently effective. We conclude, therefore, that the petition discloses a justiciable controversy, and that it may be proper to entertain the action so far as the declaratory judgments law is concerned. So far as the right to commence an original action or the propriety of this court taking jurisdiction are concerned, no questions are raised, nor could it be contended that this is not a proper case for the exercise of original jurisdiction, assuming the petition to state a cause of action for declaratory relief.

For convenience, the rulings of the secretary of state, which form the basis of his contentions in this action, will be set forth seriatim and disposed of.

The first ruling of the defendant is as follows:

“That even though a new political party complied with the statutory requirements for and obtained a new party column for the primary of 1934, the names of candidates receiving the largest number of votes for each respective office would not be placed in the new party's column on the general election ballot, but instead would be placed in the independent column, for the reason that under Section 5.17 (1) such new party having had no candidate for governor at the last two preceding elections, there would be no basis for figuring the percentage requirements in said section provided.”

[3][4][5][6] At this point it is necessary to consider not only the statutes involved, but the well-established rulings of this court with reference to the electoral franchise. In State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, 1047, 35 L. R. A. (N. S.) 353, it is stated that “constitutional inhibitions of legislative interference with a right, including the right to vote and rights incidental thereto, leaves, yet, a field of legislative activity in respect thereto circumscribed by the police power. That activity appertains to conservation, prevention of abuse, and promotion of efficiency.” It is also said--and this by the unanimous court--that “the right of suffrage includes the right of voters to separate into groups according to their political beliefs respecting governmental policies, and the right of every group to organize and have all the machinery in that regard not reasonably prohibited by law for making the organization effective as regards declaring the policy of its members, and vitalizing such policies by electing officers in harmony therewith to legislate and execute law to that end.” The court goes on to say that “every legislative interference with freedom on the part of voters to form political organizations and to act under their chosen party names to accomplish the purposes of the organizations is at the same time an interference with the right to vote, so the limit of (legislative) power as to the one is substantially the limit of (such) power as to the other,” and must be justified under the police power, which in substance means that such regulation as is adopted must pass the tests usually applied in ascertaining the validity of any exercise of this power. If the right to vote or the right to organize into political groups had been held to be a matter of grace, as in Healey v. Wipf, 22 S. D. 343, 117 N. W. 521, 522, where the court said, “The elective franchise is not a natural right. It is a privilege which may be taken away by the power which conferred it,” it might be concluded that where the Legislature has not furnished the machinery by which the voters may express their views at the polls through political parties, no such power exists. However, since the right of the voters so to express themselves...