State ex rel. Labauve v. Michel

• Decision Date: 18 April 1908
• Docket Number: 17,075
• Citation: 46 So. 430,121 La. 374
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. LABAUVE v. MICHEL, Secretary of State

46 So. 430

121 La. 374

STATE ex rel. LABAUVE v. MICHEL, Secretary of State

No. 17,075

Supreme Court of Louisiana

April 18, 1908

Appeal from Civil District Court, Parish of Orleans; Fred. Durieve King, Judge.

Mandamus suit by the state of Louisiana, on the relation of Thomas W Labauve, against John T. Michel, Secretary of State. From a judgment for plaintiff, defendant appeals. Judgment set aside, and suit dismissed.

Walter Guion, Atty. Gen., for appellant.

James Clark Henriques, amicus curiae.

Clarence Samuel Hebert, Hugh S. Suthon, and Taylor Beattie, for appellee.

OPINION

PROVOSTY J.

The Constitution of 1898, which is our present organic law, adopted the Australian ballot system, according to which the names of all the candidates to be voted for appear upon one ballot, and the voter indicates his choice by stamping the ballot opposite the name of the candidate, or writes the name of the candidate in a blank space left for that purpose. An essential part of the system is that the state prints and distributes the ballots. And since, on the one hand, the determination of whom to put on the ballot cannot be left to the caprice of the state officer to whom is assigned the duty of having the printing done, and since, on the other hand, if that officer were required to print the names of all who applied, the ballot might reach the size of a blanket, it is indispensable that by some means the names to be put on the ballot should be designated to the officer or, in other words, that the candidates shall have been nominated. Const. art. 212, contemplates that the candidates may be thus nominated either by the political parties or by nomination paper. Beyond this it does not undertake to regulate nominations, except in so far as is provided in article 200, which reads as follows:

"No person shall vote at any primary election or in any convention or political assembly held for the purpose of nominating any candidate for public office, unless he is at the time a registered voter. And in all political conventions in this state the apportionment of representation shall be on the basis of population."

Apart from the foregoing, the Constitution leaves to the Legislature the regulation of nominations, contenting itself with enjoining as follows:

"Art. 215. The Legislature shall enact laws to secure fairness in party primary elections, conventions, or other methods of naming party candidates."

In pursuance of that injunction the Legislature passed Act No. 152, p. 266, of 1898, and has more recently passed Act No. 49, p. 66, of 1906, and two acts amendatory of the latter, namely, Acts Nos. 21 and 27 of the extra session of 1907. Both by said Act No. 152 and said Act No. 49 the duty of having the ballots printed is imposed upon the Secretary of State. By Act No. 152, p. 266, of 1898, three modes of nomination are provided, to wit, by convention, by caucus of "political party or other nominating body," and by nominating paper. Act No. 49 leaves Act No. 152 intact so far as concerns nominations by nomination paper, or by convention or caucus of "nominating bodies" other than political parties (whatever that may be), but restricts political parties to nomination by direct primary.

Plaintiff claims to have been nominated under the provisions of Act No. 152, p. 266, of 1898, by a convention of the Republican Party as the candidate of that party for the office of state Senator, Sixteenth senatorial district, and asks for a mandamus to the Secretary of State commanding that officer to put his name on the ballot which is to be printed for use at the election to be held on the 21st of the present month.

The Secretary of State answers that said Act No. 152, in so far as it authorized political parties to make nominations by the convention method, was repealed by said Act No. 49, and that, therefore, plaintiff has not been nominated, and is not entitled to be placed on the ballot.

To this the plaintiff replies that Act No. 49 is unconstitutional, and that, therefore, Act No. 152 is still in full force and effect.

Plaintiff assigns no less than 21 grounds of unconstitutionality. By way of premise to the discussion of them we will observe that, differently from Congress, which possesses only such powers as are delegated to it by the Constitution of the United States, the Legislature exercises the entire legislative power of the state, except in so far as some limitation has been imposed by the state Constitution, and that, therefore, for successfully assailing the constitutionality of any statute, it is necessary to point out some particular provision of the Constitution which has taken away from the Legislature the power to pass it. We will observe, further, that every doubt must be resolved in favor of the statute. The Legislature is, of necessity, in the first instance to be the judge of its own constitutional powers. Their manifest duty is never to exercise a power of doubtful constitutionality. Doubt in their case, as in that of the court, should be conclusive against all affirmative action. If a court in such case were to annul the law while entertaining doubts upon the subject, it would present the absurdity of one department of the government overturning, in doubt, what another had established in settled conviction, and to make the dubious constructions of the judiciary outweigh the fixed conclusions of the General Assembly.

The law on this point may be taken from any text-book. Black on Const. Law, p. 61, expresses it as follows:

"Legislators, as well as judges, are bound to obey and support the Constitution, and it is to be understood that they have weighed the constitutional validity of every act they pass. Hence the presumption is always in favor of the constitutionality of the statute. Every reasonable doubt must be resolved in favor of the statute, not against it; and the court will not adjudge it invalid unless its violation of the Constitution is, in their judgment, clear, complete, and unmistakable."

One good ground of unconstitutionality is as fatal to an act as two or more; hence plaintiff's industry in mustering 21 would give rise to a suspicion that, having no very great confidence in any one of his grounds being "clear, complete, and unmistakable," he had sought to make up by quantity what might be lacking in quality. And such, upon examination, turns out to be the fact. Nothing in the Constitution, either there written in express terms, or resulting from necessary implication, is pointed to as depriving the Legislature of the right to pass this statute; but a prohibition is sought to be eked out by vague inference and labored argument. If in any case strained or doubtful deductions are ever to be made to serve for overturning the deliberate work of the Legislature, the courts will certainly not choose for inaugurating such an innovation in constitutional law a case which, like the present, involves, not private rights or private interests, but mere governmental concerns, such as are more safely left to the enlightened judgment of the Legislature.

Plaintiff's first ground of objection is founded upon article 58 of the Constitution, in connection with sections 9 and 13 of the act (Acts 1906, p. 69, No. 49). Article 58 reads:

"The funds, credit, property or other things of value of the state, or any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private."

Section 9 of the statute is that which provides for the qualifications of the voters, and section 13 is that which provides for the state's paying part of the expenses of the election.

A sufficient answer to this ground is that beyond all question the primary is a part of the election machinery of the state, and that, therefore, for the state to pay a part of its expense, is not to apply public funds to a mere private purpose, but simply to defray a legitimate state expense.

The next ground of objection is that by section 13 the state is required to pay a part of the expense of the primary, and that this is prohibited by article 212 of the Constitution.

The article here named is the one by which the Constitution adopts the Australian ballot system and makes some general provisions in regard to it. One of those provisions makes it obligatory upon the state to pay the expense of printing and distributing the ballots for the general election. Plaintiff would construe this provision into one prohibiting the Legislature from paying of the expense of the primary. The said article begins as follows:

"All elections by the people, except primary elections and municipal elections in towns having a population of less than 2,500, when such elections are not held at the same time as general state elections, shall be by official ballot, printed and distributed at the expense of the state."

Plaintiff's argument is founded upon the word "except." But the article plainly says and means no more than that the state shall be bound to pay the expense of printing and distributing the official ballot. It does not say, and does not mean to say, that the state is forbidden to pay the expense of a primary. Did the article read that the state may pay the expenses of all elections, except primaries, the word "except" would convey the meaning contended for. It would then limit the power, and not merely the obligation. In the article as written it limits the obligation, and not the power.

The next ground is based on articles 200 and 215 transcribed hereinabove. The contention is that, by naming the several modes of making nominations, the Constitution has in effect provided that, in any law which the Legislature may pass on the subject of nominations, all these...