State ex rel. McCue v. Blaisdell

• Decision Date: 29 October 1908
• Citation: 18 N.D. 55,118 N.W. 141
• Parties: STATE ex rel. McCUE, Atty. Gen., et al. v. BLAISDELL, Secretary of State.
• Court: North Dakota Supreme Court

18 N.D. 55

118 N.W. 141

STATE ex rel.McCUE, Atty. Gen., et al.

v.BLAISDELL, Secretary of State.

Supreme Court of North Dakota.

Oct. 29, 1908.

Syllabus by the Court.

This is an application in the name of the state, by one Herschel James, as relator for an original writ to enjoin defendant, as Secretary of State, from certifying to the various county auditors the names of the two Republican candidates for the office of United States Senator from this state, and to restrain him from placing upon the official ballot to be voted at such general election the names of said candidates. By such application, the validity of chapter 109, p. 151, Laws 1907, known as the “Primary Election Law,” is challenged in so far as it relates to the nomination and election of a candidate for the office of United States Senator, which act, among other things, provides that at the primary to be held in June prior to each general election, for the nomination of state, district, and county officers, the electors of each political party may designate their choice, between the candidates of their party for United States Senator, and that, if no candidate receives 40 per cent. of his party vote, the two candidates receiving the highest number of votes shall be placed on a separate ballot, under their proper party heading, to be voted on at the ensuing general election, and that the candidate receiving a majority of the votes cast shall be the nominee of his party for such office.

Said act also provides that candidates for members of the Legislature shall take and subscribe a certain oath, to the effect, among other things, that they are candidates for nomination to such office, and designating the political party with which they affiliate. And the act also provides that the petitions of all such candidates for members of the legislative assembly shall contain a pledge to the people that they will support and vote for that candidate of their party, for United States Senator, who has received a majority of such party votes for that position at the primary election, or at the succeeding general election.

Relator contends that the provision of said act, requiring legislative candidates to take and subscribe the oath therein prescribed, and the pledge aforesaid, violates section 211 of our state Constitution, in that it adds another oath, declaration, and test as a qualification for office.

Held, that such contention is correct, but, held, further, that those provisions of the act providing a method for permitting the electors to designate their choice of a candidate for the United States Senate are not dependent for their validity upon such other provisions requiring the oath and pledge, and may be sustained regardless of the invalidity of such other provisions.

The provisions of said act, in so far as they permit the electors to designate their choice of a candidate for the office of United States Senator, are not vulnerable to attack upon any of the grounds urged by relator. The provisions of the act permitting the electors to designate their choice do not amount to an election by the people of a United States Senator. Hence they do not contravene the provision of the federal Constitution (section 3, art. 1), providing for the election of United States Senators by the state Legislature; but, if they do violate such constitutional provision, relator is powerless to complain. No constitutional right of the citizen is thereby violated. It is not a judicial question; the Senate of the United States being the tribunal to determine the same.

All the provisions of the act relating to the nomination and election of United States Senators are germane to the subject embraced within the title of the act.

Certain provisions found in section 13 of the act (Laws 1907, p. 157, c. 109), relating to the ballots to be used at the general election for determining the choice between the candidates for the office of United States Senator, construed, and held to require that the candidates of each political party shall be placed on a ballot separate and apart from the candidates of other political parties.

Held, further, that the general election, in so far as it relates to the choice between the candidates for the office of United States Senator, is a mere continuation of the primary election, and that the provisions of chapter 109 aforesaid, which are designed to safeguard the rights of party organizations, and to prevent members of one party from participating in the nominations by another party, apply. Hence the provisions of the law, requiring judges and inspectors, when handing a ballot to a voter, to inform him that he must vote for the candidate of the political party such ballot represents only, and the voter shall call for his party ballot only, and the provisions making it unlawful to call for or vote a ballot not representing the party or principle with which he affiliates, and permitting challenges to be interposed, and the test oath to be required as to party affiliation, also apply.

Section 129 of the Constitution of this state, guaranteeing a secret ballot, is not infringed by the act in question.

Said act is not vulnerable to attack, upon the ground that it is an unlawful delegation of power granted to the Legislature by the federal Constitution.

The contention that said act unlawfully attempts to bind successive Legislatures is, for reasons stated in the opinion, not tenable.

Certain preliminary questions of practice, urged by defendant pertaining to relator's right to make the application, considered, and disposed of adversely to his contention.

Original application by the state, on relation of T. F. McCue, Attorney General, and another, for the issuance of a prerogative writ to enjoin Alfred Blaisdell, as Secretary of State, from certifying to the various county auditors the names of certain persons as candidates for the office of United States Senator. Writ denied.

Spalding, J., dissenting in part.Ball, Watson, Young & Lawrence, for plaintiff. T. F. McCue, Atty. Gen. (S. E. Ellsworth, A. G. Devit, and Guy C. H. Corliss, of counsel), for defendant.

FISK, J.

The relator, who is a qualified elector of Hettinger county, makes application to this court, in the name of the state, for the issuance of a prerogative writ to enjoin the defendant, as Secretary of State, from certifying to the various county auditors the names of certain persons as candidates for the office of United States Senator from this state, for the purpose of having such names printed on ballots to be used at the ensuing general election, to determine the choice of the Republican electors as between such candidates. Relator prays that, if such names have already been thus certified by defendant, he be required and commanded to cancel such certificate. In his affidavit, upon which the application is based, relator avers that he requested the Attorney General to make application for such writ, but he refused. Upon the filing of relator's said affidavit an order to show cause was issued, requiring defendant to show cause, if any there be, on October 23, 1908, why the writ prayed for should not issue. Upon the return day of such order to show cause defendant filed a motion to quash such order, and to dismiss the proceedings on specified grounds, only three of which it will be necessary to notice. First, it is defendant's contention that “no question of public right, or one affecting the sovereignty of the state, its franchises, or prerogatives, or the liberty of the people” is presented or involved by relator's application; second, that the affidavit upon which said order to show cause was issued affirmatively discloses that the relator has not sufficient interest in the subject-matter of the proceeding, or the determination of the questions sought to be adjudicated, to enable him to institute or carry on same as plaintiff; and, third, that it affirmatively appears from said affidavit that plaintiff has been guilty of laches in making the application, and hence is not entitled to the equitable relief prayed for. Answering briefly these contentions, we decide that the first and second points are not tenable. The questions involved clearly are publici juris, and some of them at least pertain directly to the sovereignty of the state, its franchises, and prerogatives, and the liberty of its people, and the relator, being a citizen and elector, may institute and prosecute the proceedings when, as in this case, he has requested such proceedings to be instituted by the Attorney General, and the latter has refused such request. The third ground of the motion to quash the order to show cause pertains more properly to the merits, but, however this may be, we are clear that relator is guilty of gross laches in making his application, and we might well refuse the writ solely upon this ground. However, on account of the great importance of the public questions involved, we have concluded to ignore or overlook plaintiff's laches, and to rest our decision upon the more vital questions pertaining directly to the merits. Relator relies, for his right to the equitable relief sought by him, upon the following three propositions: “(1) The law in question (chapter 109, p. 151, Laws 1907), and all parts thereof dealing, or attempting to deal, with the selection of a party candidate for the office of United States Senator, is void and unconstitutional, in that it requires of each candidate for the legislative assembly that he shall take and subscribe an oath and a pledge, which add to the qualifications of a candidate and of an elector, other than those required by the Constitution of the state. (2) The act in question deals with the general election laws, providing for the submission of a certain form of ballot at such general elections, and contains a subject not included within the title to the act, and one which cannot be included within the title to said act, nor considered in...