State ex rel. Ragan v. Junkin

• Citation: 122 N.W. 473,85 Neb. 1
• Decision Date: 18 August 1909
• Docket Number: 16,274
• Parties: STATE, EX REL. JOHN M. RAGAN, APPELLEE, v. GEORGE C. JUNKIN, SECRETARY OF STATE, APPELLANT
• Court: Supreme Court of Nebraska

122 N.W. 473

85 Neb. 1

STATE, EX REL. JOHN M. RAGAN, APPELLEE, v. GEORGE C. JUNKIN, SECRETARY OF STATE, APPELLANT

No. 16,274

Supreme Court of Nebraska

August 18, 1909

APPEAL from the district court for Lancaster county: ALBERT J CORNISH, JUDGE. Affirmed.

AFFIRMED.

William T. Thompson, Attorney General, Grant G. Martin and Arthur F Mullen, for appellant.

John C Cowin and Charles O. Whedon, contra.

ROSE, J. REESE, C. J., absent and not sitting. DEAN, J., LETTON, J., dissenting.

OPINION

ROSE, J.

Defendant is secretary of state, and as such was requested to place the name of relator on the primary ballot as a republican candidate for judge of the supreme court at the primary election to be held August 17, 1909, but refused on the ground that compliance would be a violation of the nonpartisan judiciary act passed at the last session of the legislature. Laws 1909, ch. 53. The controversy thus raised was submitted to the district court for Lancaster county, where the act in question was held void as being an invasion of the constitutional right of free assembly, of free speech and of a free ballot. A peremptory writ of mandamus was accordingly allowed, directing defendant to place relator's name on the primary ballot in compliance with the primary election law and in disregard of the nonpartisan judiciary act. From the order allowing the writ defendant appeals, and his record presents for review the correctness of the ruling of the trial court.

The first section of the nonpartisan judiciary act authorizes party nominations at conventions and primaries, and concludes as follows: "But candidates for the following offices, to wit, chief justice of the supreme court, judge of the supreme court, judge of the district court, county judge, regent of the state university, superintendent of public instruction and county superintendent of public instruction shall not be nominated, indorsed, recommended, censured, criticized or referred to in any manner by any political party, or any political convention or primary, or at any primary election; and no party name or designation shall be given upon any ballot to any candidate, for any of said offices, and hereafter all candidates for all of said offices shall be nominated only by petition, and no candidate for any of said offices shall appear on any party ticket." Laws 1909, ch. 53, sec. 1. According to this provision candidates for judicial and educational offices cannot be "nominated, indorsed, recommended, censured, criticized or referred to in any manner by any political party, or any political convention or primary, or at any primary election." Does the bill of rights forbid such an enactment? It declares: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense." Constitution, art. I, sec. 5. "The right of the people, peaceably, to assemble to consult for the common good, and to petition the government, or any department thereof, shall never be abridged." Constitution, art. I, sec. 19. The first provision quoted protects every person in his right to speak, write and publish on all subjects, and the next permits him to assemble with others to consult for the common good. A political meeting or convention is an assemblage within the meaning of the constitutional provision that the right of the people to assemble and consult for the common good shall never be abridged. The right of a citizen to speak, write and publish on all subjects does not terminate when he enters a political convention or assemblage. With good motives and for justifiable ends the members of such a body may jointly speak, and publish the truth about candidates for office, and this right extends to aspirants for judicial and educational offices. Judge Cooley, in discussing the constitutional liberty of the press and of speech, said: "There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, or those who may present themselves for public positions. Through the ballot-box the electors approve or condemn those who ask their suffrages." Cooley, Constitutional Limitations (7th ed.), p. 617. Delegates and members of political organizations not only take with them into their party councils the inalienable right to speak, write and publish on all subjects, but the full benefit of this privilege can only be obtained by united action. Political parties are the great moving forces in the administration of public affairs, and their influence in elections cannot be eliminated by the legislature as long as the right to assemble and speak the truth remains in the charter of our liberties. Published criticisms of candidates, officers and policies are potent factors in the struggle for civic virtue and cannot be suppressed by legislative enactment. The privilege of speaking and publishing the truth with good motives and for justifiable ends was not inserted in the bill of rights by accident. The doctrine that the truth as to a man's conduct is no justification for publishing it in the press originated in the Star Chamber, and was in high favor in that tribunal when printing became an effective means of disseminating what honest men said about the abuses of official power and the conduct and policies of public men. The hostility to such a restriction of free speech and of a free press resulted in the adoption of section 5 of the bill of rights. The nonpartisan judiciary act is void in so far as it declares that candidates for judicial and educational offices shall not be "nominated, indorsed, recommended, censured, criticized or referred to in any manner by any political party, or any political convention or primary, or at any primary election."

The act under consideration prescribes the manner of nominating candidates for judicial and educational offices and the form of ballot to be used at the November election. In this connection the following provisions are assailed as unconstitutional: "Candidates for public office may be nominated otherwise than by convention, committee or primary meeting in the following manner: A certificate of nomination containing the name of the candidate for the office to be filled, stating the name, residence, business and post office address of the candidate shall be signed by electors residing in the district or political division in which the officers are to be elected and filed with the clerk of the village city or county, or with the secretary of state as the case may be. The number of signatures shall not be less than five thousand; not more than five hundred of which shall be from one county, when the nomination is for chief justice or judge of the supreme court." Laws 1909, ch. 53, sec. 3. Under the provisions quoted only 500 electors in a county can lawfully sign the nominating certificate of a candidate for judge of the supreme court, though there may be more than 5,000 legal voters therein. In other words, 500 electors in a county may participate in nominating a candidate for judge of the supreme court, and when they do so the other voters in the same county are deprived of the right to sign a nominating certificate for the same candidate. In Adams county, where relator resides, nearly 5,000 electors voted at the general election in 1908. Only 500 of them, under the nonpartisan judiciary act, can take part in nominating him for judge of the supreme court, and this would be true if the entire electorate of 5,000 were a unit in demanding an opportunity to vote for him as a regular nonpartisan candidate at the November election. For want of the signatures of the supporters who are deprived of the right to sign the nominating certificate of the candidate of their choice he may not be nominated. In such an event his name would not be printed on the official ballot for the November election, and their right to vote for him thereat as a regular nominee would be lost. Under these circumstances the empty privilege of writing on official ballots in blank spaces the names of persons who have not been nominated, with the prospect of having such votes classified in the election returns as "scattering," is not the full measure of an elector's rights within the meaning of the constitution. Electors who desire to vote for a particular candidate for judge of the supreme court at the November election should be allowed to take part in nominating him or in whatever preliminary step the law requires as a condition of allowing his name to be printed on the official ballot. This privilege is protected by the following section of the bill of rights: "All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise." Constitution, art. I, sec. 22. When the lawmakers enter the party caucus, the party convention, the party committee, and the primary to make regulations, they must act within the limits of the foregoing provision. The elective franchise may be invaded by such regulations, when they prescribe the forms of the official ballots to be used at the general election and establish the methods of making nominations. These forms and methods may be as effective to deprive the voter of his rights as direct legislation relating to the November election. Chief Justice HOLCOMB, in discussing a primary law, said: "It is a part of the election machinery by which is determined who shall be permitted to have their names appear on the official election ballot as candidates for public office. To say that the voters are free to exercise the elective franchise at...