State v. Mitchell

• Decision Date: 04 November 1909
• Citation: 55 Wash. 513,104 P. 791
• Parties: STATE ex rel. ARNOLD v. MITCHELL, Superior Court Judge.
• Court: Washington Supreme Court

104 P. 791

55 Wash. 513

STATE ex rel. ARNOLD v. MITCHELL, Superior Court Judge.

Supreme Court of Washington

November 4, 1909

Department 1. Application by the State, on the relation of Marvin L Arnold, for a writ of mandate directed to the city clerk of the city of Olympia. Writ refused, and case brought up on writ of review directed to John R. Mitchell, judge of Thurston county superior court. Affirmed.

Gordon Mackay, for relator.

W. V Tanner, George R. Bigelow, and John M. Wilson, for respondent.

CHADWICK J.

The relator filed an application for a writ of mandamus directed to the city clerk of the city of Olympia, in the superior court of Thurston county, charging that the city clerk had refused to register him as a member of the Republican Party and that by reason thereof he would be deprived of his privilege of participating in the primary elections for the year 1909, to be held under the provisions of the direct primary law. The superior court refused to issue the writ. The case is here upon a writ of review directed to the lower court.

In a most laudable endeavor to correct an existing abuse, the last Legislature altered section 12 of the direct primary law passed in 1907 (Sess. Laws 1907, p. 464, c. 209). Section 12 was changed to read as follows: 'Every qualified person, properly registered as a voter in the election precinct enabling him to vote at the ensuing election where registration is required, and every qualified person in precincts where registration is not required, shall be entitled to participate in the primary election. When he desires to vote at said primary each elector shall have the right to receive the ballot only of the party for which he registered if living in a precinct in which registration is required, or if living in a precinct in which no registration is required the ballot of the party for which he asks. * * *' Sess. Laws 1909, p. 169, c. 82. The change occurs in the last clause. As originally passed, the law read: 'When he desires to vote at said primary each elector shall have the right to receive the ballot and only the ballot of the party for which he asks.' At the time of the enactment of the primary law in 1907, and at the time of the attempted amendment, there was upon the statute books a complete act covering the whole subject of registration. 1 Ballinger's Ann. Codes & St. c. 7, §§ 1445-1464 (Pierce's Code, §§ 4905-4908, 4890-4893, 4897-4899, 4500-4504). It makes explicit provision for the manner of registration even to the arrangement of the poll books and the matter to be entered therein, viz., 'date of registration, name, age, occupation, place of residence, place of birth, time of residence in the state, county, ward and precinct, and, if of foreign birth, name and place of court and date of declaration of intention to become a citizen of the United States, or date of naturalization; and another column for signature and one for remarks and one column for checking the name of the voter at the time of voting.' Ballinger's Code, § 1455. It will be seen that no reference is made to the party affiliation of the elector, nor is a disclosure upon that subject within the remotest purview of the law. Indeed, we do not understand that it is so contended. The title of the primary law and of the amendatory act do not differ. They read: 'An act relating to regulating and providing for the nomination of candidates for public office in the state of Washington, and providing penalties for the violation thereof.' The new act of 1909 bears the same title with the addenda, 'and amending sections 1, 2, 3, 5, 10, 13, 22, 29, 30, 33, and 38, * * * of an act relating to,' etc., repeating the original title. It will be observed that section 12 is not mentioned in the title of the act. The trial court held the amendment to section 12 of the primary law to be ineffectual to accomplish its purpose and unconstitutional.

From the statement of the case it may be seen that the judgment of the lower court must be sustained. But this court is nevertheless required by the organic law to state the grounds of its decision. The act of 1909, in so far as it says that the electors shall have the right to receive the ballot only of the party for which he registered, cannot be sustained, because it puts upon the voter a condition that is impossible of performance, and denies him a present right guaranteed by the Constitution and exercisable except as limited by proper statutory enactment. The amendatory act of 1909 does not, and under its title could not, provide for registration. Therefore the voter who has complied with the general law upon that subject would be met at the polls with a condition impossible of performance, for, whatever the election officers may decide with reference to the primary law, the registration officer is bound by the terms of the registration law, and cannot attach any condition not therein provided. Had the Legislature said in this act that no voter should cast a ballot who at the time of registration had not declared property of the value of $1,000, he would have an analogous case. No provision is made in the registration act for such declaration, and certainly it cannot be contended that the Legislature can bind an elector to a condition precedent without making some provision for the manner and place of performance.

If the act of 1909, in so far as it refers to section 12, be an attempted amendment of the registration law or of the primary law, it is void because there is no suggestion of an amendment to the registration law, or that section 12 of the primary law is to be amended in the title of the act. Perhaps the most salutary provision in our state Constitution is article 2, § 19: 'No bill shall embrace more than one subject and that shall be expressed in the title.' In it the people have found their most potent weapon against vicious legislation. It is a...