State v. Superior Court of King County

• Decision Date: 17 October 1910
• Parties: STATE ex rel. SHEPARD et al. v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

111 P. 233

60 Wash. 370

STATE ex rel. SHEPARD et al. v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

October 17, 1910

Department 2. Proceedings by the State, on the relation of Charles E Shepard and others, against the Superior Court of King County. Judgment for defendant, and relators bring writ of review. Affirmed.

George F. Vanderveer and W. V. Tanner, for respondent.

CHADWICK J.

This proceeding is directed against Otto Case, the county auditor of King county. The question put to this court by the relators is whether that provision of the general election law, which reads as follows: 'No candidate's name shall appear more than once upon the ballot: Provided, that any candidate who has been nominated by two or more political parties may, upon a written notice filed with the clerk of the board of county commissioners at least twenty days before the election is to be held, designate the political party under whose title he desires to have his name placed' (Rem. & Bal. Code, § 4893, subd. 6)--violates the constitutional rights of a condidate who has been nominated by two political parties, and is an unwarranted interference with the rights of political parties. Relators insist that the names of the candidates filed with the Secretary of State as the nominees of the Democratic party shall appear under that title or designation upon the official ballot, and, the same persons being nominated by a voluntary convention styling itself 'Independent Nonpartisan Judiciary party,' that the same names shall likewise appear under that designation. Before proceeding to the discussion of these propositions, it may be known that technically the question is not properly before the court, and ordinarily we would decline to hear a petition filed under such circumstances. It is not shown, and in fact is not asserted that at the time the proceeding was instituted in King county the names of the candidates had been certified to the county auditor; nor is it certain that they have even now been so certified. But because of the supposed political advantage which the relators assume will result to them from a decision by this court, and the public importance of the question, we shall unhesitatingly meet the issue.

Before proceeding to the main discussion, there is another question which may be disposed of. The point was made in argument that the Independent Nonpartisan Judiciary party is not in fact a political party. It may, indeed, be questioned whether a limited number of electors may gather together and, although still claiming allegiance to existing political parties, nominate candidates in opposition to them, and be a political party within any accepted definition of that term. However, having no desire to deprive relators of any right, or to enter into the discussion of even doubtful rights, we shall accept the situation as we find it. The filing having been made under the advice of the Attorney General, we shall assume that the relators are the nominees of regular political parties, and will not pursue the subject further.

In determining the constitutionality of the law, there are certain fundamental principles to which we may safely recur. All laws passed by the co-ordinate branch of the government and approved by the executive are presumed to be constitutional, and courts will not conjure theories to overturn and overthrow the solemn declarations of the legislative body. There must be a plain violation of some provision of the fundamental law. The right to vote is a constitutional right, given by the people to certain citizens and withheld from others. But the manner in which the franchise shall be exercised is purely statutory. It is not within the power of the Legislature to destroy the franchise, but it may control and regulate the ballot, so long as the right is not destroyed or made so inconvenient that it is impossible to exercise it. It follows, then, that that which does not destroy or unnecessarily impair the right must be held to be within the constitutional power of the Legislature. Bearing in mind these general principles--and they will not be challenged--it may be said also that in almost every state which has adopted the Australian ballot system or a modification of it a provision similar to the one before us for construction has been adopted, and, where questioned, has been sanctioned by the courts, with the exception, as a lawful and constitutional exercise of the legislative power. A law which has been generally adopted by the legislative bodies of the country and approved by the executive, when challenged as unconstitutional, demands more than passing consideration; for it cannot be presumed that the judicial department is the only one endowed with sufficient wisdom and integrity to insure the preservation of the constitutional right of the citizen. Constitutional government by the people represents the greatest and grandest struggle of humanity for its setterment, and in its accomplishment marks the uttermost political accomplishment of the human race. The people have reserved to themselves the general right to legislate, fixing certain boundaries, and the province of the court is to see that the pendulum of popular emotion does not swing beyond the limit fixed by the people themselves in the fundamental law. Therefore, a law comes to the courts clothed with every presumption of regularity, and, unless it be clear that it violates some express provision or inherent principle of the bill of rights, the court must give sanction to the will of the people as presently declared, and uphold the law. In this case it is not contended that any constitutional right of the voter is violated, but it is insisted that the candidate and the political party which is his sponsor are denied a constitutional right; that the voter is denied the privilege of voting for a nominee under the party designation which represents his party principles, while others are not so denied. The people have purposely, and we must presume for some reason, left details to the Legislature, for the only provision of the Constitution which refers to the manner of conducting elections is article 6, § 6, which reads as follows: 'All elections shall be by ballot. The Legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.' So long, then, as the elector has a right to vote by ballot, and the secrecy of that ballot is preserved, he cannot, nor can the candidate, complain. A law may in some instances work a hardship to the individual. In fact, all law works hardship and inconvenience to the individual. But organized society is founded upon the principle that the convenience of the individual must give way to the common good. So long, then, as the elector has the privilege of voting for the candidate of his choice, and a way is provided, there can be no challenge of the law on constitutional grounds. Only such provisions as may in their operation shut off the voter from the ballot box will be held obnoxious to the constitutional guaranty of the right to vote. State v. Black, 54 N. J. Law, 446, 24 A. 489, 1021, 16 L. R. A. 769.

The error of the relators' reasoning lies in assuming that an elector has an inherent right to vote in his own way, or in the manner of his choice. On the contrary, the law is, and it is declared without division of the courts, that the right to vote is neither a property right nor a right of person, but a mere political privilege which the Legislature may regulate to any extent not prohibited by the state or federal Constitutions. 15 Cyc. 281; 10 Am. & Eng. Ency. Law, 568 Cooley, Const. Lim. (6th Ed.) 752. See, also, the following late cases: Riter v. Douglass (Nev.) 109 P. 444; Russell v. State, 171 Ind. 623, 87 N.E. 13; Savage v. Umphries (Tex. Civ. App.) 118 S.W. 893; Morris v. Colorado, etc., Ry. Co. (Colo.) 109 P. 430; Healey v. Wipf, 22 S.D. 343, 117 N.W. 521; Goggeshall v. City of Des Moines, 138 Iowa, 730, 117 N.W. 309, 128 Am. St. Rep. 221; State v. Goldthait, 172 Ind. 210, 87 N.E. 133; De Walt v. Bartley, 146 Pa. 529, 24 A. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814. It is upon this principle that registration laws requiring a voter to vote in the precinct of his residence, laws requiring an educational or property test, the arbitrary fixing of the times for opening and closing the polls, the difference in time during which the polls shall be kept open, and similar laws are sustained, and upon which the right to regulate the form of the ballot must be made to rest. In De Wait v. Bartley, the court, in construing a similar regulation, said: 'It was contended that the provision or discrimination against the Prohibition party is in violation of that clause of the Constitution which declares that elections shall be free and equal, and also section 7, art. 8, which declares that all laws regulating the holding of elections by the citizens shall be uniform throughout the state; that these constitutional provisions were intended to secure to every citizen equality in the manner of voting, and to prohibit the Legislature from passing any law which shall give, directly or indirectly, an advantage to some voters, which will not equally apply to all voters. This contention is plausible, but unsound. The act does not deny to any voter the exercise of the elective franchise because he happens to be a member of a party which at the last general election polled less than 3 per cent. of the entire vote cast. The provision referred to is but a regulation, and we think a reasonable one, in regard to the printing of tickets. The use of official ballots renders it absolutely necessary to make some regulations in regard to nominations, in order to...