The State ex rel. Dunn v. Coburn

• Decision Date: 02 July 1914
• Parties: THE STATE ex rel. DENTON DUNN v. J. M. COBURN, Treasurer of State Central Committee of the Progressive Party of Missouri
• Court: Missouri Supreme Court

168 S.W. 956

260 Mo. 177

THE STATE ex rel. DENTON DUNN v. J. M. COBURN, Treasurer of State Central Committee of the Progressive Party of Missouri

Supreme Court of Missouri

July 2, 1914

Writ denied.

L. A Laughlin and John F. Cell for relator.

On the record in this case but a single question is presented for the decision of the court: Is the clause found in Sec. 5862 R. S. 1909, unconstitutional and void? If one of its provisions, i. e., that no candidate shall file more than one declaration of his intention to become a candidate at the primary, that no vote cast for a person who is a candidate for the same office on another ticket shall be counted, that no name shall appear in more than one group on the ballot used at the general election, is invalid, they are all invalid. If one of them is valid, they are all valid. People ex rel. v. Election Commissioners, 221 Ill 9. That laws providing for compulsory primary elections must conform to the requirements of the Constitution imposed upon other elections by the people, see: Johnson v. Grand Forks Co., 16 N.D. 363, 125 Am. St. 662; Spier v Baker, 120 Cal. 370, 41 L. R. A. 196; Leonard v. Commonwealth, 112 Pa. 607. In the absence of any statute one named as a candidate by different political parties is entitled to have his name appear upon the ballot, in the group headed by the name of each party. Williams v. Dalrymple, 132 Mo. 62; State ex inf. v. Bland, 144 Mo. 553. A political party is not a favorite of the law. It is a trust, or combination of candidates legalized by law for certain purposes, but it is not favored any more than any other trust or combination is favored. Shepard v. Superior Ct., 60 Wash. 370, 140 Am. St. 925; State v. Frear, 142 Wis. 320. In general, a legislative interference with the elective franchise must stand the test, at least, of these fundamentals of the Constitution: (a) The express and implied inhibitions of class legislation; (b) the recognized existence and inviolability of inherent rights; (c) the constitutionally declared purpose of government; and (d) the express guaranty of the right to vote. State ex rel. v. Phelps, 144 Wis. 1, 35 L. R. A. (N. S.) 353; Murphy v. Curry, 137 Cal. 479, 59 L. R. A. 97; Hopper v. Britt, 203 N.Y. 144, 37 L. R. A. (N. S.) 825; In re Callahan, 200 N.Y. 59, 140 Am. St. 626; Ladd v. Holmes, 40 Ore. 167. The denial of the right of a person to be a candidate for the nomination of as many political parties as see fit to nominate him is an unreasonable restriction upon the right of suffrage because it denies him the equality of opportunity which is an essential feature of the exercise of the right of suffrage; Hopper v. Britt, 203 N.Y. 144.

George H. Imbrie and Guy C. Cooley for respondent.

(1) Every presumption should be indulged in favor of the constitutionality of the law. In re Burris, 66 Mo. 442; State ex rel. v. Railroad, 92 Mo. 137; State v. Hope, 100 Mo. 347; Dell v. Mississippi Co., 107 Mo. 464; State v. Tower, 185 Mo. 79; State v. Webber, 214 Mo. 272; State ex rel. v. Williams, 232 Mo. 56. If the suggestion of relator is correct that the section of the general election law providing the form of the ballot is to be construed with the primary law prohibiting the filing of more than one declaration, then it is to be observed that the general election law complained of by relator does not keep him from being voted for in more than one column or group. This law keeps him from having his name printed in more than one column or group. Is this an unwarranted and unreasonable interference "with the free exercise of the right of suffrage?" First, the free exercise of the right of suffrage by the elector is not interfered with in the general primary. For if he belonged to one political party he cannot vote in the primary of another political party, and the other proposition should prevail that he ought not to be permitted to vote in the primary of his own party for a candidate and member of another political party. If this restriction of confining the voter's choice for a candidate for a political office to members of his own party did not prevail, but was extended to persons from all political parties who might file indiscriminately with nothing on the primary ballot to indicate to what political party the particular candidate belonged, there would not only be complication and confusion, because of inability to determine the candidate's principles, but also the size of the ballot would be such as to cause complication and confusion. State ex rel. Runge v. Anderson, 100 Wis. 523. (2) Does this restriction, as suggested by counsel of relator, deny a candidate "the equality of opportunity which is an essential feature of the exercise of the right of suffrage?" In the primary election he can file one written declaration. No other candidate can file more. He can have his name printed on the official ballot at the general election once in one column or group. No other candidate can have more and he can be voted for in any other column or group by having his name written in. No other candidate can have more. To permit any candidate to have his name printed in more than one column or group would be an unfair advantage to such candidate. State ex rel. v. Bode, 34 L. R. A. 499, 55 Ohio St. 224; Todd v. Election Commissioners, 104 Mich. 474, 29 L. R. A. 336. Counsel for relator quote extensively from Hopper v. Britt, 203 N.Y. 144, 37 L. R. A. 825. This decision by the New York Court of Appeals, as has been before suggested, is contrary to the opinions of the Supreme Courts of a number of different States which have upheld similar statutes. States ex rel. v. Porter, 13 N.D. 406, 67 L. R. A. 473; Shepard v. Superior Ct., 60 Wash. 370, 140 Am. St. 925; People v. Czarnecki, 256 Ill. 320; State ex rel. v. Wells, 41 L. R. A. (N. S.) 1088.

GRAVES, J. Woodson and Walker, JJ., concur in toto; Lamm, C. J., and Bond and Faris, JJ., concur in result; Brown, J., dissents in opinion filed.

OPINION

In Banc

Mandamus.

GRAVES J.

This is an original action of mandamus. The relator, Denton Dunn, shows by his petition that he has all the legal qualifications for judge of the Sixteenth Judicial Circuit, Division number Six, of the State of Missouri. He also avers that he is a member of the Republican party, and that he has taken the necessary steps to get his name upon the Republican ticket at the State primary in August next. After averring and showing the foregoing facts, his petition then further proceeds:

"That pursuant to a resolution passed by the county central committee of Jackson county, of the political party known as the Progressive party, your petitioner was asked to file a declaration of his intention to become a candidate for the nomination of the Progessive party, for the aforesaid office of circuit judge of Division number Six of Kansas City. Accordingly your petitioner on the 21st day of May, 1914, tendered and offered to pay to J. M. Coburn, treasurer of the State Central Committee of the Progressive party of Missouri, the sum of twenty-five dollars, good and lawful money of the United States, as required by law, and asked to take his receipt therefor; that said State treasurer, J. M. Coburn, refused to receive said money and to give your petitioner said receipt, and gave as his reason therefor that to accept said sum of money and to give a receipt therefor would be in violation of the provisions contained in the following section of the Revised Statutes of Missouri:

"'Section 5862. No person shall file more than one written declaration indicating the party designation under which his name is to be printed on the official ballot.'

"Your petitioner avers that said section is unconstitutional and void and should be for naught held, for the reason that it violates section 9 of article 2 and section 2 of article 8 of the Constitution of this State.

"Wherefore, your petitioner being without other adequate remedy, prays the issuance by the Honorable Supreme Court of Missouri, of an alternative writ of mandamus, directing said J. M. Coburn, as said treasurer of the State Central Committee of the said Progressive party, to receive the said sum of twenty-five dollars and to issue a receipt therefor or to show cause at some early day to be named by this court, why he has not done so, and your petitioner prays for such other and further relief to which, by reason of the premises, he may be entitled."

By agreement of counsel the issuance of our alternative writ was waived, and the petition taken as and for such alternative writ. Respondent has filed a general demurrer and stands thereon. In such case the facts pleaded in the petition become the facts of the case. The petition upon its face challenges the constitutionality of section 5862, Revised Statutes 1909, but it in fact goes deeper and attacks the validity of section 5891, Revised Statutes 1909, as amended in 1913 by the Laws of 1913, p. 327. The first section, supra, has application to State primary elections, whilst the latter goes to the election itself. Upon the record the questions are of law rather than of fact. Of such questions in their order, in the course of the opinion.

I. In the statement of the case we have said that the petition, whilst in terms it is leveled at Revised Statutes 1909, section 5862, cuts much deeper. This per force of the fact that we are obliged to consider the validity of our whole statutory scheme in determining the validity of the challenged act. Learned counsel for the relator has made an elaborate, fair and elegant analysis of our primary laws, and it is with pleasure that we adopt it. They say:

"Section 5862 is found in article 4 of chapter 43 of the Revised Statutes. This article was enacted in 1909 and is commonly known as the...