Chamberlain v. Wood

Corson, J. This is an appeal from an order sustaining a demurrer to plaintiff’s complaint. The appeal has been dismissed as to ‘the defendants George D. Wood and F. C. Hedger, leaving the defendant E. H. Alley the only respondent. The action was brought by the plaintiff to recover of the defendants damages for unlawfully depriving him of the office of county commissioner of Brown county. It is alleged in the complaint that in 1895-96 the defendants Wood and Alley were members of the board of county commissioners of Brown county, and that the defendant Hedger was acting county auditor of said county; that the defendant constituted the board of canvassers of said county; that in November, 1895, an election was held in the various voting precincts within the First commissioner district in said county for the purpose of electing a county commissioner for said district for the'term commencing January, 1896; that no certificate of any person as a candidate for the office of county commissioner of said county was filed in the office of the county auditor of said county 20 days prior to the election; that at said election the qualified electors of said First commissioner district of said county cast their ballots for this plaintiff and others for the said office of county commissioner by writing upon the official ballot used at said election the following words and characters, to-wit, "For County Commissioner for First Commissioner District,” followed by the name of the candidate or the person for whom such elector — 219 — desired to vote, and by making a cross at the left of the name of such person so written upon said ballots. The complaint then proceeds to allege that the said board refused to canvass the said vote so cast for commissioner for the First district, and that by reason thereof the plaintiff was. deprived of the office to which he claimed to have been elected, and that he suffered damages thereby to the amount of $564, and demanded judgment against said defendants for the said amount. To this complaint the defendants interposed a demurrer on the ground that the said complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court, and hence this appeal. It will be observed that the complaint distinctly states that no certificate of nomination of the plaintiff for the office of counly commissioner was filed in the office of the county auditor within the time prescribed by law, and that the method of voting for said plaintiff as county commissioner was by writing his name upon the official ballots used at said election, and by making a cross at the left of his name upon the said ballots. While the trial court has not stated the ground upon which the demurrer was sustained, it seems to be assumed by the appellant and we may presume that it was made upon the ground that as no certificate of the nomination of the appellant was filed in the office of the county auditor 20 days before the election, and, as his name was not printed on the official ballot, he was not legally a candidate, and that the votes cast'for him by writing ihe description of the office, his name thereunder, and a cross at the left thereof, was not a compliance with the statute, and he was not, therefore, legally elected to the office. It is contended on the part of the appellant that, notwithstanding no certificate of election was filed as required by law, the voters of that district had the legal right to write the designation of the office and the plaintiff’s name there — 220 — under upon the official ballot, and that he, having received a majority of the votes so cast at said election, was legally entitled to the office, and that by reason of the failure of the defendants to properly canvass the votes so cast for the plaintiff he is entitled to recover the damages he sustained thereby. An important question is therefore presented for the determination of this court, namely, can a person be voted for and elected to an office under the laws of this state, who has not filed a certificate of his nomination in the proper office within the time prescribed by law, and whose name is not printed as a candidate upon the official ballots ? Under what is known as the “Australian Ballot Caw,” enacted by the legislature of this state, and in force at the time of the election set out in the complaint, it is provided that an official ballot shall be printed at the expense of the county, uoon which the names of all candidates for office, who have properly filed certificates of nomination, shall be printed, and the elector is authorized to indicate his choice for such candidate as he may desire to vote for by making a cross at the head of the party ticket or at ihe left of the name of the candidate for whom he desires to vote. Co provision is made in the law, as it stood in 1895, for writing the name of any person upon the ballot. This court has held in a number of cases, beginning with Vallier v. Brakke, 7 S. D. 343, 64 N. W. 180, that the writing of a name upon the official ballot invalidated the same. In Parmley v. Healey, 7 S. D. 401, 64 N. W. 186, rhis court, speaking by Mr. Justice Fuller, says, “And, moreover, the writing of a name upon a ticket' identifies the voter, and invalidates the entire ballot, and subjects the one who places it there to a criminal prosecution.” The appellant contends, however, that under the constitution of this state an elector has the right at any election to vote for any person for an office he may desire, and that the act of the legislature, if it is to be so construed as>to deprive — 221 — the elector of the right to'write the name of the candidate for whom he desires to vote upon the- official ballot, is unconstitutional. The right of suffrage is not a natural or civil right, but a privilege conferred upon the person by the constitution and the laws of the state. Judge Cooley, in his work on Constitutional Limitations, says, Participation in the elective franchise is a privilege, rather than a right, and it is granted or denied upon grounds of general policy.” Cooley, Const. Lim. (6th Ed.) 752. In People v. Barber, 48 Hun, 198, the supreme court of New York says: “The elective suffrage is not a natural right of the citizen. It is a franchise dependent upon the law by which it must be conferred to permit its exercise. * * * It is a political right, to be given or withheld at the pleasure of the lawmaking power of the sovereignty.” 10 Am. & Eng. Enc. Law 2nd Ed.) 568. The question, therefore, as to what right- an elector has in this state, must be determined by an examination of its constitution and laws. It is scarcely necessary to repeat what has been frequently said by this court, that, presumptively, the law enacted by the legislature is valid, and it must be so held unless it is clearly in conflict with or repugnant to some express provision of the constitution, or the legislature has been expressly inhibited by the constitution from enacting the same. Mr. Cooley, in his work above stated, in speaking of this question, says: “The rule upon this subject appears to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case- * * * The judiciary can only arrest the execution of the statute when it conflicts with the constitution. * * * Any legislative act which does not encroach upon the powers apportioned to the other departments of the government being prima facie valid, must be enforced, unless, restrictions upon the legislative au — 222 — thority can be pointed out in the constitution, and the case shown to come within them.” Cooley, Const. Lim. 201, 202. With these preliminary observations, we will examine the provisions of the constitution of this state that bear upon the question of the right of suffrage. Section 19, Art. 6, of the Constitution, provides, “Elections shall be free and equal, and no power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage.” Under these provisions the elector cannot legally be physically restrained in the exercise of his right by either civil or military authority; nor can there be inequality, and every voter shall have the same right as every other voter. Certainly, under the laws we are considering, all electors are vested with the same rights, namely, the rights of appearing at an election and voting in the manner prescribed by law. Section 1, Art. 7, provides what shall constitute the qualifications of an elector, and one possessing these qualifications it is declared “shall be deemed a qualified elector at such election.” It will be noticed that in neither of these sections is it provided when, how, where, or under what conditions the elector shall exercise the right of suffrage. The framers of the constitution seem to have designedly left the right of suffrage at this point to be regulated and governed by such laws as the legislature might deem proper to enact. The constitutional convention and the legislature are equally the representatives of the people, and the written constitution marks only the degree of restraint which, to promote stable government, the people impose upon themselves; but whatever the people have not, by their constitution, restrained themselves from doing, they, through their representatives in the legislature, may do. The legislature, just as completely as a constitutional convention, represents the will of the people in all matters left open by the constitution. Com. v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. — 223 — A. 141. Unless, therefore the legislature is inhibited from enacting the law we are considering, it is as much the will of the people as though expressed in the constitution. L,et us ask, therefore, what provision is there in the constitution inhibiting the lawmaking power from providing when, how, and under what regulations and conditions the elector may exercise the right of suffrage? The constitution has not, * as we have seen, prescribed any conditions or rules governing the exercise of the right; nor has it inhibited the legislature from prescribing such rules, regulations, and conditions as it might deem proper and for the public interests. The lawmaking power has taken the elector at the point where the constitution has left him, and has provided when, in what manner, and under what restrictions he may exercise the right of suffrage, and in so doing has .provided: First, that he must exercise that right by using an official baliot: second, that he must designate in the manner specified his choice of candidates whose names are upon the offiqial ballot, and whose names can only be placed there by a compliance with the law; third, it has, in effect, denied to the elector the right to write the name of a candidate for whom lie desires to vote upon the official ballot, or otherwise deface the same, by declaring that “no elector shall place any mark upon his ballot by which it may afterwards be identified as the one voted bv him.” The law, in form, applies equally to all electors without discrimination, and one elector therefore possesses all of the rights, and no more, of every other elector. The legislature, therefore, having in effect limited the right of the elector to voting for candidates whose names are printed on the official ballots, he can only exercise the right in the manner prescribed. But the elector is not thereby necessarily deprived of the right of suffrage, as he has the same right 'as any other elector to secure the printing of the name of his candi — 224 — date upon the official ballot in the manner prescribed by law, namely, by nomination of some political party, or by securing the signatures of 20 electors, in the case of a county office, to a certificate. This may occasion the elector some inconvenience and labor, but these constitute no objection to the law. In fact, the law requires many acts to be done by the elector not required1 under former laws, but these requirements have been generally held to be constitutional. We see no reason why the law as laid down by the courts in regard to those requirements should not be applicable to this case. The supreme court of Pennsylvania, in Com. v. Reeder, supra, has recently decided an important constitutional question very much in point in the case at bar. A law was enacted by the legislature of that state for the election of seven judges of the superior court, which provided that no elector should be permitted to vote for any number exceeding six of the judges to be so elected. It was contended by certain electors that this act was unconstitutional in that it deprived the electors of the right given them by the constitution to vote for the entire seven judges.. But the court held against this contention, and that the law was constitutional. The court in a very able opinion discussed the constitutional question at length, and in the course of the opinion, in speaking of the will of the people as expressed in the act of the legislature, says: “We peruse the expression of their will in -the statute, then examine the constitution, and ascertain if this instrument says ‘Thou shalt not/ and, if we find no inhibition, then the statute is the law simply because it is the will of the people, and not because it is wise or unwise.” In speaking of one possessed of all the qualifications of an elector, the court says, “Then he is.an elector, and entitled to vote as the law may prescribe. Being an elector, and therefore entitled to vote at all elections, the constitution of. 1874, as well as those which preceded, goes a step — 225 — further, and in Section 5, Art. 1, declares, ‘AH elections shall be free and equal;’ that is, the voter shall not be physically restrained in the exercise of his right by either civil or military authority. Nor shall there be inequality. Every voter shall have the same right as every other voter.” And the court further on in the opinion says: “Can they [constitutional provisions], by any reasonable interpretation, include an absolute right to vote for every candidate of the group of candidates for the same office? * * * The question now is as to the interpretation to be put upon the language specifying the qualifications of the voter who has by law a right to vote at the election for the candidates for this office. No sound reason has been urged in the argument why we should enlarge the scope of the words ‘shall be entitled to vote at all elections’ by practically adding, ‘also for every candidate of a group of candidates for the same office.’ The constitution does not so say and has never been interpreted to so mean.” It will be seen that the court in this case goes much further than we are required to go in the case at bar. There the elector was limited by the law to voting for six candidates out of the seven, and it was conceded that, if limited to six, he might be limited to a less number; and the court sustained the act of the legislature for the reason that it was not inhibited by the constitution from enacting the same. In the case at bar, as we have seen, no elector is deprived of his right to vote for the candidate of his choice, but, in order to exercise the right, he must see that the name of his candidate is upon the official ballot. We do not feel called upon to give the constition of this state a forced or strained construction in order to defeat a law so beneficial to the people of this state, and so well calculated to prevent fraud, bribery, and corruption at our elections. To construe the constitution as giving the right to the elector to write upon the official ballot the name of any candidate, and to deny to the leg — 226 — islature the right to prescribe upon what conditions the elector may exercise the right of suffrage, would in effect, destroy the more important features of our election law in securing the purity of elections and preventing the fraud, bribery, and corruption at elections existing under the former system; for, if the elector may write the name of a candidate upon the- official ballot, this necessarily would constitute a “distinguishing mark” and eliminate from our system the secrecy intended, and thereby enable bribery at elections to be carried on with safety. A candidate desiring to purchase a number of votes could easily arrange with the voters, as proof that they had complied with the contract on their part, to write on the official ballot the name of John Jones, or any other person agreed upon for the purpose, for some minor office. An examination of the ballots would at once show whether or not the voters had carried out their contract. Again, one of the most important features of"the election law is the one requiring the names of all candidates to be certified as required by law, and printed upon the official ballot, thus enabling the public to investigate the moral character and qualifications of the candidate for'the office to which he aspires, and enable the voters to use such efforts as may be necessary to defeat a dishonest or incompetent candidate. Upon a careful consideration of the question, we are clearly of the opinion that the constitution has not inhibited the legislature from requiring the names of all candidates for office in this state to be printed upon the official ballot, and, in effect, denying to electors the right of writing upon the official ballot the name of any candidate. The right claimed is, for all practical purposes, a mere theoretical or abstract right. This is apparent from the fact that, though the election law of this state has been in effect for more than ten years, this is the first case, so far as,the records of this — 227 — court disclose, in which the right has been claimed; and in this case it appears from the record that the plaintiff had obtained the proper certificate, but through some inadvertance it was filed with the auditor one day too late, hence his name was omitted as a candidate from the official ballot. We have not overlooked the cases of Sanner v. Patton (Ill. Sup.), 40 N. E. 290; People v. Shaw (N. Y. App.), 31 N. E. 512, 16 L. R. A. 606; Bowers v. Smith (Mo. Sup.), 17 S. W. 761; State v. Dillon (Fla.), 14 South. 383, 22 L. R. A. 124, cited by counsel for appellant in support of his contention. But in neither of these cases, except the one cited from Florida, was the constitutional question we have been considering involved, and the only question before the court in each of those cases was whether or not the law under consideration authorized the writing of the name of the candidate upon the official ballot. The comments of the judges, therefore, upon the constitutionality of the law, were dicta, simply, and not binding upon the court in which the decisions were rendered, and are entitled to very little weight in this court. In the Florida case the supreme court of Florida seems to have held that part of the law we are considering unconstitutional, but the decision of that question does not appear to have been required in that case. We do not deem it necessary to consider on this appeal the question as to the liability of the defendants to respond in damages, assuming that the plaintiff had been legally elected, and therefore express no opinion upon that question. It is clear, however, that had the proof entitled him to recover, he must, in any event, show that he was legally elected. Having failed to do this, the complaint fails to state any cause of action, and the demurrer was properly sustained, and the order sustaining the same must be affirmed. The decision of this court in the mandamus proceedings be — 228 — tween the same parties, reported in 12 S. D. 135, 80 N. W. 178, does not in any manner affect the case at bar. The order of the circuit court, appealed from, is affirmed.