Todd v. Boards of Election Commissioners

Long, J. The relator was nominated on February .28, 1895, as a candidate for Eepresentative in Congress by the Prohibition party for the Third congressional district of Michigan, and on March 7 he was nominated for the same office by the Free Silver party. On February 27 the People's party nominated one Eobert McDougall for the same office. On March 8 Eobert McDougall withdrew as a candidate upon the People's party ticket, and the relator was substituted in his stead by the congressional committee of the People’s party, such committee certifying that they were authorized by the convention to fill any vacancy upon such ticket. Certificates were filed with the election commissioners, March 7, 8, and 9. The relator claims that he has the right, under Act No. 190, Laws of 1891, to have his name printed upon each of these three tickets. On March 14, 1895, an amendatory act was passed by the Legislature to the election law, and given immediate effect, and respondents claim that under the terms of this amendatory act the relator is not entitled to have his name appear more than once upon the official ballot.1 This amendatory act provides that— “It shall be unlawful for said board of election commissioners to cause to be printed in more than one column on the ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office." [476] The act contains further provisions, relating to the manner in which a choice is to be made by the candidate as to the place which his name shall have on the ballot as follows: “Any person so receiving the nomination for the same office by two or more parties or political organizations shall, within five days after his name has been certified to said election commission as having been nominated by two or more political parties for the same office, give notice to the board of election commissioners of each county in the State, if said nomination be for a State office, and to the board of election commissioners of each county in the district, if said nomination be for a congressional, judicial, or legislative office, and to the board of election commissioners of the county, if such nomination be for a county office, specifying in such notice the column of which party or political organization on the ballot he wishes his name to be printed, and said board of election commissioners shall print the name of such candidate in such column on the ballot so specified by him, and in no other column. Such notice shall be given to said election commissioners by delivering the same either in person or by depositing the same in the postoffice, in a sealed envelope, with postage prepaid, directed to the chairman of such board of election commissioners at the county seats of the respective counties: Provided further, that in case any such candidate so nominated by two or more parties or political organizations for the same office, and whose name shall have been certified by the chairman and secretary of the committees of such parties or political organizations to said board of election commissioners within the time and as above provided, shall refuse or neglect to give notice to said board of election commissioners as above provided, and within the time above named, specifying in which column on the ballot he wishes his name to be printed, then and in such case said board of election commissioners shall cause his name to be printed in the column of the party or political organization from the chairman and secretary of whose committee said board of election commissioners shall have first received notice of such person’s nomination for said office, and said board of election commissioners shall not cause the name of such person to be printed on the ballot as a candidate for the same office in any other column.” • [477] The relator contends: 1. That this amended law is wholly unconstitutional, for the reason that it discriminates between political parties, and imposes a political test as a condition to one becoming a candidate for office. 2. That if the statute be upheld as constitutional as applied to future elections, in which the opportunity is given to parties and candidates to act under the law, it cannot be so far given retroactive effect as to make it applicable to a case like the present, where the nominations of the parties had been made, and the time within which, under the terms of the act, the candidate is required to make his election as to the place which his name is to have on the ballot had expired before the act took effect. 1. The constitutional question is one of unusual importance, and as the exigencies of the present case demand a prompt decision in order that the rights of the relator may be protected, and as we have reached the conclusion that the act is valid, and within the power of the Legislature, acting under the provisions of article 7, § 6, of the Constitution, which provides that “laws may be passed to preserve the purity of elections and guard against abuses of the elective franchise,” and as the relator in the present case is' entitled to his remedy without delay, we have thought it best to direct the ehtry of the order, and withhold a written opinion upon the main point until we shall have the opportunity to formulate our views upon that question, and an opinion upon the full case covering that question will be handed down later.1 2. "We are of the opinion that the amendatory act of March 14 cannot be held applicable to the present case. The time within which the candidate is authorized by law to exercise his choice "of tickets had in the present case-expired before the law took effect. He, therefore, under the law, had no opportunity to exercise the right eon [478] ferred. If it be attempted to apply the terms of this act to the present case, the election commissioners would be bound under the other provisions of the act to print the •name of the candidate on the ticket first certified, thus •excluding wholly the right of choice plainly intended to be conferred by the statute. The general rule is well settled in this State and elsewhere that all statutes are prospective in their operation, except when a contrary intent is clearly evidenced by the context. Heineman v. Schloss, 83 Mich. 153; Stitt v. Casterline, 89 Id. 239; Smith v. Pinch, 80 Id. 332; Finn v. Haynes, 37 Id. 63; Maxwell v. Bridge Co., 46 Id. 278; Danville Stove & Manufacturing Co. v. Circuit Judge, 88 Id. 244. “The rule to be derived from a comparison of a vast number of judicial utterances upon this subject seems to be that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal, and unavoidable implication from the words of the statute, taken by themselves and in connection with the subject-matter and. the occasion of the enactment, admitting of no reasonable doubt, but precluding all question as to such intention.” End. Interp. Stat. § 271. Judge Cooley, in his work on Constitutional Limitations, page 370, referring to this subject, says: “Legislation of this character is exceedingly liable to .abuse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively; and some of the states have deemed it just and wise to forbid such laws altogether by their constitutions.” •As is said in Potter’s Dwarris on Statutes and Constitutions, in a note on page 163: “Although the words of the statute are broad enough in their literal extent to comprehend existing cases, they [479] must yet be construed as applicable only to cases that may thereafter arise, unless a contrary intention is unequivocally expressed therein.” The act grants the right of choice of tickets, but compels the choice within a time which had already expired in the present case when the act took effect, and then in express terms provides that if the choice is not made hy the •candidate within that time the election commissioners shall print his name in the ticket first certified. There is no ■alternative under the act but that, if the choice is not made by the candidate within the time, his name must be printed upon the ticket first certified, and if we hold that the relator may have further time beyond the time fixed by the act we must interpolate something into the statute. If this be done, what time shall be fixed when the relator must make his choice? What is to guide us in fixing that time? Certainly not the act itself, but an arbitrary rule which we must adopt, and which is not contained in the act. It cannot be presumed from the language of the .statute that the Legislature intended such a result as that •one who could not conform to the provisions of the act, for the reason that the proceedings in his case had so far progressed as to render compliance by him with the terms of the act impossible, should be held within the act. The writ must issue to the election boards of the counties .named, directing such boards to print the relator’s name ■•upon all three tickets mentioned. Grant and Hooker, JJ., concurred with Long, J. Footnotes [1] Act No. 17, Laws of 1895. [1] See opinion immediately following this.