State ex rel. Bentley v. Hall

The following opinion was filed November 8, 1922: ViiyjE, C. J. Counsel for plaintiffs state: “The relators do not question the power of the legislature to regulate, within reasonable limitations, the nominations of candidates for public office; and they do not challenge the constitutionality of the primary election law in its entirety. They do contend that so much of sec. 5.17, Stats., as was inserted therein by ch. 477, Laws 1909,, and subsequently amended, and as purports to deny the use of the party column to party candidates for any particular office when the total vote cast at the primary for all party candidates for the particular office does not equal ten per cent, of the vote cast for the nominee of such party for governor at the last general election, is unconstitutional and void . . . because violative of secs. 1 and 22 of art. I [175] and art. Ill of the constitution for the reasons that in its practical operation and effect it is (1) unreasonably restrictive of the right of suffrage; (2) class legislation.” They say that the ten per cent, clause is unduly restrictive because it makes the continued existence of a political party dependent upon a fluctuating, inconstant, arbitrary standard which is (a) not reasonably indicative of party strength and is (b) subject to influences brought to bear by forces without the party which result in violent fluctuations. Tables are presented of election statistics showing great fluctuations in the vote for governor both on the Democratic and Republican ticket for a series of years, and it is argued that the vote for governor is not a true test of party strength. A table showing the vote for President also shows large fluctuations, as well as votes for other state officials, and it is urged that in view of such fluctuations a vote for a given candidate should not be taken as a basis of party strength. It is also urged that where there is no contest in a party primary it is wrong to penalize it for not showing a ten per cent. vote. These arguments and others were urged more or less strenuously in the case of State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, and were treated in the opinion of the court. As the law then stood a twenty per cent, vote was required and it was held constitutional. That case rules the present one. The only really new argument .here presented is that experience has shown that a party may fail to poll the necessary ten per. cent, and hence the law is unduly restrictive, and the case of State ex rel. Dorval v. Hamilton, 20 N. Dak. 592, 129 N. W. 916, is relied upon to sustain the argument. The reasoning 'of the court in that case does not appeal to us. It is to the effect that the constitutionality of a law depends upon, what has happened under it rather than upon a consideration of general principles applicable to the question. Were that so, then a law would be constitutional one day and the next it would be un [176] constitutional because of the happening of an independent event. The constitutionality of laws does not depend upon such fortuitous circumstances. It is a well established principle of law that the constitutionality of an act cannot be tested by the evidence in the particular case. State ex rel. Carnation M. P. Co. v. Emery, ante, p. 147, 189 N. W. 571; St. Louis v. Liessing, 190 Mo. 464, 89 S. W. 611, 1 L. R. A. n. s. 918. In the latter case the court says: “The constitutionality of the law is not to be determined upon a question of fact in eadh case, but the courts determine for themselves upon the fundamental principles of our constitution that the adt of the legislature or municipal assembly is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.” This in the nature of things must be so else a law would be constitutional under the facts found in one case and unconstitutional under the facts found in another. Or it would be valid today but void tomorrow because of the happening of an extraneous event. If such a view should obtain, the statute in question has been constitutional since its enactment in 1909 and until the Democrats in 1922 failed to poll a ten per cent, vote at the primary when it became unconstitutional. Such a test of constitutionality is unthinkable. That in the course of time oft-repeated experience may modify the judicial view as to constitutionality of laws is apparent; but it should not and cannot be changed because of a few isolated instances. Besides, one may well query the utility or necessity of a law whose violation is not contemplated. The legislature in fixing the ten per cent, of the vote must have had in mind that it would at times be violated. If made so low that it would probably never be violated, then it would cease to be a regulation. It would be a mere superfluity. It is not intended in this opinion to restate the position of the court in State ex rel. McGrael v. Phelps, 144 Wis. 1, [177] 128 N. W. 1041, but only to briefly touch upon the new arguments advanced and to restate the principles that govern the case. These are (1) that it is clearly within the legislative field to reasonably regulate and restrict the right of suffrage; (2) that the selection of the vote for governor as the test of party strength is clearly within such field; and (3) that the requirement of a ten per cent, vote at a primary as a condition for securing a place upon the party ticket is not an unreasonable one for reasons stated in State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041. By the Court. — The motion to quash the alternative writ of mandamus is granted.