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(230 P.) * The manner in which the franchise In the New York case of Burr v. Voorhis, shall be exercised is purely statutory. It is not 229 N. Y. 382, 128 N. E. 220, a candidate dewithin the power of the Legislature to destroy manded that the ballot be prepared so that the franchise, but it may control and regulate he could run against any one of several inthe ballot, so long as the right is not destroyed or made so inconvenient that it is impossible to cumbents. The court said: exercise it. It follows, then, that that which

“The right to vote for, or the right to be does not destroy or unnecessarily impair the right must be held to be within the constitution- yoted for, as a candidate for a public office is

defined and regulated by the Constitution and al power of the Legislature.”

legislative enactments of the state. In so far The Supreme Court of Minnesota, in State as the Constitution does not particularly desigex rel. Nordin v. Erickson, 119 Minn. 152, nate the methods in which the right shall be 137 N. W. 385, had before it the constitu- exercised, the Legislature is free to adopt, con

cerning it, any reasonable, uniform, and just tionality of a law which provided that, where regulations which are in harmony with conthere were two or more offices to be filled, stitutional provisions. The regulation of electhey should be classified and numbered, 1, tions the description of the ballots, the pre2, etc., using as many classes and numbers as scription of the conditions upon which and the there were offices to be filled, and that every

manner in which the names of candidates or person filing as a candidate for any such nominees may appear upon the official ballots, office should designate the number for which the method of voting, and all cognate matters,

are legislative and not justiciable, unless the he desired to file and that his name should Constitution is violated. We are to determine be placed on the ballot under such designated from the Constitution and relevant statutes title. This act was sustained, the court say- whether or not there is the one office of justice ing:

of the Supreme Court shared in by all the "The Constitution does not attempt to regu- justices who constitute the Supreme Court. To late the exercise of the right of eligibility to assume that each justice is an incumbent of an office or to vote, but they are, of necessity, left independent and particular office, and thereupon for legislative action. Therefore the Legisla- apply the enactments, is a begging of the questure may make and impose such reasonable reg- tion. * It (the Constitution] does not ulations and conditions which it deems neces- intend or purport to prescribe the method or sary to secure a pure and orderly election and manner by which they shall be so selected. It to guard against unfair combinations, undue in- left to the Legislature, within the terms of fluence, and coercion, although they may inci- the Constitution, the adoption of such reasondentally affect the right of an elector to vote, able regulations and restrictions as to nominaor his opportunities for securing an election tions and elections as might be deemed necesto office. Such regulations, however, must be sary to secure and facilitate an efficient, honreasonable, uniform, and impartial; they must est, and patriotic exercise of the elective frannot be such as to defeat indirectly the consti- chise.

Turning to the statutory protutional rights of an elector or unnecessarily visions, it is found they are equally devoid obstruct the exercise thereof. * The of enactment that each justice is the incumbent question then is whether the provisions of the of the office of justice of the Supreme Court, primary election statute, as to grouping candi- single to him. The source of the nomination dates, are, when tested by the rule stated, 80 and election of a justice is, of course, the peticlearly and palpably repugnant to the guaran- tion for the designation of a candidate for nomties of the Constitution, with reference to the ination and the primary election, or an inderight to vote and eligibility to office, as to leave pendent certificate of nomination. Election no fair doubt of their invalidity,

It is Law (Consol. Laws, c. 17), $$ 46, 122. The urged by the relator that the provision of the statutory provisions prescribing the methods primary law providing for classification imposes in which candidates secure places upon the priconditions and restrictions as to an elector's mary ballot do not declare or hint that, under eligibility to office, in violation of the Constitu- the conditions here, or analogous conditions, tion, as it forces him to elect in which one of the petition or certificate must or may lawfully two or more classes he will seek a nomination. state that the candidate for a public office is This does not affect his eligibility to office at such as the successor of' or 'to succeed one the election, for the reason that the blank space of several incumbents of the office whose terms required to be left on all official election ballots are expiring. * * It is axiomatic that enables him to aspire to the office and invite his there must be limitations and systematizations fellow citizens to vote for him by writing his in the exercise of the elective franchise in orname in the blank spaces on

the ballots. der that it may be practicable, efficient, intelli* The relator further contends that he gent, and honest. Legislative regulations which was denied the right to file as a candidate be- are reasonable and effect equality, as far as may cause he refused to designate the class in which in practical working be, cannot be rightfully he desired to file, which disfranchises him, con- said contravene any constitutional right. trary to our Bill of Rights (article 1, § 7, state The courts cannot condemn restrictions for a Constitution).

He and every other elector legitimate purpose and reasonably adapted to might, with equal force, claim that they were effect the purpose. The method of the responddisfranchised because they refused to pay the ents stands those tests. The wit of man filing fee, or to comply with any other reasona cannot devise a method transcending all incqualble regulation, of the exercise of the right to ity and discrimination. Doubtless, the method be elected to office. The claim of disfranchise- advocated by the appellant, and which he deems ment, so far as it relates to the primary elec- the more reasonable, might have been legally tion statute, is without merit."


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From these authorities, it would therefore, its effect with the second portion of section seem to follow that the first portion of sec-5212, and the Supreme Court of that state, tion 5212, Rem. Comp. Stat., is constitutional. in an elaborate and well-reasoned opinion,

[2] Second. It is further claimed that the considers the question as it is affected by prosecond portion of section 5212, Rem. Comp. visions of the Pennsylvania Constitution simStat., providing for a majority nominee go- ilar to our constitutional provision (section ing on the ballot unopposed, is unconstitu- 19, art. 1), which provides that “all elections tional. Relator calls attention to section 5, shall be free and equal, and no power, civil article 4, of the Constitution, which provides or military, shall at any time interfere to that "judges shall be elected

* at the prevent the free exercise of the right of sufgeneral state elections, and section 8, article frage," and holds that the act is a proper ex6, of the Constitution, which provides that a ercise of the legislative power and violates general election shall be held every four no constitutional provision. The temptation years, on the Tuesday succeeding the first is strong to quote extensively from this opinMonday in November; his argument being ion, as the argument is extremely convincing that, under the second portion of section and clearly stated, the court saying: 5212, a majority nomination for judge is

“'But how shall this freedom and equality be equivalent to his election, and therefore that secured? The Constitution has given no rule he is elected at a time other than that pre- and furnished no guide. It has not said that scribed by section 5, article 4, of the Consti- the regulations to effect this shall be uniform tution, for the election of such officers. But (a question discussed in another part of [this] the second portion of section 5212 does not opinion), It has simply enjoined the duty and provide for the election. The majority nom-left the means of accomplishment to the Legis

lature. inee is not declared elected judge, but it is the General Assembly, is a sound one, and can.

The discretion, therefore, belongs to merely provided that a person receiving a

not be reviewed by any other department of majority vote for the judicial office shall have the government, except in a case of plain, palhis name printed on the official ballot unop- pable, and clear abuse of the power which acposed, with a blank space following it, in tually infringes the rights of the electors.' The which any elector may vote for any one power to regulate elections is legislative, and whom he desires. As was said by this court, has always been exercised by the lawmaking in State ex rel. Zent v. Nichols, 50 Wash. branch of the government. Errors of judgment

in the execution of the legislative power, or 508, 97 P. 728:

mistaken views as to the policy of the law, or "But it deprives no one of the right to vote the wisdom of the regulations, do not furnish for the candidate of his choice at the general grounds for declaring an election law invalid election. He may write or paste the name of unless there is a plain violation of some conhis candidate thereon and have the same count- stitutional requirement. ed as rightfully as if his name were printed on “The mandate of the Constitution is that the ballot. This is a right the courts are uni- elections shall be free and equal, but bow shall form in maintaining.

Since, therefore, they be made free and equal? The Constituthe elector is not deprived by this act of vot- tion is silent as to the method of securing the ing at the general election for the candidate of desired result. The declaration itself would be his choice, we hold the act within the rightful a vain thing in the absence of positive law to powers of the Legislature."

make the mandate effective. Who makes the

law? The Legislature. As was, well said by In 15 Cyc. 332, it is said:

Justice Agnew in the case above cited, the 'Con"A statute which provides that one who has stitution has given no rule and furnished no voluntarily become a candidate for a party pom-guide' to determine how the freedom and equal. ination at the primary election and has failed ity of elections shall be enforced. It enjoins to secure it shall not have his name on the the duty in the abstract, but leaves the means official ballot is neither obnoxious to the Con- of accomplishment in the concrete to the Legstitution nor unreasonable, for he is still eligi

islature. This necessarily gives the Legislable to office, and the electors are at liberty to ture a wide field for the exercise of its diswrite his name on the ballot, if he can induce cretion in the framing of acts to meet changed them to do so."

conditions and to provide new remedies for such

abuses as may arise from time to time. The And in 9 R. C. L. 1056:

power to regulate elections is a legislative one, "In the case of a nonpartisan ballot, it has and has been exercised by the General Assem. been considered reasonable to limit the names

bly since the foundation of the government. of the candidates for an office on an official ulates the exercise of the elective franchise, and

* Legislation may be enacted which regballot to the two who polled the highest vote at a primary election, and also to limit the does not amount to a denial of the franchise names to one when the candidate receives more


The declaration in the bill of than one-half of the votes polled for the office rights that elections shall be free and equal at the primary.”

means that the voter shall not be physically

restrained in the exercise of his right of franA case squarely in point was decided in chise by either civil or military authority, and Winston v. Moore, 244 Pa. 447, 91 A. 520, that every voter shall have the same right as L. R. A. 1915A, 1190, Ann. Cas. 1915C, 498, fore cited, and many others not cited, show

any other voter,

The cases hereinbewhere there was under consideration an act conclusively that our courts have never under, of the Pennsylvania Legislature, identical in taken to impale legislative power on points of



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(230 P.) sharp distinction in the enactment of laws in- tions are free and equal within the meaning tended to safeguard the ballot and to regulate of the Constitution when they are public and the holding of elections. Indeed, so far as we open to all qualified electors alike; when every are now advised, no act dealing solely with the voter has the same right as any other voter; details of election matters has ever been de- when each voter under the law has the right clared unconstitutional by this court. This for to cast his ballot and have it honestly counted; the reason that ballot and election laws have when the regulation of the right to kercise the always been regarded as peculiarly within the franchise does not deny the franchise itself, province of the legislative branch of govern- or make it so difficult as to amount to a denial; ment, and should never be stricken down by and when no constitutional right of the qualithe courts unless in plain violation of the fun-fied elector is subverted or denied him. Judged damental law.

by these tests, the act of 1913 cannot be at"In the present case, it is pertinent to in- tacked successfully on the ground that it offends quire: What provision of the Constitution has against the 'free and equal clause of the Bill been clearly violated by the act of 1913? Ap- of Rights. It denies no qualified elector the pellants make answer by pointing to that clause right to vote; it treats al voters alike; the of the Bill of Rights which requires ‘elections primaries held under it are open and public to be free and equal. We have already dis- to all those who are entitled to vote and take cussed this clause in a general way, but it re- the trouble to exercise the right of franchise; mains to briefly consider the points now pressed and the inconveniences if any bear upon all in upon us. It is contended that the act under the same way under similar circumstances and consideration is discriminatory and restrictive are made necessary by limiting the number of in its operation because it limits the names of names to be printed upon the official ballot, a candidates on the official ballot to the two who right always recognized in our state and not polled the highest vote at the primary. There very confidently disputed in the case at bar. is nothing new or novel in the provision thus • criticized. If there is to be an official ballot, "It is further suggested that the proviso to there must of necessity be a limit to the num- section 13 makes the provisions of the act unber of names printed thereon, else such a bal- reasonable and discriminatory by providing in lot would mean nothing. If every one had the substance that when only one person is to be right to have his name printed on the official elected to a particular office, and there are ballot, there would be no necessity or occasion several candidates at the primary, the one who to furnish such a ballot. The old law limited shall receive more than one-half of the total the number of names to be printed upon the vote polled for such office, and more than oneofficial ballot, and the Legislature provided the balf of the * ballots, cast in the politimethod by which to determine what names cal district or division, such candidate shall be should be so printed. Thus the Legislature pre- the sole nominee for the office, and his name scribed the limitations and the courts declared alone shall be printed as a candidate upon the this to be a valid exercise of legislative power. official ballot. With the wisdom of this proviThe act of 1913 simply prescribes another meth- sion we have nothing to do. Our only duty is od of reaching the same result. The people to determine whether it was within the power vote directly for such persons as submit their of the Legislature to so provide. We have alnames at the primary, and the two polling the ready decided that the Legislature did not exhighest number of votes are entitled to have ceed its power in limiting the number of names their names printed upon the official ballot. to be printed upon the official ballot to the two There is no distinction in principle between this candidates who received the highest number of method of limiting the number of names entitled votes at the primary, but it is insisted that this to be printed on the ballot and the old system rule should not be applied to the proviso in whereby the same result was secured through question. It is difficult to draw an arbitrary party nominations or by groups of citizens. In line and say that a certain number of names both cases the Legislature prescribed the limita- shall be printed upon the official ballot and that tions, and, in so doing, exercised a power clear- a less number may not be without infringing the ly contemplated by the Constitution. We see rights of the elector. If the courts should say no more abuse of the power in one case than that it is a lawful exercise of legislative power in the other; its quality is the same under the to limit the number of names to be printed on new act as under the old law, but the methods the ballot to the two candidates who recei provided for determining the result are differ- the largest vote at the primary, and that the ent. Who can say that one method is lawful | printing of a less number of names is an unlawand the other unlawful? The Constitution says ful limitation, this would simply mean the nothing about nominations, or how candidates substitution of judicial for legislative judgment. shall be chosen, or how many names shall be Primarily this is a legislative and not a judiprinted on the ballot. It furnishes no rule by cial duty. Courts can interfere only when the which to accurately determine what the Legis- Legislature acts in plain disregard of constilature may or may not do in the enactment of tutional rights. This court bas decided that laws relating to such details in the exercise of the limitations imposed must not amount to a the elective franchise. In the absence of any denial of the franchise itself, and this is the express constitutional limitation upon the pow- extremest kmit to which our cases have gone. er of the Legislature to make laws regulating It cannot be reasonably said that the exercise elections and providing for an official ballot, of the elective franchise is denied to the innothing short of gross abuse would justify a dividual voter by the limitation contained in the court in striking down an election law demand-proviso to section 13. The elector may vote ed by the people, and passed by the lawmaking for the name thus printed upon the ballot, or branch of government in the exercise of a pow- he may write in the name of any person for er always recognized and frequently asserted. whom he may choose to vote, and thus he is “In a general, way it may be said that elec- not denied the right to exercise the franchise

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of voting in accordance with his convictions, , Minnesota in State v. Moore, 87 Minn. 308, preferences, or sense of public duty. It is true 92 N. W. 4, 59 L. R. A. 447, 94 Am. St. Rep. that the candidate who receives more than one. 702, “No plan will ever place all candidates half the votes polled in the election district on a perfectly similar footing,” but the advanat the primary has an advantage over all others, but this is an advantage given him by the tage which is obtained under section 5212 votes of a majority of the electors who per- is an advantage which is given by the electors formed their public duty by attending the pri- themselves, and is not such an advantage as mary and exercising their right to vote. The deprives any elector of any right guaranteed elector who fails to vote at the primary, and him by the Constitution. thus disregards the opportunity afforded him

For the reasons stated, the application for under the law, is not in position to comploin a writ, compelling the officers of Spokane because of an advantage given the successful candidate by a majority of the voters who did county to place the name of the relator upon attend the primary and performed their duty the ballot for the general election, was propin this respect. This advantage results from erly denied, a direct vote of the people, and those who are dissatisfied with the nomination thus made are not concluded by it, but may vote for a de

MAIN, C. J., and BRIDGES, PARKER, and feated candidate, or for any other person for

TOLMAN, JJ., concur. whom they desire to vote, by pursuing the method pointed out in the act. In view of the wide discretion which the Legislature has always exercised in the enactment of election laws, and the elective franchise not being denied any one, we are not prepared to say that PORTER v. WHEELER et al. (No. 18864.) this limitation makes the act unconstitutional and void. Even under the old system it often (Supreme Court of Washington. Nov. 28, happened that there was only one candidate for

1924.) the office of judge, and indeed it may be confidently said that such a situation will not more frequently arise under the new act than it did - Wills Ow746-Remainderman, suing to quiet under the old law."

title to property devised, not required to al

lege facts to set aside decree of distribution. This case would seem to dispose of relat Remainderman, suing to quiet title to propor's second contention. The same court, in erty devised to him, if not used by life tenant Wasson v. Woods, 265 Pa. 442, 109 A. 214, for her comfort and support, did not need to had this provision again under consideration, allege facts to set aside decree distributing and there said:

property to life tenant, "as provided in will.”. "The suggestion that the provision for sole 2. Executors and administrators 315(5)-nominees in the act virtually changes the time

Decree of distribution to life tenant, as pro. of the election fixed by the Constitution is with

vided by will held to give such tenant only out weight. Although no name of a competitor

interest devised. will appear on the official ballot, nevertheless Where will provided that, on death of life there will be an election. The elector still has tenant, all property devised to her, not used the right of selection between such sole nom- for her support and comfort, should go to reinee and any other person he may desire to vote mainderman, decree of distribution to life tenfor by inserting the name of that person in ant, “as provided in will,” gave life tenant only the blank space on the ballot left for that pur- interest devised. pose.”

3. Wills 616(4)-Devise to remainderman The District Court of Appeal of California, of property not used for support and comin Miller v. Childs, 28 Cal. App. 478, 152 P.

fort of life tenant construed. 972, had before it a constitutional provision Where devise was to life tenant, and at her similar to ours, and a legislative provision death property, not used for her support and in regard to election of judges such as ours, comfort, was to go to remainderman, at death and sustained such an act. The right is ex- of life tenant remainderman was entitled to pressly given by sections 5212, 5272, and 52S2, property, not consumed by life tenant, and not

burdened with obligations for support and comRem. Comp. Stat., to any elector to write in

fort of life tenant. the name of any person for whom he may wish to vote, and the Supreme Court of Mas. 4. Executors and administrators 47-Propsachusetts, in Commonwealth v. Rogers, 181

erty, not consumed for use and comfort of Mass. 184, 63 N. E. 421, held that such pro

life tenant, subject to administration on death vision protects all the rights of any elector.

of life tenant. To the same effect is the case of Barr v. Property, not used for comfort and supCardell, 173 Iowa, 18, 155 N. W. 312. See, port of life tenant, as permitted by will, was also, McCrary on Elections (4th Ed.) p. 508. subject to administration at death of life tenAll the authorities seem to be agreed that ant, to subject it to satisfaction of debts in

curred, to furnish support and comfort to life the second provision of section 5212 violates tenant, or to determine that there were no no constitutional rights. It is true, of course, such debts, and executrix of life tenant was that, as stated by the Supreme Court of lentitled to possession.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


(230 P.) 5. WAIS 746—Complaint to quiet title to missal was accordingly rendered against him,

devised property held not subject to demur. from which he has appealed to this court. rer, for failure to state sufficient facts.

The controlling facts, as we view them, Complaint of remainderman to quiet title to may be summarized from the allegations of property, not used for comfort and support of the complaint, which, for present purposes, life tenant, as permitted by will, whose allega- we must assume are true, as follows: On Detions indicate that, on satisfaction of possible debts chargeable against property, some will be cember 25, 1920, Nathan S. Porter died, beleft, is not subject to demurrer for failure to ing then and for many years prior thereto state cause of action.

a resident of Thurston county. He left sur

viving him his then second wife, Mary 6. Action 57(1)-Suit by remainderman to Wheeler Porter, and the plaintiff, his son by

quiet title to property, usable for comfort a former deceased wife. Some time prior to and support of life tenant, should be con- his death Nathan S. Porter made and duly solidated with probate proceedings, on estate of life tenant.

executed his last will and testament, in Suit by remainderman to quiet title to prop

which, following directions as to the disposierty devised to life tenant, and at her death, tion of his body and the payment of his debts, all not used for her comfort and support, to he disposed of his property, and appointed him, should be consolidated with probate pro- his executrix as follows: ceedings on estate of life tenant.

“3d. I give and bequeath to my son Alvah

Porter three hundred dollars ($300.00) and Department 1.

twenty-five per cent of the net income from Appeal from Superior Court, Thurston my stock in the Little Chopaca, Ruby and UnaCounty; Wilson, Judge.

ka Mines, Columbia Gold Dredging Company

of South America, Similkamun Falls Power Suit by Alvah Porter against H. L. Wheel- Company and Mexican Rubber Culture Comer, executrix of the estate of Mary Wheeler pany, Porter, deceased, and others. From order

"4th. I give, and devise and bequeath to my sustaining demurrer to complaint, and judg- wife Mary Wheeler Porter all the balance of ment of dismissal, plaintiff appeals. Revers- my property, real, personal and mixed of which

I may die seized, consisting of real estate, moned and remanded.

ey, bank stock, mining stock, rubber culture Thos. L. O'Leary, of Olympia, for appel- stock, Sumilkamun Falls Power stock, lot and

house lant.

Main street, Olympia, household Vance & Christensen, of Olympia, for re action, ornaments, and keepsakes to be used

goods, Library, musical instruments, choses in spondents.

and enjoyed by her during her lifetime, and

at her death, I will that all of said property PARKER, J. The plaintiff, Porter, com- not used for her support and comfort, go to menced this suit in equity in the superior my said son Alvah Porter. court for Thurston county seeking a deci

“Provided. That if my widow Mary Wheeler quieting his title in, and decreeing him to be Porter, shall marry, then I will, devise and bethe owner of, certain real property in that queath all of my said property go to my said

son Alvah Porter, county, and also seeking an accounting and

“5th I hereby appoint my wife, Mary Wheeldetermination of his property rights in cer er Porter, my executrix, to carry out the protain personal property, taken possession of visions of this will; and that she be not reand claimed by the defendants as a part of quired to give bonds, and without the interventhe estate of Mary Wheeler Porter, deceased, tion of any court, except to have this will proof which the defendant H. L. Wheeler is bated.” executrix; the other defendants being heirs

On January 10, 1921, that will was duly of Mary Wheeler Porter or beneficiaries un

proven, and admitted to probate in the supeder her will. The plaintiff claims absolute rior court for Thurston county, and the apownership of the property drawn in question, pointment of Mary Wheeler Porter as execuupon the theory that it was the separate trix confirmed. The administration of the property of his father, Nathan S. Porter; estate proceeded accordingly, and such proMary Wheeler Porter, deceased, his second ceedings were had therein that on August wife, never being vested with any estate 15, 1921, a decree of distribution was hy the therein other than a life estate under his will, court entered, which, after reciting that the and upon her death the absolute title to the legacy of $300 bequeathed to the plaintiff had property vesting in the plaintiff under the been paid; that all debts and obligations of terms of the will of his father, Nathan S. the estate had been paid; and that the estate Porter. The cause was submitted to the was then ready for distribution, decreed as court upon the complaint and a demurrer follows: thereto, upon the ground that the complaint

"It is therefore ordered, adjudged, and dedid not state facts sufficient to constitute a

creed that all the residue of said estate of cause of action. The demurrer was by the Nathan Smith Porter, deceased, now remaincourt sustained, and the plaintiff electing ing in the bands of Mary Wheeler Porter, as not to plead further, final judgment of dis-lexecutrix, be and the same is hereby distribut

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
230 P.-41

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