State ex rel. Ragan v. Junkin | Cases | Westlaw

Defendant is Secretary of State, and as such was requested to place the name of relator on the primary ballot as a Republican candidate for judge of the Supreme Court at the primary election to be held August 17, 1909, but refused on the ground that compliance would be a violation of the nonpartisan judiciary act passed at the last session of the Legislature. Sess. Laws 1909, p. 256, c. 53. The controversy thus raised was submitted to the district court of Lancaster county, where the act in question was *474 held void as being an invasion of the constitutional right of free assembly, of free speech, and of a free ballot. A peremptory writ of mandamus was accordingly allowed, directing defendant to place relator's name on the primary ballot in compliance with the primary election law and in disregard of the nonpartisan judiciary act. From the order allowing the writ, defendant appeals, and his record presents for review the correctness of the ruling of the trial court.

The first section of the nonpartisan judiciary act authorizes party nominations at conventions and primaries, and concludes as follows: “But candidates for the following offices, to wit, Chief Justice of the Supreme Court, judge of the Supreme Court, judge of the district court, county judge, regent of the state university, superintendent of public instruction and county superintendent of public instruction shall not be nominated, indorsed, recommended, censured, criticised or referred to in any manner by any political party, or any political convention or primary, or at any primary election; and no party name or designation shall be given upon any ballot to any candidate, for any of said offices, and hereafter all candidates for all of said offices shall be nominated only by petition, and no candidate for any of said offices shall appear on any party ticket.” Sess. Laws 1909, p. 256, c. 53, § 1. According to this provision candidates for judicial and educational offices cannot be “nominated, indorsed, recommended, censured, criticised or referred to in any manner by any political party, or any political convention or primary, or at any primary election.” Does the Bill of Rights forbid such an enactment? It declares: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense.” Const. art. 1, § 5. “The right of the people, peaceably, to assemble to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.” Const. art. 1, § 19. The first provision quoted protects every person in his right to speak, write, and publish on all subjects, and the next permits him to assemble with others to consult for the common good. A political meeting or convention is an “assemblage” within the meaning of the constitutional provision that the right of the people to assemble and consult for the common good shall never be abridged. The right of a citizen to speak, write, and publish on all subjects does not terminate when he enters a political convention or assemblage. With good motives and for justifiable ends the members of such a body may jointly speak and publish the truth about candidates for office, and this right extends to aspirants for judicial and educational offices.

Judge Cooley, in discussing the constitutional liberty of the press and of speech, said: “There are cases where it is clearly the duty of every one to speak freely what he may have to say concerning public officers, and those who may present themselves for public positions. Through the ballot box the electors approve or condemn those who ask their suffrages.” Cooley's Constitutional Limitations (6th Ed.) p. 530. Delegates and members of political organizations not only take with them into their party councils the inalienable right to speak, write, and publish on all subjects, but the full benefit of this privilege can only be obtained by united action. Political parties are the great moving forces in the administration of public affairs, and their influence in elections cannot be eliminated by the Legislature as long as the right to assemble and speak the truth remains in the charter of our liberties. Published criticisms of candidates, officers, and policies are potent factors in the struggle for civic virtue and cannot be suppressed by legislative enactment. The privilege of speaking and publishing the truth with good motives and for justifiable ends was not inserted in the Bill of Rights by accident. The doctrine that the truth as to a man's conduct is no justification for publishing it in the press originated in the Star Chamber, and was in high favor in that tribunal when printing became an effective means of disseminating what honest men said about the abuses of official power and the conduct and policies of public men. The hostility to such a restriction of free speech and of a free press resulted in the adoption of section 5 of the Bill of Rights. The nonpartisan judiciary act is void in so far as it declares that candidates for judicial and educational offices shall not be “nominated, indorsed, recommended, censured, criticised or referred to in any manner by any political party, or any political convention or primary, or at any primary election.”

The act under consideration prescribes the manner of nominating candidates for judicial and educational offices and the form of ballot to be used at the November election. In this connection the following provisions are assailed as unconstitutional: “Candidates for public office may be nominated otherwise than by convention, committee or primary meeting in the following manner: A certificate of nomination containing the name of the candidate for the office to be filled, stating the name, residence, business and postoffice address of the candidate, shall be signed by electors residing in the district or political division in which the officers are to be elected, and filed with the clerk of the village, city or county, or with the Secretary of State as the case may be. The number of signatures shall not be less than 5,000, not more than 500 of which shall be from one county, when the nomination is for Chief Justice or judge of the Supreme Court.” Sess. *475 Laws 1909, p. 258, c. 53, § 3. Under the provisions quoted only 500 electors in a county can lawfully sign the nominating certificate of a candidate for judge of the Supreme Court, though there may be more than 5,000 legal voters therein. In other words, 500 electors in a county may participate in nominating a candidate for judge of the Supreme Court, and when they do so the other voters in the same county are deprived of the right to sign a nominating certificate for the same candidate. In Adams county, where relator resides, nearly 5,000 electors voted at the general election in 1908. Only 500 of them, under the nonpartisan judiciary act, can take part in nominating him for judge of the Supreme Court, and this would be true, if the entire electorate of 5,000 were a unit in demanding an opportunity to vote for him as a regular nonpartisan candidate at the November election. For want of the signatures of the supporters who are deprived of the right to sign the nominating certificate of the candidate of their choice he may not be nominated. In such an event his name would not be printed on the official ballot for the November election, and their right to vote for him thereat as a regular nominee would be lost. Under these circumstances the empty privilege of writing on official ballots in blank spaces the names of persons who have not been nominated, with the prospect of having such votes classified in the election returns as “scattering,” is not the full measure of an elector's rights within the meaning of the Constitution. Electors who desire to vote for a particular candidate for judge of the Supreme Court at the November election should be allowed to take part in nominating him or in whatever preliminary step the law requires as a condition of allowing his name to be printed on the official ballot. This privilege is protected by the following section of the Bill of Rights: “All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise.” Const. art. 1, § 22.

When the lawmakers enter the party caucus, the party convention, the party committee, and the primary to make regulations, they must act within the limits of the foregoing provision. The elective franchise may be invaded by such regulations, when they prescribe the forms of the official ballots to be used at the general election and establish the methods of making nominations. These forms and methods may be as effective to deprive the voter of his rights as direct legislation relating to the November election. Chief Justice Holcomb, in discussing a primary law, said: “It is a part of the election machinery by which is determined who shall be permitted to have their names appear on the official election ballot as candidates for public office. To say that the voters are free to exercise the elective franchise at a general election for nominees, in the choice of which unwarranted restrictions and hindrances are interposed, would be a hollow mockery. The right to freely choose candidates for public offices is as valuable as the right to vote for them after they are chosen. Both these rights are safeguarded by the constitutional guaranty of freedom in the exercise of the elective franchise.” State v. Drexel, 74 Neb. 790, 105 N. W. 179. In the case cited Chief Justice Holcomb adopted the following language of Prof. Wigmore: “Nomination for public office may be considered in two aspects: First, it involves the right of every eligible person to be voted for by any elector who desires to do so; secondly, it involves the right of each elector to exercise choice among all who are eligible. The two rights may be protected by the same legislation, but it is important to remember that there is involved not merely the right of an individual to be a candidate, but the right of every other person to select him for the office; practically the feasibility of independent political movements depends upon the second right.” 23 American Law Review, 730.

State v. Drexel, 74 Neb. 776, 105 N. W. 174, was cited with approval by the Supreme Court of Illinois in People v. Election Commissioners, 221 Ill. 9, 77 N. E. 321, where the following language was used by that court: “When statutes are enacted which regulate the form of the ballot to be used, what shall appear upon the ballot, and how the candidates whose names shall so appear shall be chosen, the provision of the Bill of Rights applies to the new condition. The right to choose candidates for public offices whose names will be placed on the official ballot is as valuable as the right to vote for them after they are chosen, and is of precisely the same nature. There is scarcely a possibility that any person will or can be elected to office under this system unless he shall be chosen at a primary election, and this statute, which provides the methods by which that shall be done and prescribes and limits the rights of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law.” The Supreme Court of Illinois in a later case said: “The power of the individual voter at the polls to cast his vote, untrammeled, for the candidate of his choice, is no more sacred than the right of the individual member of a political party to express his choice for party candidates at a primary election.” Rouse v. Thompson, 228 Ill. 540, 81 N. E. 1115.

In depriving electors of the right to participate in nominating for judicial and educational offices the candidates of their choice, the nonpartisan judiciary act violates section 22 of the Bill of Rights.

The duty to uphold all valid legislation has led to an earnest effort to find some substantial *476 basis for sustaining those provisions which are not directly inhibited by the Constitution. This cannot be done, however, if either of the invalid provisions was an inducement to the passage of the bill. The void part of section 1 is repeated in section 10 with the legislative announcement that it is “declared to be the purpose of the people of Nebraska to remove all of said offices entirely from the domain of party politics.” The leading provision for carrying into effect that purpose, the one disclosed by the act itself, is the void provision that candidates for those offices shall not be “nominated, indorsed, recommended, censured, criticised or referred to by any political party, or any political convention or primary, or at any primary election.” It is true the Legislature prescribed a form for a nonpartisan ballot and prohibited party designation of candidates thereon. This, however, did not prevent party activity in the election of judicial and educational officers. The legislative intention being to remove such offices from the domain of party politics, and the leading provision for carrying that purpose into effect being void, the bill necessarily shows on its face that the void part was an Inducement to the passage of the act.

Even if the unconstitutional provisions were not the inducing cause of the legislation, the entire act must fall, unless the valid and invalid parts can be separated in such a way as to leave an independent statute capable of enforcement. The intention of the Legislature must be expressed by written language. In segregating void provisions the language itself must be separated. “Where a part of an act is unconstitutional,” wrote Chief Justice Holcomb, “because contravening some provision of the fundamental law, the language found in the invalid portion of the act can have no legal force or efficacy for any purpose whatever.” State v. Insurance Co. of North America, 71 Neb. 335, 100 N. W. 405. It is equally true that what remains must express the legislative will, independently of the void part, since the court has no power to legislate. These propositions are elementary, and citation of precedents to support them is unnecessary. For the purpose of applying the rules stated, section 1 of the act is here reproduced: “Any convention or primary meeting, as hereinafter defined, held for the purpose of making nominations for public offices, and also voters of the number hereinafter specified, may nominate candidates for public offices, to be filled by election within the state; a convention or primary meeting within the meaning of this act is an organized assemblage of voters, representing a political party which at the last election before the holding of such conventions or primary meetings, polled at least one per cent. of the entire vote in the state, county, or other subdivision or district for which the nomination is made. A committee appointed by such convention or primary meeting may also make nominations for public offices, and authorized to do so by resolutions, duly passed by the convention or meeting at which said committee was appointed. A state convention of any political party may take action upon any constitutional amendment, which is to be voted upon at the following election, and said convention may declare for or against such amendment, and such declaration shall be considered as a portion of their ticket to be filed with the Secretary of State and by him certified to the various county clerks. But candidates for the following offices, to wit, Chief Justice of the Supreme Court, judge of the Supreme Court, judge of the district court, county judge, regent of the state university, superintendent of public instruction and county superintendent of public instruction shall not be nominated, indorsed, recommended, censured, criticised or referred to in any manner by any political party, or any political convention or primary, or at any primary election; and no party name or designation shall be given upon any ballot to any candidate, for any of said offices, and hereafter all candidates for all of said offices shall be nominated only by petition, and no candidate for any of said offices shall appear on any party ticket.” Sess. Laws 1909, p. 256, c. 53.

In this section the void provision already described limits the operation of what precedes it. The first part of the section authorizes nominations by conventions and primary meetings. This portion, with the void part stricken out, would authorize partisan nominations of candidates for judicial and educational offices, which is exactly the opposite in that respect of what the Legislature intended. With the qualifying and void part eliminated, therefore, the first part of the section does not express the legislative will. These observations apply also to section 10, where the void provision in the first sections is repeated.

Section 3 makes provision for nominating candidates for judicial and educational offices by petition or certificate of nomination. This section contains the void provision which deprives all electors in a county except 500 of the right to sign the nominating certificate of a particular “candidate by petition.” The petition described in section 3 is a substantive part of the legislation, and reference to it is repeatedly made throughout the act. With the void provision stricken out, the petition mentioned by the Legislature in other parts of the bill would not be the petition to which the Legislature referred. It is therefore clear that, with the unconstitutional provisions eliminated, the balance of the act would not be what the lawmakers in fact enacted. There is no lawful way to separate the valid and invalid portions so as to leave an enforceable statute expressing the will of the Legislature.

*477 It follows that no part of the act can be sustained.

The judgment of the district court is affirmed.