Hager v. Robinson | Cases | Westlaw

These cases were orally argued at the same time and were together submitted for decision. On the 15th day of May, 1913, the appellee E. W. Robinson, desiring to become a candidate for the Republican nomination for the office of assessor of Johnson county at the primary election to be held in that county August 2d, 1913, tendered to the appellant, Paul C. Hager, clerk of the Johnson county court, and offered to file in his office a petition setting forth his qualifications for that office, and requesting appellant as such clerk to cause his name to be printed on the official nominating ballot of the Republican party as a candidate for the nomination for the office of assessor to be voted for at such primary election.

The petition is as follows: “Petition for Assessor of Johnson County. To Paul C. Hager, County Clerk Johnson County, Kentucky, and to the Members of the Republican Party of Johnson County, Kentucky: I, E. W. Robinson, reside at Paintsville, Johnson county, Kentucky. I am a member of the Republican party, and I am forty-nine years of age and possess all the other legal qualifications necessary to entitle me to hold the office of assessor of said county, to wit: I am above the age of twenty-four (24) years, a citizen of Paintsville, Johnson county, Kentucky, and have resided in said county and state for more than two years and more than one year next preceding the primary election to be held in Johnson county for the year 1913, in which I am a candidate for the office of county assessor. If I am nominated for said office of assessor at the primary election to be held on the first Saturday in August next, I will accept the nomination and will not withdraw, and, if elected, will qualify as such officer. Dated at Paintsville, on this the 15th day of May, 1913. E. W. Robinson.” Tendered with the above petition, and at the same time offered to be filed, were four other petitions, each from a different voting precinct of Johnson county, and each signed by numerous electors of the precinct from which it came, representing altogether more than 3 per cent., and not less than 10 per cent., of the total vote of the Republican party in Johnson county cast for presidential electors at the last election for President of the United States. As the four petitions were worded alike only one of them is here copied: “We, the undersigned qualified electors of Paintsville No. 2 precinct, Johnson county, state of Kentucky, and members of the Republican party, hereby nominate E. W. Robinson, who resides at Paintsville, county of Johnson, as a candidate for the office of assessor at the primary to be held the first Saturday in August, 1913, as representing the principles of said party; and we declare that we intend to support the candidate herein named.” Signed by James W. Turner and fourteen others.

It will be observed that the petition of the appellee Robinson contains all the statements prescribed by section 6, c. 7, Acts Gen. Assem. 1912, entitled, “An act to provide for the nomination of candidates by political parties at primary elections, and for placing the names of candidates on the ballots to be voted for at general elections and prescribing penalties for the violation thereof,” (approved March 5, 1912), except that it omits to state that the appellee Robinson affiliated with the Republican party and supported its nominees at the last regular election, for which reason appellant, as clerk, refused to receive or file the petition, or those of the electors, or to place the name of the appellee Robinson on the ballots to be voted for as a Republican candidate for the nomination for assessor at the primary election to be held on the first Saturday in August, 1913.

Following this refusal these actions were brought, the one by the appellee Robinson and the other by the appellees James W. Turner and others, in their own behalf and *1140 for other signers of the elector's petitions, too numerous to be made parties, praying that appellant, as clerk, be compelled by mandamus to receive and file the petitions in question and proceed to place the name of the appellee Robinson on the official ballot of the Republican party at the August primary as a candidate for the Republican nomination for the office of assessor of Johnson county. When the cases came on for hearing appellant filed a demurrer to each of the petitions, which the circuit court overruled. Appellant refused to plead further, and judgment was thereupon entered in each case awarding the mandamus prayed. From those judgments these appeals are prosecuted.

It will be observed that “only candidates may institute proceedings under this section”; if they do so, and the relief asked for is denied by the court or judge, the orders or judgment of the court or judge determining the matter “shall be final and not appealable.” In other words, this section compels the candidate to have determined, by the method of procedure therein declared, whether a wrong has been done him in refusing his name a place on his party's ballot in the primary, yet refuses him, or the alleged wrongdoer, the right of appeal, however much either may be dissatisfied with the judgment rendered by the court or judge. To say that this is unwise, not to say unjust, legislation does not make it unconstitutional or even unreasonable, as the right of appeal is not an inherent or constitutional right, but a right which the Legislature may in its discretion confer or withhold. Turner v. Commonwealth, 89 Ky. 78, 1 S. W. 475;¹ Vinegar v. Commonwealth, 104 Ky. 106, 46 S. W. 510, 20 Ky. Law Rep. 412. When conferred it is usually coupled with conditions which must be observed, in order that the appellate court may have jurisdiction to entertain the appeal.

We can well apprehend and deplore the possibilities of disaster to the rights, both of candidates and voters, that may flow from the committal into so many different judicial hands, some of them unskilled and others, perhaps, partisan, the summary and final correction of the evils designed to be prevented by the section of the act in question; but it is not our province to condemn the policy of the Legislature in failing to provide for a revision of the acts of these judicial officers. This defect in the statute, and others that may yet be discovered, should, and doubtless will, be corrected at the next session of the General Assembly, which will convene at the beginning of the coming year.

In Yates, County Clerk, v. Collins, 118 Ky. 682, 82 S. W. 282, 973, 26 Ky. Law Rep. 558, 930, we held that injunction would lie at the suit of a resident voter and taxpayer of the county of Kenton to restrain the clerk from carrying out the provisions of an act of the General Assembly, approved February 11, 1904, entitled “An act to amend an act entitled, ‘An act to regulate elections in this commonwealth, approved June 30, 1892”’ (Laws 1904, c. 6), if the act, which required the registration of all qualified voters in all cities and towns of the state, without regard to class or population, should be held unconstitutional. The constitutionality of the act was, however, upheld, but in respect to the right of the plaintiff to maintain the action, we in the opinion said: “It is conceded that the appellee is a male citizen, resident, and taxpayer of Kenton county, Ky.; that he possesses the qualifications, under the Constitution and laws of the state, which entitle him to vote at the approaching November election, and no objection is urged against his right to institute this action. Nor do we question his right to do so; for, in order to carry out the provisions of the act supra, some expense for printing must be incurred by each county of the state through its county clerk, which is required to be paid out of the county levy. If, therefore, the act in question is unconstitutional, this expense should not be placed upon the counties, and a taxpayer like the appellee has such an interest in the matter as will entitle him to sue, as he has done, to test its constitutionality.”

In Louisville Home Telephone Co. v. City of Louisville, 130 Ky. 611, 113 S. W. 855, the Telephone Company sued to compel the city by mandamus to sell a telephone franchise, resting its right to maintain the action upon its alleged purpose to become a bidder at such sale. In approving the right of the Telephone Company to maintain the action, we said: “The question in this case is therefore one of public right, and the object is the enforcement of public duty. And, as we have seen from the authorities quoted supra, in such state of case a relator in a mandamus proceeding need not show that he has any special interest in the result, but it is sufficient for him to show that he is a citizen and resident, and engaged in business in the city, and as such interested in the execution of the law, and that, inasmuch as a public duty here sought to be enforced is not one due to the state in its sovereign capacity, the decided preponderance of American authority is that private persons may move for a mandamus to enforce such public duty.” State ex rel. Harvey v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L. R. A. (N. S.) 1221.

The right of appellees Jas. W. Turner and others to maintain this action is stronger than that of either of the plaintiffs in the cases cited. They are not only qualified voters and members of the political party of which Robinson seeks to be made the nominee at the approaching primary election, but they actually assisted in his attempt to get his name upon the ballot by tendering to the clerk, in support of his right to do so, the petition required by section 6 of the Primary Act, in doing which they were endeavoring to perform a duty they owed to their party and to the public as well. It can well be said, therefore, that the rejection of their petition and that of their candidate by the clerk, if without legal cause, as alleged, constituted a violation of their personal rights, and at the same time prevented them from performing a duty which they owed to their party and to the state of which they are citizens.

This brings us to a consideration of the objections urged to the constitutionality of the act, which are raised by both appeals.

It is insisted for appellees that section 6 of the act violates sections 1, 6, and 147 of *1142 the Constitution of the state; the first declaring freedom and equality inherent and inalienable rights common to all men, the second, that all elections shall be free and equal, and the third, that all elections by the people “shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls, and then and there deposited.” We have twice held that there is no provision of the Constitution having reference to primary elections. Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388, 26 Ky. Law Rep. 638, the first case in which we so held, involved the validity of a former primary election statute, which was attacked upon the ground that it was obnoxious to section 6 of the Constitution. In rejecting this contention we said: “But it is urged that, if the statutes mean this (i. e., that each candidate should pay his proportion of the cost of holding the primary), it conflicts with the Constitution (section 6), which provides that ‘all elections shall be free and equal.’ That section of the Constitution has no reference to primary elections, but appellees only to general elections. Section 148 of the Constitution provides that not more than one election can be held in any district in each year, except as otherwise provided in the Constitution. The Constitution nowhere makes provision for holding primaries. Therefore if the word ‘election,’ as used in the Constitution, includes primary elections, the Constitution effectually prohibits the holding of primary elections at all. There is a general election every year, and if a primary cannot be held in the same year with a general election, it cannot be held at all. To make it more plain, if the Constitution only authorizes one election to be held within a year, and a primary election is an election within the meaning of the Constitution, then to hold a primary election and a general election the same year would be violative of this provision of the Constitution.”

In Hodge v. Bryan, 149 Ky. 110, 148 S. W. 21, we again held that a primary election is not an election in the meaning of the Constitution: In this case we had under consideration the validity of certain features of the present primary law, with respect to which we said: “The Constitution does not require the Legislature to enact primary election laws. It makes no reference to them; therefore, as the Constitution does not prohibit them, the Legislature had a right to pass such a law. In Montgomery v. Chelf, 118 Ky. 766 [82 S. W. 388, 26 Ky. Law Rep. 638], this court expressly declared that the word ‘election,’ as used in the Constitution, had no application to primary elections. The word ‘election,’ as used in the primary law, does not refer, in fact, to the election of an officer. It only means that the people should on the first Saturday of August in each year select, by means of a primary election, persons as candidates to be voted for at the general election held the following November. There is no election in August; it is only a selecting or naming of persons as candidates to be actually voted for at the November general election.”

Authority should not be required to convince a reflecting mind that a primary election, held merely to name the candidates of a political party or parties, is not an election within the meaning of the provisions with respect to elections, found in the Constitution. In every instance those provisions refer to the election of officers, and not to the nomination of candidates. It is undoubtedly the general rule that state Legislatures have the inherent power to enact reasonable primary election laws. In some jurisdictions provisions have been made for such laws by *1143 amendments to the state Constitutions, giving the Legislature express authority to pass laws regulating the conduct of primary elections. But in a majority of the states, perhaps, constitutional authority for the enactment of such laws is wanting; however, it has nowhere been held that the absence of such express constitutional authority will prevent the Legislature of a state from enacting such a law and making it compulsory in its operation. State v. Michel, 121 La. 374, 46 South. 430; State v. Miles, 210 Mo. 127, 109 S. W. 595; Healey v. Wipf, 22 S. D. 343, 117 N. W. 521; Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121; State v. Felton, etc., 77 Ohio St. 554, 84 N. E. 85, 12 Ann. Cas. 65.

This self-evident fact is persistently ignored in every argument advanced against the constitutionality of section 6 of the Primary Act. In numerous cases relating to regular elections held by constitutional authority, the legality or result of which were in question, this court has gone to the limit in protecting the secrecy of the ballot. Commonwealth v. Barry, 98 Ky. 394, 33 S. W. 400, 17 Ky. Law. Rep. 1018; Major v. Barker, 99 Ky. 305, 35 S. W. 543, 18 Ky. Law Rep. 104; Banks v. Sergent, 104 Ky. 843, 48 S. W. 149, 20 Ky. Law Rep. 1024; Nall v. Tinsley, 107 Ky. 441, 54 S. W. 187, 21 Ky. Law Rep. 1167; Cole v. Nunnelley, 140 Ky. 138, 130 S. W. 972. While any attempt to compel the individual voter to disclose how or for whom he voted at a regular election would not be allowed, there is no prohibition against a voluntary disclosure by him, unless it be made to affect the conduct or result of a regular election. But when a voter offers himself, as did E. W. Robinson, as a candidate for nomination to an office at the hands of a political party with which he claims membership, proposing to have his claim to such nomination determined by the electors of the party at a primary election held under the Primary Election Law of the state, he must submit himself to such reasonable regulations or tests as may be required of candidates by the law under which the primary election is held; and if one of these tests requires him to state, in order to get his name on his party's ballot, that he supported the nominees of the party, of which he seeks a nomination, at the last regular election, he must do so, and the disclosure, even if it should give the names of the persons for whom he voted, will not violate the provisions as to the secrecy of the ballot contained in section 147, Const. The tests to which the candidates are subjected by the Primary Election Law of this state are contained in section 6 of the act. One of them is that he must have affiliated with the party whose nomination he seeks, and also have supported its nominees at the last regular election. The words “supported its nominees” do not necessarily mean that the candidate should have voted for such nominees. Without voting at all he may have given them actual and even active support, by advocating their claims, contributing to the legitimate expenses of their campaign, getting out the vote and in other proper ways, yet by accident or unavoidable casualty have been prevented from attending the election. Therefore to require one to say that he supported the nominees of his party at a former election would not necessarily compel the admission on his part that he voted for them; for this reason, if not other were apparent, it cannot be said that the test here imposed invades the secrecy of the ballot. In nearly all the states having a compulsory primary election law, this and similar tests have been held to be reasonable. Webber v. Felton, 77 Ohio St. 554, 84 N. E. 85; Ladd v. Holmes, 40 Or. 167, 66 Pac. 714, 91 Am. St. Rep. 457; Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121; State ex rel. McCarthy v. Moore, 87 Minn. 308, 92 N. W. 4, 59 L. R. A. 447, 94 Am. St. Rep. 702; State ex rel. Labauve v. Michel, 121 La. 374, 46 South. 430; *1144 State ex rel. McCue v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741; State ex rel. McCue v. Beery, 18 N. D. 75, 118 N. W. 150; Katz v. Fitzgerald, 152 Cal. 433, 93 Pac. 112.

It should be kept in mind that it is the secrecy of the ballot, and not the secrecy of the party or of political belief, that section 147, Const., is designed to protect. The state of Minnesota has a primary election law containing the provision that if a candidate, after permitting his name to go on the party ballot, suffers defeat in the primary, his name cannot be placed on the ballot as a candidate, whether of another party or as independent, at the succeeding regular election. Notwithstanding the attack upon that provision of the act the Supreme Court of that state, in State ex rel. McCarthy v. Moore, supra, upheld its constitutionality and declared it a reasonable regulation. In the opinion it is said: “It is claimed for petitioner that the statute cited, in forbidding one who voluntarily becomes a candidate for a party nomination at the primary election, and fails to secure it from having his name on the official ballot, interferes with and materially impairs his eligibility for the office for which he failed to be nominated; and it is further claimed that every person who is eligible thereto has the right to be a candidate for an office, whether he has already sought it as a party representative or not. The guaranty of the organic law refers to essential qualifications, and dispenses with any other test to hold office (as birth, education, and the like) than the right to vote.” And this we apprehend is the extent of the guaranty. “It is not attempted therein to provide regulations for voting, nor the details of the candidacy of the aspirant. The right to vote and the right to hold office are declared to be co-ordinate. The methods by which these rights shall be protected and enforced are, of necessity, left to legislative action; but we shall readily assume that it is an inherent right of citizenship that only such a system of regulation be provided for as will be just and reasonable, and operate in its application to all voters and to candidates equally. *** Of necessity, there must be upon such a ballot a regular order in which the names shall be placed, and other features incident to the procedure that tend to invest incidental advantages upon one candidate over another; but it would seem proper that any candidate who seeks the assistance of a primary election law to aid him in securing party support should be bound by the obligations of good faith and the dictates of fair play to which he has voluntarily subjected himself. It is said by this law to a candidate: ‘If you prefer the advantages of a party nomination which may be desirable, you may seek it; but if the state prepares and prints your ballot and regulates nominations so as to secure the utmost freedom of choice among the members of your party, it does so upon the submission by you to the condition that, if you are unsuccessful, it will not thereafter print your name upon the ballot to defeat your opponent’—and it should not be said, because this is refused, that it is an unreasonable condition, but rather an imposition of even-handed justice that would have been bestowed upon his previous contestant, had the result been otherwise.” Miller v. Flaherty (N. D.) 136 N. W. 76, 41 L. R. A. (N. S.) 132.

In Schostag v. Cator, 151 Cal. 604, 91 Pac. 503, in passing upon the constitutionality of a provision of the Primary Election Law, which requires registration before the elector votes, the Supreme Court of that state said: “It is contended that the test prescribed by section 1366A is unreasonable, because with the close of the registration the elector loses his right to change his party allegiance in consequence of a change in his political convictions, and is precluded from taking part in the election of delegates to the convention of the party with which on the day of the election his more matured opinions would impel him to cast in his lot. This inconvenience certainly does result from the provisions of the act, but the Legislature, which must be presumed to have foreseen it, probably regarded such sudden conversions during the short interval between the close of registration and the date of the primary election as likely to be of such rare occurrence as not to justify the omission of a provision evidently designed to prevent unscrupulous and mercenary electors from holding themselves free down to the day of election to vote with any party, upon any corrupt motive, for the purpose of influencing the nomination of its candidates for public office, while without any interest in their success, and perhaps with an interest in their defeat. If it shall sometimes happen that a conscientious voter is converted from one political faith to another between the close of registration and the primary election, he may console himself for the loss of his vote by the reflection that his loss is trifling in comparison to his share of the advantage to the state of which he is a citizen flowing from a measure which tends to prevent a grave abuse, especially in those centers of population where the Primary Election Law is made obligatory.”

In Ladd v. Holmes, supra, the court, in discussing the right of the Legislature to prescribe an additional test for those who participate in the primary election, used this language: “The act is none the less valid because it provides for a party election, or, to speak more precisely, elections had at party primaries. All electors or parties authorized or required to hold such elections are entitled to vote at their respective party primaries, and not elsewhere. It is not true that every citizen accorded the elective franchise *1145 under the Constitution is entitled to vote at all elections. *** So it is where party primary elections are held, such as are authorized and required by law, and under the supervision and inspection of public functionaries; it is not a violation of the Constitution that all electors are not permitted to vote at a particular party election. Electors of one party have no desire, unless prompted by sinister or evil motives, nor have they any inherent right, within or without the Constitution, to vote at some other party primary or election; hence no right or privilege of which they can complain has been entrenched upon or violated. We see no objection to the Legislature providing for party elections and limiting the electoral privilege to party members. The exclusion of other party members from participating in such elections is not an infringement or denial of a constitutional right or privilege.”

The Supreme Court of Nebraska in State v. Drexel, 74 Neb. 776, 105 N. W., 174, in its consideration of the Primary Election Law of that state, indulged in the following pertinent language: “By section 19 of the act the right of an elector to vote at a primary is made to depend upon his political affiliation with the party for whose candidates he desires to cast a ballot. It is therein provided that no persons shall ‘be entitled to vote at such primary election until he shall have first stated to the judges of said primary election what political party he affiliates with, and whose candidates he supported at the last election, and whose candidates he intends to support at the next election.’ Provisions are also made for challenging any person offering to vote at such primary election, and for his making oath to the truth of the statements above required as to party affiliation and his support of candidates of the party with whom he is offering to vote. It is difficult to perceive any valid objection to provisions of this character, when applied to a primary election law. These laws replace party nominating conventions. The regulation of the membership of the party and of the right to participate in the nomination of its candidates, in this respect, is taken from the party and placed in the control of the Legislature. The integrity of the party and the success of its principles and policies can be best maintained by the participation in its affairs of those only who are at heart in sympathy with the objects and ends to be attained by the organization, and loyal to its tenets. An indiscriminate right to vote at a primary would tend, in many instances, to thwart the purposes of the organization and destroy the party. A hindrance to one, not a member of a party, from participating in the selection of the party's delegates and candidates can in no proper sense be said to interfere with the free exercise of the elective franchise as guaranteed by the Constitution. All that is required is that the party offering to vote at the primary, in order to be entitled to vote with either of the parties engaged in nominating candidates thereat, shall have affiliated with such party, supported its candidates generally at the last election, and intend to do so at the next. Open declaration of allegiance to party is absolutely essential to the proper working of any primary law.”

In Ex parte Wilson, 7 Okl. Cr. 610, 125 Pac. 739, decided July 18, 1912, the Criminal Court of Appeals of Oklahoma in the opinion delivered therein said: “It is alleged that the elector named in the information was a duly qualified and registered elector of the precinct named, but did not register as a Democrat. *** The propositions presented are: First, whether or not a qualified elector, who is not a member of any political party having official ballots at a general primary election, is entitled to vote at such a primary election; second, whether or not an elector may vote the ballot of any party he chooses to select, whether he is a member of that party or not. Upon careful consideration, we are of opinion that the constitutional provisions contemplate that only electors who are members of political parties shall participate in the primary election for the selection of candidates for the respective parties, and then vote only the ballot of the party of which they are a member, and that nonpartisan electors having no party affiliations are relegated to their right to participate in the nomination of candidates for elective office by petition in the manner provided for by the Primary Election Law. A few plain and unquestionable propositions will sufficiently present the views of this court in support of this position. *** ‘Political parties' are voluntary associations of electors, having an organization and committee, and having distinctive opinions on some or all of the leading political questions of controversy in the state, and attempting through their organization to elect officers of their own party faith and make their political principles the policy of the government. They are governed by their own usages and establish their own rules. No one with any knowledge of the history of our country will contend for a moment that political parties have not played an important part in shaping the destinies of our government, nor that they were not a powerful and necessary force in a successful administration of the affairs of the national and state governments. So potent have they become in determining the measures and administering the affairs of government that they are now regarded as inseparable from, if not essential to, a republican form of government. *** ‘The object of holding a primary election by a political party is to select party candidates, and it is too plain for argument that no voter should be permitted to vote at the primary election of a political party unless he is a member of such a *1146 party; and, unless provision is made to prevent persons voting at a primary election for the candidates of a party who are not affiliated with such party, the whole scheme of nominating party candidates by a primary election would fail, because of being incapable of execution.’ ***

“A primary election is one for the nomination of candidates for office of the respective political parties by the members thereof. If Republicans vote the Democratic party ballot, and Democrats vote the Republican party ballot, a Socialist vote any ballot but their own, then nomination so made cannot be said to be party nomination. It needs no argument for the position that, to permit electors participating in a primary election to vote indiscriminately any party ballot they might choose to select, regardless of their party affiliations, would be simply putting a premium upon deceit, dishonesty, fraud, and would make it possible for the worst elements of the several political parties participating to direct and control their nomination. Obviously all of the provisions of the Primary Election Law were enacted by the Legislature to prevent electors from voting any ballot except that of their respective parties, and thereby prevent fraud and preserve the purity of the ballot. The constitutional provision of the Primary Election Law provides only for party elections. *** No specific provisions is made by the Primary Law for testing the qualifications of an elector as to his party affiliation. The inquiry is, by the general election law, confined to the qualifications enumerated, in which this is not included. Under the foregoing provision, when an elector demands a party ballot, if the election inspector, judge, or party watcher knows or has reasons to believe that the elector offering to vote is a nonpartisan, or not a member of the party whose ballot he is attempting to vote, it is the duty of such election officer to challenge the right of such elector to vote. *** If the challenge be on the ground that the elector is not, in good faith, a member of the party whose ticket he is attempting to vote, the duty of the inspector is the same as upon a challenge as to any other qualification. An elector who resists the challenge and makes oath that they possess the qualification contemplated by the Constitution should bear in mind that the usual test is, Did the elector vote the party ticket at the last preceding general election? Another rule of party membership is: An elector who affiliates with the party and stands by his party organization, and as such member yields obedience to party rules and usages and accepts and supports the regular party nominations. *** Here, in the absence of a statutory test of the party qualifications of electors at a primary election, the rules and usages of the respective political parties having official ballots to be voted at such primary election must control.”

The appeal prosecuted by appellant from the judgment rendered in the action brought against him by the candidate, Robinson, is hereby dismissed. Whole court sitting, except Judge NUNN, whose illness compels his absence.