State v. Kohler

Supreme Court of Wisconsin.February 4, 1930200 Wis. 518228 N.W. 89569 A.L.R. 348 (Approx. 25 pages)

200 Wis. 518

Supreme Court of Wisconsin.

STATE EX REL. LA FOLLETTE ET AL

KOHLER.

Feb. 4, 1930.

*896 Action begun July 8, 1929; order entered September 16, 1929. This is an action brought pursuant to the provisions of sections 12.22, 12.23 and 12.24 of the Wisconsin Statutes of 1927, to determine the validity of an election by virtue of which the respondent claims to hold the office of Governor of the state of Wisconsin. A petition under the statute was filed in the circuit court for Dane county, a change of venue was taken to the circuit court for Sheboygan county and the respondent demurred to the petition. The petition will not be set out at length here for the reason that it is nowhere claimed that if the statute under which the petition is brought is a valid statute a cause of action is not set out in the petition.

In substance the allegations of the petition are as follows:

“1. That the Attorney General of the state, on the petition of the relators charging that the defendant violated certain provisions of this chapter, investigated the subject, authorized the relators to bring this proceeding, and appointed attorneys as special counsel to conduct the proceeding, as provided by statute; and that the relators are electors who had a right to vote at said election.

2. That the defendant during his campaign for the nomination, and to promote his candidacy, violated certain provisions of the statutes, in the following particulars: (a) That he expended more than $4,000.00 and in excess of $80,000.00, in violation of section 12.20; (b) that he expended certain money and property for purposes not authorized by sections 12.06 and 12.07, consisting of $500.00 in cash contributed to the Sheboygan Republican Committee, meals, cigars and refreshments given to certain persons at the defendant's home and to certain persons who had been invited to Kohler, Wisconsin, wages and expenses paid to certain persons who were not public speakers and who personally interviewed voters on defendant's behalf, and expenses for advertising in certain periodicals without complying with the requirements of the statute; (c) that he received contributions in violation of section 12.02 and section 346.12 by employing as his agent the Kohler Company, a Wisconsin corporation, and by accepting from that company the services of a band and other services and expenses incurred by corporation and its servant in his behalf; (d) that in violation of sections 12.02 and 12.20 he delegated to a group of persons, who held themselves out as the Wisconsin State Republican Committee, and which group, in fact, was not a party committee, authority to raise and expend over fifty thousand dollars; (e) that he violated chapter 12, in that over $100,000.00 was spent for political purposes by himself and others with his consent and approval; (f) that he violated section 12.09 in failing to include in his financial statement, filed in the office of the Secretary of State, several of the alleged unlawful contributions and disbursements above referred to, and other contributions and loans which were used with his knowledge and approval.

3. That the defendant, at the primary election on September 4, 1928, received the largest number of votes of any candidate for nomination on the Republican ticket, for the office of Governor, that at the election on November 6, 1928, he received the largest number of votes cast at that election for that office, and that since January 7, 1929, the defendant has been occupying the office of Governor and performing the duties thereof.

4. That because of such violations both his nomination and election are void.

*897 5. That prayer for relief is that the court determine that the defendant did violate the statutes as alleged, that the election be declared void, that the defendant be ousted and excluded from the office and that the office be declared vacant.”

Those parts of the Statutes which are material are printed in the margin.¹

*898 The trial court was of the opinion that the object of the statute was to render a candidate guilty of its violation ineligible to hold the office for the term for which he was elected; that the Constitution prescribes the qualifications of a candidate for Governor and that it was beyond the power of the Legislature to prescribe other conditions of eligibility; that what the statute seeks to do is to provide that misconduct on the part of a candidate shall operate to forfeit his office and that under section 10 of article 13 *899 of the Constitution, which provides, “The Legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy, where no provision is made for that purpose in this Constitution.” The Legislature had no power to provide grounds for removal of the Governor in addition to those specified in the Constitution; that in so far as section 12.24 provides for the removal of the Governor from office on the ground that he forfeits his right to hold office by violating the statute, the statute is invalid, for the reason that the Constitution vests the power of impeachment in the Legislature, and that power to declare a forfeiture cannot therefore be conferred upon a court. The court filed a learned and able opinion, which has been of great assistance to us in our consideration of this case, and, after reflection the court sustained the demurrer. From the order entered pursuant thereto the petitioners appeal.

In this case we shall set out at this point the outline of argument presented by counsel:

APPELLANT'S OUTLINE OF ARGUMENT
	Brief Page
NATURE OF CASE AND ISSUES INVOLVED	1–2
ALLEGATIONS OF COMPLAINT	2–4
ARGUMENT	5
SUMMARY OF CONTENTIONS OF DEFENDANT AGAINST CONSTITUTIONALITY OF STATUTE	5–6
COMMENTS ON DECISION OF TRIAL COURT	6
––Decision shows failure to give legislature benefit of any doubt as regards alleged violation of the constitution	6–7
––Decision judicially limits legislature to a mere re–enactment of old common law rule requiring proof of bribery or common law fraud and proof of actual change of sufficient votes to affect result in order to invalidate election	7–9
––Trial court substituted his own judgment for that of Legislature as to what acts can be considered as corrupt or as tending to influence votes	9–10
––How can it be conclusively held by trial court here that prohibited acts alleged in complaint did not tend to influence votes	10
––Trial court does not approach question from standpoint of legislature earnestly trying to find a real remedy and which is entitled to use its own judgment	10
––The reasoning of trial court directly contrary to decision of State ex rel. Schumacher v. Markham, 160 Wis. 431	10–11
STATEMENTS BY TRIAL COURT AS TO DIS–FRANCHISEMENT OF VOTERS CONSIDERED	11
––Statement that law if enforced would disfranchise voters begs the whole question	11–12
––The voters have right to assume that if the candidate has violated valid regulatory law making compliance essential to valid election that he will be ousted. They do not have to decide (and are not in a position to take evidence and perform judicial function of determining) whether the law has or has not been violated	12–13
––The matter of regulating elections and therefore of specifying the essentials of a valid election is as fully within police power as any other subject involving public health, safety, and morals and this is the settled rule in Wisconsin (citing cases)	13–14
––This very statute was held valid as to the very provision and question here involved in State ex rel. Schumacher v. Markham, 160 Wis. 431, in which court followed the well reasoned and on principle conclusive case of Saari v. Gleason (Minn.) 148 N. W. 293	14–16
––The voters had right to rely on above Wisconsin decision upholding law and also had right to rely on decision of this court in State ex rel. Wylie v. Damann, 226 N. W. 470 holding that this very remedy would be available after election if the candidate had violated the law	16–17
––Cases cited upholding the police power applicable to elections to maintain their purity and sustaining provisions just such as here involved	18–19
––Trial court's opinion shows fundamental misconception that election of candidate performs a judicial function as to its own invalidity	19–21
––Modern conditions must be taken into consideration in passing on police measure	21
STATEMENT AS TO CORRUPT PRACTICE ACT OF WISCONSIN AND PROVISIONS THEREOF ATTACKED BY DEFENDANT IN THIS CASE AND BACKGROUND OF VARIOUS PROVISIONS	21–31
SPECIFIC CONTENTIONS OF DEFENDANT BASED ON CONSTITUTIONAL PROVISIONS AS TO OFFICE OF GOVERNOR CONSIDERED	31
I. Defendant's first contention in trial court was that this law providing that the election shall be declared void and office vacant is an unconstitutional attempt to add qualifications for constitutional office of governor and that this is unconstitutional because of an implied prohibition in the constitution against any such additions by the legislature	31
––Constitutional Provisions as to qualifications of governor quoted	31–32
––The rule accepted by weight of authority that constitution impliedly prohibits the legislature from specifying qualifications for a constitutional office where none are required or additional qualifications where some are required by the constitution considered	32–33
––We need not quarrel with this rule since it has no application to a situation where the election is invalid for failure of candidate in that very election to comply with a valid police regulation relating to essentials of a valid election. The question here is not one of eligibility but of the validity of the election	34–36
––The decision of State ex rel. v. Markham, 160 Wis. 431 upheld the very provisions here in question against this and all other contentions and is conclusive	36
––State ex rel. v. Markham, 160 Wis. 431, considered	36–38
––State ex rel. v. Frear, 146 Wis. 291, distinguished	39
––If the ouster of the candidate is referred to as a penalty this does not change the fact that such penalty is not invalid as a forfeiture of a lawful constitutional title since as held in Markham Case the title to the office itself is attacked as invalid because of violation of the law governing the election	40–41
––Fact that this court in Markham Case followed and Cited Saari v. Gleason (Minn.) 148 N. W. 293 also shows that the court did not regard the law as imposing any additional qualifications or disqualifications but as a valid act as to validity of election which was basis for defendant's title	42
––Saari v. Gleason (Minn.) 148 N. W. 293 where a provision the same as ours was sustained, considered	42–44
––Saari v. Gleason (Minn.) 148 N. W. 293 cannot be distinguished on grounds claimed by defendant	46– 7
Markham Case cannot be distinguished on grounds claimed by defendant	47
(1) That case squarely upheld this very provision except held the statute could not deny jury trial because the case involved the validity of the title of a constitutional officer	47
(2) Court in that case held office of district attorney was constitutional office	47
(3) Court recognized rule the legislature could not add qualifications to that office but held that the law did not attempt to do so but simply required the use of proper means to obtain the very office	47– 8

(4) Markham case cannot be distinguished because the constitutional qualifications for governor are different from those for district attorney
––as held in Fordyce v. State ex rel. Kelleher, 115 Wis. 608, the constitution implicitly requires district attorney to be a lawyer, which is a higher qualification than constitution requires as to governor	48– 9
––Constitutional disqualification of conviction of infamous crime applies to district attorney as well as governor	49
––The office of district attorney is strictly a constitutional office	49–50
(5) Markham case cannot be distinguished because district attorney removable by governor instead of by impeachment for misconduct in office	51
––Impeachment does not cover the field of an action or proceeding to attack title to office of governor	52– 4
––Attorney General v. Barstow, 4 Wis. 567 directly in point	53– 5
––Trial Court in Present Case Misinterpreted Case of State ex rel. v. Markham, 160 Wis. 431	56–60
––Excerpts from decision of trial court in present case considered and compared with decision in Markham case	56–60
––Examination of Printed Case and Briefs in State ex rel. Schumacher v. Markham, 160 Wis. 431, shows that every point was there raised which is here raised by defendant including contention against reasonableness of statute in declaring election void because of violation of this law	59–64
II. Defendant's Contention that Sec. 3, Art. V, State Constitution (providing for election of governor and lieutenant governor and that person receiving highest number of votes for each of these offices shall be declared elected, etc., impliedly prohibits legislature from exercising police power by declaring invalid any elections to said office for violation of Corrupt Practice Act) is clearly unsound	67
––The above provision requires a plurality vote rather than a majority or a certain minimum as required by some state constitutions	67– 8
––The provision has a rational, sensible purpose without attributing to it any such extravagant and unnatural meaning as claimed by defendant that it was intended to make election of governor wholly uncontrolled (as to corruption or evil practice tending to corruption) by police legislation	68– 9
––Such provisions presuppose a valid election in accordance with laws enacted under police power to preserve purity of elections (cases cited)	70–72
––Under this contention of defendant, the legislature could not even apply to the office of governor the common law rule as to when an election is invalid for corruption	72– 3
––Such contention of defendant is also negatived by the terms of other provisions in the State Constitution	73– 5
––Defendant is forced to rely throughout on strained and ingenious implications to support the claim of defense that this law is impliedly prohibited by the constitution	76– 7
III. Defendant's Contention that Impeachment is a Constitutional Remedy Exclusive of the Remedy here in question is, we submit, clearly unsound	82–114
––Procedure in nature of quo warranto the proper remedy to attack invalid title to office	82– 3
––The statutory proceeding here in question is in nature of quo warranto
––Ashley v. Wait (Mass.) 116 N. E. 964, so holding considered	83– 4
––Attorney General v. Barstow, 4 Wis. 567 directly in point that remedy of impeachment no bar to this proceeding in nature of quo warranto to challenge title to office	84– 5
––Quotations from Mechem on Public officers to same point	86– 7
––Provisions of our State Constitution as to Vacancy in office of Governor considered	87–91
––Constitutional Provisions as to Sheriff as well as District Attorney considered	91– 2
––Cases cited by defendant in trial court distinguished	92– 6
IV. Defendant's contention that this law in declaring invalid the election of a candidate for constitutional office who in that very election violated the corrupt practice act is unreasonable and void, is, we submit, clearly unsound	97–113
––Question of reasonableness of regulation is the same in respect to elections of all constitutional offices	97– 8
––The present statute involves some extension of common law rule as to when an election is void for corrupt practice or practice tending to corruption on part of candidates but this surely should not render the law invalid for unreasonableness. Even at common law as developed by statutes and decisions in England and in this country, actual proof of bribery is not essential before an election is invalidated	98– 9
––Corrupt Practice Act extending common law rule is based on idea that it is impossible in actual practice to prove how many votes were influenced by corruption or practices leading to or covering corruption	100– 1
––In every field of police power regulations aimed to suppress fraud, deceit or corruption everywhere include provisions declaring void, invalid or illegal acts tending toward such things	102– 5
––Authorities considered	105– 11
––Separable provision of our corrupt practice act that no candidate found to have violated the Corrupt Practice Act shall be eligible to fill any office voted for at such primary or election considered	112– 13
V. The contention of Defendant that our Statute Declaring Election is Void for Violation of Corrupt Practice Act on Part of Candidate or Members of his personal campaign committee is invalid because such result would follow the most trifling failure to comply with the law in any technical particular and for acts over which the candidate has no control is readily answered by a fair construction of the law having in mind the rule that a statute will be reasonably construed so as to save rather than condemn it as invalid or unreasonable	114–127
––Act should be given reasonable construction and as to trifling or unsubstantial violations may well be construed as requiring only reasonable and substantial compliance or as merely directory and not mandatory as to such alleged violations	114–115
––Act must be construed to sustain rather than condemn it as harsh or unreasonable	115
––Sparkman v. Saylor (Ky.) 202 S. W. 649 considered	115– 19
––As regards invalidity because of acts of agents our statute is not reasonably to be construed as invalidating an election for acts entirely beyond control of candidate. To limit the act to personal acts of candidates would emasculate any Corrupt Practice Act. Evasion would then be so easy as to render it abortive	119
––Newberry Case, 256 U. S. 232, considered	120– 4
––If the statute left the court a discretion to say when an election should be declared void, other than the power to reasonably construe the statute, this would raise a question of delegation of legislative power
––Saari v. Gleason (Minn.) 148 N. W. 293 considered on this point. Also Minnesota cases after above case considered	125– 7
CONCLUSION	128

RESPONDENT'S OUTLINE OF ARGUMENT
	Brief Page
STATEMENT
General outline Corrupt Practices Act	2
Sections 12.22–12.24 based on theory of forfeiture of office as penalty for infraction. They assume a valid election	4
The complaint based on same theory	5
The jurisdictional questions presented	7
The decision of the court below	9

ARGUMENT
I. By the constitution the exclusive power to remove a constitutionally eligible and chosen governor is vested in the specially created court of impeachment. The constitutional mandate that the governor “shall hold his office for two years”, unless sooner removed by impeachment, cannot be overridden	12
(1) By the express provisions of the constitution a governor “shall hold his office for two years” unless removed by impeachment	12
(2) The origin and history of the relevant provisions of our constitution and their analogy to the federal constitution make it as unthinkable that the governor is removable otherwise than by court of impeachment as that the president is so removable	17
(3) It is the established doctrine of this court that constitutional state officers are removable only by impeachment	21
(4) It is the settled doctrine in other jurisdictions that impeachment is the exclusive method for removal, and that the legislature may not, by corrupt practices acts, or any other, authorize the law courts to forfeit the office of or remove an impeachable officer	28
II. Because the exclusive power to remove, and thereby shorten the term of the governor, is vested by the constitution in a special court of impeachment, the power of law courts is constitutionally limited to the inquiry whether the incumbent is usurping the office in defiance of the constitution, that is to say (a) without constitutional eligibility or (b) without constitutional election by the people	33
(1) That the jurisdiction of the law courts is thus limited necessarily follows upon the proposition that impeachment is the exclusive method of removing a constitutionally eligible and chosen governor	33
(2) The Barstow Case, 4 Wis. 567, limits judicial power with respect to ouster of the governor to cases of alleged usurpation of the office by one who was not constitutionally elected, or not constitutionally eligible for election, or who refuses to surrender it after judgment of impeachment	34
III. Governor Kohler possesses all the constitutionally designated qualifications for the taking and holding of the office. Such qualifications are exclusive. Except as their freedom of choice was thus restricted, the people reserved to themselves the right to judge of the qualifications of their governor. Neither by making observance of the Corrupt Practices Act a condition of the right to take and hold the office, nor otherwise, could the legislature override such reserved right of the people. It is impossible therefore to sustain this action, or any other judicial jurisdiction, upon the theory that observance of the statute is a condition of eligibility or that its infraction makes the incumbent a usurper	40
(1) Exclusion of legislative control over qualifications for and tenure of office of the governor is a vital feature of our constitutional scheme	41
(2) The authorities uniformly hold that constitutionally designated qualifications of constitutional officers are exclusive and cannot be altered or added to by the legislature	42
(3) By Section 2 of Article V and Section 2 of Article III legislative power to disqualify a governor for infraction of the Act or for any other offence is affirmatively excluded	44
(4) The “conviction” which creates non–eligibility means conviction in a criminal action	46
(5) As to whether violation of the Act constitutes “treason or felony” (or “infamous crime”) within the meaning of the constitution	48
IV. It is equally impossible to sustain this action, or any other judicial jurisdiction, upon the theory that, for lack of lawful election, the governor is judicially removable as a usurper. It is admitted that he received the highest number of lawful votes. There is no charge that any vote was vitiated by fraud or was subject to challenge because not a legal expression of the voter's will. By the explicit mandate of the constitution one chosen by the highest number of votes is not a usurper but a lawfully elected governor	50
(1) The person having the highest number of votes must be governor. That is an essential feature of our constitutional scheme	50
(2) The complaint admits that the governor received the highest number of votes and contains no charge that any vote was vitiated by fraud or corruption or should have been rejected because not representing the free choice of the voter. The case is rested on the contrary theory that the governor was chosen by a plurality of lawful votes, but that, by reason alone of the alleged infractions of the Act at the primary, the election should be nullified and the office forfeited and vacated	54
V. The governor being constitutionally eligible and having been chosen by the highest number of lawful votes is not a usurper but the governor de jure of the state removable only by a court of impeachment	56
VI. The case of relators is rested on the theory that observance of the Act during the primary is a condition upon lawful and effective election to the office of governor. That theory involves: (a) destruction of the reserved right of the people to judge of the qualifications of their governor except so far as they themselves have limited their freedom of choice by the designation of conditions of eligibility; (b) nullification of the rights of innocent candidates; (c) nullification of the right of the people to be served by a governor rather than a substitute, and of their mandate excluding legislative power to create a vacancy in that office; (d) nullification of the right of the electors biennially to choose a governor and to be served by him; and (e) nullification of the mandate that a governor so chosen shall serve for two years unless removed by impeachment	57
(1) The position of relators and its effect	57
(2) To vitiate the election for infraction of the Act is to make its observance a condition of eligibility for the office	60
(3) To vitiate an election for infraction of the Act by one candidate would deny the constitutional rights of other candidates	63
(4) To vitiate the election because of infraction of the Act is to nullify the intent of the constitution that the people shall be served by the governor of their choice, not by a substitute, and that the state shall not be deprived of a governor nor shall a vacancy be created by legislative action. (Sec. 10, Art. XIII)	65
(5) The constitutional right of electors to have their votes counted excludes legislative power to invalidate an election for the fault of a candidate	69
VII. The Act itself excludes relator's theory that infraction of it shall go to the validity of the election. It is framed upon the contrary theory that an office to which a candidate has been lawfully chosen by the electors may be forfeited as a penalty for infraction. That may be done as to minor offices within legislative control but not as to a constitutionally eligible and chosen governor. He may be deprived of his office only by a court of impeachment or through recall by the people	73
(1) The language of the statute shows that the civil proceeding authorized is one to forfeit, as a penalty for infraction, the right to an office which has been gained by lawful election thereto	73
(2) Such also is the construction adopted by this court in the Markham Cases	76
VIII. Section 12.24 evidences legislative purpose to confine the application of the ouster provisions to offices for the filing of which legislative provision has been made, thereby excluding the office of governor. Otherwise applied that section operates to stop the functioning of the executive power	81
IX. Recognition of jurisdiction of any court other than that of impeachment to oust a governor would seriously imperil the functioning of state government	85
X. Exclusion of the office of governor from the ouster provisions of the Act does not intrench upon legislative power to regulate the conduct and purity of elections	93
(1) Legislative power to regulate elections must not invade constitutional rights of candidates or of electors nor the scheme of government contemplated by the constitution	93
(2) The constitution provides all the means which any sane public policy can require to insure observance by constitutional state officers of laws for prevention of corrupt practices. As declared by the lower court, it protects the rights of the people better than does the legislation here involved	94
(3) Impeachment involves exercise of a sovereign power. No other court may question the action of the impeaching power as to causes for impeachment or otherwise	96
XI. Constitution and authorities make a clear distinction between the office of governor and county or other minor offices as respects legislative power to authorize judicial ouster	98
(1) The differences between the constitutional status of the governor and that of district attorney which excludes the application of the Markham Case to this case	99
(2) The doctrine of the Tesch Case, 12 Wis. 310, and of the Buell Case, 146 Wis. 291, 307, is applicable here, and considering that the office of governor is involved, with even stronger reason. The Markham Case is in no way inconsistent with those cases	104
(3) The inapplicability of the authorities relied on by appellant	111
Mason v. State ex rel. McCoy, 58 Ohio St. 30, 50 N. E. 6, 41 L. R. A. 291, considered	112
Saari v. Gleason, 148 N. W. 293 (Minn.) considered	116
State ex rel. Attorney General v. Towns, 54 S. W. 552, considered	119
XII. Impairment of liberty of speech and denial of due process of law and the equal protection of the laws	120”

*904 We present these outlines in full for two reasons: First and principally because they disclose the line of argument of counsel in the case and make it available for future reference; and, second, in order that there may be in the books an outline of argument to which counsel, who do not seem to understand the rule relating to outline of argument, may be referred for excellent examples.

Attorneys and Law Firms

Walter D. Corrigan, Sr., of Milwaukee, and Harold M. Wilkie, of Madison, for appellant.

Olin & Butler and Herbert H. Thomas, all of Madison and Edwin S. Mack, of Milwaukee, and Lucius P. Chase, of Kohler, for respondent.

Opinion

ROSENBERRY, C. J.

The question presented upon this appeal is whether or not the petition alleges facts sufficient to entitle the petitioners to the relief prayed for in the petition. It is not contended by the respondent that if the statutes, violation of which is alleged in the petition, are valid enactments, the allegations of the petition are not sufficient to entitle the petitioners to the relief prayed for. The contention made by the respondent is that the statute is void and unconstitutional as applied to the Governor because (a) the qualifications of the Governor and the method by which he may be removed from office are prescribed by the Constitution and are thereby placed beyond the power of the Legislature; (b) that the statute is void as an unreasonable limitation upon the right of free speech and operates to deny a candidate due process of law and equal protection of the laws.

We shall consider first the proposition that the act is void and unconstitutional as *905 applied to the office of Governor. At this point it is not improper for us to say that we realize the importance which attaches to the decision in this case, whatever it may be. A correct solution of the questions presented is of far greater importance than the personal or political fortunes of any candidate, incumbent, group, faction or party. We are dealing here with laws which operate in the political field––a field from which courts are inclined to hold aloof––a field with respect to which the power of the Legislature is primary and is limited only by the Constitution itself. It has been said so many times it scarcely needs to be said again, that the realization of the democratic ideal of self–government rests upon an intelligent informed, honest and vigilant electorate. It is because of this that a large percentage of the public revenues is devoted to the education of our youth in order that they may not only be informed, but have their consciences awakened to their duties as citizens. All efforts to educate and awaken the electorate amount to nothing if corrupt appeals made to its prejudices or its cupidity, lead it to cast a ballot otherwise than in accordance with its convictions, uninfluenced by anything save considerations of public policy. A democratic state must therefore have the power to protect itself against the consequences of ignorance, indifference and venality and prevent all those practices which tend to subvert the electorate and substitute for a government of the people, by the people and for the people, a government guided in the interest of those who seek to pervert it. That self–government by the people is threatened to–day wherever it exists throughout the world is recognized by every thoughtful person. The threat arises from the inaction and indifference of those qualified to exercise primary political power, the electorate, and from the influence of sinister and subversive forces set in motion by those who would prompt governmental action favorable to their private interests without regard to its effect upon the public interest. The case for and against democracy is fully set out and elaborated by Lord Bryce in his work on Modern Democracies. He was the most profound student of democratic institutions of his day or perhaps any day. He had great confidence in the future of democracy, but one can well read between the lines in spite of his incurable optimism that he had many misgivings as to the future of democracy for the reasons which have already been indicated. There are some other fundamental matters to which some attention should be given.

There are two views with respect to the nature of the right of sufferage. The great weight of authority is to the effect that the right of suffrage is neither a natural, an absolute nor a vested right of which a man cannot be deprived except by due process of law, but it is purely a conventional right and may be enlarged or restricted, granted or withheld at pleasure in the absence of constitutional restrictions; and that the right of suffrage does not exist except as it is given by the Constitution and laws enacted pursuant to it.¹

On the other hand, some authorities hold that it is a natural inherent right included within the liberties and immunities guaranteed to every citizen in a republican form of government and of which he may not be deprived except by due process of law.²

This court, however, has adopted a view which does not conform wholly to either of the views stated. So far as the questions arising in this case are concerned the adoption of either view would lead us to the same conclusion.

In State ex rel. McGrael v. Phelps, the court said:

“The right to vote is one reserved by the people to members of a class and as so reserved, guaranteed by the declaration of rights and by section 1, art. 3, of the Constitution. It has an element other than that of mere privilege. It is guaranteed both by the Bill of Rights, and the exclusive entrustment of voting power contained in section 1, art. 3, of the Constitution, and by the fundamentally declared purpose of government; and the express and implied inhibitions of class legislation, as well. Such declared purpose and the declaration of rights, so far as they go, and the equality clauses,––constitute inhibitions of legislative interference by implication, and with quite as much efficiency as would express limitations, as this court has often held [citing cases]. Thus is given the right to vote a dignity not less than any other of many fundamental rights.”³

Under our Constitution the right of suffrage is a constitutional right vested in those who possess the qualifications prescribed by the Constitution. Whether it is vested by reservation or grant it is not necessary to inquire at this time. In theory the sovereign political power of the state rests in the people; in practice, however, it is exercised by those individuals within the state who possess the qualifications prescribed by the Constitution, who must proceed in the manner indicated by the Constitution and statutes to exercise it. The Constitution having fixed the qualifications, persons falling within the classification thus established may not be deprived of their right by legislative act and the right is protected *906 by the applicable constitutional guaranties.⁴ The persons who may exercise the right of suffrage and the day of election are fixed by the Constitution. These provisions are not and were never intended to be self–executing or exclusive of regulation in other respects. By section 1 of article 4 the power of the state to deal with elections except as limited by the Constitution is vested in the senate and assembly to be exercised under the provisions of the Constitution; therefore the power to prescribe the manner of conducting elections is clearly within the province of the Legislature.

In the beginning the regulations were few and simple. Persons went to the voting places fixed by law and there delivered to officers whose duties were prescribed by statute a paper upon which they signified their choice of officers. The ballots might be written, printed, partly written, partly printed, and any sort of combination of persons who were candidates might be printed or written upon a ballot.⁵ The gross and notorious abuses which followed from this loose practice soon led to the introduction of the Australian ballot, accompanied by certain restrictions relating to registry, residence within the election district, and other matters which were well within the power of the Legislature to prescribe. While our Constitutions, state and national, make no mention of parties, it is and was manifest that as a practical matter democracy could only determine upon a course of political conduct by means of parties. Party nominations gave to candidates great advantage at the polls. Designing persons were not slow to take advantage of the situation and the old caucus and convention system became so permeated with fraud and corruption that it was swept into the discard and a system of nominations by primary election substituted for it.⁶ The enactment of all these laws tending to regulate the exercise of political power by those intrusted with the suffrage gave rise to rights which, although they operated in the field of politics, were recognized and enforced by courts.⁷ The courts did not declare the rights; they recognized and enforced the rights created by the Legislature in the field of political action. It was held at common law that one who secured a plurality of votes cast at an election by means of fraud, bribery, intimidation, coercion, or misconduct of election officials, derived no title thereby to the office for which he was a candidate.⁸ In cases where the wrongdoing was such as to make it impossible to ascertain the true result of the election there was held to be no election or as the phrase goes, “the election was held void.”⁹ In such a situation the opposing candidate could not be declared elected because it could not be found that he had received a plurality of the lawful votes cast. Likewise where the candidate receiving the largest number of votes was by virtue of the Constitution or of the laws ineligible to the office, the election was held void. An ineligible candidate could not be elected because the Constitution or the law said he could not be.¹⁰ His opponent could not be declared elected because he had not received the necessary plurality and in such case it is universally held that there was no election and the election is void. There is one apparent, not real exception, and that is where the electors knowingly vote for a person who is disqualified. Knowing of the disqualifications their votes are said to be worthless and not to be counted and the opposing candidate may be declared elected.¹¹

At common law the tendency of the courts was to apply a strict rule of evidence and the alleged fraud, bribery, coercion, or intimidation, as the case might be, was required to be established clearly. Manifestly attempts to establish such misconduct as would avoid the election was attended with large expense and great practical difficulties in securing proof. It was only in the most glaring cases that the jurisdiction of the courts was invoked, as where some large personal or political interest was at stake. Beginning in the 80's in England and rapidly extending throughout the English–speaking world means were sought to prevent the perversion of the electorate. This search resulted in the enactment of so–called corrupt and illegal practices acts to be found now in the laws of practically every state in this Union, in England and throughout the colonies.¹² What these laws sought to do was to regulate the conduct of campaigns for election by limiting the amount of money which might be spent and designating the purposes for which the limited amount might lawfully be disbursed. The general feature of these laws is that it is provided that where a candidate for an office violates the provisions of the law his *907 election thereto shall be void; that is, it shall be no election. Laws have been enacted which provide that in such an event the opposing candidate having the next highest number of votes should be declared elected but these have been held unconstitutional where the Constitution of the state is like ours, which provides that the person receiving the highest number of votes shall be elected. Under such circumstances the person receiving less than that number cannot be elected.¹³

The power of the Legislature in this field is admittedly very broad. It is not limited to the enactment of laws which merely amplify or enlarge the offenses of corruption, bribery, coercion, intimidation, and misconduct as those terms were defined at common law. It is within the power of the Legislature to prescribe what constitutes a reasonable disbursement and what are proper methods of disbursement, and to provide that a violation of the law shall as to the offender render the election void. It is conceded in the briefs and we think quite advisedly that there can be no constitutional objection to the exercise of such power with respect to all officers other than the so–called constitutional officers, meaning thereby the governor, lieutenant governor, secretary of state, state treasurer and the attorney general. This court has so held.¹⁴

These considerations bring us to the crux of this case. First of all, what is it that the statute seeks to do? After providing what may and may not be done, section 12.22 provides that any elector may institute a proceeding in the manner there prescribed to determine whether or not a candidate has violated the provisions of the act.

Section 12.23 provides how the proceeding may be instituted, what pleadings may be required and other provisions relating to the trial, evidence and costs.

Section 12.24 provides: “If the court shall find that the candidate whose right to any office is being investigated, or his personal campaign committee or any member thereof has violated any provision of this chapter, in the conduct of the campaign for nomination or election * * * judgment shall be entered declaring void the election of such candidate to the office for which he was a candidate, and ousting and excluding him from such office and declaring the office vacant.”

There would seem to be little doubt that the clear legislative purpose was to declare that a violation of the act by a candidate should render his election void. It is difficult to read anything else out of it. If the election is void and the candidate has intruded into the office, it is clear that he had no right thereto, and a judgment of ouster excluding him from the office and declaring it vacant is merely a summary and expeditious method of removing him therefrom. He does not by misconduct forfeit an office once lawfully acquired. He never secures title to it. It does not shorten his term, because he was never elected. It terminates the term of his intrusion into the office.

The trial court was of the opinion that the question was one of eligibility, basing his opinion upon a passage in the opinion in the Markham Case. We are of the opinion that the language is not open to that construction. The court said:

“We do not construe the statute as prescribing any new qualification or test of eligibility for the office of district attorney. Saying that a man who commits a criminal offense in pursuing his endeavor to secure a nomination or an election shall not be entitled to hold the office is not prescribing a qualification, but is rather imposing a penalty for violating the law. The aim of the statute is to require the aspirant for office to resort to honest means to get it. * * * The violation of the statute goes to the right to hold office, just as does a question of eligibility or of failure to secure a majority of the votes and accused candidates have the right to say that only a jury of their peers shall convict them.”¹⁵

What the court said in the Markham Case was that the question of whether or not the election was void determined Markham's title to the office and therefore he was entitled to a jury trial. If the statute did not, as applied to the district attorney, prescribe what constituted eligibility to the office, it certainly cannot be held to do so in the case of the Governor. If the statute prescribed in the case of the Governor additional qualifications to the office, to wit, that he should not violate the law in attempting to secure the office, and he had nevertheless received a plurality of the votes at a valid election, his title to the office would be perfect and he could thereafter be removed from the office only in the manner prescribed by the Constitution. It is a well–established principle of constitutional law that, where qualifications are prescribed by the Constitution and the methods of removal are provided by the Constitution, the Constitution in those respects is exclusive and it is beyond the power of the Legislature to prescribe additional qualifications or to provide for removal in other than the constitutional method.¹⁶ Quite obviously *908 the statute here under consideration was framed with due regard to these fundamental principles, and so it is provided that violation of the statute by one who receives the plurality of votes prevents an election. A candidate under such circumstances gains no title through such a proceeding even though, as was pointed out in the Markham Case, he secures a certificate of election. When the fact that a candidate has violated the statute becomes established in the manner provided by the statute, the certificate is manifestly of no effect because there was no election. The certificate of election is not a title, it is a mere muniment of title, evidence of title. What the statute in effect does is to create a conclusive presumption that a violation of the statute chargeable to the person receiving the highest number of votes renders his election void, because the result was achieved by practices declared by the statute to be corrupt and illegal. We are cited to no cases, and we find none, holding that it is not competent for the Legislature to enact such a law. Certainly the right to vote is no more sacred or inherent than the right to life, liberty and property. It is in fact less so. The right to property may be defeated or lost by failure to comply with a statute, as, for instance, by making a sale of a stock of goods without complying with the Bulk Sales Act, although no fraud may in fact have been perpetrated;¹⁷ or because of a failure to file a conditional sales contract or chattel mortgage, although no one is in fact defrauded thereby.¹⁸ Certainly there is nothing inherently immoral in giving a rebate in the shape of a trading stamp to a customer, but, because it might constitute a lure to improvidence, it was held to be within the power of the Legislature to regulate or prohibit it and to limit the right of contract accordingly.¹⁹ And so in innumerable ways these fundamental rights are subject to limitations and regulations in the interest of public safety, health, morals and welfare.

It is argued that because the Constitution (section 3 of article 5) says the Governor and Lieutenant Governor shall be elected by the qualified electors of the state at the times and places of choosing the members of the Legislature and that it is provided by section 4 of article 4, “The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November,” and an election has been held pursuant thereto, it is beyond the power of the Legislature to declare that as to a candidate for Governor an election so held shall be void by reason of the misconduct of the candidate. It is conceded that, if a candidate were guilty of bribery, his election might be declared void for that reason or any other reason which was recognized as sufficient at common law.²⁰

What was meant by the use of the term “election” in the Constitution? In the first place it constitutes an exercise of the sovereign political power of the state through those who are entitled to the right of suffrage under the provisions of the Constitution and of the law. The Constitution does not attempt to define what is meant by the term “election.” Elections were provided for by the laws of the territory, which the framers of the Constitution had before them. It was a term well understood. Our Constitution (section 3, art. 5) provides:

“The persons respectively having the highest number of votes for Governor and Lieutenant Governor shall be elected.”

In the Barstow Case the incumbent had been awarded a certificate of election, but it was avoided because it did not certify to the truth. If the person receiving the highest number of votes is not eligible, there is no election; equally if the highest number of votes for any candidate were procured by bribery or intimidation, there is no election. Manifestly what the framers of the Constitution had in mind, and what they intended to say, and what they did say, was that the person receiving the highest number of lawful votes cast at a valid election for Governor should be elected. At the common law as it existed at the time the Constitution was framed and adopted, an election which was procured by fraud, intimidation or corruption was no election. The Constitution did not attempt to prescribe how elections should be held or what should constitute a valid election. Consequently the sovereign power of the state to deal with that matter was passed to the Legislature, subject only to the constitutional limitations. The power of the Legislature to declare that the doing of certain forbidden acts shall render an election void is the exercise of its power to prescribe what shall amount to an election, a power clearly committed to it by the Constitution. A Governor, Lieutenant Governor, Secretary of State, State Treasurer or Attorney General cannot be elected at a void election any more than can a constable or coroner.

By section 7 of article 4, it is provided: “Each house shall be the judge of the elections, returns and qualifications of its own members”––thus committing jurisdiction to determine the validity of the election of a member of either house to that house. No similar provisions respecting other officers is to be found in the Constitution. The power to prescribe what constitutes a lawful election *909 rests with the Legislature and in the absence of a provision of the Constitution vesting the jurisdiction in some other branch of the government it is within the jurisdiction and power of the courts to determine in the manner provided by law, whether or not an election of all other public officers has been held in accordance with the manner prescribed by law and to enforce the penalties and give effect to the law in accordance with its terms. By so doing it does not enter the political field, but confines itself to the exercise of judicial power.²¹

In this case, however, the allegations relating to corrupt and illegal conduct in violation of the Corrupt Practices Act relate entirely to the primary election, which is held on the first Tuesday of September. (Act since amended.) If the respondent has title to his office, he has it by virtue of the election held on the first Tuesday after the first Monday in November. May the Legislature declare the general election void by reason of misconduct of a candidate in the September primary? This is an interesting question and not without its difficulties. It may be stated this way: May the Legislature provide that corrupt or illegal practices as defined by the act, committed at a primary, are so connected and related to the succeeding election as to render that election fraudulent and void? An effort to find an answer to this question requires us to consider the nature of an election. As already indicated, it is the process by which the political power in the state is exercised by those who are entitled to the suffrage under the Constitution. This choice is made (a) by choosing candidates; (b) by passing upon measures and policies. At the time of the adoption of the Constitution there were no primaries, no provision was made for the holding of caucuses or conventions. In the statute of 1849 the entire statutory law upon the subject was embodied in two short sections:

“Sec. 28. Every elector shall vote by ballot, in the town or ward where he resides at the time of the election, and each person offering to vote shall deliver his ballot to one of the inspectors, in presence of the board; the ballot shall be a paper ticket, which shall contain, written or printed, or partly written and partly printed, the names of the persons for whom the elector intends to vote, and shall designate the office to which each person so named is intended by him to be chosen; but no ballot shall contain a greater number of names of persons designated to any office than there are persons to be chosen at the election to fill such office.

Sec. 29. The names of all the persons voted for by any elector, at any general or special election, shall be on one ballot.”

Whether or not a primary is a part of an election was considered by the Supreme Court of the United States.²² Section 4 of article 1 of the Constitution of the United States provides:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

The question was whether under this provision of the constitution authority was conferred upon Congress to regulate primary elections. This was made to depend upon whether or not the word “elections” as used in the Constitution was broad enough to include the primary and it was held (Mr. Chief Justice White and Mr. Justice Pitney dissenting) that it did not, and that therefore the federal Corrupt Practices Act, so far as it attempted to limit expenditures at the primary, was void. This case, however, must be limited by its facts. It relates to a delegation of power. Many weighty considerations of public policy no doubt moved the court to place a strict construction upon the language of the section. The court said:

“We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by the grant of power to regulate the manner of holding elections. The fair intendment of the words does not extend so far; the framers of the Constitution did not ascribe to them any such meaning. Nor is this control necessary in order to effectuate the power expressly granted. On the other hand, its exercise would interfere with purely domestic affairs of the state and infringe upon liberties reserved to the people.”

The Newberry Case was decided in 1921. In 1926, the Supreme Court of the United States had before it the case of Nixon v. Herndon.²³ The state of Texas enacted a statute which provided: “In no event shall a negro be eligible to participate in a Democratic party primary election held in the State of Texas.” Vernon's Ann. Civ. St. 1925, art. 3107. The question was whether or not this statute violated the Fourteenth and Fifteenth amendments. Plaintiff, who possessed all the necessary qualifications, except that he was a negro, was denied the right to vote at a Democratic primary and brought suit against the election officials for damages. It was claimed that the action was political; that the plaintiff might lawfully be denied the right to vote in the primary, which was merely a method by which a party chooses its candidates. The court held that the question *910 presented was not political and that the statute in question was void because in conflict with the Fourteenth Amendment by reason of the fact that it discriminated against the plaintiff because of color alone. The question of whether or not a primary is a part of the election is not discussed but the logic of the opinion would seem to be that it was such a part of the election process that denying the plaintiff the right to vote in a primary denied to him a right guaranteed to him by the 14th amendment, the equal protection of the laws. This appears more clearly when considered in connection with the decision of the District Court for the Western District of Texas, which denied a plaintiff relief on the ground that a primary was no part of an election.^23a While the question was not raised or discussed in the Markham Case, the result announced in those cases can be arrived at logically only by assuming that the primary is a part of the election. When parties are recognized by the laws of a state and given a status in the law, party activities are thereby drawn within the field of regulation. As a matter of fact the convention and caucus system and the primary election system are mere extensions of that which was originally included under the title “Elections.”²⁴ Elections are the means by which choices are made by the electors. When the process of choosing begins, the election has been begun. Originally so far as the law was concerned it was supposed to begin and end on election day. Then the law extended it by taking notice of caucuses and conventions. Later it substituted the primary for the caucus and convention. While the process has been extended, it still is one thing, the making of a choice. This unity is indicated by the fact that the law requires that with a nomination paper there shall be filed by the proposed candidate a declaration that, if nominated and elected, he will qualify.²⁵

Where, as in many states, the securing of a nomination is equivalent to an election, to hold that a primary is a separate election, and not a part of the election process, would render the enforcement of corrupt and illegal practices acts, if not impossible, at least from a practical standpoint it would make them well–nigh so. Where a candidate procures his nomination by illegal means, that illegality attends his candidacy throughout the election process and vitiates the result. All the activities of the electorate from the time the primary begins until the result of a valid election is declared are one thing, the exercise of the political power vested in the electorate by the Constitution.

There are strong considerations which may be urged against this view. It has been argued that political parties are voluntary organizations; that they have the right to control membership in the orzanization and to determine for themselves who shall and who shall not be the candidate of the party at any particular election. These objections were urged in cases involving the validity of primary election laws, but almost uniformly overruled. But in those states having a primary election law similar to that in this state, and as to the validity of which there is no doubt, political parties are deprived of that privilege, and if they seek to have names of their candidates placed upon the ballot they must conform to the regulations in respect thereto, and the failure of a party to so conform prevents its candidates from being placed upon the official ballot under the party designation.²⁶ The validity of such laws has long since been established, not only in this state, but generally throughout the English–speaking world. The precise question under consideration here has not been dealt with, so far as we are able to ascertain. The cases already referred to cite all the authority that we have been able to find upon this question, both pro and con. It is considered that the Legislature has power to declare the general election void as to a candidate who procured his nomination by means forbidden by the statute.

Broad as the power of the Legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the Legislature may not deprive a citizen of the right of trial by jury.²⁷ A person charged with its violation may not be compelled to give evidence against himself.²⁸ If it destroys the right of free speech, it is to that extent void.²⁹

The respondent urges that the act is an unreasonable restraint upon the right of free speech and a denial of due process of law and of the equal protection of the laws. Inasmuch as there is no discrimination between persons, any qualified citizen having the right to become a candidate for any office and all persons who are candidates for any office being subjected to the same restraints, we see no ground upon which an argument can be based that the act operates as a denial of due process of law or of the *911 equal protection of the laws. Does it operate as an unreasonable restriction upon the right of a citizen to address effectively his fellow citizens upon public questions? To answer this question we must examine the act and cognate laws, in order to see what it is intended to do; what is permitted and what is prohibited.

By the primary election law³⁰ persons desiring to be candidates at the primary election must file nomination papers not later than the last Tuesday of July of the year in which the primary is held. No nomination paper may be circulated more than 60 days prior to the date on which it is required to be filed. There are then 102 days between the first day on which nomination papers may be circulated and the day on which the primary is to be held.³¹. Section 12.01 provides that an act (disbursement) shall be deemed to have been done for political purposes when the act is of a nature and is done with the intent, or is done in such a way as to influence or tend, to influence, directly or indirectly, voting at any election or primary, etc. Disbursement is defined to include every act by or through which any money, property, office or position, or other thing of value, passes or is directly or indirectly conveyed, given, provided, paid, expended, promised, pledged, contributed or lent, and also any money, property, office or position, or other thing of value, so given, provided, paid, expended, promised, pledged, contributed or lent. It includes the act of disbursing and the thing disbursed. The term “candidate” includes every person for whom it is contemplated or desired that votes may be cast at any election or primary and who either tacitly or expressly consents to be so considered, etc. No candidate shall make any disbursements for political purposes except those provided by section 12.06, ante. No party committee nor personal campaign committee shall make any disbursements except those provided in section 12.07, ante. A candidate may, but is not required to, select a personal campaign committee. As applied to the primary election it is the quite evident purpose of the statute to limit the amount of money which may be disbursed by or on behalf of a candidate for office during the period he is a candidate, which ordinarily will commence with the time that nomination papers are first circulated and end with the holding of the primary. It is possible of course for a person to become an avowed candidate and subject himself to the restrictions contained in the act by announcing himself as a candidate and doing those things which are ordinarily done by candidates, such as seeking personal support and endeavoring to excite political activity on his behalf prior to the time when nomination papers may be circulated. The act does not make clear the period to which the limitation applies. Therefore a reasonable construction must be placed upon it.

It is not to be supposed that it was intended by the act to restrict public discussion of questions relating to matters of public policy, even by persons who contemplate being candidates, unless and until they become such.³² That one was an avowed candidate would no doubt be inferred much more easily from circumstances after the time nomination papers may be circulated than prior thereto. In the act, particularly that part relating to the amount which may be spent and the filing of accounts, the phrase “by and on his behalf” is used. There is no difficulty in understanding what is meant by the term “by”; the phrase “on his behalf” when it refers to a candidate means by some one who acts for him in the sense that an agent acts for and on behalf of his principal. The authority may be express or implied but it must exist; otherwise the disbursement is not made on behalf of the person sought to be charged. Even after a person has announced or declared himself a candidate for a public office, the statute makes no limitation upon the disbursements made by citizens who may, upon their own initiative and on their own behalf, support the candidacy of any person of their choice. Such voluntary support may be given by an individual or by a group of individuals. Persons so engaging in political activities are required to make no account thereof unless and until the total exceeds $50.³³ The making of addresses by citizens upon public questions, the exposition of matters relating to public policy, circulation of pamphlets, writing of letters or discussing in other proper ways questions relating to public affairs which do not have for their immediate objective the promotion of the candidacy of a particular person, cannot be said to be done for political purposes as that term is defined in the act. Any discussion of public questions may at some future time be considered by an elector when deciding upon the candidate he will support, but that fact standing alone does not bring it within the definition of political purposes. The Legislature has not sought to restrict discussion, except that which may be carried on “by or on behalf of” a candidate, and in that case only by limiting his disbursements. The only restraint upon others is that imposed by sec. 12.09 (5) (a) relating to publicity.³⁴

*912 If the act operates as an unreasonable restraint upon the right of free speech, or upon the right of a citizen to address his fellow citizens on questions of public policy, it must be because of restrictions imposed upon the candidate during the period of the election process. His rights in all other respects are unaffected by the act. If a candidate has a just cause which appeals to the conscience of his fellow citizens, it need not be without effective advocacy in every hamlet in the state, and it may receive organized support other than that of a personal campaign or party committee.

What public interest is or may be served by such a restriction? It is a matter of common knowledge that men of limited financial resources aspire to public office. It is equally well known that successful candidacy often requires them to put themselves under obligation to those who contribute financial support. If such a candidate is successful, these obligations may be carried over so that they color and sometimes control official action. The evident purpose of the act is to free the candidate from the temptation to accept support on such terms and to place candidates during this period upon a basis of equality so far as their personal ambitions are concerned, permitting them, however, to make an appeal on behalf of the principles for which they stand, so that such support as may voluntarily be tendered to the candidacy of a person will be a support of principles rather than a personal claim upon the candidate's consideration should he be elected.

It may be asked in what way is a restriction which prevents a candidate from soliciting and receiving funds to be used in legitimate ways germane to the purposes of the act? It may be replied that the act seeks to throw democracy back upon itself, and so induce spontaneous political action in place of that which is produced by powerful political and group organizations. Political parties are convenient instrumentalities used in ascertaining the popular will. They are neither perfect nor indispensable. Their superiority is not so completely demonstrated as to preclude modification or experimentation with other methods.³⁵ Under the law a candidate from the beginning to the end, and if elected, during his term of office, is committed to the principles which he enunciated rather than to the control of the group which elected him. The political theory which underlies this law may or may not be sound. It certainly cannot be said to be unreasonable.

It is urged that the sum of $4,000³⁶ is so inadequate for the purpose of conducting a primary election campaign by a candidate and his personal campaign committee as to be an unreasonable restriction upon the right of the candidate to address effectively his fellow citizens upon behalf of the principles for which he stands. The right of free speech³⁷ and its cognate right, the right of free assembly,³⁸ are rights guaranteed to the citizens of this state by our Constitution. These rights like all other constitutional rights are subject to reasonable regulation.³⁹

In this connection a brief survey of the mechanics of a primary election will disclose the magnitude of the problem which confronts a candidate for state office at the primary election. This state has a population of 3,000,000; there are about 1,500,000 electors. There are 2,768 election precincts; there are 1,281 towns, 151 cities, 366 villages, and 71 counties. The state has an area of 54,450 square miles. From Kenosha, near the southeast corner, to Superior, in the northwest corner, by automobile road is a distance of 474 miles; from Marinette, in the northeast, to Platteville, in the southwest, it is 271 miles. There are over 450 newspapers in the state. During the year 1929 there were 798,000 automobile, truck, and motorcycle licenses issued. There are 7,250 school districts. Amounts which may be expended for purposes declared to be proper by the statute are indicated by the following computations:

It is generally reckoned that the expense of securing list of names, addressing envelopes, including necessary postage and clerical hire, is 5 cents per letter. If a candidate wrote a letter to each elector, it would cost him $75,000; if he wrote a letter to each automobile registrant, it would cost him $39,000. At the last primary election there were 512,065 votes cast in the Republican primary. If each one of these persons was sent a letter, it would cost more than $25,000. If a candidate should hold a meeting in each town, village and city at an average cost for *913 hall rent, speakers, lights, janitor service and advertising, of $10, it would cost $17.980. If he wished to hold a meeting in each one of the school districts of the state, at an average cost of $5, it would cost $36,250. A single insertion of a quarter page advertisement in each of the papers of the 33 members of the Wisconsin Daily Newspaper League would cost approximately $950. In addition to such expenses the candidate might under the statute distribute lithographs, pamphlets, pay for billboard advertisements, the insertion of his name on theater programs, and employ the telephone, telegraph and radio, and so bring his candidacy and the principles for which he stood before the electorate. No one supposes of course that any candidate would do all of these things, or even any considerable part of them. These considerations merely indicate the extent to which solicitation of the electorate may proceed, if an appeal were made to every elector.

Neither the candidate nor his personal campaign committee can make disbursements for any other purposes than those specified in the act. Treating, the making of presents and disbursements for other purposes constitute violations of the act. The limitation of $4,000 in the disbursements made for political purposes by a candidate for Governor at the primary applies only to the candidate and his personal campaign committee. He is not chargeable with nor required to report disbursements for political purposes made by others, unless they are authorized by him.

The law contemplates that individuals or groups may voluntarily upon their own initiative make disbursements for political purposes. It assumes that the publicity provided for by the act will operate as a sufficient restraint upon third persons; that when information and argumentation are divorced from the personal fortunes of the candidates, the electorate will be wise and discriminating enough to distinguish between the true and the false, the good and the bad, the sound and the unsound. Any other assumption would contradict the fundamental concepts which underlie the democratic ideal in government. It assumes that the purpose rather than the amount determines whether or not money spent in political contests is corrupting.

The question here presented is: Is the amount fixed by the act an unreasonable amount, considering the fact that it may be disbursed in ways which do not tend to corruption? It is a matter of common knowledge that democracies act in groups, under the inspiration and direction of leaders. Whether or not some other method would be better is beside the question for experience in these matters, running back to the dawn of history, shows that they have thus acted and the strong probabilities are that they will so continue to act during any foreseeable time. Political ideas may germinate in the hearts and minds of those composing the great mass of people; they come to their fruition, however, when leaders give them concrete form. These leaders are accepted by the people in the hope that the abilities and training acquired in other fields will transfer to a great extent into the governmental field and the general welfare be promoted thereby.

Democracy advances in the main by a process of accretion, but occasionally great leaders arise, having a mystical insight into the purposes, hopes and aspirations of the people, such as Cromwell, Jefferson, or Lincoln, and democracy goes forward by great leaps and bounds, supported by the franchises of a free people. A full exercise of the right of citizenship includes, not only the right to vote, but the right to assemble, the right of free speech, the right to present one's views to one's own fellow citizens, and the right to submit one's claims to leadership to the people. These rights are of the very essence of democracy. When a citizen declares himself to be a candidate for public office, he does not forfeit these rights. He is in the interest of the public welfare, however, in the exercise of these rights, subject to restraint by reasonable regulation.

In a number of cases in this court it has been made as plain as it is possible to make it that the regulation of these rights is subject to constitutional limitations and, if unreasonable, must be declared void.⁴⁰ Laws of this kind lie within the police power field and are subject to the same constitutional limitations as are laws dealing with the right to life, liberty and property. The right of the Legislature to exercise the police power is not referable to any single provision of the Constitution. It inheres in and springs from the nature of our institutions and so the limitations upon it are those which spring from the same source as well as those expressly set out in the Constitution.⁴¹ The Legislature at all times exercises a delegated power and its action is always subject to the test of reasonableness. The sovereign power remains *914 in the people.⁴² A review of all the cases in which courts have considered the reasonableness of laws enacted by Legislatures in the exercise of the police power would leave us about where we began.

A clear distinction must be drawn between cases passing upon the reasonableness of an act of the Legislature and cases having to do with the reasonableness of municipal ordinances, the reasonableness of classifications, etc. The fundamental principles governing the exercise of the police power by the Legislature have been considered many times by this court.⁴³ A court may not declare a law void for unreasonableness because it is unwise or prescribes a limitation more restrictive than the court thinks proper. If a law is germane to the subject with which it deals, that is, is not passed for the purpose of securing some ulterior objective, and is in fact within the field of regulation, if it tends to conserve rather than destroy, it is beyond the scope of judicial interference.

There is no yardstick by which reasonableness may be measured with mathematical certainty. This court holds in accordance with the great weight of authority that a law cannot be held to be invalid because unreasonable unless and until it appears beyond reasonable controversy that it unnecessarily impairs to the point of practical destruction a right safeguarded by the Constitution. As has already been pointed out, the law under consideration lies within the police power field and impairs only the right of free speech, which includes the right to write and publish one's views. Does a law which applies only to a candidate and those who act under his direction and on his behalf, and limits his disbursements to $4,000.00 in a primary election campaign, leaving the right of a candidate at all other times unrestricted, leaving the right of all other persons to address the electorate on their own initiative in behalf of the principles advocated by the candidate unimpaired, so unreasonably invade the constitutional right of a candidate as to be void? In order to entitle the court to declare the law void on that ground it is not sufficient that the restriction is greater or less than the court might think wise. It is not sufficient that it may appear to the court that it may operate as a restraint upon the information and education of the electorate. The court cannot determine what in its opinion is a proper amount and determine the reasonableness or unreasonableness of the act of the Legislature by comparing it with that amount as a standard. Before the act can be set aside, it must appear beyond reasonable controversy to the court that the law in question tends to destroy rather than conserve and is not germane to the purpose sought to be achieved.

The law being admittedly within the field in which the Legislature may properly and constitutionally exercise the police power, the act does not so clearly appear to be an unwarrantable interference with the guaranteed constitutional right that it is within the power of the court to declare it void; on the contrary, the restriction, everything considered, is within the field of reasonableness. Reasonableness being largely a matter of opinion, it is helpful to note the limit prescribed in other states and by Congress. Under the federal statute the necessary personal and traveling expenses of the candidate, stationery, postage, printing, distribution of letters, circulars and posters, telephone and telegraph are not to be considered a part of the $5,000 which a senator may expend for his nomination and election. The exemptions are not the same in the various states, a fact which must be considered in making comparisons. In many states the amount which a candidate may expend for nomination is based on an amount per thousand of voters. The amount therefore varies with the years and comparisons are difficult. The following approximations are for nomination: Michigan, $2,000; Minnesota, $7,000 (includes election); Ohio, $5,000 (includes election); Kansas, $500; Massachusetts, $5,000; Florida, $4,000; Colorado, $2,500; Arkansas, $5,000; Louisiana, $6,000; New York, $10,000 (includes election); Kentucky, $10,000; New Jersey $50,000.⁴⁴ It must be held that chapter 12 is a valid enactment.

If the amount which may be expended by a candidate for purposes designated as proper by the statute is so small as to prevent a proper appeal to the electorate, the remedy lies with the Legislature and is in the field of political, not judicial, action. The balancing of detriments and benefits is for the Legislature, not for the courts. A democracy is much less likely to be entangled in a web of its own weaving than it is to be led into error by the activities of those who may seek to use the power of government in furtherance of private, as opposed to public, ends. We do not say nor intimate that the respondent in this case has or had any such purpose. The question we are considering here arises upon the allegations of the complaint, which in our consideration of the case we must take as true and admitted by the demurrer. We have not considered and do not consider this *915 case with reference to the acts of any individual, our duty being to determine whether, if the act be violated, it is within the constitutional power of the Legislature to declare the ensuing election void.

So far as it is humanly possible, we have brought to the solution of these problems such legal skill and learning as we possess unbiased and uninfluenced by personal, party or group consideration of any kind. It is our duty under our oaths to support the Constitution and administer justice without respect to persons, and this duty we have endeavored to discharge with a full realization of the responsibility which rests upon us. If the opinion seems longer than necessary, we plead in justification the constitutional admonition that the blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue and frequent recurrence to fundamental principles.⁴⁵

The order appealed from is reversed, and the cause remanded, with directions to overrule the demurrer and for further proceedings according to law.

FOWLER and FRITZ, JJ., took no part.

All Citations

200 Wis. 518, 228 N.W. 895, 69 A.L.R. 348

Footnotes

Section 12.01 Definition of terms.

Section 12.02 (1) prohibits any person from receiving a disbursement made for political purposes contrary to law.

(2) Provides that it shall be a defense if the accused person shall prove that he had neither knowledge nor reasonable cause to believe that a disbursement made was for political purposes contrary to law.

Section 12.03 prohibits any candidate from making disbursements for political purposes except under his personal direction, through a party committee or personal campaign committee.

Section 12.04 relates to the selection and appointment of a personal campaign committee, provides that the acts of every member of the personal campaign committee shall be presumed to be with the knowledge and approval of the candidate.

Section 12.05 repealed.

“Section 12.06. (1) No candidate shall make any disbursement for political purposes except:

(a) For his own personal hotel and traveling expenses and for postage, telegraph and telephone expenses.

(b) For payments which he may make to the state pursuant to law.

(d) For contributions to his party committee.

(e) For the purposes enumerated in section 12.07, when such candidate has no personal campaign committee, but not otherwise.

2. After the primary, no candidate for election to the United States senate shall make any disbursement in behalf of his candidacy, except contributions to his party committees, for his own actual necessary personal traveling expenses, and for postage, telephone and telegraph expenses, and for payments which he may make to the state pursuant to law.”

“Section 12.07. No party committee nor personal campaign committee shall make any disbursement except:

(1) For maintenance of headquarters and for hall rentals, incident to the holding of public meetings.

(2) For necessary stationery, postage and clerical assistance to be employed for the candidate at his headquarters or at the headquarters of the personal campaign committee, incident to the writing, addressing and mailing of letters and campaign literature.

(3) For necessary expenses, incident to the furnishing and printing of badges, banners and other insignia, to the printing and posting of handbills, posters, lithographs and other campaign literature, and the distribution thereof through the mails or otherwise.

(4) For campaign advertising in newspapers, periodicals or magazines, as provided in this chapter.

(5) For wages and actual necessary personal expenses of public speakers.

(6) For traveling expenses of members of party committees or personal campaign committees.”

Section 12.08. Persons required to file bills, charges and claims against the personal campaign committee within the time therein specified.

Section 12.09 relates to the filng of accounts of receipts and disbursements by candidates and committees.

Section 12.10 provides that candidates neglecting to file accounts shall have their names omitted from the ballot.

Section 12.11 requires persons other than candidates or committees who have made disbursements for political purposes to file accounts.

Section 12.12 relates to solicitation of contributions from candidates or committees; requires the publication of pledges with exceptions.

Section 12.13 prohibits the employment of workers at the polls on primary and regular election days.

Section 12.14 relates to the insertion of campaign matter or political advertisements in newspapers.

Section 12.15 prohibits the purchase of newspaper support or compensation to newspapers for political services.

Section 12.16 provides that campaign literature must disclose the author and the candidate in whose behalf it is issued.

Section 12.17 makes it a criminal offense if anyone knowingly publishes false statements in relation to any candidate.

Section 12.18 prohibits attempts to procure support by promises of employment, etc.

Section 12.19 prohibits any employer or anyone acting on his behalf threatening his employees with loss of employment in the event that election results in a certain way.

“Section 12.20. (1) No disbursement shall be made and no obligation, express or implied, to make such disbursement, shall be incurred by or on behalf of any candidate for any office under the Constitution or laws of this state, or under the ordinance of any town or municipality of this state in his campaign for nomination, whch shall be in excess of the amounts herein specified, and in his campaign for election be in excess of one–half the amounts herein specified, namely:

(a) For United States senator, five thousand dollars.

(b) For representative in Congress, seventeen hundred and fifty dollars.

(c) For Governor, four thousand dollars. For judge of the Supreme Court or state superintendent of schools, three thousand dollars.

(d) For other state officers, fifteen hundred dollars.

(e) For state senator, four hundred dollars.

(f) For member of assembly, one hundred fifty dollars.

(g) For presidential elector at large, five hundred dollars, and for presidential elector for any congressional district, one hundred dollars.

(h) For any county, city, village or town officer, for any judge or for any officer not hereinbefore mentioned, who, if nominated and elected, would receive a salary, a sum not exceeding one–third of the salary to which such person would, if elected, be entitled during the first year of his incumbency of such office. If such person when nominated and elected, would not receive a salary, a sum not exceeding one–third of the compensation which his predecessor received during the first year of such predecessor's incumbency. If such officer, when nominated and elected, would not receive a salary and if such officer had no predecessor, and in all cases not specifically provided for, twenty–five dollars and no more.

(2) Any candidate may delegate to his personal campaign committee or to any party committee of his party, in writing duly subscribed by him, the expenditure of any portion of the total disbursements which are authorized to be incurred by him or on his behalf, by the provisions of this section, but the total of all disbursements by himself, by his personal campaign committee in his behalf, by all party committees in his behalf, or otherwise made in his behalf, shall not exceed in the aggregate the amounts in this section specified, except as provided in section 12.21.”

“Section 12.21. (1) No disbursement shall be made and no obligation, express or implied, to make such disbursement, shall be incurred by or on behalf of any party committee, or by or on behalf of any personal campaign committee, exceeding in the aggregate the total amounts theretofore delegated to such committee in writing, duly subscribed as provided in section 12.20.

(2) The state central committee of any political party entitled by law to have the names of its candidates placed upon the official ballot in a general election may, however, in addition to the disbursements and obligations to make disbursements provided for in subsection (1) hereof, make further disbursements in connection with any general election, not exceeding in the aggregate the sum of ten thousand dollars, and every disbursement in excess of that amount is forbidden.”

“Section 12.22. (1) If any elector of the state shall have within his possession information that any provision of this chapter, has been violated by any candidate for which such elector had the right to vote, or by any personal campaign committee of such candidate, or any member thereof, he may, by verified petition apply to the county judge of the county in which such violation has occurred, to the Attorney General of the state, or to the Governor of the state, for leave to bring a special proceeding to investigate and determine whether or not there has been such violation by such candidate or by such committee or member thereof, and for appointment of special counsel to conduct such proceeding in behalf of the state.

(2) If it shall appear from such petition or otherwise that such candidate, committee or member thereof has violated any provision of this chapter, and that sufficient evidence is obtainable to show that there is probable cause to believe that such proceeding may be successfully maintained, then such judge or Attorney General or Governor, as the case may be, shall grant leave to bring such proceeding and shall appoint special counsel to conduct such proceeding.

(3) If such leave be granted and such counsel appointed such elector may, by a special proceeding brought in the circuit court in the name of the state upon the relation of such elector, investigate, and said court shall determine whether or not such candidate, committee or member thereof, has violated any provision of this chapter; but nothing contained in this chapter shall be considered as limiting in any way the effect, or as preventing the operation, of any other existing remedy.”

Section 12.23 relates to the service of summons, filing of pleadings, provides right of change of venue, and provides for recovery of costs by successful party in the discretion of the court.

“Section 12.24. (1) If the court shall find that the candidate whose right to any office is being investigated, or his personal campaign committee or any member thereof has violated any provision of this chapter, in the conduct of the campaign for nomination or election, and if such candidate is not one mentioned in subsection (2) hereof, judgment shall be entered declaring void the election of such candidate to the office for which he was a candidate, and ousting and excluding him from such office and declaring the office vacant. The vacancy thus created shall be filled in the manner provided by law, but no person found to have violated any provision of this chapter shall be eligible to fill any office or to become a candidate for any office, candidates for which have been voted for at the primary or election in connection with which such violation occurred.

(2) If such proceeding has been brought to investigate the right of a candidate for member of the state senate or state assembly or for senator or representative in Congress, and the court shall find that such candidate or any member of his personal campaign committee has violated any provision of this chapter, in the conduct of the campaign for nomination or election, the court shall draw its findings to such effect and shall forthwith, without final adjudication, certify his findings to the secretary of state, to be by him transmitted to the presiding officer of the legislative body, as a member of which such person is a candidate.

(3) Appeals may be taken from the determination of the court in such proceeding in the same manner as appeals may be taken as provided by law in civil actions, but the party appealing shall in no case be entitled to or obtain a stay of proceedings. No injunction shall issue in any such proceeding suspending or staying any procedure therein or connected therewith, except upon application to the court or the presiding judge thereof, upon notice to all parties and after hearing.

(4) No judgment entered as provided for herein shall be any bar to or affect in any way any criminal prosecution of any candidate or other person.”

Section 12.25 relates to employment of special counsel in supreme court.

Section 12.26 relates to privilege of witnesses.

Section 12.27 renumbered, included in 12.09 (4)(b).

“Section 12.28. (1) If the successful candidate for any office under the Constitution or laws of this state, or under any ordinance of any town or municipality therein, other than the office of state senator or member of assembly, shall, in a criminal action be adjudged guilty of any violation of this chapter committed during his candidacy or election, the court shall, after entering such judgment, enter a supplemental judgment declaring a forfeiture of the defendant's right to the office and transmit to the filing officer of such candidate a transcript of such supplemental judgment. Such candidate shall not thereafter succeed to the office if his term shall not yet have begun, and the office shall become vacant if his term shall have begun and it shall be filled in the manner provided by law.

(2) If any person shall, in a criminal action, be adjudged guilty of any violation of this chapter committed while he was a member of the personal campaign committee of the successful candidate for any such office, the court entering such judgment shall immediately thereafter enter a supplemental judgment declaring a forfeiture of the candidate's right to the office and transmit to the filing officer of such candidate a transcript of such supplemental judgment. Such candidate shall not thereafter succeed to the office if his term shall not yet have begun, and the office shall become vacant if his term shall have begun and it shall be filled in the manner provided by law.

(3) If any person shall, in a criminal action, be adjudicated guilty of any violation of this chapter, committed while he was a candidate for the office of state senator, member of the assembly, United States senator or representative in Congress, or while he was a member of the personal campaign committee of any such candidate, the court, after entering such adjudication of guilty, shall forthwith transmit to the presiding officer of the legislative body for membership in which such officer was a candidate when such violation occurred, a certificate setting forth such adjudication of guilty.”

Section 12.29 provides that employment of counsel to represent him in any action or proceeding shall not be included in the campaign expenses of a candidate.

“Section 348.226. Any person violating any provision of chapter 12 shall upon conviction thereof, be punished by imprisonment in the county jail for a period of not less than one month nor more than one year, or by imprisonment in the state prison for a period of not less than one year nor more than three years, or by a fine of not less than twenty–five dollars nor more than one thousand dollars, or by both such fine and imprisonment; and no person so convicted shall be permitted to take or hold the office to which he was elected, if any, or receive the emoluments thereof.”

See cases cited 9 R. C. L. 979, par. 4; 6 R. C. L. 287, par. 273.

See State v. Edwards, 95 W. Va. 599, 122 S. E. 272.

144 Wis. 1, at page 14, 128 N. W. 1041, 1046, 35 L. R. A. (N. S.) 356. See also State ex rel. Melms v. Young, 172 Wis. 197, 178 N. W. 481.

State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, 35 L. R. A. (N. S.) 353; State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, 20 Ann. Cas. 633.

Stats. 1839, p. 38, par. 10; Stats. 1849, p. 68, c. 6, §§ 28, 29.

Chapter 451, Laws of 1903.

State ex rel. Barber v. Circuit Court, Marathon County, 178 Wis. 468, 190 N. W. 563; State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724, 15 L. R. A. 561; State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27.

State ex rel. Newell v. Purdy, 36 Wis. 213, 17 Am. Rep. 485.

State ex rel. Bell v. Conness, 106 Wis. 425, 82 N. W. 288.

State ex rel. Dunning v. Giles, 2 Pin. 166, 52 Am. Dec. 149. See note to this case, 52 Am. Dec. 149.

State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068, 140 Am. St. Rep. 992.

See Sikes, Corrupt Practices Legislation, tabulations beginning on page 258.

McKinney v. Barker, 180 Ky. 526, 203 S. W. 303, L. R. A. 1918E, 581.

State ex rel. Schumacher v. Markham, 160 Wis. 431, 152 N. W. 161.

State ex rel. Schumacher v. Markham, 160 Wis. 431, at page 437, 152 N. W. 161, 163.

Dinan v. Swig, 223 Mass. 516, 112 N. E. 91; Falloon v. Clark, 61 Kan. 121, 58 P. 990; Atty. Gen. v. Tufts, 239 Mass. 458, 131 N. E. 573, 132 N. E. 322, 17 A. L. R. 274; Dickson v. Strickland, 114 Tex. 176, 265 S. W. 1012.

Gazett v. Iola Co–operative M. Co., 164 Wis. 406, 160 N. W. 170.

First Nat. Bank of Edgerton v. Biederman, 149 Wis. 8, 134 N. W. 1132, Ann. Cas. 1913C, 837.

Trading Stamp Cases, 166 Wis. 613, 166 N. W. 54, Ann. Cas. 1918D, 707.

Atty. Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 674.

Atty. Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 659.

Newberry v. U. S., 256 U. S. 232, 41 S. Ct. 469, 474, 65 L. Ed. 913.

273 U. S. 536, 47 S. Ct. 446, 71 L. Ed. 759.

23a

Chandler v. Neff (D. C.) 298 F. 515. For further development in the controversy, see Nixon v. Condon (D. C.) 34 F.(2d) 464. See, also, for a valuable collection of cases, 43 Harvard Law Rev. 467.

For a collection of cases, see Line v. Waite, 154 Mich. 329, 117 N. W. 730, 16 Ann. Cas. 248, 18 L. R. A. (N. S.) 412, note: also 43 Harvard Law Rev. 467.

Section 5.05, subsec. 5(a).

State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N. W. 1041, 35 L. R. A. (N. S.) 353; State ex rel. Bentley v. Hall, 178 Wis. 172, 190 N. W. 457.

State ex rel. Schumacher v. Markham, 160 Wis. 431, 152 N. W. 161.

State ex rel. Schumacher v. Markham, 162 Wis. 55, 155 N. W. 917.

State v. Pierce, 163 Wis. 615, 158 N. W. 696.

Section 5.05.

Law amended, chapter 112, Laws 1929.

State v. Bates, 102 Minn. 104, 112 N. W. 1026, 12 Ann. Cas. 105, and note.

Sections 12.09 (5)(a) and 12.11.

For an interesting case dealing with power to limit, see State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N. W. 473, 23 L. R. A. (N. S.) 839. In this case the court had under consideration an act which prohibited candidates for educational and judicial offices from being “nominated, indorsed, recommended, censured, criticized or referred to in any manner by any political party, or any political convention or primary, or at any primary election”; the court held the act to be an unconstitutional invasion of the right of free speech and free assembly. Ex parte Harrison, 212 Mo. 88, 110 S. W. 709, 16 L. R. A. (N. S.) 950, 126 Am. St. Rep. 557, 15 Ann. Cas. 1.

Ostrogorski, Democracy and the Organization of Political Parties, vol. 2, c. 12, p. 599 et seq.

Section 12.20.

“Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.” Article 1, § 3.

“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.” Article 1, § 4.

State ex rel. Van Alstine v. Frear, 142 Wis. 320, 336, 125 N. W. 961, 20 Ann. Cas. 633. For discussion, nature and extent of right of free speech, see Gitlow v. People, 268 U. S. 652, 45 S. Ct. 625, 69 L. Ed. 1138; 29 Yale Law Jour. 410, 30 Yale Law Jour. 48, 14 Ill. Law Rev. 539.

State ex rel. Runge v. Anderson, 100 Wis. 523, 537, 76 N. W. 482, 487, 42 L. R. A. 239: “We must appreciate the fact that without wise and careful legislative regulations, supplementing the constitutional guaranties, the elective franchise might be so abused and the means of such corruption as not only to nullify its controlling purpose, but that of every purpose of popular constitutional government. That extremists may carry such regulations too far is by no means improbable, but when they do it will be met by that other safeguard, the court, without which constitutional guaranties might easily be evaded and rendered useless by the ingenuity of Legislatures.” State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, 20 Ann. Cas. 633; State ex rel. Melms v. Young, 172 Wis. 197, 178 N. W. 481.

Mehlos v. Milwaukee, 156 Wis. 591, 599, 146 N. W. 882, 51 L. R. A. (N. S.) 1009, Ann. Cas. 1915C, 1102.

Atty. Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 769.

Priewe v. Wis. State Land & Imp. Co., 103 Wis. 537, 79 N. W. 780, 74 Am. St. Rep. 904 (drainage of lake); State v. Redmon, 134 Wis. 89, 114 N. W. 137, 14 L. R. A. (N. S.) 229, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408 (upper berth regulation); Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. Rep. 1061 (tenement house regulation); Trading Stamp Cases, 166 Wis. 613, 166 N. W. 54, Ann. Cas. 1918D, 707.

See Sikes, Corrupt Practices Legislation, p. 284 et seq.

Article 1, § 22.

End of Document

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State v. Kohler | Cases | Westlaw

State v. Kohler

Supreme Court of Wisconsin.February 4, 1930200 Wis. 518228 N.W. 89569 A.L.R. 348 (Approx. 25 pages)

State v. Kohler

Supreme Court of Wisconsin.February 4, 1930200 Wis. 518228 N.W. 89569 A.L.R. 348 (Approx. 25 pages)

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