Winston v. Moore | Cases | Westlaw

The purpose of this proceeding is to test the constitutionality of the Act of July 24, 1913 (P. L. 1001), known as the Nonpartisan Ballot Law. The learned court below sustained the act and refused the injunction. Does the act thus assailed represent a valid exercise of legislative power? If it does, courts cannot declare it invalid, because it may prove to be unwise, or of doubtful expediency, or that it may not be effective in correcting the evils intended to be remedied, or for any other reason not based upon a subversion of constitutional rights. In the consideration of this question we start with all presumptions in favor of the validity of the act. The burden is on those who assail it to show what provisions of the act are in conflict with the organic law, failing in this the statute stands. When the constitutionality of a statute is involved in a proceeding before *452 the courts, the question of legislative power is fundamental to the inquiry, and in this connection it must not be overlooked that the power of the Legislature to make laws is supreme except as limited by the Constitution. When therefore the Legislature has passed an act, and it has been approved as required, it has binding force and effect, unless it is clearly in conflict with the fundamental law. With this understanding of the underlying principles applicable to a correct decision of the question raised by the present appeal, let us inquire how the case stands.

Assuming, however, in order that we may consider broadly the questions of constitutional limitations and legislative power raised by this appeal, that a primary held under the provisions of the act of 1913 is such as election as is contemplated by the Constitution, and one in which freedom and equality are guaranteed in the exercise of the elective franchise, and thus treating the act in question as an election law, we are of opinion that nothing contained in its provisions is subversive of any right vouchsafed the individual elector by the bill of rights. The best discussion of the meaning of the words ‘free and equal’ as applied to elections will be found in the opinion of Mr. Justice Agnew, who expressed the prevailing views of this court in Patterson v. Barlow, 60 Pa. 54. What was said in that case applies with convincing force to the case at bar. The learned jurist who wrote that opinion considered broadly and discussed elaborately the rights of electors under the ‘free and equal’ clause contained in the bill of rights. It is true that case was decided in 1869, several years before the adoption of the present Constitution; but the provision relating to the freedom and equality of elections has remained *454 practically unchanged since 1790, and therefore the meaning of the words ‘free and equal’ as determined in the earlier cases should not be departed from now unless we are willing to say that what was then decided is clearly erroneous. This we are not prepared to do, nor has anything been suggested in the present argument to weaken our faith, in the soundness of the views then expressed. Among many other things, it was there said:

The power to regulate elections is legislative, and has always been exercised by the lawmaking branch of the government. Errors of judgment in the execution of the legislative power, or mistaken views as to the policy of the law, or the wisdom of the regulations, do not furnish grounds for declaring an election law invalid unless there is a plain violation of some constitutional requirement.

In the present case, it is pertinent to inquire: What provision of the Constitution has been clearly violated *456 by the act of 1913? Appellants make answer by pointing to that clause of the bill of rights which requires ‘elections to be free and equal.’ We have already discussed this clause in a general way, but it remains to briefly consider the points now pressed upon us. It is contended that the act under consideration is discriminatory and restrictive in its operation because it limits the names of candidates on the official ballot to the two who polled the highest vote at the primary. There is nothing new or novel in the provision thus criticised. If there is to be an official ballot, there must of necessity be a limit to the number of names printed thereon, else such a ballot would mean nothing. If every one had the right to have his name printed on the official ballot, there would be no necessity or occasion to furnish such a ballot. The old law limited the number of names to be printed upon the official ballot, and the Legislature provided the method by which to determine what names should be so printed. Thus the Legislature prescribed the limitations and the courts declared this to be a valid exercise of legislative power. The act of 1913 simply prescribes another method of reaching the same result. The people vote directly for such persons as submit their names at the primary, and the two polling the highest number of votes are entitled to have their names printed upon the official ballot. There is no distinction in principle between this method of limiting the number of names entitled to be printed on the ballot, and the old system whereby the same result was secured through party nominations or by groups of citizens. In both cases the Legislature prescribed the limitations, and, in so doing, exercised a power clearly contemplated by the Constitution. We see no more abuse of the power in one case than in the other; its quality is the same under the new act as under the old law, but the methods provided for determining the result are different. Who can say that one method is lawful and the other unlawful? The Constitution says nothing about nominations, or *457 how candidates shall be chosen, or how many names shall be printed on the ballot. It furnishes no rule by which to accurately determine what the Legislature may or may not do in **523 the enactment of laws relating to such details in the exercise of the elective franchise. In the absence of any express constitutional limitation upon the power of the Legislature to make laws regulating elections and providing for an official ballot, nothing short of gross abuse would justify a court in striking down an election law demanded by the people, and passed by the lawmaking branch of government in the exercise of a power always recognized and frequently asserted.

We cannot agree with the learned counsel for appellants that the provision of the act which requires a candidate to file with his petition an affidavit stating his residence, his post office address, his election district, the *458 name of the office for which he is a candidate, and other matters relating to his candidacy, are such restrictions upon the rights of the elector as to justify the courts in declaring the act void. This duty is enjoined upon the candidate and not upon the elector. The rights of the voter are only incidentally involved. Under the old law certificates of nomination and nomination papers had to be verified by the affidavit, not of the candidate, but of those who had the authority or knowledge required to make it. The effect upon the rights of the individual voter was practically the same under the old law as it is under the new act. No man need by a candidate for office unless he chooses to be, and, if he desires to become a candidate, it is difficult to see what constitutional right of the individual elector has been subverted by requiring a candidate to make affidavit to facts pertinent to his candidacy. This is what the act of 1913 requires and certainly details of such a character relating to the nomination of candidates are clearly within the proper exercise of legislative power. The argument on this branch of the case could be addressed very properly to the Legislature, but it is not convincing to us when asked to declare the act in question void on constitutional grounds.

Again, it is urged that the abolition of party nominations for the office of judge is an unconstitutional restriction. But why? There is no provision of the Constitution which requires a party nomination for the office of judge. It is likewise true that there is no provision denying the right to make party nominations. The organic law is silent on the subject, and hence the Legislature necessarily has a very wide discretion in such matters. Party nominations have in some instances been authorized by statute, and, in the absence of statutory law, the courts have recognized and sanctioned the authority of political parties to make such nominations, not because the Constitution so requires, but as the most effective means of securing unity of political action. *459 This is not a constitutional right, but rather a political privilege, depending upon the will of the people, as expressed through their representatives in the Legislature, or, in the absence of positive statutory law, upon the will of party adherents, expressed through conventions, or caucuses, or otherwise, in accordance with the rules and regulations of political organizations. This is another way of saying that matters of this character are clearly within the exercise of legislative power; but, if the Legislature does not choose to act, then within the rights of political parties properly and lawfully exercised.

It is further suggested that the proviso to section 13 makes the provisions of the act unreasonable and discriminatory by providing in substance that when only one person is to be elected to a particular office, and there are several candidates at the primary, the one who shall receive more than one-half of the total vote polled for such office, and more than one-half of the number of ballots cast in the political district or division, such candidate shall be the sole nominee for the office, and his name alone shall be printed as a candidate upon the official ballot. With the wisdom of this provision we have nothing to do. Our only duty is to determine whether it was within the power of the Legislature to so provide. We have already decided that the Legislature did not exceed its power in limiting the number of names to be printed upon the official ballot to the two candidates who received the highest number of votes at the primary, but it is insisted that this rule should not be applied to the proviso in question. It is difficult to draw an arbitrary line and say that a certain number of names shall be printed upon the official ballot and that a less number may not be without infringing the rights of the elector. If the courts should say that it is a lawful exercise of legislative power to limit **524 the number of names to be printed on the ballot to the two candidates who received the largest vote at the primary, and that the printing of a less number of names is an unlawful *460 limitation, this would simply mean the substitution of judicial for legislative judgment. Primarily this is a legislative and not a judicial duty. Courts can interfere only when the Legislature acts in plain disregard of constitutional rights. This court has decided that the limitations imposed must not amount to a denial of the franchise itself, and this is the extremest limit to which our cases have gone. It cannot be reasonably said that the exercise of the elective franchise is denied to the individual voter by the limitation contained in the proviso to section 13. The elector may vote for the name thus printed upon the ballot, or he may write in the name of any person for whom he may choose to vote, and thus he is not denied the right to exercise the franchise of voting in accordance with his convictions, preferences, or sense of public duty. It is true that the candidate who receives more than one-half the votes polled in the election district at the primary has an advantage over all others, but this is an advantage given him by the votes of a majority of the electors who performed their public duty by attending the primary and exercising their right to vote. The elector who fails to vote at the primary, and thus disregards the opportunity afforded him under the law, is not in position to complain because of an advantage given the successful candidate by a majority of the voters who did attend the primary and performed their duty in this respect. This advantage results from a direct vote of the people, and those who are dissatisfied with the nomination thus made are not concluded by it, but may vote for a defeated candidate, or for any other person for whom they desire to vote, by pursuing the method pointed out in the act. In view of the wide discretion which the Legislature has always exercised in the enactment of election laws, and the elective franchise not being denied any one, we are not prepared to say that this limitation makes the act unconstitutional and void. Even under the old system it often happened that there *461 was only one candidate for the office of judge, and indeed it may be confidently said that such a situation will not more frequently arise under the new act than it did under the old law. This question in another form was very thoroughly discussed by our Brother Brown in Oughton V. Black, 212 Pa. 1, 61 Atl. 346, 4 Ann. Cas. 141. The underlying principle of that case is controlling here, and we need not reiterate what was there said by this court in sustaining the Act of June 10, 1893 (P. L. 419), as amended by the Act of April 29, 1903 (P. L. 338). After full consideration it was decided in that case that the Legislature had the power to regulate the exercise of the elective franchise, and to prescribe the form of the official ballot and the manner in which it shall be voted.

This opinion is already too long, but it is necessary to advert briefly to one more question. It is strongly urged that the act in question offends against article 8, § 7, of the Constitution, which provides as follows: ‘All laws regulating the holding of elections * * * shall be uniform throughout the state.’ What is meant by the word ‘uniform’ as here used? A law is general and uniform if all persons in the same circumstances are treated alike. Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319. Uniform operation means that the same law shall apply to all persons placed in the same circumstances. McCormick v. Rusch, 15 Iowa, 127, 83 Am. Dec. 401; McAunich v. Railroad Co., 20 Iowa, 338. A law is general and uniform, not because it operates upon every person in the state, but because every person brought within the relations provided for in the statute is within its provisions. Arms v. Ayer, 192 Ill. 601, 61 N. E. 851, 58 L. R. A. 277, 85 Am. St. Rep. 357. The same rule has been recognized and applied in our own state. The question was raised in Dewalt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814, and decided adversely to the contention of appellants here. It is true that case did not consider the uniformity of an election law which applied only to the nomination and election of judges throughout the commonwealth. But the principle is the same because an act which applies to judges as a *462 class cannot be said to be either special or lacking in uniformity. It applies to all persons in the same circumstances. It operates upon every person who is a candidate for the office of judge. If affects all candidates for the judicial office alike. Under the Constitution the judiciary is one of three co-ordinate branches of government, and certainly an act which relates to this entire body and operates upon the election of each member of it must be regarded as of general application and uniform operation throughout the state. In addition, it may be said that even if this be not the proper test, but that the question must turn upon the rights of individual electors, the act operates upon all voters alike in the election of judges. The vote of one elector is as potent as that of any other elector at the primary, and the same may be said as to the general election because even then there is no distinction as to the right of each elector to cast his ballot. We therefore conclude that the act of 1913, as applied to the office of judge, is a general law and of uniform operation throughout the state.