State ex rel. Zent v. Nichols

97 P. 728, 50 Wash. 508

• Court: Washington Supreme Court
• Decided: October 13, 1908
• Docket: Nos. 7670, 7699, 7698, 7700
• Status: Published

Opinion

Fullerton, J.

In these proceedings the several relators named assail the constitutionality of the act of March 15, 1907, known as the “Primary Election Law.” Laws 1907, p. 457. While the questions presented are not the same in all the proceedings, they present many common questions, and can best be considered by treating the several proceedings as one, noticing under each separate title only those questions applicable to that particular proceeding. It is proper to mention, also, that the exigencies of the case require an immediate decision, and that it is for this reason that our discussion of the questions presented is somewhat perfunctory, not that we do not realize their importance and difficulty. With this explanation, we pass directly to the consideration of the merits of the controversy.

It is first contended that the act is in violation of art. 11, § 19, of the constitution, which provides that: “No bill shall embrace more than one subject and that shall be expressed in its title.” The argument is that the act contains matters not germane to its title, so intermingled with matters that are germane that the valid portion cannot be separated from the invalid portion without leaving the act meaningless; and that the act, being thus void in part, and the portions remaining failing to constitute a complete and uniform act, it is void as a whole. The title of the act is as follows:

“An Act relating to, regulating and providing for the nomination of candidates for public office in the state of Washington, and providing penalties for the violation thereof, and declaring an emergency.”

This court has often held that the title of an act, in order to comply with the constitutional provisions above quoted, need not be an index to the contents of the act; that the purpose of the title is to call attention to the subject-matter of the act so that any one reading it may know what matter is being legislated upon, and it is sufficient when it is broad enough to accomplish that purpose. For the various provisions constituting the act, the body of the act must be consulted, the title being neither expected nor required to give details. State v. Scott, 32 Wash. 279, 73 Pac. 365; State v. Fraternal Knights & Ladies, 35 Wash. 338, 77 Pac. 500; Weed v. Goodwin, 36 Wash. 31, 78 Pac. 36; State ex rel. Osborne, Tremper & Co. v. Nichols, 38 Wash. 309, 80 Pac. 462; State ex rel. Zenner v. Graham, 34 Wash. 81, 74 Pac. 1058; Shortall v. Puget Sound Bridge & Dredging Co., 45 Wash. 290, 88 Pac. 212; State v. Winsor, ante p. 407, 97 Pac. 446. The title of the act in question, it will be observed, is at once broad and comprehensive. Any provision which legitimately relates to, regulates, or provides for the nomination of candidates for public office in the state of Washington, can be enacted thereunder. So measured, we do not find anything within the act that is not strictly within the title.

The provisions most especially dwelt upon as being outside of the title are §§30 and 31, which provide that candidates who contest for a primary nomination must file an itemized statement of their expenditures incurred while endeavoring to secure a nomination, under a penalty for failure to do so; those parts of §§'7, 9, 10, 21, and 36, and other sections,' which relate to the nomination of candidates for members of the house of representatives and United States senator; § 5 providing for the payment of fees by candidates for Congressional office; and §' 38 providing who shall be considered as nominees at the primary election and entitled to have their names appear on the official ballot.

But we think even these sections fairly germane to the title. The sections relating to filing itemized statements of the expenditures incurred are objectionable on account of their indefiniteness, rather than for the reasons suggested; but the legislative intent is clearly understood even on this point, and this is sufficient to comply with the constitutional requirements. The indefiniteness relates to the time when these statements are required to be filed, but in such a case the rule is that they must be filed within a reasonable time. But more than this, these sections could be eliminated without affecting the remainder of the act, and it is of but little moment in so far as the cases of these relators are concerned whether we hold the provisions valid or invalid. The nomination of candidates for the house of representatives in Congress is clearly a matter for state regulation, and such regulation may be properly provided under a title relating to the nomination of candidates for public office in the state of Washington. The title does not' necessarily mean that the office for which the person is nominated shall be in the state of Washington; it is enough if the nomination itself is to be made therein. The provisions regulating candidates for the United States senate fall within the same rule. It must be remembered that we are discussing the question whether such a provision may properl}' be enacted under a title such as this act possesses, not the effect or binding force of a nomination obtained thereunder. This latter question is not in these proceedings, and we express no opinion thereon. Again, it can be said of these provisions, as was said of the provision relating to the filing of the lists of expenditures, they can be eliminated without affecting any of the rights of these relators or the validity of the remainder of the act. The provision in relation to fees is within the scope of the act. The right to exact a reasonable fee for the privilege of running for office may be sustained on the principle that fees in actions and proceedings in courts and for filing and recording papers are sustained, namely, that those who seek the benefit of a particular proceeding provided by law may be compelled to reimburse the state for a portion of the costs the state incurs in maintaining the instrumentalities necessary to carry into effect the particular proceeding. In other words, the state but asks the candidates for office under a particular law to reimburse it for a part of the expenses it incurs in carrying that law into effect. This clearly the state may lawfully do. Lastly, under this head it is objected that the legislature cannot, under an act providing for the nomination of candidates, legislate with reference to the ballot to be used at the general election. But we think this contention untenable. The only purpose of the primary election was to select candidates whose names shall appear on the official ballot, and this being its sole purpose, any provision relating to that purpose must be germane to the act. We conclude, therefore, that this act in its entirety is within the scope of its official title.

It is also contended that the act is in violation of § 37, art. 11, of the constitution. That section provides that no act shall ever be revised or amended by mere reference to its title, but the act revised or section amended shall be set forth at full length. The evil which this provision of the constitution was intended to remedy was a habit, which often proved pernicious, Df amending statutes by inserting therein certain words or substituting one phrase for another, without setting forth the act or section as it would read with the amendment inserted. This form of amendment was well calculated to mislead the careless as to its effects, and was, perhaps, sometimes drawn in that form for the express purpose of misleading, and the constitution makers wisely put a check upon it. But the provision was never intended to prevent the enactment of statutes complete in themselves which repealed or amended existing statutes. Indeed, the very purpose of a statute is to change the existing laws as to the particular matter legislated upon, and if the legislature is without power to pass such an act without first hunting up all of the provisions of the existing laws affected by it,, and setting them forth as they will stand as amended, legislation is at a standstill. The act in question, as we view it, is a complete act within itself. While it necessarily changes existing statutes by superseding some and limiting the effect of others, it requires no reference to other statutes to determine its meaning in the sense prohibited by the constitution. True, it refers to other statutes in terms, and provides that in certain instances the statute referred to shall not be affected by the terms of the new statute; yet this, we think, is not amending or revising an act by mere reference to its title. The act referred to is in no wise altered or amended; no change is made in its text; its scope only is limited to the particular cases enumerated. This we hold does not require the setting forth at full length of the statute affected. The case of Copland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, is not contrary to this view. As explained in the case of In re Dietrich, 32 Wash. 471, 73 Pac. 506, we there held that the statute under consideration was merely amendatory of a former law — not an independent act — and as such could not stand alone, or be intelligently applied without’ a reference to the former law.

Section 12 of the primary act provides that, when a voter at the primary election demands the ticket of a particular partjr and his right to vote that ticket is challenged, he shall make oath or affirmation that he intends to affiliate with the party whose ballot he demands at the ensuing election, and that he intends to support generally the candidates of that party. It is contended that this section adds a requirement to the qualifications of electors in addition to the constitutional requirements, and for that reason renders the entire act void. Were the primary election so far such an essential part of the general election as to make the constitutional provision relating to the qualification of electors entitled to vote at the general election applicable thereto, then there would be force in this obj ection; but we do not think the sections of the constitution providing the qualifications of electors applicable to the primary election provided for by this statute. It is not the purpose of the primary election law to elect officers. The I purpose is to select candidates for office to be voted for at the f general election. Being so, the qualifications of electors pro- j! vided by the constitution for the general election can have no ■ application thereto.

From the fact that the state has assumed to provide an official ballot for the general election, it must resort to some process of selection to determine the candidates whose names shall appear upon the ballot. It cannot print the names of the entire list of electors on the ballot, nor can it print thereon the name of every elector who may choose to become a candidate. Such a proceeding would make the ballot too cumbersome for any practical purpose, and in consequence the election a farce. Since, then, the state by its legislature must resort to some process of selection, the only limitation that can be put thereon is that the process adopted be reasonable. The legislature should not go to extremes in either direction. To print the names of every person who desires to become a candidate would be an extreme in the one direction, while to print only the names of the candidates of the party dominant at the last preceding election would be an extreme in the other. But between the extremes it is at once apparent that there is a wide field for choice, within which it cannot safely be said that the legislature has violated its just discretion. The method here adopted the court cannot say is unreasonable. While it deprives some of the minority parties of privileges which might properly have been granted them, yet the legislature must protect the state against the future. A too great multiplication of parties might result if all associations of persons claiming to be such were so recognized — three tailors of Tooley street once claimed to be “the people of England” — thus entailing upon the state excessive costs in the conduct of primary elections without corresponding benefits. No doubt the qualification here complained of was inserted to protect the integrity of political parties. The legislature had provided for party ballots for use at the primary election, and it was but just that some restraint be put upon the privilege of demanding and voting a particular ballot. So far, therefore, from being an unwarranted restriction, it seems to us that if party integrity is to be preserved, this provision is highly proper and commendable, and could have been made with profit much more stringent than it actually is.

The last general objection to be.noticed is that the law tends to destroy political parties. Counsel confess that they can find no specific provision of the constitution on which to base the contention, but they assert the general utility and necessity of parties, and argue therefrom that legislation tending to destroy them must receive the condemnation of the courts. It has seemed to us, however, that this is a political rather than a judicial question, and that an appeal from the legislative decision must be made to the people rather than to the courts.

We are aware that some of the conclusions reached by us on the questions discussed are not in accord with the decisions of courts of other jurisdictions on similar questions. We have not followed them because we feel them to be unsound. It would have given us more satisfaction to have noticed them at the proper place, but want of time and space forbids. The fact is mentioned here out of deference to counsel appearing for the respective parties, whose learning and patient research have brought before us all of the law extant upon the subjects discussed.

We will now notice the particular contentions. At its session in 1907, the legislative assembly created a separate judicial district from the counties of Adams, Benton and Franklin. The relator Zent was appointed judge thereof to hold office until the next general election and until his successor was elected and qualified. In due time he filed his declaration of candidacy for nomination at the primary election. The respondent Holcomb also filed a declaration of candidacy for the office of superior judge in the district of the counties named, but did not specify therein for what term he desired to become a candidate. The secretary of state, before whom the declaration was filed, construed the declaration as one for the term commencing on the second Monday in January, 1909, and placed his name upon the primary ballot as a non-partisan candidate for judge, along with the name of the relator Zent. Holcomb received a majority of the votes cast at the primary election, and was declared the nominee by the canvassing board. Zent applies to restrain the issuance of a certificate of nomination to him, and to prevent the certification of his name to the auditors of the several counties named, as the candidate for judge whose name shall appear on the official ballot.

In addition to the general obj ections to the constitutionality of the act already discussed, the relator makes the point that the construction placed upon the respondent’s declaration was unwarranted and void, and that in consequence there is no nominee for the office of judge of the superior court for the counties named. This contention is unfounded. There was indeed a short and a long term for which a judge might have been nominated, but the primary law applies to the long term only, unless specially designated otherwise. By the second section of the act it is expressly provided “that this act [the primary election law] shall not be held to refer to special elections for filling vacancies for unexpired terms . while § 38 provides that, where there is a vacancy in the office of judge, candidates may announce themselves for either the long or the short term. But since there was no announcement made, we think the declaration could only apply to the term commencing on the second Monday in January, 1909, and the secretary of state correctly so ruled.

The relator White sought to be nominated for the office of judge of the superior court of King county, by petition as prescribed in §§ 1350 and 1352 of Ballinger’s Code (P. C. §§ 4932, 4934.) To that end he procured a certificate of nomination subscribed by the requisite number of electors, and proffered the same for filing at the office provided therein for receiving the same. The filing was refused, and this proceeding was instituted to compel the filing of the certificate and to require the proper officers to print his name on the official ballot as a candidate for judge of the superior court of King county. In addition to urging the invalidity of the primary law, he contends that, if the court deems the act constitutional, he is nevertheless entitled to have his name appear upon the official ballot for the reason that the statute under which he is proceeding is still in force, not having been superseded or modified by the primary election law. The section of the primary law relating specially to the nomination of judges reads as follows:

“Sec. 38. Judges of the supreme and superior courts, state senators and representatives shall not be considered state officers within the meaning of the provisions of this act relating to first choice and second choice voting. When there are to be elected at any general election, two or more judges of the supreme court or superior court of any county, the candidates for each respective office whose names are to be placed upon the general election ticket, shall be determined as follows: The number of candidates, equalling the number of judicial positions to be filled, who receive the highest number of votes at the primary election, shall be candidates for such respective offices, and their names shall appear on the general election ticket under the designation of such respective offices. Where a vacancy or other cause shall necessitate the election of a judge for a short term and at the same election one or more judges are to be elected for the full term, candidates may announce themselves for either the short or full term and the ballots shall be arranged accordingly.” Laws 1907, p. 476.

Manifestly it was the purpose of this provision to do away with all other forms of nomination, in so far as the official ballot is concerned, than the one therein prescribed. The legislature by this section, whether wisely or not, has seen fit to provide for placing on the official ballot only the names of those candidates who have been nominated in the particular way pointed out. This we hold the legislature had the right to do, it being a reasonable exercise of its powers. True, it deprives minority parties, casting less than ten per centum of the entire vote, of voting at the primary election for candidates whose names are entitled to appear on the official ballot, and prevents the people from selecting by petition particular candidates and having their names put upon the official ballot. But it deprives no one of the right to vote for the candidate of his choice at the general election. He may write or paste the name of his candidate thereon and have the same counted as rightfully as if his name were printed on the ballot. This is a right the courts are uniform in maintaining. With possibly one exception, every court which has passed upon the question maintains the right of the individual elector to vote for the person of his choice for a particular office, regardless of whether his name is on the official ballot or not. Since, therefore, the elector is not deprived by this act of voting at the general election for the candidate of his choice, we hold the act within the rightful powers of the legislature. The relator Pendergast presents the question presented by the relator White, and his application requires no separate discussion.

The relator Coon was a candidate for the republican nomination for the office of lieutenant governor, there being more than four candidates for that nomination. The relator received a plurality of all the first choice votes cast, but failed to receive more than forty per centum of such votes, and likewise failed to receive a plurality of all first and second choice votes. Notwithstanding these facts, he now contends that his name should appear on the official ballot as the republican nominee for the office, and by this proceeding seeks to compel the secretary of state to so certify the ballot. The basis for this contention is the claim that the second choice provisions of the direct primary law are unconstitutional.

So far as this particular case is concerned, it would avail the relator nothing to uphold his contention as to the invalidity of the law, for the legislature has declared in express terms that a candidate receiving less than forty per centum of the first choice votes shall not be the nominee where there are four or more candidates for any state office, and should we declare the alternative method of nomination void, it would simply nullify the law as to that particular office. It would not result in the nomination of a candidate who under the express terms of the law did not receive the requisite vote. But this feature of the law has been assailed in other cases, and we deem it proper to dispose of the contention made at this time.

The principal argument against the second choice provision is that it interferes with the freedom of election guaranteed by the constitution, and compels the elector to vote for a person other than the candidate of his choice. This contention is untenable: The elector has the utmost freedom of choice in casting his first choice ballot, though his choice will not avail him unless at least forty per centum of his party agree with him. It was entirely competent for the legislature to provide that a candidate receiving less than forty per centum of his party vote should not be deemed its nominee, and with such a provision in the law it was incumbent on the legislature to provide some other method of nomination whenever a candidate failed to receive the required vote at the primary. It might have provided a second primary, but a second primary would perhaps prove equally fruitless, unless the number of candidates to be voted for were restricted. If the candidates to be voted for at the second primary were restricted to the two or three receiving the highest vote at the former primary, then all those who did not favor these particular candidates might complain with equal justice that they were compelled to vote for candidates other than those of their choice. So long as voting is by ballot, an official ballot is a convenience if not a necessity, and some authority vested somewhere in government must determine the names which shall appear on that ballot, and those names must necessarily be few in number; and, we repeat, any reasonable method prescribed by the law-making power which accomplishes this result must be sustained by the judicial department of government. The courts have no concern with its wisdom or policy.

The several applications are denied.

Hadley, C. J., Dunbar, Mount, and Rudkin, JJ., concur.