
    BALLINGER v. McLAUGHLIN, County Auditor.
    Laws 1907, p. 291, e. 189, § 10, requiring payment o£ certain fees for filing nominating petitions under tlie primary election law, which fees axe not‘uniform, and bear no relation to the services performed, by the officer who receives the petition, hut are to be turned into the public treasury, is an invasion of the constitutional right of a qualified person to become a canidiiidate, and of electons to support the candidate of their choice.
    (Opinion filed, April 23, 1908.)
    Appeal from Circuit Court, Lawrence -County.- Hon. Wilma-m G. Ríe®, Judge.
    Mandamus proceeding by Jesse E. Ballinger against William McLaughlin, county auditor of Lawrence.county..' From an adverse judgment, plaintiff appeals.
    Reversed and remanded, with directions.
    
      Freeman Knozdes and Robert C. Hayes, for. appellant.
    Unrestricted suffrage is -essential to the very existence of popular -sovereignty, and on. it that' sovereignty is 'based. Let it once be conceded that there i's/power in the legislature to place restrictions upon -the right of franchise, and to determine the reasonableness' of those restrictions, then ipo-pular sovereignty ends in mere abstraction. ■ Attorney General v. City of Detroit, 58 Mich-213, 4 N. W. Rep.-887; Johnson v. Grand Forks County, 113 N. W. Rep. p. 1071; Mich: Dapper v. .Smith, 101 ¡bí. W. 60; Spier v. Baker, 120 Cal. 37.0; The primary law i/s an integral and essential part of the election system contemplated by the constitution and the privileges of .electors to- partake in the primary are under the protection of the constitutional declarations. Tire primary -election is ‘'any election” referred to in Art. 7, Par. 1. The privilege -of selecting the-candidate.is not of les-s importance-than that of voting for the candidate after nominated. While the primary law was not in existence in. moist of the states at the time the constitution was adopted, the rulings have been almost uniform that such primary elections were necessarily in contemplation. Spier v. Baker, supra, 41st D. R. A. p. 198; Johnson v. Grand Forks County, supra, 1x3 N. W. 1073; People v. The Board, 77 N. E. 321; Britton v. The Board, 51st D. R. A. 115. That an additional qualification can be added to those prescribed by the Constitution as á prerequisite to holding public office, has been denied almost uniformly by the courts of those states in which a primary law has been considered. Johnson v. Grand Forks County, "Supra; Britton v. Board .of Commissioners, supra; People v. Board of Election, supra; State v. Drexel, 105 N. W. 174; Dapper v. Smith,. 101 N. W. 60; Attorney General v. Detroit, 24 N. W. 887. The provisions by which the candidates are required to buy their way to office are an unwarranted hindrance land impediment .to the -rights of candidates and voters alike and are illegal and void. People v. Board, 77 N E. 325; State v. Drexel, 105 N. W. 188.
    
      Robert P. Stezmrt, State’s Atty., and S. W. Claris, '-Atty. Gen., for respondent. " • '
    To prescribe an orderly and systematic method by which the people may select their qandidates for public office is within the province of the legislature, and apparently the éxaction of a fee in filing as a candidate tends to prevent an indiscriminate scramble for offices. Dapper v. Smith, 101 N. W. 60, and Kenebeg v. Al-legeny County, 62 Atl. 251; Montgomery v. Chelf, 82 S. W. 390.
   PIANET, P. J.

The only question presented by. this appeal was the validity of section 10, c. 139, p. 291, Daws. 1907, requiring the payment of certain fees for filing nominating petitions under the primary election law of 1907, The court, having concluded that the requirement was unconstitutional, and desiring that persons affected might not be deprived of their rights,, entered a judgment reversing the judgment of the circuit -court, with directions to grant a peremptory writ of mandamus without delaying the proceedings in -this court-for the ¡purpose of preparing-a written ¿pinion.' -

The reasons, for its decision will now be stated. Section io is as follows: “'Each' candidate whose- nominating petition must be filed >in the i office' of the' county auditor as herein provided, shall, at the time 'of- filing such petition, pay to- said auditor the sum hereinafter specified, which shall be paid' over by said auditor to the county 'treasurer and covered into the general fund towards, reimbursing the county for expenses ¡incurred in. carrying' out the provisions of this, section. Candidates for party nominations for county treasurer, sheriff, auditor and register of deeds, shall each pay the sum of fifteen dollars. . Candidates for party nominations-, for county judge, state’s attorney, clerk ,of the circuit court and superintendent of schools, shall, each pay the sum of ten dollars. Candidates for party nominations for county commissioner, surveyor and coroner, shall each pay the sum of five dollars. Candidates ¡for party- nominations for the Legislature, either house, shall each pay the sum of five dollars. Candidates for party nominations for constable, justices of the peace, and for election as delegates to a state convention or member of the state central committee, shall each pay the ¡sum of one dollar.” It will be readily conceded that constitutional provisions defining the legal qualifications of electors and candidates for public offices are conclusive and exclusive, and that any legislation which substantially invades or impairs the rights conferred by. such provisions cannot be sustained. The right of a qualified pertson to become a candidate, and the right of a' qualified elector to support the candidate of his choice, subject to regulations calculated to conserve such right, is one of a most sacred character. It will also be readily -conceded that, where the voter is practically, if not strictly limited to the choice of candidates whose names are lawfully printed upon official ballots as in this state (Chamberlain v. Wood, 15 S. D. 218, 88 N. W. 109), any unauthorized interference with or burden upon the right of making nominations presents a question of serious importance. Where the Legislature has power to act, neither its motives, wis--dóni,'- nor usually the reasonableness of its action can be questioned'by the courts. If, in connection with the filing'of the nominating petitions, the Legislature has power to impose, as a condition precedent, the payment >of any sum in excess of a uniform nominal filing fee, it is difficult to understand ho-w the courts could formulate a rule of general application by which they shall be guided in determining when the required amount is excessive and when it is not. Such payments are not calculated to prevent fraud, or to protect the rights of honest electors or candidates. In this instance they bear no relation to the services performed by the officer who receives the petition. There is .no valid reason why a candidate for Governor should be required to pay any larger sum for the privilege of filing his petition than is required of a candidate for county commissioner. One, of course, receives a larger salary than the other; but the compensation of each is presumably measured by the public service rendered. The expense incurred by the public in conducting a primary election could not be equitably apportioned among the candidates otherwise than by requiring each one to pay the same sum, and that, in .one aspect, would be unjust, for many candidates have no reasonable chance of being- elected. So the fee in each case mentioned in section io is in effect an arbitrary tax upon the privilege of being a candidate for the office to which it relates. The court was, when its decision was rendered, and now is, satisfied that the attempt to impose such a tax is clearly unconstitutional and void. In this conclusion it has the support of abundant authority. People v. Board, 221 Ill. 9, 77 N. E. 321; Johnson v. Grand Forks County, 113 N. W. 1071; State v. Drexel, 105 N. W. 174.

In People v. Board, supra, considering a statute the same as ours, the court used this language: “These payments bear no relation to the services rendered in filing the papers or the expenses of the election. They are purely arbitrary exactions of money, to be paid into the public treasuries as a monetary consideration for being permitted to be a candidate. The payments are not intended as compensation for services rendered in filing the papers, but the provisions make the ability and inclination of a person to pay mo-ney a test of his qualification and of the right of the voters to choose him for public office. Every eligible person has a right to be á candidate for a public office without being subject to- arbitrary or unreasonable burdens. The voters fhave a right to - choose any eligible person, and he owes a duty to the public to- qualify and serve. People v. Williams, 145 Ill. 573, 33 N. E. 849. Reasonable regulations, such as a petition from a proper percentage of voters, which would show that they want .the privilege of voting for a penson, or other reasonable conditions or restrictions, may be imposed. If there were ho such conditions, the ballot might be so large as to be impracticable; but there' can, be no discrimination between candidates based upon the ground that one has money to pay for the privilege of being a candidate and chooses to pay, and another has not the means, or is unwilling to. buy the privilege.”

Ear these reasons the judgment of -the circuit court was reversed, and the case remanded, with directions to grant the relief prayed in plaintiff’s application for a writ of mandamus.  