
    The State, ex rel. Webber, v. Felton et al. The State, ex rel. Welty, v. Marsh et al.
    
      Primary elections — Nomination of party candidates — Subject of legislative police powers — Sections 2916, 2917, 2918, 2919, 2921, 2921a and 2919-1, Revised Statutes, not violative of constitution of Ohio or fourteenth amendment to United States ■ constitution.
    
    1. The nomination of party candidates for public office concerns the public welfare and the legislature in the exercise of the police power may make reasonable regulations therefor.
    2. Sections 2916, 2917, 2918, 2919, 2921 and 29210, Revised Statutes, as amended April 23, 1904 (97 O. L., 439), and Section 2919-1, Revised Statutes, as enacted April 20, 1904 (97 O. L., 107), providing for primary elections by political parties that cast at least ten per cent, of the vote cast at the last general election, are not violative of the constitution of this state or of the fourteenth amendment to the constitution of the United States, as depriving any person of the equal protection and benefit of the law; or as not being of uniform operation throughout the state; or as authorizing the expenditure of public funds for other than a public purpose; or as delegating legislative power; or as restricting the elective franchise, or as impairing the secrecy of election by ballot.
    (Nos. 11070 and 11086
    Decided January 28, 1908.)
    Error to the Court of Common Pleas of Franklin county.
    Error to the Court of Common Pleas of Allen county. ■
    January 2, 1908, the Ohio Republican state central committee issued its call for a Republican state convention to meet at the city of Columbus on Tuesday and Wednesday, March 3 and 4, 1908, for the purpose of electing four delegates at large and four alternates at large to the Republican national convention, and for the purpose of nominating two candidates for the office of presidential elector at large, a governor, a lieutenant governor, a secretary of state, an auditor of state, a treasurer of state, an attorney general, two members of the board of public works, a dairy and food commissioner, a commissioner of common schools, two judges of the supreme court, and a clerk of the supreme court.
    It provides that delegates to said convention shall be selected in the following manner:
    Delegates and alternates to the number to which the various counties are respectively entitled shall be selected at large from the various counties at primary elections held between the hours of one o’clock and seven o’clock p. m., on Tuesday, the eleventh day of February, 1908, under the provisions of Sections 2916, 2917, 2918, 2919, 2920, 2921 and 2921a, of the Revised Statutes of Ohio, and in no other way. Official Australian ballots, and none other, furnished by the board of deputy state supervisors of elections at each voting booth, in the manner provided for general elections, shall be voted at such elections. If any other primary election shall be held in any county at the same time, separate ballots and ballot boxes shall be provided exclusively for the election of delegates to the state convention:
    Upon the petition of ten Republican electors of any county requesting the board of deputy state supervisors of elections of such county to print the name of any Republican elector of such county upon the ballot as candidate for delegate or alternate, provided such petition is accompanied by the written consent to the use of his name in that connection, signed by such candidates for delegate or alternate, said board of deputy state supervisors of elections shall print the name of such candidate for delegate or alternate upon the ballot. The names of candidates for delegates shall be placed upon the ballot without designation except “For Delegates to State Convention,” in a uniform manner and in alphabetical order. Names of candidates for alternates shall be printed in the same way, except that the designation shall be “For Alternate to the State Convention.”
    Provided, however, that if Republican electors of a county equal to twenty times the number of delegates to which the county shall be entitled, áhall petition said board of deputy state supervisors of elections to place upon the primary ballot a complete ticket, consisting of a list of candidates for delegates and alternates to the exact number to which such county - shall be entitled, accompanied by the written consents to the use of their names respectively in such connection, signed by all of such candidates, and containing also a request that such list be headed, “Our choice for President, -,” bearing the name of some Republican candidate for President of the United States; and provided further, that such Republican candidate for President of the United States, either personally or by his representative, duly authorized in writing, shall give his written consent to the use of his name as requested in such petition, then said board of deputy state supervisors of elections shall print such ticket upon the ballot in a separate column with the heading requested and with the names in the order presented. Complete tickets shall be printed upon said ballot only in accordance with the foregoing conditions, and no ticket shall bear any other designation than the choice of such delegates for President of the United States, and the name of no person for President of the United States shall be printed on the ballot as the designation of any such ticket without his written consent or that of his duly authorized representative, filed with such board of deputy state supervisors of elections.
    Tickets upon the ballot shall be provided with a circle under the name of the candidate for President, and all names of candidates for delegates or alternates, whether upon tickets or otherwise, shall have a proper place at the left of such names where the voter can designate his choice by placing a cross therein. Electors may vote a straight ticket by placing a cross in such circle under the name of the candidate for President, or they may vote a mixed ticket. Upon each ballot shall be printed the following direction: Vote for - delegates and - alternates. (Insert number of delegates and alternates to which the county is entitled.) No ballot shall be counted upon which the elector shall vote for more candidates for delegates than the number to which his county is entitled.
    All petitions hereinbefore provided for shall be filed at or before noon on Saturday, the first day of February, 1908, and not later, at the office of the board of deputy state supervisors of elections. The written consent of candidates for President or of their duly authorized representatives to the use of such candidates’ names respectively as requested, shall be filed at the office of the board of deputy state supervisors of elections at or before noon on the fourth day of February, 1908.
    In the event that the consent to the use of the name of any candidate for President as a designation of any ticket is not granted and filed as above stated, the names of candidates for delegates and alternates contained thereon shall be printed upon the ballot in the column of delegates and alternates respectively in proper alphabetical order, just as though they had been filed without designation.
    Counties which are entitled to forty or more delegates may select delegates and alternates by districts as their county executive or controlling committees may determine, but in all other respects delegates from such counties may be selected in accordance with the provisions hereof.
    County executive or controlling committees of the various counties are directed to call not later than January 20, 1908, primary elections in their counties respectively in accordance with the provisions hereof.
    Delegates which are not selected in strict accordance with all the provisions hereof, will not be entitled to sit in said convention.
    All known Republican electors and all others who will declare their belief in the principles of 'the Republican party and their purpose to affiliate with it at the November election, complying with the Act of April 20, 1904 (97 Ohio Laws, 107), shall be eligible to participate in said primary election. No elector shall sign more than one petition and the name of no candidate for delegate or alternate shall be printed more than once upon the ballot.- If the name of any elector as petitioner or candidate for delegate or alternate shall appear upon more than one petition filed with the board of deputy state supervisors of elections,. such board shall disregard such name upon all petitions except upon the one first filed.
    Challengers and witnesses shall be admitted to polling places in accordance with daw.
    Wherever the phrase “deputy state supervisors of elections” appears in this call it will be deemed to mean, “deputy state supervisors and inspectors of elections,” with reference to counties having deputy state supervisors and inspectors of elections.
    January 9, 1908, the Republican county central committee of Franklin county, Ohio, the controlling committee Of the Republican party, a voluntary political association in that county, by resolution, directed that a primary election be held for the election of thirty-five delegates and thirty-five alternates to the Republican state convention, in accordance with the provisions of the call of the Republican state committee, and made' application to the deputy state supervisors of elections of Franklin county to hold and conduct such primary election ’under the provisions of chapter 1, title XIV, of the Revised Statutes of Ohio, and cause notice to be published and posted of the holding of such primary election.
    Karl T. Webber, prosecuting attorney of Franklin county, brought suit to enjoin the chief deputy state supervisor and inspector of elections and the deputy state supervisors and inspectors of elections for Franklin county, Ohio, from incurring any expense in the preparation for and in the holding of such primary election, and from holding such primary election.
    In the second case, B. F. Welty, prosecuting attorney of Allen county, Ohio, brought suit to enjoin the deputy state supervisors of elections of that county from incurring any expense in the preparation for and in holding a primary election called by the Republican central committee of that county for the election of delegates to said state convention.
    In each case a general demurrer to the petition was sustained and the petition dismissed, and in each case leave was given to file a petition in error in this court.
    
      Mr. Karl T. Webber, prosecuting attorney; Messrs. McCoy, King & Game, assistant prosecuting attorneys; Mr. Daniel J. Ryan; Mr. Charles Kinney and Mr. George H. Jones, for plaintiff in error in case No. 11070.
    
      Mr. B. F. Welty, prosecuting attorney, and Mr. D. J. Cable, for plaintiff in error in case No. 11086.
    The provisions of the so-called Bronson Primary Law contravene and violate various provisions of the constitution of this state.
    They violate:
    
      First. Section 2, Article I, of the Constitution of Ohio.
    Section 291-9, Revised Statutes, limits the application of the law to political parties casting ten per cent., or more, of the total vote cast at the last general election, necessarily prescribe the minimum number of voters that must unite to constitute a political party, and prohibits qualified electors who do not vote with the particular party holding the primary at the last preceding general election, from any participation therein; and prohibits members of political parties organized since the last general election, without regard to numbers, from nominating its candidates by primary election. It therefore is a denial to the people of the equal protection and benefit of the laws. Britton v. Commissioners, 129 Cal., 337.
    It must be admitted that every elector has a constitutional right to choose his political faith, and a right to change his political faith at any time, as he may see fit. The element of time is not essential to the formation of a political party; it may spring up from the exigencies of a particular election, and possibly with no intention of continuing after the emergency has passed, and to hold the contrary would be to strike a blow to that independence in political action upon which the government of a community may depend, and the number of votes necessary to form a political party can not be prescribed by law without violating one of the fundamental theories of popular government. Field v. Osborne, 60 Conn., 547.
    Section 2919, Revised Statutes, provides that the expense of all primary Mentions other than municipal elections shall be defrayed by the county.
    The only funds or moneys out of which the county may pay expenses are the' public funds raised by taxation upon the real and personal property of all the citizens of the county, under and by virtue of the general grant of legislative power and the limitations contained in Section 2, Article XII, of the constitution of the state of Ohio.
    Taxes being levied and raised for public purposes, the section of the primary act referred to, proposes to expend the money thus raised from all the people, to the immediate benefit of a select number, and to the exclusion of all others.. In fact, such section prohibits any of the public money from being used for the benefit of a very large proportion of the people living in the country, who contribute to the public burdens.
    The effect of the operation of the so-called primary act in the phase now being considered, may deprive 'a majority of the electors of the county of the right to take part in an election, and yet compel them to bear the largest proportion of the charges and expenses for carrying on a primary election. Hixon v. Burson et al., 54 Ohio St., 470.
    The so-called primary election law provides for registration in the city of Columbus, at the expense of the county treasurer. Taxes are only authorized for public purposes. Taylor et al. v. Commissioners, 23 Ohio St., 22.
    
      Second. Article II, Section 1, of the constitution of Ohio.
    Section 2917, of the so-called primary law, attempts to delegate to the controlling committee of a political party the authority to prescribe the purpose, time, manner and conditions of the holding of such primary election, and prescribe the qualifications of electors not inconsistent with the provisions of the act. This, we insist, is a clear delegation of legislative power, and a contravention of the provisions of the constitution of the state. Spier v. Baker et al., 120 Cal., 370; Cooley on Constitutional Limitations (7th Ed.), 165.
    
      Third. Section 26, Article II of the constitution of Ohio.
    The primary law violates the above section, in that the act does not operate upon all voluntary political associations, because of the limitation of its application to those casting ten per cent, or more of the total vote cast in the county, at the •preceding general election, nor does it apply to voluntary political associations existing, or that may be created subsequent to the last general election, without regard to the number of persons composing such political association.
    We believe that it requires more than a distinction upon which to formulate a class for the purposes of legislation; that there must be such absolute differences existing between the subdivisions of population, that it would conserve the interests of those not included within the terms of the law, to be left without the classification. State, ex rel, v. Jones et al., 66 Ohio St., 453.
    The subject of elections is one of a general nature and must be governed by laws having a uniform operation throughout the state. The subject of the regulation of primary elections is a general one and a law of a general nature, and must have a uniform operation throughout the state; and therefore such a law upon such a subject, which applies only to certain portions of the state in violation of Section 26, Article II, constitution of Ohio. Cincinnati v. Ehrman et al., 6 N. P., 169.
    
      Fourth. Section 1, Article V of the constitution of Ohio.
    
      And any attempt on the part of the legislature to prescribe additional qualifications or to delegate to others the power to prescribe qualifications which would exclude him from voting at any election held under the laws of the state is absolutely void. Spier v. Baker et al., 120 Cal., 370; State v. Finley, 19 Pac. Rep., 241; 20 Nev., 198.
    The power of the legislature is limited to laws regulating the enjoyment of the right by facilitating its lawful exercise and by preventing its abuse. It is held that iaws regulating the exercise of the elective franchise must be reasonable, uniform and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote. Monroe et al. v. Collins, 17 Ohio St., 685; Capen v. Foster, 12 Pick., 488.
    A constitutional election provided for by statute is one authorized by law within the meaning of the constitution. Article II, paragraph 1, prescribing the qualifications of electors at all elections authorized by law.
    A deprivation of the right to participate in the selection of candidates for office is a deprivation of the right of franchise. Britton v. Commissioners et al., 129 Cal., 337; 51 L. R. A., 115.
    For limitation of the right to a place on official ballot of party casting certain per cent, of vote at last election, see DeWalt v. Bartley, 15 L. R. A., 771; State v. Black, 16 L. R. A., 769; Higgins v. Berg, 42 L. R. A., 245.
    A political party is a body of men in a state, district, county or city united in political thought and action for the accomplishment of a political end, or united in political opposition to another body of men joined in political action; and each body of men so united are entitled to the same and equal rights before the law. Fields v. Osborne, 60 Conn., 544; 21 Atl. Rep., 1070; 12 L. R. A., 551.
    If the legislature may deny the protection of its law to a political party which has cast less than three per cent, of the votes, it may deny, the same right to a party which has cast forty-nine per cent, of the votes. It is the deprivation' of the one party, and the conferring upon another, of certain important political privileges. It is a question of power, either the legislature has or has not the constitutional power so to do. Britton v. Commissioners et al., 129 Cal., 337; 51 L. R. A., 118.
    
      Fifth. Section 6 of Article VIII of the constitution of Ohio.
    The public funds are created for public purposes, and appropriations of those funds, either as bounty or in paying the expenses for perpetuating a voluntary political association, is contrary to the fundamental truths of popular government and against the express provisions of the constitution of this state. Taylor v. Commissioners, 23 Ohio St., 22.
    
      Sixth. Section 2 of Article XII (together with Section 1 of Article II) of the constitution of Ohio.
    If primary elections are not included within the term “elections” as used in Section 1 of Article V, then any taxation looking forward to the raising of money for primary election expenses would be absolutely void, because the purpose for which the tax is levied is not a public purpose. Taxes -can only be authorized for public purposes. Auditor 
      v. State, ex rel., 75 Ohio St., 114; Loan Assn. v. Topeka, 20 Wall., 655; Auditor v. State, ex rel., 75 Ohio St., 114; Story on Constitutional Limitations, 694; Black on Constitutional Law, 342; Judson on Taxation, 405; Gray on Limitation of Taxing Power, 123.
    
      Seventh. Section 2 of Article V of the constitution of Ohio.
    The moving reason for inserting the above section in the constitution of the state was to secure to the electors the right to vote in absolute secrecy. If this provision has any effect, then any law which requires the elector to publicly declare for whom he shall vote, and in certain cases, to take an oath as to how he shall vote, and how he voted the year before, must certainly be in contravention of this provision of the constitution.
    If the Australian ballot law is in accord with the letter and spirit of the constitution, it is evident from the facts here cited that the Bronson primary election law is in direct opposition to it; and, therefore, in violation of the constitutional provision procuring secrecy of the ballot. Attorney-General v. Council, 58 Mich., 216; Cooley on Constitutional Limitations (7th Ed.), 910; People, ex rel., v. Pease, 27 N. Y., 45.
    
      Mr. A. PI. Johnson; Mr. W. 0. Henderson and Mr. Louis G. Addison, for defendants' in error in case No. 11070.
    
      Messrs. Ridenour & Halfhill, for defendants in error in case No. 11086.
    It is perhaps unnecessary to even refer to the decisions of the. courts describing police power, except to call attention to the most recent expressions of the Supreme Court of the United States up this subject. Bacon v. Walker, 204 U. S., 311.
    Laws regulating primary elections of parties are the proper subject of "police regulation. Hopper v. Stack, 69 N. J. L., 562; Kenneweg v. Commissioners, 102 Md., 119; 15 Cyc., 332; State v. Moore, 87 Minn., 308; Ladd v. Holmes, 40 Ore., 167.
    Section 2919, Revised Statutes, is not unreasonable because it deprives parties casting less than ten per cent, of the right to compel the board to call and hold a primary election. State, ex rel., v. Poston, 58 Ohio St., 620.
    It is not unreasonable to limit the political parties which shall have a right to call upon the deputy state supervisor of elections to hold a primary at the expense of the taxpayers. It simply limits the right to incur the public expense within reasonable bounds. State, ex rel., v. Drexel, 105 N. W. Rep., 174; State, ex rel., v. Jensen, 86 Minn., 19; Shafer v. Whipple, 25 Col., 400; 15 Cyc., 334.
    The right to vote a secret ballot is neither a natural right nor a constitutional right. Hence the provision of Section 2919, Revised Statutes, that “no person shall be allowed to vote at any primary election * * * except he voted with a political party holding such primary election at the last general election * * violates no constitutional right of such voter. State, ex rel., v. Poston, 59; State, ex rel., v. Drexel, 105 N. W. Rep., 174.
   Summers, J.

These cases present questions as to the validity of Sections 2916, 2917, 2918, 2919, 2921 and 2921a, Revised Statutes of Ohio, as amended April 23, 1904 (97 O. L., 439), and Section 2919-1, Revised Statutes, as amended April 23, 1904 (97 O. L., 107), and the regularity and validity of certain proceedings had by the Republican county central committee of Franklin county and the Republican county central committee of Allen county. It is contended that these sections conflict with many provisions of the state constitution and with the fourteenth amendment to the constitution of the United States. The several constitutional provisions which it is contended are violated will be indicated as the several objections are noticed. It is not necessary to set out in full these sections of the statutes. Their purport is sufficiently indicated by the statement that they constitute in a large measure what is known as the primary election law, and that they were designed to protect the elections of voluntary political associations and to punish frauds therein. They provide, in brief, that when any voluntary political association or party in any county, township, or municipal corporation, by its controlling committee gives notice of the holding of a primary election for the selection of party candidates, committeemen, delegates or alternates to any party convention and makes application therefor to the deputy state supervisor of elections or board of deputy state supervisors and inspectors of elections, as the case may be, of such county, such primary election shall be held and conducted under the supervision of such officers. These officers provide ballots, poll books, tally sheets, and other necessary things, and assign to each polling place two competent electors to act as judges and one competent elector to act as clerk, and the expenses are paid out of the public funds. It is made unlawful for any person who is not a member of the party to vote at such election or to vote at any other than the polling place in the precinct, ward, or township wherein he resides. In brief, the purpose is to permit only those who are members of the party to participate in the election and to have the result honestly ascertained and declared.

The national and state governments in the manner of their operation are quite different from what was contemplated in their organization. Political parties were not thought of, but so potent have they become in determining the measures and in administering the affairs of government that they are regarded as inseparable from, if not essential to, a republican form of government. In his “The American Commonwealth,” Mr. Bryce says: “In America the great moving forces are the parties * * *. The spirit and force of party has in America been as essential to the action of the machinery of government as steam is to a locomotive engine; or, to vary the simile, party association and organization are to the organs of government almost what the motor nerves are to the muscles, sinews, and bones of the human body. They transmit the motive power, they determine the directions in which the organs act. A description of them is therefore a necessary complement to. an account of the constitution and government; for it is into the hands of the parties that the working of the government- has fallen. Their ingenuity, stimulated by incessant rivalry, has turned many provisions of the constitution to unforeseen uses, and given to the legal institutions of the country no small part of their present colour.”

Sir Henry Sumner Maine says: “It is not to be expected that all the hopes of the founders of the American constitution would be fulfilled. They do not seem to have been prepared for the rapid development of party, chiefly under the influence of Thomas Jefferson, nor for the thorough organization with which the American parties before long provided themselves.”

And. again he says: “The truth is, that the inherent difficulties of democratic government are so manifold and enormous that, in large and complex modern society, it could neither last nor work if it were not aided by certain forces which are not exclusively associated with it, but of which it greatly stimulates the energy. Of these forces, the one to which it owes most is unquestionably Party.”

The elector’s choice of persons for office, to be effective, must be from party candidates, and so the nomination of candidates becomes as much a matter of public concern as the election of officers. The public welfare is directly involved in the selection of candidates, and the manner of selection is subject to regulation under the police power. Whether the state should undertake the regulation of the matter is not pertinent to the present inquiry. Most writers upon the subject agree that regulation is desirable, and differ only as to its extent. Some contend that it should be limited to requiring all nominations to be made in a convention of delegates elected at primaries regulated by the state; others, that all candidates for office should be elected at primary elections.

Regulation by the state being authorized on the ground that the public welfare is involved, it follows necessarily that appropriations of the public revenue to meet the expense of executing the regulations are for a public purpose, and the power of taxation is not drawn in question.

It is contended that these statutes conflict with Section 2 of Article I of the constitution and with the fourteenth amendment to the federal constitution, for the reason that only political parties, casting at least ten per cent, of the vote cast at the last general election, may avail themselves of these provisions, and that therefore the equal protection and benefit of the law is denied to those who do not belong to such or any of the parties; and that they are in conflict with Section 26 of Article II, which provides that all laws of a general nature shall have a uniform operation throughout the state. The purpose of the legislation is to promote the public welfare by preventing fraud in the nomination of candidates for office, and it is not vulnerable on the ground merely that it is not broad enough and will not cut off every abuse and make fraud impossible. This section of the Bill of Rights does not declare that every man shall receive the same amount of protection and benefit, but that “government is instituted for their (the people’s) equal protection and benefit.” Equal protection of the laws means “the protection of equal laws.” Yick Wo v. Hopkins, Sheriff, 118 (U. S., 356, 369. A law enacted to promote the general welfare is not in violation of this section if it makes no invidious discriminations, but applies equally to all similarly situated. To say that a law is invalid because every individual does not receive the same amount of protection or benefit from its operation would make legislation impossible and would be as wise as to try to shut off the gentle rain from heaven because every man does not get the same quantity of water.

The law is not restricted to any part of the state, but operates uniformly throughout the state and operates uniformly upon all under the same conditions. One man can not constitute a political party, and the abuses that it was intended to prevent depend largely upon the number of those who constitute the party, and this makes it perfectly proper for the legislature to limit the application of the law according to number. The Australian ballot laws limit the party tickets that may appear on the printed ballot, by a percentage of the 'vote cast at a previous election, and in nearly every case in which objection has been made on that ground such laws and legislation have been upheld. Such is the holding in this state in The State, ex rel. Plimmer, v. Poston, 58 Ohio St., 620; and in Gentsch et al. v. The State, ex rel. McGorray et al., 71 Ohio St., 151, 167, where the contention was that a statute, providing that in cities having a population of three hundred thousand or more the polls should close at an earlier hour than elsewhere in the state, was in violation of this section of the constitution, it was held that the statute was valid, and in the opinion it is said: “There may well be differences of opinion as to whether this provision should not apply to cities of less population than the prescribed number; but the law-making power has exercised its judgment on that matter. The limit of population upon which the- classification should be based is entirely within the discretion of the general assembly, having regard to all the conditions 'and circumstances, and so long as it is not unreasonable in its operation or subversive of the rights of electors, we can not interfere with it.”

For present purposes we do not think it important to distinguish the equal protection of the laws, which the fourteenth amendment to The constitution of the United States declares that no state shall deprive any person of, from the declaration in our Bill of Rights that government is instituted for their equal protection and benefit, but assume that what is said respecting the former is not inapplicable to the latter. In Barbier v. Connolly, 113 U. S., 27, 31, Mr. Justice Field at some length points out what was intended by this provision of the fourteenth amendment, and then says: “Special burdens are often necessary for general benefits' — for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to imposé unéqual or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects all persons similarly situated, is not within the amendment.” And in Soon Hing v. Crowley, 113 U. S., 703, 708, Mr. Justice Field says: “There is no force in the objection that an unwarrantable discrimination is made against persons engaged in the laundry business, because persons in other kinds of business are not required to cease from their labors during the same hours at night. There may be no risks attending the business of others, certainly not as great as where fires are constantly required to carry them on. The specific regulations for one kind of business, which may bé necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a- different kind. The discriminations which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws * * *. It is not discriminating legislation in any invidious sense that branches of the same business from which danger is apprehended are prohibited during certain hours of the night, whilst other branches involving no such danger are permitted.” In Cotting v. Kansas City Stock Yards Co. et al., 183 U. S., 79, 111, Mr. Justice Brewer says: “So, again, exercising the undoubted right of classification, it may often happen that some classes are subjected to regulations, and some individuals are burdened with obligations which do not rest upon other classes or other individuals not similarly situated. License taxes are imposed on certain classes of business, while others are exempt. It would practically defeat legislation if it was laid down as a rule that a statute was necessarily adjudged invalid if it did not bring all within its scope, or subject all to the same bur-' dens. It would strip the legislature of its inherent power to determine generally what is for the general interests, which interests may often be promoted by certain regulations affecting one class which do not affect another, certain burdens imposed on one which do not rest upon another.

“But while recognizing to the full extent the impossibility of an imposition of duties and obligations mathematically equal upon all, and also recognizing the right of classification of industries and occupations, we must nevertheless always' remember that the equal protection of the laws is guaranteed, and that such equal protection is denied when upon one of two parties. engaged in the same kind of business and under the same conditions burdens are cast which are not cast upon the other.” In Consolidated Coal Co. of St. Louis v. People of the State of Illinois, 185 U. S., 203, 207, Mr. Justice Brown says: “Another question is whether the act, as amended in 1897, in so far as it discriminates as to penalties imposed upon some persons engaged in the mining business, and not upon others, is a proper exercise of the police power. It is true that the act of 1897 amended the former law of 1895, by limiting its application to coal mines ‘where more than five men are employed at any one time.’ This is a species of classification which the legislature is at liberty to adopt, provided it be not wholly arbitrary or unreasonable, as it was in Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, sub nom Cotting v. Godard, ante, 92, 22 Sup. Ct. Rep., 30, in which an act defining what should constitute public stock yards, and regulating all charges connected therewith, was held to be unconstitutional, because it applied only to one particular company, and not to other companies or corporations engaged in a like business in Kansas, and thereby denied to that company the equal protection of the laws. In the case under consideration there is no attempt arbitrarily to select one mine for inspection, but only to assume that mines which are worked upon so small a scale as to require only five operatives would not be likely to need the careful inspection provided for the larger mines-, where the workings were carried on upon a larger scale or at a greater depth from the surface, and where a much larger force would' be necessary for their successful operation. It is quite evident that a mine which is operated by only five, men could scarcely have passed the experimental stage, or that precautions necessary in the operation of coal mines of ordinary magnitude would be .required in such cases. There was clearly reasonable foundation for a discrimination here.”

The next objection is that Section 2917 delegates legislative power in that it authorizes the controlling committee to prescribe the purpose, time, manner and conditions of the holding of such primary election and the qualifications of electors.

If these matters and every other respecting the nomination of candidates of a political party may be prescribed, as they in the past have been by the party or its committee, thefi the delegation of power is not apparent. There is no delegation of legislative power, but only regulation of a power already possessed by the party.

The next contention is that Section 2919-1, enacted April 20, 1904 (97 O. L., 107), which provides that “no person shall be allowed to • vote at any primary election except he be an elector resident of the precinct, ward or township in_ which he desires to vote and except he voted with the political party holding such primary election at the last general election, providing he voted at all at such election, unless he be a first voter; nor shall any person vote more than one time, or at any other than at the polling place in that precinct, ward or township wherein he resides,” conflicts with Section 1, Article V, of the constitution, which prescribes that, “every male citizen of the United States, of the age of twenty-one years who shall have been a resident of the state one year next preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections,” in this that it adds to the qualifications that entitle an elector to vote. If this contention is sound, then every elector has the constitutional right to vote at the primary election of every party. If the election is one at which merely the candidates of a party are to be selected, it can not be an objection that electors who do not belong to that party are not permitted to take part. That was one of the evils that the legislation was intended to prevent, and as to the test prescribed for determining an elector’s partizanship it is impossible to conceive of a political party without the possession by its members of some qualifications, and the test prescribed by the statute is the usual one and is not unreasonable.

But a primary election held merely to name the candidates of a political party is not an election within the meaning of this section of the constitution. That section refers to an election of officers, and not to the nomination of candidates.

It is further contended that Section 2 of Article V of the constitution which provides that, “all elections shall be by ballot” is violated by the requirement that only known Republican electors and those who will declare their belief in the principles of the Republican party and their purpose to affiliate with it at the November election, shall be eligible to participate in said primary election, in that it will destroy the secrecy of the ballot. For present purposes it may be assumed that the word “ballot” as here used means a secret ballot, but there is no inhibition against the elector disclosing for whom he voted or intends to vote. Political parties have existed in this state for nearly a century. An elector can not belong to one without impliedly disclosing for whom he has voted or for whom he will vote, and in view of the party practice as it has so long prevailed of prescribing a requirement, like that in the statute, as a test of an elector’s right to act with the party, it is not apprehended that it will be contended that the practice has been in violation of the constitution, and if not, then it does not become so merely because it is recognized by the statute. Affiliation with the party and participation in the primary still are voluntary. Moreover, compliance with the requirement will not disclose that the elector voted for any particular candidate.

It is also contended that the statutes conflict with Section 26 of Article II because there are special statutes for holding primary elections in Butler, Gallia and Hamilton counties. The sections of the statutes to which reference has heretofore been made are general and have a uniform operation throughout the state, and nothing in them limits their operation geographically. It does not appear that any attempt will be made to hold primaries under the special statutes, and we do not deem it necessary to consider them because if the contention respecting them is sound, it does not affect the general statutes.

Numerous objections are made, on the ground of unfairness and unreasonableness, to various provisions of the mode in which the controlling committees, under the call of the state committee, have determined that primary elections shall be held, but we do not think they present any question for our determination. Political parties are voluntary organizations. They have been a law unto themselves, and they determine for themselves all questions of fairness and reasonableness and of party expediency, until the state interferes by legislation, and then no question can arise for judicial determination excepting out of the legislation. Our statutes are not mandatory. The statute, so fár as present legislation goes, only consents upon request by a political party to supply the facilities for holding the contest in the party and to act as umpire. The controlling committee acts with the knowledge that the organization is voluntary, and the members remain with knowl-edge that the party is boss.

Affirmed.

Shauck, C. J., Price, Crew and Spear, JJ., concur.

Davis, J.,

dissenting. This case arose out of a factional contest in relation to the selection of delegates to a national convention of the Republican party to nominate a candidate for president, and, as preliminary thereto, the selection of delegates to a state convention of the same party. •The judgment of this • court having been announced already, that struggle can not be materially affected by what we may say. I have opposed the judgment which has been rendered, not because I favored one or the other of the rival candidates, but solely for the reasons that follow, and deem them of sufficient importance to justify putting my protest on record.

I believe that the statute regulating primary elections is unconstitutional in so far as it authorizes the expenditure of public money for party purposes, if it does not also infringe the constitution in other respects mentioned hereafter.' It is wholly unnecessary to go into an analysis of constitutional provisions or into a search for fundamental principles of government to sustain this contention; because, happily for this discussion, it is already well settled law that the .legislature has no constitutional power to levy taxes for any other than a public purpose, and that, as corollary thereto, it can not appropriate the public money to any private purpose. Cooley Const. Lim. (7th Ed.), 696-697, 700-701.

It seems to me entirely clear that the purpose for which it is here sought to pay public money, if justified at all under this statute, amounts more nearly to public plunder than to a public use. The public at large is in no manner directly benefited, nor is the public welfare in any way immediately affected, by the way in which any political party may settle its own factional differences. The public is no more concerned with such matters than it is with church quarrels or the rivalries in fraternal organizations. Indeed, possibly half of the voting population of the state is entirely indifferent as to which of the distinguished aspirants should be successful, and would be more than pleased if the Republican party' did not agree upon a nomination at all. Of course, when it is necessary to protect the rights of private citizens from fraud or violence, the state may interfere to that extent and no more; but I have heard no answer to the consideration which I have suggested, except that political parties are unavoidable and even necessary in a free government, and that therefore the state is interested in whatever would facilitate the organization and functions of a political party. I reply that there is a plain distinction between a public interest and a public use. The latter would invariably justify an expenditure of the public funds. A public interest may be so remote as not to require or deserve legislative notice. The fundamental principles of civil government require that the legislature should keep its hands off in such cases. A public interest, or to phrase it otherwise, the public welfare, may be such as to require reasonable police regulation; but that does not make the police regulation a matter of “public use” for which the public money may be expended. The statutes are full of illustrations. Two or three are sufficient. The legislature has seemed to think that the public welfare was sufficiently involved to justify it in requiring street railway companies to fit all their cars with enclosed vestibules. Does that make the construction of cars in that manner a “public use” so as to justify the state, county or municipality to pay for it? The legislature has seen fit to require railroads to put automatic couplers on their cars, to erect signs and place gates at crossings and to fence between their right of way and adjoining proprietors. Do any of these things constitute such a public use as would authorize the payment for them out of the public treasury? It seems to me that it would require a good deal of hardihood to answer in the affirmative.

So, while the conduct of a general election essentially concerns everybody and is a public use for which public money may be appropriated, a primary election which is merely preliminary to a nomination of' candidates by one political party, does not vitally concern anybody except those who may voluntarily associate themselves with such party, and is therefore not a public use. The theory that the conduct of party primary elections is “a public use” because the public is more or less interested in.what concerns the final exercise of the' right of suffrage, when carried to its logical conclusion, would justify the legislature in appropriating public money for the payment of campaign expenses of either of these candidates, if he should become the nominee of his party for president; for the public is interested in having a choice of candidates and interested in having a full discussion of their merits and qualifications and of the policies which they represent. This reasoning would be especially effective since some very virtuous statesmen seem to be of the opinion that no citizen should be permitted to pay more than a dollar for the promotion of his personal views of what the public welfare requires. If the legislative power is bounded only by such shadowy lines, the legislative discretion is unlimited, and there is no relief for the suffering taxpayer. If such be the correct interpretation of the constitution, we have substituted for the tyranny of kings that which is just as oppressive and far more insidious- — -the tyranny of legislatures. In order that I may not be misunderstood, I repeat that nobody doubts that such a primary election may be subjected to police regulation to protect the rights of individual citizens; but, as already shown, that does not constitute a public use.

It is therefore a mistake of fact, and of law also, for counsel for defendants in error to say: “There is no police regulation which does not involve and require the expenditure of public moneys to carry, it into effect”; and it is also a non sequitur when they assert that if it be conceded that the legislature has a right to enact a law, it must necessarily 'follow that it has a right to provide the means for carrying its law into effect; although, of course, criminal prosecutions for violation of laws must be at the public expense, because the enforcement of law is a public use. It has also been strongly urged in this case that when the legislature has enacted a statute against which there is no express limitation in the constitution nor one necessarily to be implied from an express limitation, it is the exercise of a legislative function, and can not be gainsaid. I know that such is the ordinary and concise way of defining the legislative power; but it is not strictly correct. The legislature is not omnipotent. It can not act arbitrarily and against the public welfare, although there be no limitation to that effect expressed in the constitution. This limitation is included in the nature of the legislative power itself, and is included in the powers which are reserved to the people. Const., Art. I, Sec. 20; Cooley Const. Lim. (7th Ed.), 242-243.

The power of the courts in such an exigency is therefore clear. “It is agreed , that the determination what is and what is not a public purpose belongs in the first instance to the legislative department. It belongs there because the taxing power is a branch of the legislature, and the legislature can not lie under the necessity of requiring the opinion or the consent of another department of the government before it will be at liberty to exercise one of its acknowledged powers * * *. But it is also generally admitted that the legislative determination on this subject is not absolutely conclusive. It may be sufficiently so to put the administrative machinery of the state in' motion; but when the exaction is made of an individual, and the power of the state is made use of to compel submission, he has always the right to invoke the protection of the law. And an appeal to the law for the protection of individual property, must necessarily render the question, which lies at the foundation of the demand, a judicial question, upon which the courts can not refuse to pass judgment.” 1 Cooley oh Taxation, pp. 182-183. For the reasons stated it seems to me clear that the. auditor and treasurer should be restrained from paying any part of the expense of carrying on a primary election, which is - only remotely connected with state or county elections, and which, as we shall see hereafter, is not only .not calculated to protect the weak in their rights, but to suppress the rights of the minority.

But let us go further. In Section 2917 it is provided that the notice and application by the “controlling committee” of the county “shall skate the purpose, time, manner and conditions of the holding of such primary election, and shall prescribe the qualifications not inconsistent with the provisions of this chapter, of the persons to vote at such election.” If the conduct of such an election is a “public use,” for the expenses of which the public shall pay, then only the legislature can define the manner and conditions of the elections and prescribe the qualifications of the electors; the power conferred on the “controlling committee” to do so is clearly a delegation of legislative power and as such, unconstitutional. If the conduct of such an election is not a public use, if it concerns only the voluntary political association known as the Republican party, then the legislature may intervene only so far as to prevent oppression and wrong to personal rights.

But further, nobody disputes the right of the legislature, in the proper exercise of the police power, to enact a law regulating primary elections; but the exercise of that right depends on the limitation whether it would facilitate or unreasonably hinder and impede the exercise of the right of suffrage. Monroe v. Collins, 17 Ohio St., 666; Capen v. Foster, 12 Pick., 485, 492. “The legislature has undoubted power under the constitution to regulate elections, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial.” Dewalt v. Bartley, 146 Pa. St., 529. Now in what respect does this “call” impede the free exercise of the voter’s rights?

If the call is not in conformity with the statute, the prayer of the petition should be granted for that reason. If the “call” is in pursuance of the statute, the statute and the call must stand or fall together. Except in- one particular, which I will note in concluding, I will assume that the call strictly follows the statute.

The first and most obvious objection to the scheme of the committee is that it is so contrived as to prevent any possibility of the minority in the county securing any representation, however small, among the delegates, except in the improbable event of the majority scattering its votes for delegates while the minority votes solidly for one set of candidates by placing a cross in the circle. The county is made the unit of representation, except in two counties of the state, Hamilton and Cuyahoga. The election must be held at the usual voting places of the county; and although ninety-five per cent, of the voting precincts may give a majority for delegates having the same presidential preference, the other five per cent, may, by greater density of population, cast a majority of votes in the county and deprive the voters of the other ninety-five per cent, of precincts of any representation whatever. It is permitted, however, that the “controlling committees” in counties entitled to forty or more delegates, if they think that they can thereby “control” things better, “may select delegates and alternates by districts as their county executive or controlling committees may determineand thus we have one law for eighty-six counties, and another law for two counties, if the controlling committee sees fit to so legislate.

Again, this scheme subordinates all local or state interests to the expression of preference for presidential candidates. Candidates for state office have no place in it. It is assumed that every aspirant for nomination on the state ticket, from governor to the end of the list, must get in line with the delegates whose banners bear the name of the presidential candidate who succeeds in carrying the county. In other words, upon the “controlling committees,” well named in the statute, of the counties and state, is conferred the power of constituting the most potent political “machine” that ever was erected in Ohio, or anywhere else, so far as I know; and no check on its despotic power is provided.

If it was deliberately planned for this purpose, it is efficient as well as daringly bold, and even impudent. If this result is an inadvertence, nevertheless the threatening opportunity is afforded, and —he who runs may read. I repeat, if this sort of procedure is not authorized by the statute, the judgment should be for the relator. If it is authorized by the statute, then the statute is unconstitutional, because it delegates to the “controlling committee” legislative power of the most far-reaching and dangerous character.

Moreover, this scheme puts upon the right to vote unfair and burdensome conditions which not only tend to hinder and impede, but even to exclude, minority voters. The statute (97 O. L., 107, Section 1) prescribes the qualifications of a voter at a primary election. I see nothing to complain of in this enactment; but by Revised Statutes, Section 2917, the controlling committee is authorized, or at least it assumes that it is authorized thereby, to further limit the qualifications of the voter as follows: “All known Republican electors and all others who will declare their belief in the principles of the Republican party and their purpose to affiliate with it at the November election, complying with the act of April 20, 1904 (97 O. L., 107), shall be eligible to participate in said primary election.” .1 have already adverted to this Section 2917 as containing an unwarranted delegation of legislative power, and I have also adverted to its effect on this case if the action of the controlling committee be not authorized by the statute; but now, assuming this action to be strictly ■ within the terms oh the statute, I ask attention to the manner in which, it seems to me, it impairs and hinders the exercise of the right to vote and severely discriminates between voters. “All known Republican electors” may vote at the primary election without a confession of faith, or a declaration of party fealty at the general election. “All others,” although they may have voted with the Republican party for years, must not only make an open profession, but the voter must also declare that it is his intention “to affiliate with” the party “at the November election,” which can only mean that he pledges himself to vote for the candidates nominated without knowing who they will be'. This last requirement is a direct blow at the independence of the voter, as well as an infringement of his constitutional right .to vote without disclosing for whom he votes. The constitution declares that: “All elections shall‘be by ballot.” Const., Art. V, Section 2. That a vote by ballot imports secrecy is too well settled to be the subject of argument. Cooley on Const. Lim. (7th Ed.), pp. 910-913; McCrary on Elections, .Sec. 454. So that'a decision in New Jersey and a dictum in this, state that a secret ballot is neither a natural right nor a constitutional right, can be of no significance. A plainly expressed constitutional right of the voter is violated in this condition of the call.

The cases of State, ex rel., v. Poston et al., 58 Ohio St., 620, and State, ex rel., v. Poston et al., 59 Ohio St., 122, have been cited as supporting the views of the majority in this case. Those opinions do not decide the question with which we are now dealing. In the opinion in the latter case (59 Ohio St., 136), the court itself distinguishes that case from this one, as follows: “Much that is said in the briefs of counsel and most of the cases cited relate, as does Monroe v. Collins, to enactments which impede and restrict the exercise of the right to vote.” That is precisely the proposition for which I am now contending; but the court summarily proceeded to put that question out of the case, as follows: “The provisions now under consideration, defining the conditions upon which the state will provide and thus facilitate the exercise of the right, and leaving to every elector an opportunity to vote according to his preference, are within the power of the legislature.” The court had previously-said, in the same opinion: “Nor does this provision require any elector to disclose his purpose with reference to the character of his vote, unless he voluntarily does so as a petitioner on a nomination paper. The act merely defines the conditions on which the state will cause tickets to be printed upon the ballot, leaving every elector entirely free to voté a ticket that has otherwise acquired a place on the ballot, or to supply in secrecy the names of the persons for whom he desires to vote, or become a pefitioner by giving the required pledge.” I submit, therefore, that in the Poston cases this court has not advanced one step beyond the law as stated in Monroe v. Collins and the other authorities to which I have already referred; nor has it decided upon the reasonableness or effect of conditions restricting the qualifications of electors similar to or like those in the case at bar. Nevertheless, I am much inclined to think that the strength - of the argument in the Poston cases was with the dissenting judges (dissenting opinion by Minshall, J., 58 Ohio St., 633); and with the judgments in those cases and this one before me, I begin to wonder to what extent the abridgement of the right of suffrage may go before it will be pronounced unlawful.

Further, this scheme is burdensome on minorities and palpably calculated to hinder and impede, if not to exclude minority voters. Before an elector can cast his vote at the primaries he must not only pass the obstacles which we have heretofore considered, but he must secure electors, in numbers twenty times the number of delegates, to sign a petition — in Franklin county seven hundred; he must secure written consents of the delegates and alternates whom he would vote for — in Franklin county, seventy — and the consent of his choice of the candidates for noriiination for president. It is clear that upon this condition, if there were not in the county seven hundred voters of his way of thinking, he could not vote at all. And it might happen that minorities of less than seven hundred, favoring each of the several aspirants for presidential honors, not including the two distinguished citizens of Ohio, would all be excluded from voting as they wished by the operation of this onerous condition.

As to obtaining consent of candidates, .1 need only to cite State, ex rel., v. Drexel (Neb.), 105 N. W. Rep., 174, and Dapper v. Smith, 138 Mich., 104. In the latter case it was held to be an unconstitutional restriction to require that the candidate should declare on oath that he was a candidate; and in the other case a similar judgment was rendered as to a requirement that the candidate should pay a fee, for filing nomination papers, of one per cent, of the emdluments of the office. It is easy to say that “circumstances alter cases” and that the circumstances are not the same as in this case. This is true, but in the points essential to this case they are alike. Those cases differ from this in that the conditions were more burdensome on the candidates than in this; but they both agree, as I maintain here, that the conditions were an infraction of the rights of electors, because they seriously impede the right of the elector to vote for men who are not seeking the. office.

Finally, the call is not made by the “controlling committee” of the county, as required by the statute. On its face it is made, and I quote from the call, “in accordance with the provisions — including the requirements as to time, manner, conditions and qualifications of persons who vote — of the call for said Republican State Convention duly adopted by the Republican State Central Committee on January 2, 1908, a copy of which said provisions reads as follows:” etc. One of those provisions reads as follows:' “Delegates which (?) are not selected in strict accordance with all the provisions hereof - will not be entitled to sit in said convention.” It thus appears that while the statute con'fers no powers upon the state committee and does not recognize that committee, the statute has been so perverted that the state committee dictates the call and enforces it by a threat that delegates otherwise chosen shall not be seated. And yet there are some who insist that they are unable to see anything unfair or unreasonable in this proceeding. I may be obtuse and unable to appreciate the liberality and benevolence of the call, but to my mind the thing appears to be a perversion of the intention of the legislature and a monstrosity. If it is to be perpetuated and justified and sanctified in the courts, I fear that it will be the sowing of dragon’s teeth to ripen in a Terrible harvest hereafter.  