
    The State ex rel. Richard Plimmer v. Poston et al.
    
      Election laws — Requirement of certified nominations of candidates— Validity of act of April 18, 1892 — Constitutional law.
    
    The requirement of section 6 (89 Ohio Laws, 434) that certified nominations of candidates for public offices must be made by ‘ ‘convention, caucus, meeting of qualified electors, primary election held by such electors or central or executive committee, representing a political party, which at the next preceding election polled at least one per cent, of the entire vote cast in the state” is not repugnant to any provision of the constitution.
    (Decided June 24, 1898.)
    In Mandamus.
    The defendants constitute the board of elections in the city of Columbus, Ohio. The plaintiff alleges that he is an elector of Franklin county ; that at a convention of electors of such county, held on the 29th day of March, 1898, he was nominated for the office of county commissioner on the ticket of the prohibition party and that other persons named, who were also electors of said county, were nominated for the other county offices to be filled at the November election, 1898 ; that on the 17th day of April, 1898, the said nominations were duly certified to the defendants, as required by law ; that they rejected said certificate and refused to file the same, and refused to print the names of said nominees on the ballots to be voted at said election, claiming that said prohibition party did not poll one per cent, of the vote cast at the last preceding election, as required by section 6 of the ballot act, and that said party failed and neglected to file with said board nomination papers, as provided by section 7 of said act. The petition contains no allegation as to the number of votes east by said party at- the last election, nor does it allege that any nomination paper,s were filed with said defendants or tendered to them, other than the certificate of the action of said convention. But the relator claiming that the statutory provisions, under which the defendants refused as aforesaid, are in conflict with section 1 of article 5, and section 26 of article 2 of the constitution, prays that a writ of mandamus may issue, commanding the defendants to receive and file said certificate and to print the names of said nominees upon the ballots to be voted at the next election.’
    
      C. T. Steioart; F. M. Mecartney and Mahlon Rouch, for the relator.
    Brief of F. M. Mecartney, for plaintiff.
    The parts of the act of the General Assembly brought in question by this proceeding are sections 6 and 7 of the act commonly known as the Ballot Laws.
    It is here held that the foregoing sections are in direct contravention of section 1, Art. V, of the Constitution of Ohio, as qualified and explained in section 1, Art. XIV and Art. XV, of the Constitution of the United States; and section 26, Art. II, of the Constitution of Ohio.
    The following provisions of the Constitution of Ohio also have a bearing upon the question before us: 1. Preamble; 2. Section2, Art. V; 3. Section 4, Art. V; 4. Section 5, Art. V; 5. Section 6, Art. V; 6. Section 4, Art. XV; 7. Section 2, Art. I; 8. Section 20, Art. I; 9. Section 1, Art. II.
    The duty of the judiciary. C. W. c& Z. Railroad Company v. Commissioners of Clinton County, 1 Ohio St., 81.
    
      There is perhaps no better established principle in our jurisprudence than the one which holds that, while the .duty of the courts to set aside an unconstitutional law as void, is clear, yet the conflict between the law and the constitution must also be clear.
    The legislature is, of necessity, in the first instance to be the judge of its own constitutional powers. Their manifest duty is never to exercise a power of doubtful constitutionality. Doubt in their case, as in that of the court, should be conclusive against all affirmative action. If a court in such case were to annul the law while entertaining doubts upon the subject, it would present the absurdity of one department of the government overturning, in doubt, what another had established in settled conviction; and to make the dubious constructions of the judiciary, outweigh the fixed conclusions of the general assembly.
    This principle is too well founded in sound reason and has been too well established by an unbroken line of decisions from the Supreme Court of the United States down through our state courts to need further amplification. Hylton v. U. 8., 3Dallas,371; Coopera. Telfair, 4Dallas, 14; Fletcher v. Peak, 8 C ranch, 87; McCormicJcv. Alexander, 2 Ohio, 65; Lehman v. McBride, 15 Ohio St., 573; 8tatg ex rel. v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; W. U. Telegraph Co. v. Mayer, 28 Ohio St., 521; Kendle v. State, 52 Ohio St., 346; Adams v. Howe, 14 Mass., 345; Wellington v. Petitioners, etc., 16 Pick., 95; City of Louisville v. Hiatt, 2 Mon., 178; Lexington v. McQuillan’s Heirs, 9 Dana, 914; Ohio ex rel. v. Dudley, 1 Ohio St., 441.
    
      The constitutionality of a law is determined by its application. State ex rél. v. Judges, 21 Ohio St., 1; State v. Iiip'p, 38 Ohio St., 199.
    In the discussion of the constitutionality of the acts before us, the authority of the legislature to pass the acts will be brought directly in question, and it may be well to determine what these powers are, and to what extent they may be used, before entering into the body of the argument. Section 1, Art. 2, of the Constitution of Ohio.
    The position that this general grant of legislative power is limited and qualified by the express inhibitions of the constitution will, doubtless, find no opposition, and needs no further argument for its support. But can it be maintained that these express inhibitions are the only limitations on the legislative power of the general assembly, and that there are no implied inhibitions? The idea has obtained some following that all the acts of the general assembly must be regarded as valid that are not expressly prohibited by the constitution. Bingham v. Miller, 17 Ohio, 445; Gass v. Dillon, 2 Ohio St., 607; Evans v. Dudly, 1 Ohio St., 437; Variola v. Smith, 5 Paoge, 137; Galder v. Bull, 3 Dallas, 386; Powers v. Bergon, 2 Seld., 358; Wilikinson v. leland, 2 Pet., 627; Rogers v. Bradshaw, 20 J. R., 735; People v. Platt, 17 J. R., 195; Peoples. Supervisors, etc., 4 Barb., 64; Benson v. Mayor of New York, 10 Barb., 223; People v. Edmunds, 15 Barb., 229; Hatch v. Vermont Gent. R. R. Go., 25 Vt., 49; R. R. Go. v. Davis, 2 Dev. and Bat., 451; Section2, Art. 1, of the Constitution of Ohio.
    The people added this last section to their fundamental law out of abundant caution, and as a constant reminder to their servants that they exercise only delegated power, and for security against the assumption of power not delegated.
    As an instance of the extreme care of the people to secure to themselves the sacred rights to “alter, reform, or abolish their government, whenever they might deem it necessary,” and to prevent the destruction of the exercise of this right in a peaceful and regular manner, Art. 5 of the Constitution was ordained as a safeguard against the violation of this right by the legislature, and its abuse by persons not properly qualified. Section 1, Art. 15 of the United States Constitution secures this privilege to the colored as well as the white male citizens. Section 4. 2 Am. Law Register, N. S., 470; lehman v. McBride, 15 Ohio St., 621; People v. Barber, 48 Hun., 198.
    There are many constitutional privileges, the free and full enjoyment of which are dependent on legislation, and in the case of the elective franchise, it is not only the right, but also the duty of the general assembly to pass laws securing the integrity of the ballot. Paine Elections, 301; Cooley on Const. Lim., 682, 752; State ex rel. Evans v. Dudley, 1 Ohio St., 450; Sender shot v. State, 44 Ohio St., 409.
    The qualifications of an elector and of those who are eligible to office, are set forth in the Constitu tion and in such laws as the legislature has received authority to pass by that instrument; and the necessary effect of this act of the legislature is to prescribe further qualifications and restrictions wholly unauthorized and clearly in contravention of section 1, Art. 5, of the Constitution. Cooley on Const. Lim., 753. In any case the fulfillment of the requirements of this act would be impracticable, and in most cases impossible. Cooley on Constitutional Limitations, page 775; Fort Dodge v. Dist. Twp., 17 Iowa, 85; Barry v. lanck, 5 Cold., 588.
    The question of the power of the legislature to regulate the manner and method of holding elections has been before our Supreme Court on several occasions. Monroe v. Collins, 17 Ohio St., 665; Daggett v. Hudson, 43 Ohio St., 548.
    The true line between laws which take away or abridge the right of suffrage, and those which may lawfully be enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick., 488.
    A construction would afford no warrant for such an exercise of legislative power, as, under the pretense and color of regulating, should subvert or injuriously restrain the right itself. Page v. Allen, 58 Pa. St., 345; Byler v. Asher, 47 111., 101; State ex rel. v. Baker, 38 Wis., 88; State v. Butts, 31 Kan., 554; Dells v. Kennedy, 49 Wis., 558; Attorney General v. Common Council, 78 Mich., 545; Davis v. School Dist., 44 N. H., 398; Cooley Const. Lim., 775.
    Again, the act requiring signers to pledge themselves to vote and support the candidates nominated in the petition is a flagrant violation of the secrecy of the ballot as guaranteed by section 2, Art. 5, of the Constitution, and for which the very subject of the act pretends to provide.
    Section 2, article 1, of the Constitution provides that “all elections shall be by ballot.” Cooley Const. Lim., page 760.
    We think the power affected to be used by the legislature in the passage of the act of April 18, 1892, and the act of April 8, 1898, is unwarranted by the general grant of legislative power in the Constitution. Both acts are not only clearly in conflict with section 1, article 5, of the Constitution, but they also contravene section 26, article 2, which provides that “All laws of a general nature, shall have a uniform operation throughout the state.” Brooke v. Hyde, 37 Cal., 375; Peoples. C. <& P. B. B. Co., 43 Cal., 432; Me Au nick v. The M.AM.B. B. Co., 20 la., 338; G B. c& Q. B. B. Co. v. Iowa, 94 U. S., 155; Leidy v. Grove, 53 Ohio St., 662; Gordon v. State, 46 Ohio St., 629.
    There is no uniformity in the operation of Sections 6 and 7 of the act passed April 18, 1892 (89 O. L., 434), as amended April 8, 1898 (93 O. L., 94), upon the constitutionally qualified electors of the state. It is a dangerous assumption of power, and sets a precedent, which, if allowed to stand, may be followed by a future legislature more boldly, and even less conscientiously, to establish the power of the dominant party which nothing but a revolution may be able to shake. Costello v. Wyoming, 49 Ohio St., 208; Bronson v. Oberlin, 41 Ohio St., 476.
    Brief of G. T. Stewart, for plaintiff.
    This seventh section in the act of April 8, 1898, is very partial, unreasonable and unconstitutional in many other respects. It requires all who sign nomination papers to thereby pledge themselves to support and vote for the candidates named in them. No such pledge is exacted from any voter of the major parties which are not required to produce such papers. Section 26 of article 2 of the Constitution.
    One of the unreasonable features of this peculiar legislation is exposed by its self-contradictions. It is entitled an amendment of “A.n act to provide for the mode of conducting elections, to insure the secrecy of the ballot, and prevent fraud and intimidation at the polls.”
    The same general assembly passed an act to authorize the use and purchase of voting machines for any and all elections, with the proviso that it must have a certificate from examining commissioners, ‘ ‘that it affords each elector an opportunity to vote in absolute secrecy.” (93 O. L., 277.)
    The two sections, six and seven, of the act for the conduct of election of public officers, are practically one, and are united in their aggressions on the constitution and the rights of voters, and mutually dependent on each other. The State ex rel. v. Commissioners of Perry County, 5 Ohio St., 497.
    There never was such an outrage attempted before, in the whole history of this state, when a majority of the two political parties forming the whole legislative branch of the state government, combined to abolish by act of the general assembly, six other political parties having no representation there; for to deprive them of their suffrage franchise is to destroy them; and not only to destroy them, but to practically disfranchise the citizens composing them.
    When the Constitution says: “All elections shall be by ballot, ’ ’ (Art. 4, section 2) it combines in these few words the two grand elements of a free choice, and a secret vote, between parties, candidates and principles, as vital to constitutional elections. When either of these are violated by any act of legislation, that act is plainly unconstitutional, null and void. Temple v. Mead, 4 Vermont R., 541: Williams v. Stein, 38 Ind. R., 90; 
      People v. Pease, 27 N. Y. R., 81; People v. Cicotte, 16 Michigan, 283; High on Constitutional Limitations, 606.
    Section seven of the Ohio election law not only encourages all this “trickery and fraud” by systematic “espionage,” but publicly devotes the offices and officers of government itself, to promote that infamous wrong against the Constitution and the people.
    Next to the seal of secrecy which the Constitution imprints on every ballot as to the personal identity of the voter, it demands for him a free choice between the political parties and principles represented on the official ballot. As to the two major parties on the general ticket of last year, the names of the two parties and their candidates, with their emblematic devices, all appeared, first in order, on the general ticket. But how was it as to the six minority parties who were on that ticket merely by nomination papers? This Supreme Court gave construction to the sixth and seventh sections of the ballot law, as amended April 18, 1892 (89 O. L., 434), in the case of the State ex rel. Lewis v. Kinney, Secretary of State, 57 Ohio St., 221.
    Brief of Mahlon Pouch, for plaintiff.
    In the ease of Capen v. Foster, 12 Pick., 489, the supreme judicial court of Massachusetts expresses the true limits of the legislative power, in cases where the Constitution has conferred a political right or privilege. 118 U. S., 369.
    It was evidently in the mind of the legislators to provide for primaries for the two dominant political parties, only. If some election board should allow one of the minor parties to hold a primary to the exclusion of either dominant one, we could much better see the practical working of the law which likely would then be very unsatisfactory. This law gives the board arbitrary power, although it calls it discretionary. Tick- Wo v. Hopkins, 118 U. S. Rep., 356; City of Baltimore v. Radecke., 49 Md., 217.
    What benefit is the law of secrecy under the usages of the old parties requiring persons voting at primaries or in conventions or caucuses to pledge themselves to support the ticket nominated, and requiring the man who nominates by petition to pledge himself to do the same? These usages do away with all secrecy and this law 3s rapidly following in their wake.
    All laws must be of uniform effect in their operations. There cannot be one law for the republican party, and another for the democratic. Or there cannot be one law governing the republican and democratic parties in primaries and elections, and another to control the minor parties, whatever they may be. But that is the effect and operation of the statute as it now stands. This is certainly an unlawful discrimination.- Page v. Allen, 58 Pa. St., 338; Commonwealth v. Maxwell, 27 Pa. St., 444; 118 U. S. Rep., 369; Monroe v. Collins, 17 Ohio St., 665.
    The question whether persons voting at primaries, conventions, or caucuses, or filing a request by petition will support the ticket they thus aid to put in nomination can, among a free and intelligent people, be properly left to the individual voter.
    If parties are prohibited by these laws from getting a ticket on the official ballot they must either vote for’ the candidates cf one of the old, and as the vote last year (1897) stands, the republican or democratic parties, or, refrain from voting entirely. This is disfranchisement of the citizen. Daggett v. Hudson, 43 Ohio St., 548; 58 Pa. St., 338; 12 Pick., 485; 17 Ohio St., 666.
    
      Charles W. Vborhees, prosecuting attorney; F'lorizel Smith, assistant prosecuting attorney, and William J. Ford, for defendants.
    In the argument presented in the briefs filed on behalf of the relator, this question simply resolves itself into one touching the constitutionality of these two provisions of the statutes.
    Section 2966-18, Revised Statutes, and section 2966-20, Revised Statutes (as amended, 93 O. L., 94), are each reasonable and impartial, and calculated to facilitate and secure the constitutional right of suffrage and do not subvert or injuriously, unreasonably or unnecessarily restrain, impair or impede the right, and are therefore valid constitutional regulations.
    The election laws of Ohio do not have for their object the success or preferment of any political party or the defeat or annihilation of any party, no matter what its tenets may be; nor do these laws seek to restrain or inhibit the formation of any party for any purpose. It is suggested that a fair and candid consideration of the election laws of Ohio will result in the belief that the general assembly has, in good faith, attempted to make, and has made, it possible for each elector to east his vote as he will, and to have that vote counted when the polls are closed.
    The free and untrammeled right of suffrage is absolutely secured by the law — Section 2966-35, Revised Statutes.
    
      This provision of the law, securing, as it does, the unqualified freedom on the part of the elector to vote for whom he will, recognizing, as he does, the sacredness of each and every constitutional requirement touching the elective franchise, will completely answer the objections that have been made on behalf of the relator.
    These statutes are but regulations by the legislature and fall within its power.
    They are impartial, uniform and reasonable. No discrimination is shown between the political parties that now or that may hereafter exist in Ohio. If the democratic, republican, populist, prohibition, or any other party wish to make a nomination by a convention, the law says it can do so only if it “at the next preceding general election polled at least one per cent, of the entire vote cast in the state. ”
    If such party, whatever its name, at such next preceding general election did not receive such percentage of the vote cast, the only other method of getting its ticket printed on the official ballot is to go to the trouble of preparing nomination papers as the law provides.
    It is difficult to see in what way, under these statutes, the elective franchise itself is impaired or destroyed, or in what way the evolution of a better government is at all impeded, which regulations have been sustained by our courts, although throwing more or less restraint around the action of the individual elector. The question has always been, was the elector permitted to cast his vote so as to express his free choice?
    The constitutionality of a number of the provisions the general assembly has, from time to time, enacted, regulating elections and the method of ascertaining the will of the people as expressed at elections, have been passed upon by the supreme court of Ohio, and by the courts of other states. In these decisions by the courts have held that while electors are thereby put to some inconvenience, and while, perhaps, the electors do not stand upon the same equality in some ways, still the regulations are reasonable and tend to secure that equality that is the object of the provisions of the Constitution, namely, the absolute privilege of easting his ballot, and of expressing his free will in his vote, and of having such vote counted. JDe Walt v. Bartley, 146 Pa. St., 529; Ransomer. Black, 54N. J. L., 446.
    The amendment of section 2966-20, Revised Statutes (93 O. L., 34), requiring the insertion of the pledge in the nomination papers was made to prevent nominating ■ papers being made in bad faith upon the part of the signers. The court will readily recall the fact that in a recent election such nomination papers were said to have been made extensively in bad faith.
   By the Court :

Since no nomination papers were tendered under section 7 of this act, the only question is whether the requirement of section 6, that a certified nomination shall be by a political party which, at the last election, “polled at least one per cent, of the entire vote cast in the state” is valid.

Certainly, the right of a qualified elector to vote at all elections is secured by section 1 of article 5 of the constitution, but that the exercise of the right is subject to such regulations, looking to a fair election, as do not unreasonably or unnecessarily impair it, is a proposition too familiar to call for discussion or citation of authorities. Some restriction upon the right to have nominations printed upon the blanket ballot is necessary to render it practicable. In view of the small ratio of voters required to make a certified nomination, and in view of the right to.have nominations made by papers or petition signed for that purpose, and of the right conferred by the act upon every voter to supply the names of all persons for whom he may desire to vote, we cannot say that the exercise of the right is unreasonably impeded. In Dewalt v. Bartley, 146 Pa. St., 519, it was held that an act requiring that to entitle it to certify nominations, a party must have polled three per cent, of the largest vote cast at the next preceding election, is valid. In Ransom v. Black, 54 N. J. L., 446, the same conclusion was reached with respect to an act which required five per cent, of the entire vote, for that purpose.

The provision under consideration was enforced by this court in State ex rel. Lewis v. Kinney, 57 Ohio St., 221, though its validity does not then seem to have been doubted by any one.

Petition dismissed.

Spear, C. J. dissents.

Minshall, J.

(dissenting): It seems clear to my mind that sections 6 and 7 of the ballot law as amended April 18,1892, (89 Laws, 434,)and April 8, 1898, (93 Laws, 94)respectively, requiring a party to have polled a certain per cent, of the aggregate rate at the previous election, before it can have its nominees placed on the official ballot, or a petition signed by an equal number of electors, pledging themselves to vote for the nominees, impair the right secured by the constitution to every elector to vote at all elections, and to do so by ballot. Sections 1 and 2, article 5, Constitution. It is claimed that this right is not interfered with, because the right is given the electors to erase any name on the ballot, and insert that of the person of his choice. This is ing’enious but not ingenuous. It overlooks the object an elector has in casting his ballot. He does not cast it as a matter of amusement. His object is to secure the election of a person or persons who will best represent him in his own views on questions of public policy and the administration of public affairs. Hence it is of vital importance to him in the exercise of his right, that those for whom he votes, should have an equal chance at the polls of being supported by all in harmony with the policy they represent, and any regulation which interferes with this right, impairs his constitutional right as an elector. That this is done by the sections above referred to in the ballot law in all cases where a particular party failed at the previous election to secure a certain per cent, of the aggregate vote cast, or is a new party, should it seem be plain to any unbiased mind. For it seems too plain to require argument that where the nominees of a party must be written on the ballot by those who desire to vote for them, such nominees have not an equal chance of an election, whatever their character or political views may be, with those whose nam.es are printed on the official ballot, and may be voted for by the simple act of making a mark. No one will, I apprehend, deny that a party has an advantage where its nominees may be voted for on what is known as a “straight ticket” over one whose nominees cannot be so voted for. It was to deprive leading parties of this supposed unfair advantage that the original Australian ballot system was devised. It required all nominees for a particular office to be placed on the ballot under a proper designation of the office without reference to any party nomination, so that the electior would be required to select for himself the persons for whom he desired to vote. It is so done in Massachusetts and a number of the other states. But in this state we have simply adopted the name with hardly a trace of the system. The well understood advantage of a “straight ticket” is denied to all parties who cannot have their nominees placed on the official ballot, and electors who desire to vote for them must write the names on the ballot. This not only impairs the right, but places an unequal burthen on the voter against whom this discrimination is made; and must necessarily diminish the number of votes that would otherwise be east for such nominees. The advantage of printed ballots in securing results over such as must be written by the voter himself, is too apparent and well borne out by experience, to admit of denial.

This evident unfairness is sought to be justified on the ground that it is necessary to the adoption of the Australian system, as without such regulation there would be no limit to the extent of the ballot; or in other words in order to secure the supposed benefits of the system, the constitutional right of an elector to vote at all elections, must be pared down so as to secure an official ballot of moderate dimensions. This simply places the size of the ballot — a piece of paper — above the right of the elector secured to him by the constitution. I do not deny the power of the legislature to regulate the ballot and the casting of it; but all such regulations must be reasonable and not impair the right to vote. The regulation by which the nominees of one party are excluded from the official ballot, manifestly impairs this right. It measurably excludes all who support them from the polls, by excluding them from the facilities in voting enjoyed by all others. They are at least handicapped in the race. That the court of Pennsylvania or New Jersey may have sustained similar laws, is no reason why this or any other court should lend itself to a flagrant violation of the right to vote.

In State ex rel v. Kinney, Secretary, 57 Ohio St., 221, the only question' presented and considered, was the right of a party to have a device at the head of its ticket as provided for in section 12 of the law. This is not a constitutional right as is the right to vote; and depends upon a compliance with the law. The invalidity of the sections here in question, were not mooted in the case, and cannot control the judgment of the court in this case. Hence •the last clause of the majority opinion, referring to that case, has no pertinency in the present inquiry.  