
    State ex rel. Plimmer v. Poston et al.
    
      Conduct of elections — Papers to secure nomination of candidates— Signers must pledge to support nominee — Act of April 8,1898— Constitutional law.
    
    The requirement of section 1 of the act of April 8, 1898 (93 Ohio Laws, 93), that papers to secure the nomination of candidates for public offices “shall contain a provision to the effect that each signer thereto pledges himself to support .and vote for the candidate or candidates whose nominations are therein requested,” operating uniformly and impartially upon all classes of electors and interposing no unreasonable impediment to the exercise of the elective franchise, is valid.
    (Decided November 1, 1898.)
    In Mandamus.
    The petition of the relator alleges that he is a qualified elector of Franklin county, Ohio; that defendants compose the board of election of the city of Columbus and are charged with the duties of deputy state supervisors of election of Franklin county. That on the nineteenth day of September, 1898, the relator presented to the defendants a nomination paper signed by more than three hundred qualified electors of said county, containing a list of nominations for the several offices of said county to be filled at the general election in November, 1898, including the nomination of the relator for the office of county commissioner. The allegations of the petition show that the paper conforms in all respects to the acts of the general assembly to provide for the mode of conducting elections, et cetera, except that it does not comply with the requirement of section 7 of the amendatory act of April 8, 1898, 93 Ohio Laws, 93, that “such nomination papers shall contain a provision to the effect that each signer thereto thereby pledges himself to support and vote for the candidate or candidates whose nominations are therein requested.”
    The petition shows that because the paper did not comply with the requirement of the statute in the respect indicated, the defendants refused to receive and file it and to have the names of said nominees printed on the ballots to be voted at said election. The defendants demurred to the petition, and for the purpose of final judgment admit that its allegations are true.
    
      F. M. Mecartney; G. T Stewart and Mahlon Bouch, for plaintiffs.
    Brief of F. M. Mecartney.
    
    The relator admits that the party on whose ticket he desires- his and said nominees’ names to be printed did not poll one per cent, of the total vote at the next preceding general election in the state, as required by section 6, and has not secured the signatures to nomination papers, as required by said section 7; but he maintains that both said sections are unconstitutional and void; and that the constitution guarantees to him and every other qualified elector of the state the right to be a candidate for office and to vote at all elections on equal terms, without regard to party affiliation; that he is denied the right to vote and to be a candidate for office at the next election by this action of said board of elections; and that he is without remedy at law.
    The act of the general assembly brought in question by this proceeding is 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, article V, of the constitution of Ohio, as qualified and explained in section 1, article XIV and article XV, of the constitution of the United States; and section 26, article 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: “We the people;” 2. Section 2, article V; 3. Section 4, article V; 4. Section 5, article V; 5. Section 6, article V; 6. Section 4, article XV; 7. Section 2, article I; 8. Section 20, article I; 9. Section 1, article II.
    While the principles and rules applicable to the consideration of this case are perfectly familiar to this court, it may not be a work of supererogation to briefly state them here, in order that we may appear to order our argument in accordance with their requirements.
    
      First — The duty of the judiciary. C. W. & Z. Railroad Company v. Commissioners, 1 Ohio St., 81; Marbury v. Madison, 1 Cranch., 137.
    
      
      Second — The conflict must be clear.
    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. S., 3 Dallas, 371; Cooper v. Telfair, 4 Dallas, 14; Fletcher v. Peak, 8 Cranch., 87; McCormick v. Alexander, 2 Ohio, 65; Lehman v. McBride, 15 Ohio St., 573; State 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 Pich., 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.
    
      Thirch — The constitutionality of a law is determined by its application. State ex rel. v. Judges, 21 Ohio St., 1; State ex rel. v. Hipp, 38 Ohio St., 199.
    
      Fourth — The extent of legislative power. Bingham v. Miller, 17 Ohio, 445; Cass v. Dillon, 2 Ohio St., 607; Evans v. Dudley, 1 Ohio St., 437; Varick v. Smith, 5 Paige, 137; Powers v. Bergon, 2 Seld., 358; Calder v. Bull, 3 Dallas, 386; Rogers v. Bradshaw, 20 J. R., 735; People v. Platt, 17 J. R., 195; People v. Supervisors, etc., 4 Barb., 64; Benson v. Mayor of New York, 10 Barb., 223; People v. Edmonds, 15 Barb., 229; Hatch v. Vermont Cent. R. R. Co., 25 Vt., 49; R. R. Co. v. Davis, 2 Dev. and Bat., 451.
    
      Fifth — Special g’rant of power.
    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, article Y 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 4 provides “ that the general assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any person convicted of bribery, perjury, or other infamous crime.”
    It would appear from this special grant of power, amounting in this case to a command, that the general assembly is precluded from enacting any law whose operation and effect shall be to take away the elective franchise from any male citizen of the United States having the prescribed age, and residence in the state, county, township or ward, as it may provide by law. 2 Am. Law Register, N. S., 470; People v. Barber, 48 Hun., 198; Paine on Elections, 301; Cooley on Const. Lim., 682, 752; State ex rel. Evans v. Dudley, 1 Ohio St., 450; Hendershot v. State, 44 Ohio St., 409.
    If the constitutionality of a law is to be determined, not from its mere form, or words, but from its operation and effect, this act of the legislature must be held to abridge and restrict the right to vote in hundreds and thousands of legally qualified voters in county, district and state elections. The qualifications of an elector and of those who are eligible to office, are set forth in the constitution 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, article V, of the constitution. Cooley on Const. Lim., 753, 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; Page v. Allen, 58 Pa., 345; Byler v. Asher, 47 Ill., 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 on Const. Lim., 775.
    The act is not eve a intended “to provide for the mode of conducting elections, to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” as its subject would lead us to believe It is intended and calculated to (and will) “subvert,” “injuriously, unreasonably and unnecessarily restrain, impair and impede the exercise’ ’ of that right. It can have no other effect and could, therefore, have had no other purpose. This was the very intention in the mind of the legislature. Cooley on Const. Lim., 760.
    It will tax the powers of the imagination to conceive a more effectual method to expose the elector, who may desire to vote for minority party or independent candidates, to the machinations of party bosses and their numerous henchmen, and open the way to intimidation at the polls than this act requiring the signers of the petitions to pledge themselves “to vote for and support the candidates therein nominated.” The petitions are open to public inspection, and every one may know the names of the signers and their addresses.
    It will not be denied that both acts are of a general nature. The subject-matter is not only general, but the acts also apply generally throughout the state. The subject-matter legislated upon cannot be localized, and no attempt was made to limit the operation and effect of the law to any particular county, city,-township or ward. An act “to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” cannot be a law of a local nature. If there were any doubt as to its general nature, we think it would be dissolved by section 2, article V, of the constitution, which provides that “all elections shall be by ballot.” The subject is one in which the citizens of the state are universally interested, and by which they are all affected. It must, therefore, be a law of a general nature within the meaning of section 26, article II, of the constitution, and, to be valid, must have a uniform operation throughout the state. Brooke v. Hyde, 37 Cal., 375; People v. C. & P. R. R. Co., 43 Cal., 432; Mc Aunich v. The M. & M. R. R. Co., 20 Ia., 338; C., B. & Q. R. R. Co. v. Iowa, 94 U. S., 155; Leidy v. Grove, 53 Ohio St., 662; Gordon v. State, 46 Ohio St., 629; Bronson v. Oberlin, 41 Ohio St., 476.
    Brief of G. T. Stewart.
    
    It is contended that the general assembly was only exercising its power to regulate elections, in the enactment of these two sections, six and seven. But regulation is not forfeiture, it is not destruction. Its office is friendly. It means protection and improvement. Daggett v. Hudson, 43 Ohio St., 548.
    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. The expense of that mode of nomination is heavy and falls on those minority parties least able to bear it, who are compelled to use this highly penal method, under, penalty of disfranchisement if they refuse.
    The 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, 5 Ohio St., 497.
    When the constitution says: ‘ ‘All elections shall be by ballot,” article IV, 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 Vt., 541; Williams v. Stein, 38 Ind., 90; People v. Pease, 27 N. Y., 81; People v. Cicotte, 16 Mich., 283; High on Const. Lim., 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, there was free advertisement of their organization and professed principles. They held their state conventions where they nominated their candidates, adopted their platforms of principles, for which they asked the support of the people, and then each chose an emblem or device for. the head of its ticket, to represent those candidates and principles. 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? State ex rel. v. Kinney, Secy. of State, 57 Ohio St., 221.
    Brief of Malüon Bouoh.
    
    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. Yick Wo v. Hopkins, 118 U. S. Rep., 356; Baltimore v. Radecke, 49 Md., 217.
    Where no reason for discrimination can be shown, the conclusion cannot be resisted, that no reason for it exists except hostility toward minor political parties and a desire to stamp them out entirely, which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws. ,
    The safeguard of secrecy is thrown around all parties which, at the next preceding election polled more than one per cent, of the whole vote cast, but thé same law forces publicity and pledges on any party which casts less than one per cent, of the whole vote. This is certainly an unlawful disr crimination. Page v. Allen, 58 Pa. St., 338; 118 U. S. Rep., 369; Monroe v. Collins, 17 Ohio St., 665; Daggett v. Hudson, 43 Ohio St., 548; 58 Penn. St., 338; 12 Pick., 485.
    
      F. S. Monnett, Attorney-General; Charles W. Voorhees, Prosecuting Attorney; Plorizel Smith and William J. Ford, for defendants.
    The point in dispute resolves itself into thq query: Has the general assembly the power to legislate on the right to vote and hold office, and if so, has that power been used to the detriment of the people and in contravention of the constitution?’
    Section 27, article II of the constitution and see-; tion 1, article X of the constitution.
    As will be seen, section 27 says the election of officers not provided for by either the United States or state constitutions shall be made as directed by law; in other words, by the legislature of the state. Section 1 of article X, explicitly gives the legislature the power to make such provision as may be necessary for the election of county and township officers. These sections are so plain as to need no further comment from us. Mason v. The State ex rel., 58 Ohio St., 30; 23 Md., 531.
    If the subject of elective franchise is left to the states for regulation, there is but one way in which it can be done, and that is by our legislature. 23 Md., 531; 43 Cal., 43; Cooley on Const'. Lim., 752. From the foregoing citations we believe it is clear that the legislatures have the right to reg-ulate elections by appropriate legislation, and that the right to vote and hold office are not classed with the inalienable rights, but are only political privileges conferred upon the people.
    As the writ of mandamus is a command for the performance of an act required by law, without stopping to multiply authorities, the issuance of such writ will not be awarded in the absence of a clear legal right to the object sought. State ex rel. v. Yeatman, 22 Ohio St., 546.
    The object of the law is not to discover for whom the signers of the nomination papers will vote, but its whole aim is to secure elections free from fraud. The signing of süch nomination paper is purely a voluntary act and can no more be regarded as unconstitutional than would be the parol declaration of an elector as to what his vote would be. The act simply calls upon men to act “honor bright.” The constitution certainly can stand such a call; if not, it’s made out of poor stuff.
    . Indeed, if it can be said that this provision of the statute violates the secrecy of the ballot, the same could be said of any nomination paper presented in good faith, although containing- no such provision; for men signing such nomination paper in good faith would thereby declare to the world that their votes would be cast for the candidate or candidates named in the paper subscribedby them. This court, however, has held in the ease mentioned and that was brought by the relator against the defendants that the provision of the statute requiring nominations to be made by nomination papers by a party polling less than a certain per cent, of the vote east is a constitutional provision and in no way is inhibited by the declaration that all elections shall be by ballot. Other courts have held the same thing. De Watt v. Bartley, 146 Pa. St., 519; Ranson v. Black, 54 N. S. L., 446.
   Shauck, J.

It is admitted that by the express provision of the act of April 8, 1898, a pledge in a nomination paper, that those who sign it will vote for the candidates whose nomination is requested, is a condition to their right to have the names of the nominees printed on the ballot. If the prescribed condition is valid, the law does not enjoin upon the defendants the duty of performing the act which the relator asks us to command. It is said, however, that the provision of the act which prescribes this condition is void because it restricts the right of suffrage as guaranteed by sections one and two of article five of the constitution, ordaining:

“Section 1. 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.”

“Section 2. All elections shall be by ballot.”

It is not doubted that the power of the legislature over the subject is restricted to laws regulating the exercise of the right, nor that such laws “must be reasonable, uniform and impartial, and calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to vote.” The implied limitation was so defined in Monroe et al. v. Collins, 17 Ohio St., 665, and its enforcement is obviously a judicial duty to the end that the right may not be defeated by indirect means. The application of the limitation to this enactment is the subject of contention.

It does not seem to be doubted that the provision in question operates uniformly and impartially on all political parties and sections of voters. What dyer discrimination it makes is on account of numbers solely. It is said, however, that it unréasonably impedes the exercise of the right to vote of the sections of voters to whom it applies.

In State ex rel. Plimmer v. Poston et al., 58 Ohio St., 620, we decided that the requirement of section 6, that certified nominations must represent a party which at the next preceding election had polled at least one per cent, of the entire vote cast in the state, is valid. This was in view of the alternatives providing for procuring nominations on the ballot by means of petitions or nomination papers, and of every voter to supply the names of all persons for whom he may desire to vote, whether nominees of any party or not. Obviously the same constitutional considerations apply to the requirement as to the number of electors who shall sign nomination papers. The pledge required by the amendment now under consideration is a provision by the legislature to secure good faith on the part of the electors who sign such nomination papers. It was required in view of the facts that at the preceding election six tickets were printed upon the blanket ballot which required, to secure their places on the ballot, an aggregate of more than 102,000 votes at the prior election, or signatures to nomination papers, and which six tickets received at the election an aggregate of but 16,321 votes. One nomination paper was signed, as it was required to be, by more than 10,200 electors for the nomination of a state ticket, which at the election received but 477 votes in the entire state. It can hardly be necessary to say that it is not practicable for the state to provide a ballot large enough to afford places for tickets for each of such small sections of its voters, who number more than a million. If the general assembly is without power to enact such provisions as will maintain the practicability of the Australian ballot, it must have been without power to pass the act of April 18, 1892, which provided for it; and the denial of the validity of the amendment now under consideration is a denial of the validity of the original act. This does not seem to conflict with the views of counsel for the relator, for one of them, after speaking of the election of 1897, says: “The next session of the general assembly witnessed the closing plot of a revolution in the voting system commenced in April, 1892, and concluded in April, 1898.”

In view of the uniformity of the decisions upon the subject of the validity of laws providing for the system, the general acquiescence in it and the number of cases in which we have enforced it, it does not now seem necessary to enter upon a discussion of the general subject.

It is said that this provision of the act destroys the secrecy of the ballot. The secrecy of the ballot is not preserved or required by the section of the constitution which ordains that all elections shall be by ballot. In some of the states similar constitutional provisions are carried into effect by statutes which require all ballots to be so marked as to identify the persons by whom they are cast. 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 vote 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 petitioner by giving the required pledge.

Nor can this requirement be held void because it is not logically consistent with the provisions of the act which prohibit the marking or exposing of his ballot by an elector. The original act and its amendments seem to be the result of a very sincere desire of the legislature to prevent the repetition of frauds upon the elective franchise which were notorious and the moral coercion of electors, which some believed to have been practiced. Can it be said to be inconsistent in an act passed for such a purpose, that an elector is forbidden to exhibit or mark his ballot for the purpose of showing that he has complied with the condition upon which he is to receive a bribe, and a petitioner is required to give such pledge as to his intention as will show that he signs a nomination paper in good faith? Moreover, the logical inconsistency of the provisions of a statute has never been regarded as a reason for declaring any of them void. 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. The provisions now under consideration, defining the conditions upon which the state will provide tickets 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. In view of the evils to be remedied and the ends to be attained, we cannot say that any of them is unreasonable.

Writ refused.

Spear, C. J., and Minshall, J., dissent.  