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Riter v. Douglass

April 1910


Appeal from the District Court of the First Judicial District of the State of Nevada, Ormsby County; F. P. Langan, Judge.

L. A. Gibbons and James T. Boyd, for Appellant.

R. C. Stoddard, Attorney-General, for Respondent.

By the Court, Sweeney, J.:

The effect of this appellate proceeding is to test the constitutionality of the law commonly referred to and known as the “Direct Primary Law,” enacted March 23, 1909. (Stats. 1909, p. 273.) On the 23d day of February, 1910, the appellant herein, a taxpayer and qualified elector of the State of Nevada, instituted an action in the First Judicial District Court of the State of Nevada, in and for the County of Ormsby, against the respondent to restrain him from expending any money required to be expended or entering into any contracts required to be entered into under and by virtue of that certain law entitled “An act to provide for the direct nomination of candidates for public office by electors, political parties and organizations of electors, without conventions, at elections to be known and designated as primary elections, determining the tests and conditions upon which electors, political parties and organizations of electors may participate in any such primary election, and establishing the rates of compensation for primary election officers serving at such primary elections; providing for the organization of political parties and the promulgation of their platforms, and providing the methods whereby the electors of political parties may express their choice at such primary elections for United States senator, to provide for the registration of voters for said primary elections and the compensation of registry agents, and to provide penalties for violating the provisions of this act,” assigning as grounds for the relief demanded constitutional defects in the law. To the complaint, setting forth the unconstitutional grounds assigned, a demurrer was interposed by respondent, regularly presented to and sustained by the lower court and judgment rendered in favor of the defendant, respondent herein. From this judgment plaintiff appeals, and attacks the law in question as unconstitutional upon the following grounds, which we will consider in the order presented:

“(1) The law is unconstitutional, in that it destroys political parties, and in so doing deprives voters of the right to form and govern political parties, which right inheres in the nature of our government and is guaranteed by the constitution of the State of Nevada. (a) The law denies electors the right to

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determine the political principles their candidates must espouse, and thus denies electors the right to instruct their representatives. (b) The primary law enables electors of opposite political faith to name the candidates of their political opponents.

“(2) The law is void, in that it denies certain political parties the right to participate in primary elections authorized by the act, and provides no method by which their candidates may appear upon the official ballot.

“(3) The law is void, in that it deprives political parties of the right to say who shall be members thereof, and forces each political party to admit as a member any elector who complies with the legislative test.

“(4) The law is void, in that it restricts the elector's right of suffrage contrary to the constitution, and denies him the privilege of voting for certain classes of electors.

“(5) The law is unconstitutional, in that it prevents one from being a candidate for office if he has been defeated at a primary election.

“(6) The law is void, in that it prohibits certain classes of electors, constitutionally qualified, from being candidates for office.

“(7) The law is void, in that it requires the payment of certain fees as a condition precedent to becoming a candidate.

“(8) The law is void, in that it requires of officers an oath other than and different from that required by the constitution.

“(9) The law prohibits the nomination of ‘independent' candidates, and thus shows the legislative intent to confine participation in the primaries to parties having candidates at the last presidential election.

“(10) The law is unconstitutional, in this: It provides an exclusive method for obtaining a place on the official ballot, and further provides that only those whose names are on the ballot can be voted for, thus depriving electors of the right of suffrage.”

Before proceeding, however, to a consideration of these objections raised, we believe it will be profitable to momentarily advert to a consideration of the limitations placed upon our lawmaking bodies in the enactment of laws by our

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federal and state constitutions, and to the power of the judiciary to declare legislative action void, and to such rules of statutory construction as may be proper in the determination of the constitutionality of questioned legislative acts.

When the people of the United States created this unexcelled government of ours, they entertained the opinion that all power is inherent in the people, in opposition to the previous theory held by the royal heads of other governments, and commonly assented to, that the people were only entitled to such rights, privileges, and power as the heads of these governments deigned to give them. With a clear understanding of and faith in the principles that all men are created equal and all power is inherent in the people as contradistinguished from the principles entertained by monarchs and kings that royal blood made them superior to their fellow-beings, and that they were endowed with all governmental power by divine right, the people of the United States, before dispossessing themselves of any power they believed inherent in themselves and binding themselves up to a constitutional form of government, seriously debated and decided what governmental principles they would profess and imbed in their new constitution. They then divided and delegated specifically an enumerated list of powers to the legislative, executive, and judicial departments, into which they divided their new republican form of government, then an experiment, but now as a form of government a model and proven success, after which we believe in time all governments will be patterned.

To the Congress of the United States, the legislative branch of our national government, they plainly stated in their constitution what laws they are authorized to pass; and, as a consequence, Congress has no authority to pass any laws except such as the constitution either expressly authorizes or grants by clear implication. Hence, when a law of Congress is attacked as unconstitutional for contravening any right, unless the federal constitution granting Congress the specified authority to enact the measure is broad enough to sustain the law, it is unconstitutional. On the other hand, the people, formulating the constitution of our state, gave to the legislative

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branch of our state government unreserved authority to pass any legislation which was not expressly prohibited by the constitution they framed or in violation of our national constitution. Therefore, when a law of our state is attacked as unconstitutional, it is presumed to be constitutional until it is declared otherwise by a court of competent jurisdiction, as in contravention of the constitution of the United States or that our state constitution expressly prohibits the passage of the act in question. To sustain an act of Congress, we must examine the constitution of the United States, and find a grant of legislative power upholding the act as constitutional; but to sustain an act of our legislature, alleged to be in contravention to our state constitution, we must examine our state constitution, and find therein no prohibition of authority to enact the measure before it can be declared unconstitutional. In short, in considering the constitutionality of a federal or state act, there is a great difference in the legislative power conferred on Congress by the national constitution and the power conferred on the legislature by our state constitution to be considered, which must be kept in mind. Congress is authorized only to enact such laws as the national constitution expressly grants it or is clearly implied with the grant; while the lawmaking power of the state is authorized to enact legislation on all subjects which are not expressly prohibited by our state constitution or in contravention of the federal constitution.

The Court of Appeals of the State of Missouri, in commenting on this particular question, has the following to say: “But a state legislature, unlike the national Congress, has full legislative power wherever it is not restrained by the constitution, whereas Congress has power only when it is granted by the constitution. Hence the legislature does not need express constitutional authority to legislate on a subject, but only lack of a constitutional prohibition. ‘Authority' given by the constitution to pass a law means, therefore, more than that there is no restriction against passing a law. It means a positive constitutional direction in regard to it. It follows that the constitution of the state does not authorize the passage of

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an act regarding primary elections, although such an act of the legislature is valid, for it is not prohibited by the constitution.” (Dooley v. Jackson, 104 Mo. App. 30, 78 S. W. 333.)

Judge Cooley, in his great work on Constitutional Limitations, states: “The rule of law upon this subject appears to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation within constitutional bounds is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil, but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. * * * Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them.” (Cooley's Constitutional Limitations, 7th ed. 236-237.)

The Supreme Court of Pennsylvania tersely expresses the rule thus: “Nothing but a clear violation of the constitution—a clear usurpation of power prohibited—will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.” (Pennsylvania Railroad Co. v. Ribelt, 66 Pa. 169, 5 Am. Rep. 360.) Our own supreme court, in construing the legislative power of this state, held as follows: “That the legislature has the power to enact any law not prohibited by our constitution.” (State v. Arrington, 18 Nev. 412.) It will be unnecessary to consume any time in considering all that has been said in the arguments and otherwise, as to the wisdom, policy, or expediency of the law in dispute, further than to say that this court has, in conformity with the incontrovertible law, held that as to these matters they are solely within the legislative department to determine, and for this

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reason no legislative act is subject to judicial repeal. (Ex Parte Boyce, 27 Nev. 299, 65 L. R. A. 47; Ex Parte Kair, 28 Nev. 132-149, 113 Am. St. Rep. 817; Id. 28 Nev. 425-439.)

Our first consideration, therefore, in determining whether or not the present act is unconstitutional, will be an examination of our state constitution to ascertain if any prohibition exists therein which would deprive the legislature of the right to enact a direct primary law. Section 2 of article 1 of the constitution of Nevada provides: “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. * * *” Thus we see the constitution expressly gives to the legislature the full power and authority to alter or reform the law whenever in their judgment the public good may require it. And, as before stated, as to the power, wisdom, or expediency of the law, these matters are entirely within the province of the legislative department.

Section 1 of article 2 of our constitution provides: “Every male citizen of the United States (not laboring under the disabilities named in this constitution), of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people, and upon all questions submitted to the electors at such election; provided, that no person who has been or may be convicted of treason or felony in any state or territory of the United States, unless restored to civil rights; and no person who, after arriving at the age of eighteen years, shall have voluntarily borne arms against the United States, or held civil or military office under the so-called Confederate States, or either of them, unless an amnesty be granted to such by the federal government; and no idiot or insane person shall be entitled to the privilege of an elector.”

Section 6 of article 2 of our constitution provides: “Provision shall be made by law for the registration of the names of the electors within the counties of which they may be resi

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dents, and for the ascertainment, by proper proofs, of the persons who shall be entitled to the right of suffrage, as hereby established, to preserve the purity of elections and to regulate the manner of holding and making returns of the same; and the legislature shall have power to prescribe by law any other or further rules or oaths as may be deemed necessary, as a test of electoral qualifications.” In these provisions of our constitution, we find full authority granted the legislature to pass all necessary legislation for general elections; and a further examination of our constitution will disclose no prohibition to enact a direct primary law so long as the act conforms in other respects to our constitution. As to the inherent right of the legislature under our constitution to enact a primary election law there can be no question.

Counsel for appellant have placed their main reliance for the nullification of this act upon three California cases, to wit, Marsh v. Hanly, 111 Cal. 371, 43 Pac. 975, Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. R. A. 196, and Britton v. Board of Commissioners, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115, all of which cases were decided by the Supreme Court of California prior to an amendment of the constitution of that state specifically authorizing the enactment of a direct primary, and which we will have occasion to refer to and analyze during the course of this opinion. The constitution of California, however, prior to the amendment, was not identical with the constitution of Nevada, nor had it as broad or specific a grant of power as contained in section 6 of article 2 of our constitution, as a careful reading will reveal, and, in consequence, these authorities in this respect are of limited value in a determination of the constitutionality of the act in question.

Section 1 of article 2 of the constitution of California, under which these cases were decided, provides as follows: “Every native male citizen of the United States, every male citizen who shall have acquired the rights of citizenship under or by virtue of the treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, 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 in which he claims his vote ninety

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days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law.” The constitution was thereafter amended, as was stated by the Supreme Court of California, in Katz v. Fitzgerald, 152 Cal. 433, 93 Pac. 112, “to meet and avoid * * * objections to the primary law, which this court found were interposed by the constitution.” The said section as amended, being 2 1/2 of article 2 of the constitution of California, reads as follows:

“The legislature shall have the power to enact laws relative to the election of delegates to conventions of political parties; and the legislature shall enact laws providing for the direct nomination of candidates for public office, by electors, political parties or organizations of electors without conventions at elections to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties or organizations of electors may participate in any such primary election. It shall also be lawful for the legislature to prescribe that any such primary elections shall be mandatory and obligatory. * * *”

The legislature of Nevada is authorized by direct constitutional authority (1) to make provision for the registration of electors; (2) to make provision as to who shall be entitled to vote; (3) to make provision to preserve the purity of elections; (4) the manner of holding elections; (5) the manner of making returns; (6) to prescribe any rule which may be deemed necessary as a test of electoral qualifications; the only limitation being that the legislature cannot violate section 1 of article 2, wherein the constitution in terms fixes who are entitled to the right of suffrage. While it is unnecessary for us to state whether or not the old constitution of California was broad enough to sustain a direct primary law, providing the act was in consonance in other respects with the constitution, without a grant of power for this specific legislation, as held necessary by the Supreme Court of California in these cases relied ...

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