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State v. Brodigan

December 31, 1914


A. Grant Miller and James M. Frame, for Relator.

Geo. B. Thatcher, Attorney-General, for Respondent.

By the Court, Talbot, C. J.:

The relator applies to this court for a writ of mandate to compel the respondent, the secretary of state, to file a verified nomination paper of relator as a candidate for the office of secretary of state. Respondent refused to file this paper, because the relator declined and failed to pay the fee

of $100 provided by the statute as a condition for such filing. (Stats. 1913, p. 514.) It is shown, and not denied, that the relator is a citizen of the United States and a fully qualified elector of the State of Nevada, and that he possesses all the constitutional qualifications for the office for which he seeks the Socialist party nomination. He alleges that he is working for wages, and has not the sum of $100 with which to pay the filing fee, and

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that he has no means or resources that would enable him to raise the amount required.

On behalf of the relator it is contended that the provision of the primary election law imposing a filing fee is unconstitutional, because it adds a money qualification a condition precedent to becoming a candidate for public office; that the legislature was without power to impose more than a nominal filing fee; and that, even if the legislature had power to impose more than a nominal fee, the one prescribed is so unreasonable as to render the provision imposing it void.

In the courts which have considered this question two different views have been held. A part of these courts have taken the view that the legislature is without power to impose a fee for filing nomination papers greater than may be a reasonable fee for the service of the officer filing the petition. (State v. Drexel, 105 N. W. 174,74 Neb. 776; Ballinger v. McLaughlin, 22 S. D. 206, 116 N. W. 70; Johnson v. Grand Forks, 16 N. D. 363, 113 N. W. 1071, 125 Am. St. Rep. 662; People v. Election Commissioners, 221 Ill. 9, 77 N. E. 321, 5 Ann. Cas. 562.) Cases holding that more than a nominal fee may be required are: Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181; State v. Nichols, 50 Wash. 508, 97 Pac. 728; State v. Scott, 99 Minn. 145, 108 N. W. 828; Kenneweg v. Commissioners, 102 Md. 119, 62 Atl. 249.

This tribunal is already aligned with the courts which have sustained legislative acts requiring more than nominal fees from candidates for nomination for public office. In Riter v. Douglass, 32 Nev. 437, 109 Pac. 444, we held that the statute of 1909 requiring the payment of a fee of $50 by a candidate for the party nomination for a state office, and the obtaining and filing by him of a petition signed by a percentage of the voters, was not unreasonable. There was complaint and difficulty regarding the obtaining of these petitions by candidates, and after the rendition of that decision the legislature changed the law to provide for a fee of $100, and omitted the

[37 Nev. 492, Page 494]

requirement for the petition. If the trouble and expense of obtaining a petition signed by 3 per cent of the voters of the state be considered an exaction of as much or more from the candidate as the payment of $50, which was added to the original $50 fee in lieu of the petition signed by a percentage of the voters, there is no good reason why the $100 fee may not be required, if the decision in the Riter-Douglass case was correct.

Under the original primary law as sustained by that decision, each signer of a nomination paper was required to verify the same before some officer authorized to administer oaths, or before a special verification deputy, and the regular fees for notaries public for these verifications by 3 per cent of the voters of some of the political parties would exceed the $50 added to the fee by the law under the amendment as it now stands. Consequently the former decision of this court sustained the act of the legislature under which, if as much was paid for these verifications as the statutory notarial fees therefor, the nomination of a candidate of the larger political parties, with the former $50 filing fee, would have amounted to more than the $100 now exacted, besides the trouble of obtaining the petition, which is no longer required.

The cases in other states in which the question has been determined are about equally divided, and should this court reverse it unanimous decision in the Riter-Douglass case, holding such a law to be constitutional? After we have said that the requirement of such fee, petitions, and signatures were not unreasonable or unconstitutional, and the legislature amended the law so as to require an additional $50 to be paid in the fee, but relieved the candidate from the necessity of obtaining the petition, signatures, and verifications, it appears that the decision in the Riter-Douglass case fully justified the legislature in amending the law, and that for this court to now hold that the law as amended is unconstitutional would be equivalent to leading the legislature into amending the law and then determining that such law is unconstitutional.

[2-3] The decisions are numerous holding that all acts

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of the legislature are presumed to be valid until it is clearly shown that they are unconstitutional. If the exaction of a fee of $50, as previously held by this court, did not render the law invalid, we are unable to see how the requirement of $50 additional fee would make the law unconstitutional. If personally we believe that the fee of $50 was high enough, and that at the most it should not exceed $100, we do not wish to set aside the judgment of the two houses of the legislature and the governor in passing and approving the law fixing the fee at $100 and eliminating the requirement for the petition and verifications, and thereby, in effect, reverse the principle sustained by our decision in the Riter-Douglass case, and order the respondent to file a nomination paper without the payment of any fee.

Although a candidate for a state office may be without funds with which to pay a fee of $100, or $10, or even a nominal fee, in view of the importance of state offices and the proper qualifications for filling them, and the liberal salaries paid, which are usually from a few to several thousands of dollars a year, we do not think that under the conditions now and heretofore prevailing a fee of $100 can be considered so unreasonable or arbitrary as to make the law invalid or as imposed for purposes other than regulation. Political conventions have sometimes exacted as large a fee from a candidate seeking a nomination before the convention, and some of the political parties have made it a rule in this state for more than a generation to levy assessments on candidates many times in excess of the fee exacted by the statute.

The Supreme Court of California sustained the requirement for the payment of a fee of $50, and the Supreme Court of Washington for a fee equivalent to 1 per cent of one year's salary, on which basis a filing fee for some offices in this state would amount to $60 or $70. The fee should not be so high as to prevent any elector from running for office who is competent and worthy, and who has a fair chance of being elected, or for whom any considerable proportion of the voters might desire to cast their ballots. Certainly a fee of $100 is fully as much as

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should be required from a candidate for any office; but in view of the opinion in the Riter-Douglass case, which gave no intimation to the legislature that a fee of more than $50, in addition to the petition, might not be required, and of the decisions of other courts which have held that more than a nominal fee may be required, and considering the amount usually paid by candidates for campaign expenses and as party assessments in this state, and the liberal salaries paid to public officers, we are not prepared to say that the $100 designed in the statute is so excessive that it may not be collected. To hold otherwise might allow candidates for state offices to file their own nomination paper, and have others file in their interest, without paying any fee.

It is within the province of the legislature to consider whether, if only a nominal fee were required, the ballot might, in certain instances, be encumbered by the names of many candidates without chance of election, who, without exception that they would be elected, might, in the interest of another candidate, run in certain localities where the opposing candidate is popular for the purpose of dividing his vote, and to exact a reasonable fee for the purpose of preventing, at least in some degree, such a result. The statute does not require any fee to be paid by a candidate for regent of the state university, an important office which carries no salary.

Under our former decision the people's representatives in the lawmaking body assembled have the right to make any reasonable regulations regarding elections and to fix any fee which is not unreasonable. It necessarily follows that they have considerable discretion, and the court should not be overstrict in order to set aside the statute which they have deliberately enacted. It may happen that a worthy candidate for an important state office does not possess $100, or any considerable part of that amount, but it may be assumed that, if ...

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