State ex rel. McGrael v. Phelps

The following opinion was filed December 14, 1910:

Maeshall, J.

The first ground of demurrer, counsel assume was passed upon on the application for leave to sue in this court. Not so, except so, far as to enable the parties to raise all questions by appropriate pleadings. However, no reason occurs to the court why it should not exercise jurisdiction, and, as counsel have not argued the matter, it is passed as usual without more than an incidental notice.

The second ground of demurrer challenges the constitutionality of ch. 477, Laws of 1909, in that it precludes any person from having his name appear on a general election official ballot as a party candidate unless he shall have received at least a plurality of the votes cast for the place at the preceding primary, and unless the aggregate of all his party votes for can *7 didates for tbe office at snob primary shall be equal to “twenty per cent, or more of tbe votes cast for nominee of such party for governor at tbe last general election.”

Tbe law must be considered witb reference to tbe requirement that tbe form known as tbe Australian ballot shall be used at an election.

This is tbe exact language to be examined:

“If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in tbe aggregate twenty per cent, or more of tbe vote cast for nominee of such party for governor at tbe last general election, tbe person receiving tbe greatest number of votes at such primary election as tbe candidate of such party for such office, shall be tbe candidate of that party for such office, . . .

“If all tbe candidates for nomination for any one office voted for on any party ballot shall receive in tbe aggregate less than twenty per cent, of such votes so cast at such last general election, no person shall be deemed to be tbe party nominee for such office, but tbe person receiving tbe greatest number of votes at such primary as tbe candidate of such party for tbe office shall be deemed an independent candidate for such office, and bis name shall be placed on tbe official ballot in tbe column of individual nomination and be shall be denominated in such column as 'independent.’ ”

Thus no party can, in a special column, be represented by a candidate for an office at one election, unless, first, it shall have bad a party candidate for governor at tbe preceding general election; second, it has sufficient members in tbe election district in question, who have sufficient interest in party integrity to and do poll at tbe primary for all persons there competing for first place as tbe party choice for such office to stand as such on tbe official ballot, equal to twenty per cent, of the political party vote cast for governor at such preceding election.

It is suggested that tbe words “twenty per cent.” as written, point to tbe total vote in tbe state, and so make tbe law entirely unworkable and void. Manifestly, taken literally, tbe *8 law would destroy party representation on the official ballot, as to all minor election districts, since it cannot be well supposed but that, in general, the members of any political organization would be less in each such district than twenty per cent, of such party’s vote throughout the state. The legislature could not have in mind such an absurdity, yet, there is no way to avoid the result except by judicial construction; that ever-ready and indispensable instrumentality for use in remedying legislative inadvertences and want of appreciation of the importance, in making written law, of speaking with language of unmistakable meaning in the literal sense of words. If it were not for judicial power to give effect to ideas, however obscurely expressed, if yet not so hidden as to be undiscoverable, — in view of the objects designed to be attained, the circumstances dealt with, the consequences of a literal or too literal interpretation, and many other lights that might be mentioned, — and not so out of harmony with the sense of the language used as not to be readable therefrom; giving thereto the widest reasonable scope; supplying all words reasonably suggested as in place by those used; eliminating or changing those clearly improperly used and transposing words or clauses, if necessary from proper to improper locations, — ■ much legislation would fail.

The scope of judicial power of construction is strikingly illustrated in Neacy v. Milwaukee Co., post, p. 210, 128 N. W. 1063. A word expressing an idea, very obscurely, considering its location, was expanded by the addition of other words, the whole then transferred to its proper location as a qualifying clause, and another clause was transposed to its proper location, so that the collection of words which, read literally, was senseless, was made to serve the purpose intended.

The construction now required is not difficult. In one view the law does not need construction at all. It is a cardinal principle for reading statutes that words not used, but necessarily implied from those which are used, are as clearly a part *9 of the act as the written words, and to he so deemed in their appropriate place. Applying that, in view of the manifest purpose of the act before ns, the words, for the particular official district involved, or similar words, after “for any one office,” and the words, in such district, or similar words, after “governor,” can be readily seen in place.

If the foregoing states the case too strongly in favor of the net, there are .other rules which accomplish the same result.

A highly unreasonable purpose; one which would clearly render a legislative enactment void for uncertainty or uncon•stitutionality, is never to be attributed to the lawmaking power if that can reasonably be avoided. It must be presumed as to a written law that some sensible legal end and some sensible legal means of accomplishing that end were in view. Therefore, regardless of how crude and obscure may be the forms of expression used by the legislature, the court should not tire of searching for its purpose and some sensible way of so translating the legislative language as to express it, without having exhausted all judicial power to that end.

To discover the legislative purpose in an enactment, hidden in obscurity, as has often been said, the court can and should consider the “surrounding circumstances, the existing condition of things, the evils to be remedied, the objects to be attained ” (Clark v. Janesville, 10 Wis. 136), “look at the whole and every part of the statute and the apparent intention derived from the whole, to its subject matter, to its effects and consequences, and to the reason and spirit, and thus ascertain the true meaning of the legislature.” Harrington v. Smith, 28 Wis. 43. Having discovered the evident legislative intent, the letter should be sacrificed, within the uttermost boundaries of reason, to effect it. Haentze v. Howe, 28 Wis. 293; State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 N. W. 544; Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W. 422; Rice v. Ashland Co. 108 Wis. 189, 84 N. W. 189. To that end a disjunctive may be turned into a conjunctive, Att'y Gen. v. West *10 Wis. R. Co. 36 Wis. 466; a clause expressing an idea wholly out of harmony with the purpose may he disregarded and words expressing the real intent substituted, Palms v. Shawano Co. 61 Wis. 211, 21 N. W. 77; a material omission may be supplied, Custin v. Viroqua, 67 Wis. 314, 30 N. W. 515; and obscure qualifying words, used out of place, may be expanded into a qualifying clause and transposed to the proper place, and other transpositions be made in connection therewith, Neacy v. Milwaukee Co., supra. “A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter.” U. S. v. Freeman, 3 How. 556, 565; School Directors of Pelican v. School Directors of Rock Falls, 81 Wis. 428, 51 N. W. 871, 52 N. W. 1049. As a correlative: “A thing which is within the letter of the -statute is not within the statute unless it be within the intention of the makers.” People ex rel. Att'y Gen. v. Utica Ins. Co. 15 Johns. 358, 379. That doctrine, in the whole, is found often stated in the books and applied to supply or eliminate or change words, departing widely from literal sense when necessary to effect a manifest intent. People ex rel. Bussey v. Gaulter, 149 Ill. 39, 36 N. E. 576.

True, in construction, the boundaries between the judicial and legislative field must not be passed. The letter must not be unreasonably violated. In sacrificing it the court, to reach the intent, must proceed with reason. While it may supply obvious omissions, make transpositions, expand obscure words, reject unnecessary or improperly or inadvertently used words, and view words broadly or narrowly or commonly, according to circumstances, in the ultimate, the law’s vitality must be found in it and to have been reasonably placed there by the lawmaking power.

It is so very plain that the legislature did not intend any such absurd and revolutionary result as would follow from giving literal effect to its visible words; did not intend to speak of the gubernatorial vote with reference to the respective election districts, — the words suggested as in place, though not writ *11 ten, are at least there by reasonable implication, which amply satisfies the case.

It may be that too much time and space has been given to the subject of construction. But such attention was given thereto in considering the case, that it was thought best to treat the matter with considerable fulness, following' in that regard the points decided and promulgated before the writing of this opinion.

We now come to the points urged by counsel. The major proposition and the one dominating the whole, is that the law of 1909 materially impairs the right to vote, and is, therefore, an unconstitutional interference with such right.

In a logical treatment of such major proposition the nature of the right involved may well be considered. Without adequate understanding thereof one can hardly discover and appreciate its constitutional safeguards.

It is often said by judicial and elementary writers that the right to vote is not a natural right; that it is a mere privilege which may be granted or not, or granted upon condition and when granted taken away or modified; all according to the discretion of the lawmaking power, in the absence of express constitutional inhibition to the contrary. Eew are found who have ventured to challenge the doctrine that the right to vote is.more than a mere legislative privilege, in the absence of a grant in the fundamental law, which may not be strictly correct as it is generally understood.

The idea that the right to vote is no more than a mere privilege was announced early as a justification for legislative interference therewith, and has been unqualifiedly reiterated over and over again and with growing emphasis as such interferences have progressed in severity. Thus it was said by a divided court in Healey v. Wipf, 22 S. Dak. 343, 117 N. W. 521:

“The election franchise is not a natural right. It is a privilege which may he taken away by the power that conferred it; and the only limitations upon the power of the legislature *12 ■to regulate its exercise and. enjoyment are the express limitations found in the federal and state constitutions.”

The history of the subject shows that the idea is of foreign •origin. It existed here prior to the Revolution under our then borrowed system. It is a relic of the old world systems. Thus it 'will be seen in Frieszleben v. Shallcross, 9 Houst. (Del.) 1, the court reasons from the prevailing ideas and con■ditions prior to 1116.

The difficulty seems to have been in failing to distinguish ‘between fundamental limitations which the people, in forming .a government, may place upon a right and the creation of the right itself. So the idea took root that, — the change from the •old to the new system marked by the Declaration of Independence, the basic features of which have been incorporated into •every written constitution in this country and in none more significantly than our own, — did not change the nature of those things which had been commonly the subject of unbridled legislative interference, as if they were the mere creatures •of sovereign authority. So the idea persisted that the right in question, like the right to inherit and transmit property upon the death of its possessor, was in no sense a natural or inherent right. Such idea has been reiterated over and over .again and only been, if at all, doubtingly referred to now and then. The error as to the latter was repudiated by this court in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 621. I repeat what I wrote on that occasion, changed to fit the case. Error has often had the most distinguished of supporters. If it were true that error could be sanctified by mere weight of numbers or ability of its advocates, and given the character of infallible truth by the mere force of repetition, then the idea that the right to vote is not a right at all, except in the sense of a creature of law; that it has no inherent quality, — would long ago have taken such deep root that no one, much less a court, would hardly venture to make an effort to dislodge it.

Had the all-pervading concept of the Declaration, which *13 marked the change to our system of constitutional liberty, been from the first given the dignity that it commanded and has latterly received, instead of being regarded as in the nature of a rhetorical embellishment, or a sort of apostrophe to something sentimental rather than real, the very ideas which it was. designed to entrench as fundamental law would not have been somewhat lost sight of.

Formerly, in general conception, there were no rights,, strictly so called. There were privileges which came, directly or indirectly, by grace from sovereign authority. That was the crowning mischief of the Colonial period which was-sought to be removed. Hence, at the start, things essential to our welfare which had been enjoyed, so far as enjoyed at all, as privileges, were claimed as inherent rights, only surrender-able by the people, or subject to limitation by them by fundamental law. There the standard was reared of a new era, one of inherent rights, instead of sovereign graces. To emphasize and make that clear it was declared that all men are “endowed with certain inalienable rights,” specifying some, but not attempting to specify them all.

The word “inalienable” was, doubtless, not used in the-strict sense, because some rights referred to were commonly parted with or modified by consent. Appreciating that, doubtless, in most constitutions, ours included, the term “inherent” was substituted for inalienable, to denote, more accurately, the functional character of rights of members of a community in an unorganized state.

That the right, in the beginning, here to participate in governmental affairs by reasonable exercise of the elective franchise, was inherent, within the meaning of the fundamental declaration in the bill of rights, seems pretty plain. Hot inherent in the sense of inalienable and inseparable from the individual. Hot natural in one view, but, inherent in the same-sense as the right of self-defense and the right to acquire, hold, and transmit property are. Thus, it is conventional in the *14 sense other rights are which are in their nature absolute till surrendered or limited by consent, express or implied. It is not natural in the sense that it is so absolute and functional as to be inseparable and not surrenderable. This court has before classed the right to vote as above indicated. Koerber v. Patek, 123 Wis. 453, 102 N. W. 40. That was done by way of discussion and illustration, it is true; but done considerately, nevertheless.

The fundamental declaration referred to is the substructure upon which our whole constitutional system is bottomed. It breathes the all-pervading purpose of the whole body of fundamental law. Around and upon it are clustered all other things as subsidiary in a complete structure.

So when we come to see. 1, art. Ill, of the constitution,— in form granting the right of suffrage to every male person of the age of twenty-one years or upwards, under specified conditions, — it is to be read, in conformity to the general nature of state constitutions; as a limitation rather than a grant, and a prohibition as to all persons not recognized as falling within the limitation. Expressio unius est exclusio alterius. This general idea that the grant, in form, is really a limitation to one class and a prohibition to all others, conventionally agreed to in the formation of the government, has been many times judicially asserted in connection with the idea that the right to vote is not a natural right, but is a conferred right; the real logic of the whole being that, in so far as the right is constitutionally confined to a class, it is a created right; People v. Pearce, 27 N. Y. 45; People v. Baker, 48 Hun, 198, a right created by the people as a whole, acting fundamentally; exercising the function which is inherent in the people as a whole to limit, at least some rights, in their nature, inherent in the individual, especially that which, for the benefit of the whole, must be subservient to the right of society to conserve and promote the general welfare.

So the right to vote is one reserved by the people to members ■of a class and as so reserved, guaranteed by the declaration of *15 ■rights and by see. 1, art. Ill, of the constitution. It has an element other than that of mere privilege. It is guaranteed both by the bill of rights; and the exclusive entrustment of voting power, contained in sec. 1, art. Ill, of the constitution; -and by the fundamentally declared purpose of government; and the express and implied inhibitions of class legislation, as well. Such declared purpose and the declaration of rights, so far as they go, and the equality clauses, — constitute inhibitions of legislative interference by implication, and with quite •as much efficiency as would express limitations, as this court has often held. State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1098; Koerber v. Patek, 123 Wis. 453, 469, 102 N. W. 40; State ex rel. Milwaukee Med. Coll. v. Chittenden, 127 Wis. 468, 521, 107 N. W. 500; Nunnemacher v. State, 129 Wis. 190, 230, 108 N. W. 627; State v. Redmon, 134 Wis. 89, 114 N. W. 137.

Thus is given the right to vote a dignity not less than any •other of many fundamental rights. So it has been rightly said by judicial writers, “It is a right which the law protects and enforces as jealously as it does property in chattels or lands. . . . The law maintains and vindicates” it “as vigorously as it does any right of any kind which men may have or enjoy.” State v. Staten, 46 Tenn. 233, 241. It is commonly referred to as a sacred right of the highest character and then again, at times, as a mere privilege, a .something of such inferior nature that it may be made “the football of party politics.” We subscribe to the former view, placing the right of suffrage upon the high plane of removal from the field of mere legislative material impairment. It has been not in-aptly characterized in these lines:

“A weapon, that comes down as still As snowflakes fall upon the sod;

But executes a freeman’s will,

As lightning does the will of God.”

Giving to the right to use the elective franchise its proper ignificance, it is yet subject to regulation like all other rights. *16 That, inherent therein, exists a right of persons to combine according to their political beliefs, and right, so far as not reasonably prohibited by law, of each group to possess and use freely all the machinery for increasing the power of numbers by acting as a unit — over the power acting individually, to-effect a desired political end, — goes without saying. This, and all other courts which have dealt with the matter, have so-declared, and recognized that political parties with freedom of action, as broad as freedom of use of the elective franchise, to the end that the public welfare, for which governments exist may be best promoted, — are essential to our form thereof.This court, in spirit at least, fully indorsed in State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N. W. 961, this-declaration of the supreme court of California:

“No one can be so ignorant as not to appreciate the value,, indeed the necessity, of opposing political parties in a government such as ours. . . . No statement is needed in'the declaration of rights to the effect that electors holding certain political principles in common may freely assemble, organize themselves into a political party, and use all legitimate means to-carry their principles of government into active opei*ation through the suffrages of their fellows. Such a right is fundamental. It is inherent in the very form and substance of our-government, and needs no expression in its constitution.” Britton v. Board of Elec. Comm'rs, 129 Cal. 337, 61 Pac. 1115.

The rights involved, however, said the court in effect, are-within the constitutional guarantees, state and national. “Self-preservation is the right of political parties as well as individuals.” Freedom to do those things reasonably, appropriate to the effectual maintenance of party organizations; and use thereof to accomplish legitimate party ends, — cannot be abridged any more than can the right to vote. The limit of legitimate interference, as to the latter, is necessarily the-limit as to the other, so far as the question of power is concerned.

*17 There is nothing contrary to the foregoing in State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482. True, the court there said that the thing guaranteed by the constitution is the individual right to the individual choice, by vote. “Mere party fealty and party sentiment, which influences men to desire to be known as members of a particular organization, are not the subjects of constitutional care. It deals with the individual right to vote. ... If that be not impaired and reasonable opportunity be furnished for equal representation on the official ballot,” that is sufficient. In using that language the court was addressing itself to the situation in hand. One where opportunity was afforded for full efficiency of party organization and party representation upon the official ballot so far as principles were concerned. The idea was, whether the legitimate purpose of party organization being fully satisfied, the full right being accorded, which we affirm now is incidental to the right to vote, does the latter right have the further incident of inviolability, because of some constitutional limitation upon legislative power, or mere party sentiment, so that after enjoying the right of one party characterization upon the official ballot, indicating adherence to some distinguishing political policy, a person may, as matter of constitutional right, and because of association for mere sentimental or selfish reasons, demand a second such characterization by another body, to gain favor, regardless of the legitimate purposes of party organization; that of promoting and vitalizing policies, rather than individual selfishness. True, as held in the Bunge Case, only such interference with the right to use of the official ballot for party purposes as invades, destructively, opportunity to use the elective franchise to further legitimate ends of party existence, are within the inhibitions of the right to vote.

It has become elementary that constitutional inhibitions of legislative interference with a right, including the right to vote and rights incidental thereto, leaves, yet, a field of legis *18 lative activity in respect thereto circumscribed by the police power. That activity appertains to conservation, prevention of abuse, and promotion of efficiency. Therefore, as in all other fields of police regulation, it does not extend beyond what is reasonable. Regulation which impairs or destroys rather than preserves and promotes, is within condemnation of constitutional guarantees. So it follows that, if the law in question trespasses upon the forbidden field, it is only law in form.

It is further elementary that, the extent to which the legislature may go in the field of police power, is primarily a matter for its judgment. As to the case in hand, the same as others, it could not properly go beyond reasonable regulation. However, what is and what is not reasonable, is primarily for legislative judgment, subject to judicial review. Such review does not have to do with expediency. It only deals with whether the interference, from the standpoint of a legitimate purpose, can stand the test of reasonableness, all fair doubts being resolved in favor of the proper exercise of lawmaking power.

In the exercise of police power two questions are involved. First. Is the purpose legitimate ? Second. Are the means employed to effect the purpose legitimate ? If the former be legitimate and the latter reasonably adapted to effect the former, the law is entitled to judicial approval, otherwise not.

The first essential mentioned is wholly within the judicial field. That is, whether a legislative effort has relation to a proper subject of police authority, the court must decide. True, such a degree of care to avoid unduly putting up a barrier to the exercise of lawmaking power, is to be used, as not to raise the standard of constitutional prohibition iu any doubtful case. The second essential, as suggested before, is particularly legislative discretion. So the range of methods of interference is necessarily as broad as the uttermost boundaries of reason. Abuse of discretion so clear in the field of fact as *19 not to be fairly justifiable, is necessary before the legislative action can be condemned as usurpation. That has been so ■often treated in this court as to be deemed elementary.

The foregoing leads up to the question, peculiarly, as said, within the judicial field, viz.: "Was the purpose of the act in. ■question legitimate ?

It was not supposed that there was doubt but what party •representation upon the ofiicial ballot is a proper subject of police regulation. Granted, as we do, that the right of such representation exists and that it is within constitutional guarantees as necessarily incident to the right to vote, it was thought that the incidental matter, as well as the primary one, was not independent of reasonable legislative control. Counsel for plaintiff do not seem to insist to the contrary; contenting themselves with contending that the mannep of regulation is destructive. But, it has nevertheless been suggested that the right of regulation does not extend to discriminating between political organizations in respect to their use of the ballot, according to significance in membership; especially so far as to make the party vote at one election for a particular candidate a standard by which to measure sufficiency of party membership, as evidenced by the showing at the succeeding primary, — to entitle the favored party candidates at such primary to party location upon the official ballot at the succeeding election; thus affording party use of the ballot to some organizations with the obvious advantage of facilities for team work and denying it to others. The idea is that a party organization, however small, representing principles fairly differentiating it from others, is entitled, as matter of constitutional right, to equality with any other, however large, as regards use of a party ballot.

The idea suggested, should it prevail, would, in all circumstances, nullify any legislation affording a different use of the ballot to some political organizations than to others. It is a radical proposition which has not been passed without consid *20 eration. It is by no means without merit. It is difficult to escape the conclusion, if it can be done at all, that the right to vote, being, as has been said, as sacred as any other right, — ■ and in some respects more so, since the safety of the latter is dependable upon the former, — its free and efficient exercise by party combinations should no more depend upon the significance of the latter as to membership, so long as it has a substantial good-faith existence, than should property rights depend upon station or wealth; that the absolute equality which is equity should apply to parties as well as individuals in the ordinary relations of life.

That doctrine is not without its attractiveness. It makes a strong and disturbing appeal to the conscience and the reason of the writer and his ideals of a people’s government of their own creation as enshrined in our constitutional system. The standard of fundamental liberty and equality which I believe to have been planted in such system, as to the time-honored method of promoting and vitalizing cherished governmental policies by party organizations, and party efforts, and party methods of party representation upon party ballots, I would not voluntarily lower any more than I would consciously violate my oath of office. Whether legislation has not in some cases, and whether it has not in this case, endangered, if not lowered that standard, admits of doubt. I say this for myself alone.

In considering the question of whether there may properly be limitations of some sort to party enjoyment of a party ballot, we must face the fact at the outset, that the use of an official ballot, the so-called Australian form, containing all parties as well as individual or independent appeals to the favor of voters, — has been generally recognized as fundamentally right. The contrary is not claimed by counsel for plaintiff and is not claimed, as I understand it, by any member of the court who disagrees with the majority. On the question of whether ballot reform did not go too far in preventing politi *21 ■cal parties from baying tbe benefit of a separate party ballot, I bave never been free from doubt. • However, at this late •day, after compulsory use of tbe Australian form bas been approved or submitted to as proper in nearly every, if not every, state of tbe Union, it is too late to suggest, with confidence, to ■tbe contrary. Sucb an invasion of tbe free use of tbe ballot as enjoyed at tbe time our state constitution and most state constitutions were adopted, was a most radical departure from tbe custom of tbe country, wbicb bad existed for about a century. That it was adopted in tbe foreign country of its origin, and bas been substantially in like countries, having no written constitution, is easily understood. How it came to be so easily entrenched in tbe system of this country, with its manifest interference with political liberty, is not so easily understood. But we are face to face with a condition which bas so strongly stamped tbe prevailing ballot system as proper, that it is too late to question it. Universal practical construction and usage sanctions it, and most states, including our •own, bave judicially, expressly or impliedly, done tbe same.

In view of tbe foregoing it bas commonly been thought that •some test of party capacity, having reference to numbers, for ■representation on tbe official ballot is necessary. Otherwise tbe number of parties and names of candidates might be so great as to render tbe single ballot sheet unsuitable for exer•cise of tbe constitutional right to vote. As we understand it, •counsel for plaintiff concede this and cite cases to that end. Nevertheless we are led not to pass over tbe subject without attention, because of questions raised here. This branch of tbe case, it seems, is not open to fair controversy, if we may properly consider tbe door closed by decisions elsewhere. In State ex rel. Hagendorf v. Blaisdell (N. Dak.) 127 N. W. 720, it was very recently decided that a legislature may, within reasonable limits, determine bow many voters, acting together for tbe purpose of making nominations, shall be entitled to a party ballot. Tbe court reasoned that otherwise *22 any number, however small, could organize a party and demand use of the recognized equivalent on the official sheet of a single party ballot, thereby rendering it probable that parties would often be so numerous as to necessitate a sheet so extensive and complicated as to render it practically unintelligible and confusing and on that account, destructive of the right to vote itself, instead of simplifying and regulating it. That seems quite plain from a practical standpoint. If there be any infirmity therein, it strikes at the idea, itself, of the combination official ballot. The reasoning of the North Dakota court voices the common judicial thought. We refer to it, specially, because of its being the most recent contribution. Statutes and decisions elsewhere, so numerous that we will not venture to cite them, are to the same effect. In no case, so far as we can discover, has the principle been condemned. The regulation has often been challenged on account of its being excessive, but, as a rule, unsuccessfully.

It follows, logically, that the legitimacy of legislative regulation, in the field under discussion, must be tested with reference to appropriateness of ends sought to be attained and also of means to such ends. We would not venture to suggest all the ruling ideas which the legislature indulged in, but several, it is thought, are quite plainly apparent, including the one already suggested, and as regards minor districts as well as the state at large, as we will argue a little later on.

Looking at “the surrounding circumstances,” the “existing condition of things,” “the evils to be remedied” or prevented, “the objects to be attained,” the history of the particular subject, the recognized importance to the public welfare of opposing political parties representing differing governmental policies with such high degree of fidelity of membership to principles as to incline them to promote principles rather than mere personal ends, and of electors intelligently and conscientiously using their valuable constitutional right as well as possessing it; these three purposes stand out in bold and unmis *23 takable significance: first, to keep tbe ballot witbin a reasonably workable compass, both from tbe standpoint of tbe party and of tbe individual; second> to promote sueb party integ-rity on tbe only legitimate basis for legal conservation of party existence, as to discourage electors, claiming to belong to one organization, from invading tbe primary of another; third, to stimulate exercise of tbe right to participate by voting in tbe activities of tbe social state. We will treat each subject, giving primary importance to tbe first. ¡

That a legislative minimum of political significance to entitle a party to a special place on tbe official ballot, is necessary to keep, so far as practicable, tbe ballot sheet witbin a workable size, as before suggested, seems not to need vindication by argument. Conceding that, then, clearly, such minimum should not be so large nor of such character as to unreasonably prevent tbe formation of new parties, or necessarily tend to afford one of substantial character, as to numbers, less opportunity for efficient existence or competition for tbe favor of voters at large, than any other, however large, by reason of inequality of capacity to use a party ballot. Such inequality of right, as we have seen, would, of itself, be a fatal interference with fundamental rights. Likewise would such interference with reference to relative significance as to materially impair tbe essentials of equality of opportunity; so long as it operated to exclude tbe smallest party of substantial membership and significance from enjoying the party ballot, or tbe smallest group of electors, rightly regardable as of substantial significance as to numbers, from forming and efficiently maintaining a party organization, and to that end competing for public favor by party candidates presented on a party ballot, as by having its special party column on tbe official ballot sheet. All that is contended for on behalf of plaintiffs. Tbe principle itself meets with our unqualified approval. Citations in support thereof from other jurisdictions are unnecessary. ¡We deem it to be elementary. Any *24 suggestion to the contrary in other jurisdictions would not influence this court to invade it.

Assuming, for the time being, that restrictions upon the liberty of party candidates for office for the respective election districts voted for at the primary to have their names placed on the official ballot, fairly and substantially, promote restriction of the general election ballot sheet, to a reasonable compass, which was doubtless the legislative idea, — is the minimum of representative party significance, written into the law of 1909, excessive ?

How large the membership of a political party organization should necessarily be, as regards a particular election district, in order to be fairly regarded as substantial, and how long-such organization should at least have existed before it can fairly be regarded as having substantial existence as to the respective election districts; are questions of much difficulty. Por that reason the range of legislative discretion is necessarily large; and the boundary between the unreasonable and the beyond room for fair doubt, and the extent of the region of mere doubtful; is not easy to discover.

In the judgment of the writer, the somewhat neutral ground in this instance was invaded by the legislature. In the extreme to which the act goes, the lawmaking power traveled beyond the line of danger. Whether they did not even traverse the region thereof and beyond into the field of fatal impairment of sacred rights, I do not consider free from difficulty.

The law, as we have seen, makes an aggregate of votes cast at a primary for all candidates for a particular office in a particular election district, equal or more than twenty per cent, of the total votes cast in such district for the party’s nominee for governor at the preceding general election, — the standard by which to test substantial party status. It assumes that if party fealty does not so persist, or exist, as to efficiently move an elector in any district to record his vote at his primary, he should not be counted in determining such status. Is that *25 manifestly -unreasonable ? It is to be noted that tbe percentage, taken as a standard for comparison in a district, is not tbe total vote formerly there cast for governor; only tbe vote cast for tbe party nominee, whether successful or not. That, in general, would be a very small percentage of tbe total vote. If a party cannot thus show tbe existence of at least one fifth of its former significance, should it be regarded, beyond reasonable doubt, to still have substantial existence ? That is tbe question.

Some standard of comparison is certainly necessary. That is tbe logic of every situation to be measured. As principles are not supposed to spring up or pass out of existence suddenly, or, in general, to be momentarily tbe basis of worthwhile political organizations, but to yield slowly to new conditions having naturally a considerable period of development into recognizable materiality, and applying differently, but changing slowly in that regard, to changing importance of old conditions; a party vote in the state at large would seem not to be an unfair point of view from which to view the field, and the party vote for the office most likely to indicate the maximum of party members not to be unfair as a basis from which to determine the unit of measurement. Can the party membership, so far as represented by its candidate for any particular office in an official district, fall below one fifth of such maximum and still be said to persist as a substantial organization of such significance as to numbers, as regards such district ?

If the questions suggested were to depend on the general trend of analogous legislation and judicial approval elsewhere, they would have to be resolved in favor of the law before us. In State ex rel. Hagendorf v. Blaisdell (N. Dak.) 127 N. W. 720, a numerical test to entitle an organization to a party ballot and name party candidates, equal to five per cent, of the total vote for all candidates for governor at the previous general election, was held reasonable. Prior thereto, *26 in State ex rel. Montgomery v. Anderson (N. Dak.) 118 N. W. 22, a law requiring a party’s votes at a primary for any election district for all its candidates at sucb primary for one office, for sucb election district, equal to thirty per cent, of tbe same party’s vote therein for a specified minor state office, as an essential to sucb party having a candidate for sucb office on tbe official ballot at tbe succeeding general election, — was sanctioned by a divided court. Since rendering tbe first decision cited, tbe same court, by a bare majority of justices, as we understand, in a case not yet reported, — overruled tbe first case cited. Tbe position of tbe court may well be considered as not yet having been very firmly established.

In DeWalt v. Bartley, 146 Pa. St. 529, 24 Atl. 185, a law requiring a party, in order to have party representation on tbe official ballot, to have polled ten per cent, of tbe total vote at tbe last general election, was sustained. It was said that some sucb regulation was absolutely necessary, as an accompaniment to tbe law requiring use of tbe Australian form of ballot; that tbe right to vote is an individual right; that tbe right to nominate is primarily a party right, and necessarily requires, in order to have substantial significance, that there should also be a party of significance, otherwise a few persons could assume to be a party and successfully demand use of a party ballot, — as tbe Three Tailors of Tooley Street assumed to be tbe “People of England,” — resulting in tbe scheme of an official ballot being a failure “as tbe ballot would become tbe size of a blanket.”

In Miner v. Olin, 159 Mass. 487, 34 N. E. 721, a similar law was sustained by tbe procéss of reasoning indulged in by tbe Pennsylvania court.

In State ex rel. Fitz v. Jensen, 86 Minn, 19, 89 N. W. 1126, a law was sanctioned requiring a political party to poll ten per cent, of tbe total vote, at one general election, in order to have a party place for its candidates on tbe official ballot at tbe succeeding general election.

*27 We might continue at length citing foreign statutes and decisions sustaining legislation, similar, as we think, to the law in question. In most of them, it is true, the regulation evidenced is of a milder type than that in the law under consideration. In all, constitutional limitation of such interference is conceded. In only the one case cited has a law somewhat similar to ours been condemned as to the particular feature now vital. We have endeavored to examine all such laws and the adjudications with reference thereto, with the result that, in every instance of a regulation of the nature of the one in question, it was recognized as not only proper but necessary. Uo act elsewhere is precisely like ours, or near enough thereto-to furnish a precedent, except as to principle. In that respect the acts and adjudications speak harmoniously in support of the regulation.

So it will be seen that precedents are wanting as to the precise question under discussion. Really, precedents could not well be helpfully controlling under the circumstances. The question must be decided on principles applied to the peculiarities of our own law. In that respect we are unable to conclude either that the basis for measuring party significance at the election preceding the primary, or the basis for measuring its significance in prcesenti, is so manifestly destructive of party integrity and individual rights to efficiently participate in collective political effort, as to be fatal to validity. Here again I feel constrained to record my judgment that the legislature traveled upon dangerous ground in going as far as it did.

We cannot doubt but what the particular feature of the law ’ under discussion was thought by the legislature to be means of promoting reasonable restriction of the size and complica-1 tions of the ballot sheet. It may well be thought that such' idea was the dominant one. It has been suggested that it was such; that it is illegitimate because it will not promote the end in view at all; as does a law providing that a political party *28 shall not be entitled to a party ballot place on the official election ballot sheet at any election unless it polled at the previous .general election a specified percentage of the total of votes. Therefore the latter situation and the statutes and decisions in that regard to which we have referred, are said not to have any analogy to the situation we are dealing with.

The position last indicated is not so free from difficulty that we can well pass it without serious attention. Erom the viewpoint of party solidarity for the state, only, one may reasonably come to the conclusion suggested. But we must face the condition the legislature had to deal with. A condition respecting political parties, not so important from the standpoint of minor official districts, as from that of the major thing; the state as a whole, yet one which could not be abolished by the legislature.

The condition above referred to is that, in general, a political party is made up of units down to those severally composing the smallest official district each of which, while forming •part of a state-wide organization, has an individuality of its own. A political party of the state, as a rule, means a like party for each congressional, senatorial, and assembly district, and for each county, town, city, and village. Whether these minor individualities, for mere local purpose, though having very much less of the importance, or, generally, none thereof, which make state and national parties proper subjects of legal protection, in that the latter only have to do with shaping of public policies; might well be a very fruitful source of expanding the official ballot sheet beyond all reason, — the legislature undoubtedly thought so. It would not be our province to condemn its judgment in that regard unless it appeared to be manifestly wrong. But on this, with due deference to the views of those who think to the contrary, we do not regard it as involved in the region of doubt.

A regulation restricting use of a party place on the official ballot to the local party unit, according to whether the organization, locally, has a legislative minimum of significance, *29 tested, by the showing at the last previous election, regardless-of whether the major party for the major purpose has the requisite status for recognition or not; is not, by any means, unknown. People ex rel. Dickerson v. Williamson, 185 Ill. 106, 56 N. E. 1127.

It must be remembered that party existence does not cease merely because the party at a particular primary election does not cast votes enough to elect a candidate with competency to have his name placed on the official ballot at the succeeding election, as its duly elected candidate for governor. The way is still open to the party to secure a place for its candidate with his party designation, and if he receives, at the election,, one per cent, of the largest vote for his party for presidential elector at the last preceding presidential election, that will give the party the requisite status to compete at the next primary for a party place on the succeeding election official ballot. Thus it will be seen, representation on an official ballot at one general election by a party column filled with party candidates,, is not necessary to continued party existence. The law provides that “Any political organization which at the last preceding general election was represented on the official ballot by either regular party candidates or by individual nominees, only,” may have recognition as a party on the official ballot at the next primary in any district — where “any of its candidates or individual nominees received one per cent, of the total vote cast at the last preceding general election” — by complying with the ordinary conditions. Oh. 451, Laws of 1903. This we may say, in passing, is a fairly good answer to the suggestion that there is no way of forming a new political party under the present system. It will be seen that not.only is there a way for the creation of party status without pre-party representation in a special column on the official ballot, but a way by which a very small showing of strength at one election will create capacity to compete for all the advantages of a party ballot at the next primary and the next general election.

If the disposition thus made of what seems to have been the *30 dominant idea of the legislature and the supposed effective answer thereto were not sufficient to hold the balance in favor of the law, the second purpose we have suggested adds weight thereto. We must view that in the light of the fact that the primary election was designed to be, so far as the party is concerned, an election of candidates, something more than a mere unofficial naming of candidates as under the convention and caucus system. The result of the election, as regards the party, is to give the favored persons quasi-official status. State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628. The law, by use of the term “election” as well as the whole framework and purpose of it, indicates, unmistakably, that it was designed to give greater dignity to the result than formerly ; to give the election of candidates a somewhat controlling effect upon the final choice of public servants. Such is the logic of State ex rel. Binder v. Goff, supra. It is at the primary more than at the election, under our system evolved from the practice of a century commencing with the caucus and convention system in the most primitive form; that the policy of the government is determined upon, as well as the instrumen-talities which shall vitalize it. So, as has been said by many judicial and other writers, political parties have become so potent “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.” Ledgerwood v. Pitts, 122 Tenn. 570, 593, 125 S. W. 1036. It is in the hands of parties that the determination and the administration of policies has drifted, as naturally as the delicately suspended and balanced needle turns to the pole. It is in such hands that such power will rest by the very logic of cur social state. Idealistic efforts to change this may momentarily disturb the equilibrium of natural conditions, as a atone cast into the placid pool disturbs its surface; but as certainly in the one ease as in the other, the disturbing cause will sink out of sight and things will resume their natural state. *31 The legislature and all legislatures which have dealt with this subject, have viewed it ou that plane aud, from such point of sight, appreciated the importance of party integrity and purity to the public welfare,, and, to that end, of making, as part ■of the regulating machinery, some efficient provision for each person voting a party ticket at a primary making a party •choice at that time, or there evidencing good-faith affiliation with the party he then assumes to be a member of. Legislation of that kind of a more or less severe character has been sustained on many occasions. Ledgerwood v. Pitts, 122 Tenn. 570, 594, 125 S. W. 1036; State ex rel. Labauve v. Michel, 121 La. 374, 46 South. 430; Morrow v. Wipf, 22 S. Dak. 146, 115 N. W. 1121.

One of the most significant cases of condemnation of a primary election law as unconstitutional, was because of its not providing safeguards against members of one party invading the primaries of the other. Britton v. Board of Election Commissioners, 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. With our common knowledge of the intensity of interest which members of a party take in maintaining its importance "before the people, it is not difficult to see that the menace of not having the party ticket on the official ballot, in the absence ■of a specified showing of strength made at the primary, would naturally be very forceful in preventing them from violating their party faith for the time being, quite as efficiently to the desired end, if not more so, than many o'f the regulations to such end found in the various statutes on the subject. It may "be that this particular purpose, itself, might be a sufficient reason for not condemning the law as manifestly unfair.

The third minor province of the regulation law; that of stimulating exercise of the elective franchise at the primary, is entitled to much weight. This again might, itself, be sufficient to at least place the validity of the law in the realms of ■doubt and save it from judicial disapproval.

The trend of constructive thought is in the direction of stim-; *32 ulating use of the elective franchise. Inherent in possession of the right, with its constitutional guarantees, is the duty to exercise it. The public welfare requires performance of that-duty. Penalties or advantages to secure such performance have been suggested. What more practicable stimulus to individual effort, after passing menace of pecuniary loss or deprivation of rights, than danger of loss of local party status as regards the official ballot. What more efficient aid in stimulating individuals to perform their duty to vote than organized efforts of the political parties to preserve their effective existence. “Self-preservation is the first law of nature.” That maxim applies as well to political parties as individuals.

So we need not, necessarily, rest the law upon the legitimacy and sufficiency of what may have been the dominant legislative reason for it. Lay that aside, if we may, though we think we cannot, yet, we cannot condemn the law within the rules governing the subject. Taking the three reasons discussed, and it is not unreasonable to suppose there may have been others, in legislative contemplation, we can well say that the extreme of legislative discretion was not overstepped.

All objections to the law suggested by counsel or in our consultations we have endeavored to treat. The idea that the purpose of the law was not regulative, but was to destroy. minority parties, retard or prevent formation of new parties, and promote the supremacy of the one in power in prcesenti, has not passed without notice. True, no law should be spread upon the statute books by the force of one party because of its-happening to be for the time being in control, having the semblance, from any fair viewpoint, of perpetuating its supremacy, or materially interfering with the good-faith organization and efficient existence of any other party composed of a substantial number of citizens, or which will necessarily or materially have that effect. If the ostensible purpose of the law of 1909 were manifestly not its real purpose, it would emphatically meet with judicial disapproval. In case of serious *33 doubt as to whether a regulation is excessive, — as I think there is here, — manifested by history of administration of it, though I do not entertain doubt but what the law was conceived in good intentions, — notwithstanding the court cannot supply a remedy, because of there being at least a reasonable doubt in favor of enacting it, — should have the attention of the department of government which can supply one.

This does not need to be closed by a formal order for judgment sustaining the demurrer and dismissing the complaint as such order was made following an announcement of points decided in advance of the preparation of this opinion.

The following opinion, entitled both in the case of State ex rel. McGrael v. Phelps and in that of State ex rel. Hanna v. Frear (see post, p. 58), was filed December 14, 1910: