The Supreme Court of WashingtonJul 9, 1936
186 Wn. 602 (Wash. 1936)
186 Wn. 60259 P.2d 295186 Wash. 602

No. 26135. En Banc.

July 9, 1936.

ELECTIONS (21) — NOMINATION BY PRIMARY ELECTION — BLANKET PRIMARY LAW — VALIDITY. The avowed purpose of the blanket primary law is to permit voters to cast a private vote for their individual choice without declaring their party affiliations, and everything in former laws defeating such purpose is impliedly repealed.

SAME (37) — CONDUCT OF ELECTIONS — CONSTITUTIONAL AND STATUTORY PROVISIONS. Since the constitution does not mention political parties, a law destroying them is not unconstitutional.

SAME (12) — STATUTES (42) — ELECTION PRECINCTS OR OFFICERS — ELECTION — STATUTES — REPEAL BY INCONSISTENT ACT. Rem. Rev. Stat., § 5198, provides for election of precinct committeemen for each party, and that the one receiving the highest number of votes shall be such committeeman for such party, and was not amended in 1935; but anything conflicting with its purpose would be inconsistent and necessarily repealed by the repealing clause.

CONSTITUTIONAL LAW (103) — ELECTIONS (21) — EQUAL PROTECTION OF LAWS — CONSTITUTIONAL GUARANTEES — NOMINATION BY PRIMARY ELECTIONS — BLANKET PRIMARY LAW. There is no discrimination in the blanket primary election law so far as its provisions apply equally to all parties.

ELECTIONS (21) — NOMINATION BY PRIMARY ELECTION — BLANKET ELECTION LAW. The blanket primary election law makes no attempt to control the inherent power of a party to adopt principles and to require its members and officials to give adherence thereto.

Appeal from a judgment of the superior court for King county, Findley, J., entered December 21, 1935, upon sustaining a demurrer to the complaint, dismissing an action for injunctive relief. Affirmed.

Lyle L. Iversen, Allen Spratlin, and Thomas C. Kinney, for appellant.

Warren G. Magnuson and Edwin C. Ewing, for respondent.

Griffiths Cluck, E.W. Anderson, Yantis Brodie, and W. Le Roy LaFollette, amici curiae.

The plaintiff, by his amended complaint, alleges that he is a qualified voter, a member of the Republican party and desirous of advancing its principles, and as such he seeks to restrain the defendant, as county auditor, from proceeding officially in accordance with the terms of chapter 26, Laws of 1935, p. 60, upon the theory that the act mentioned is unconstitutional in a number of particulars, some of which will be referred to more specifically as we proceed.

A demurrer was interposed, which, after argument, was sustained by the trial court. The plaintiff elected to stand on his amended complaint and a judgment of dismissal followed, from which he has appealed to this court. No formal assignments of error are made, but various arguments are advanced for the purpose of establishing that the measure known as the "Blanket Primary Act" denies rights which are guaranteed by both the Federal and the state constitutions.

Chapter 26, Laws of 1935, p. 60, is entitled:


"AN ACT relating to primary elections, providing for a Blanket Primary Ballot, amending sections 5185, 5187, 5189 and 5195 of Remington's Compiled Statutes of 1932, and repealing all laws in conflict therewith."

Section 1, p. 60, of the act provides that § 5185 of Remington's Compiled Statutes be amended and then proceeds to set forth the section as amended. Section 2, p. 60, in the same manner amends § 5187 of Remington's Compiled Statutes, and §§ 3 and 4, p. 63, in the same manner amend §§ 5189 and 5195 of Remington's Compiled Statutes. Section 5, p. 64, of the act reads:

"All laws or parts of laws in conflict or inconsistent with this act in any particular, or any part thereof, are hereby repealed, but it is expressly declared that the purposes of this act shall be construed so as to allow all properly registered voters to vote for their choice at any primary election, for any candidate for each office, regardless of political affiliation and without a declaration of political faith or adherence on the part of the voter." (Rem. 1935 Sup., § 5195-1 [P.C. § 2229a].)

[1] It is not necessary for present purposes to set forth in detail the previous legislation upon the same subject which is thus amended. The objects and purposes to be obtained are sufficiently revealed by § 5, p. 64, of the 1935 act, which we have quoted, and in giving effect to § 5 and thus carrying out the purposes of the legislature, we are required by our recognized rules of construction to regard as repealed by necessary implication anything and everything contained in the prior acts of the legislature which would defeat the avowed purpose of permitting all properly registered voters to vote for their individual choice as to each office at any primary election, regardless of political affiliation and without a declaration of political faith. This declaration of policy clearly indicates the purpose of affording secrecy to the individual voter as to his party affiliations as well as to his choice of individual candidates. That purpose, being a salutary one which accords with the spirit of our constitution, must be sustained unless, very clearly, constitutional rights are denied. [2] The sections amended are a part of our direct primary law, and that law still stands except as amended or repealed by the 1935 act. This court, in its previous decisions sustaining the direct primary law, has met and answered most of the objections which are now presented.

State ex rel. Zent v. Nichols, 50 Wn. 508, 97 P. 728, exhaustively treats of and refutes a number of the arguments here advanced, and that case may well be read in connection with what is here said. We cannot review the various arguments there advanced or quote from its well-considered language at length, but must be content with the following brief quotations which go to the very gist of the arguments now advanced:

"The last general objection to be noticed is that the law tends to destroy political parties. Counsel confess that they can find no specific provision of the constitution on which to base the contention, but they assert the general utility and necessity of parties, and argue therefrom that legislation tending to destroy them must receive the condemnation of the courts. It has seemed to us, however, that this is a political rather than a judicial question, and that an appeal from the legislative decision must be made to the people rather than to the courts. ...

"So long as voting is by ballot, an official ballot is a convenience if not a necessity, and some authority vested somewhere in government must determine the names which shall appear on that ballot, and those names must necessarily be few in number; and, we repeat, any reasonable method prescribed by the lawmaking power which accomplishes this result must be sustained by the judicial department of government. The courts have no concern with its wisdom or policy."

In State ex rel. Shepard v. Superior Court, 60 Wn. 370, 111 P. 233, 140 Am. St. 925, this court said:

"Recurring again to fundamental principles, the whole argument in this behalf is met by the undisputed proposition that the constitution takes no concern of political parties. The people, in adopting the constitutions, both state and Federal, wisely considered that political parties are evanescent things, born of political emotions and of uncertain — sometimes precarious — tenure of life, and went no further than to protect the elector in his right to cast a ballot; not a coerced party ballot, but for the candidate of his choice, whether he be upon one ballot or another. . . .

"Political parties being neither mentioned, protected, nor favored in the constitution, a law will not be held to be unconstitutional, although in its workings it may destroy these organizations. If a party is to be protected at all hazards, the Australian ballot, the primary law, and the commission plan of government must all fall upon the first attack, for the working, if indeed it is not the design, is to break down parties and put the burden entirely upon the elector. . . .

"Finding no guaranty, express or implied, in favor of either a candidate or a party in the constitution, it follows that he or his party can claim no greater rights than the voter himself. The fountain cannot rise higher than its source."

See, also, State ex rel. Rogers v. Howell, 92 Wn. 381, 159 P. 118, and from other states: Koelsch v. Girard, 54 Ida. 452, 33 P.2d 816; Dupre v. St. Jacques, 51 R.I. 189, 153 A. 240; Sarlls v. State, 201 Ind. 88, 166 N.E. 270, 67 A.L.R. 718; State ex rel. Duniway v. Portland, 65 Ore. 273, 133 P. 62; State ex rel. Weinberger v. Miller, 87 Ohio St. 12, 99 N.E. 1078, Ann. Cas. 1913 E, 761, 44 L.R.A. (N.S.) 712; Winston v. Moore, 244 Pa. 447, 91 A. 520, Ann. Cas. 1915C, 498, L.R.A. 1915A, 1190; and State ex rel. Van Alstine v. Frear, 142 Wis. 320, 125 N.W. 961.

Without detailing each argument presented or attempting to answer it specifically, it may be safely said that these authorities fully meet and amply refute every attack which is here made upon the act of 1935, save possibly one which, because of its novelty, perhaps requires more specific treatment.

[3] Rem. Rev. Stat., § 5198 [P.C. § 2243], provides for the election of precinct committeemen for each party participating in the September primaries, and that "The one having the highest number of votes shall be such committeeman of such party for such precinct."

This section was not amended by the act of 1935, but if anything in it necessarily conflicts with the purpose of the amending act, such conflicting part would be inconsistent with the amending act and would necessarily be repealed by the repealing provision already quoted. We are not now convinced that there is a necessary conflict, hence, we pass the question of repeal of the provision for the election of party precinct committeemen.

[4] It is now argued that, without the party test, which was abolished by the act of 1935, those voters so disposed may elect Democrats as Republican precinct committeemen and vice versa, with a result that the voters of one party may capture the governing body of an opposing party and thus obtain and take from it its funds and property and likewise thus prevent its support and advocacy of those political principles for the furtherance of which it exists.

Of course, under the provisions of Rem. Rev. Stat., § 5170 [P.C. § 2161], no person may lawfully join in the nomination of more than one precinct committeeman, and it is not to be presumed that any voter will abandon his right to participate in the selection of the committeeman of his own party in order to foist an unwanted individual upon a party to which he is opposed. But, whether so or not, the provisions now under consideration apply equally to all parties who may be affected thereby, and thus there is no discrimination in favor of or against any. If, as we have already said, "political parties are neither mentioned, protected or favored in the constitution," (State ex rel. Shepard v. Superior Court, supra), then, if all are treated alike, none has any just cause of complaint.

[5] Moreover, the statute, as we read it, makes no attempt to control the inherent power of a political party to adopt principles and to require its members, and especially its officials, to give adherence thereto; nor does the statute deny the inherent right of a political party to expel any official whose actions and beliefs are antagonistic to its announced principles. In this inherent right of a political party to expel or refuse to seat any committeeman who does not subscribe to the party principles, we see a complete defense against the feared assault upon party integrity. This question is controlled by the authorities already cited, and, therefore, the act of 1935 does not violate either the Federal or the state constitution.

The judgment is affirmed.


MITCHELL, J., concurs in the result.

I concur with the majority in all that is stated in the opinion, except the next to last paragraph thereof, which refers to the inherent right of a political party to expel or refuse to seat any committeeman who does not subscribe to the party principles. Conceding such right, generally, I fail to see how it is possible to enforce such right under the existing law pertaining to elections.