State Ex Rel. Ward v. Board of Sup'rs of Elections

HIGGINS, Justice

(concurring).

The right of judicial review to determine the constitutionality of a legislative act is unquestionably a judicial function. The exception to the jurisdiction of the court was therefore properly overruled.

It is well-settled that the courts have the authority to protect rights of citizens granted to them under the primary election law by issuing writs of mandamus and injunction. The exceptions of no right or cause of action, were correctly overruled.

Section 4 of article 8 of the Constitution of 1921 provides that: “The Legislature shall enact laws to secure fairness in party primary elections.”

*979

It is clear that the delegates to the Constitutional Convention intended to place some restriction on the Legislature in this constitutional mandate. If this were not so, the Constitutional Convention would have merely directed the Legislature to enact primary election laws and the words “to secure fairness” would not have been used. The fairness in primary elections must therefore be secured in the legislative statute. The act in question places in the Governor’s hands complete .control of the election machinery through the appointment of the majority of the members of the Boards of Supervisors of Election whom he can remove at pleasure. The supervisors have the exclusive right to select commissioners and clerks of election.

It follows that fairness in the conducting of the primary elections is delegated by the Legislature to the discretion of the Governor and the Boards of Election Supervisors. Heretofore, in obedience to the constitutional requirement the Legislature sought to secure fairness in the primary elections by placing safeguards in the statute itself. The present .act eliminates these protective clauses. It is my opinion that the act in -question is unconstitutional, because it does not comply with the pertinent constitutional limitation on the legislative power.

For these reasons I concur.