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The Commoner.
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EDUCATIONAL SERIES
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NON-PARTISAN JUDICIARY.
. .Nebraska's domocratlc legislature at its last
session enacted a'law prdvidirig for a non-partisan
judiciary. This law prohibited political
parties from nominating candidates for judges
and, candidates for school offices, .At the insti
gation of the .republican state ., committee pro
ceedings were commenced for the-purpose of de
stroying this law. The supreme court of the
s.tato, declared the law to bo unconstitutional.
.Of, .the five members pitting on the case thr,eo
wero to be, and now are, candidates. for re-election.
Two of those are republicans and ope
is a democrat. Tho two republicans declared
against tho law whllo the democrat, Judge J. R.
Dean, held that the law was constitutional. The
court stood three to two. Three republicans
wrote the court's opinion declaring the law to
beiun-constltutional. Judge Letton, republican,
fallowed with ff dissenting opinion upholding
the' law. Judgo Dean's opinion in support of
tho law will be of general interest. It follows:
il am unable to concur in the opinion of the
majority of the court. . Prom the arguments of
counsel and the law applying to the facts it does
not clearly appear that the act in question comes
within the inhibitory provisions of. the funda
mental law that have been invoked to destroy
,lh.jf Tho. act Is attacked solely on constitutional
.grounds, and thus the recognized rules of this
and other jurisdictions, in cases involving con
itytutional construction, should be,. a.p.jplied to
determine the right of the act to t'akp ,a. place
among the laws of the state. r
, , i Viewed from any point there is a, delicacy sur
rounding the discussion of some features, of the
.case that would be gladly avoided, but due re
gard for the performance of a public duty other
wise directs. 'Jhe.legislature has for many years
. fytjeri modifying the .general elqctlpn Jaws in re
sponse t,o public demand.. It gave us the. Austra
lian ballot system and events havp proven its
wisdom, It gave us the state wide primary law
,an,d while it, may be .defective, in some respects,
it is wjthin tlio provincq of. the legislature to
amend it. In any event It is npt likely a reyrh
will be had to the convention system of nominat--ing
candidates for public office. The noh-parti-san
judiciary act, with but seven negative votes
fin the penate and but twenty-seven negative
.Votes in the house recorded against it, is but
,,'a'n expansion of the general primary system. Its
principle is not new to the statute books of five
'states or more. It is not an untried experiment.
In the preservatidn of the constitutional
checks and balances of our system of govern
ment is involved the preservation of govern
ment itself. It is fundamental that the legisla
tiye, executive and judicial departments should
each be free to perform their separate functions
without interference from either of the others.
Applying this principle to a legislative act, the
validity whereof is attacked on the sole ground
of being repugnant to the constitution, 'a decent
respect for the legislative and executive depart
ments which have respectively passed and' ap
proved it, inculcates an abiding desire on the
part of the judiciary to refrain from disturbing
It except for the most weighty reasons.
An act of the legislature is presumed to be
constitutional. This presumption continues un
' til the contrary is affirmatively Bhown by the
challenging party. The legislature is presumed
to know, to interpret and to make effective "by
competent legislative enactment the will of the
people, and every act passed that is conformable
to the constitution has all the power, of that in
' atrumeht behind it. All intendments of the law
lfavor these presumptions. The judiciary is not
-the master of the constitution but merely its
interpreter, and in the exercisb of this preroga
tive it is not tho court's duty to declare an act
unconstitutional unless it clearly and beyond
question contravenes some provision ' of the
fundamental law, and every reasonable doubt
"will l)e resolved in favor of sustaining the act.
-By close adherence to this long familiar rule
may -the judiciary preserve itself from the im
putation of even seeming to invade the leglsla--t
ve realm. It may thus avoid "bench legisla
tion," an insidious judicial offense, and one
which may in time, if indulged, imperil the per
petuity of our institutions. Cooley's Const Lim.
7th Ed., 227; Prof. Wiginore, 23 Am. Law S
'le7' JJX2; City of Topeka'-v.- Gillett, 32 Kan.
431; Ogden v. Saunders, 12 Wheaton (U. S.)
270; Hoover v. Wood, 9 Ind. 286; Wellington
Petitioner, 16 Pick. 96. .
The majority; opinion holds: "Political parties
are the great moving forces in the .administra
tion, of public affairs. . 5 ". That evil influ
ences and impure motives should creep 'into
the 'management of political parties are circum
stances that, haye been long recognized and are
everywhere deplored. But the act is not aimed
at the destruction or even the impairment, of an
exercise of the legitimate functions of political
parties. The relator's argument on this point
indicates he is seized with this fear, and in a
manner his protest against the act is suggestive
of John's protest at Runnymede. The non
partisan act leaves the solution of political .ques
tions to political parties. Jt appears to be only
a well directed protest against the domination of
non-political departments of government by
partisan political influence. k Justice, in the
proper application of its principles, is no respec
ter of party lines. No logical reason for the
domination of our school system by the spirit
of partisanship can be, advanced. There is suffi
cient latitude In public questions and public
problems, that are in their nature purely politi
cal, to absorb the legitimate attention of those
whose guiding hands would direct the destinies
of the political parties and thus indirectly, but
none .the less potently, the destiny of state and
nation,, In the departments" sought to be affect
ed, the legislature has the right within, the
bounds of tho fundamental .law to. exert its
power to the end they may be effectively re
moved by legislative enactment, from the domain
of partisan, politics.
Who will question the propriety of legislation
td the end, the judiciary may .avoid even the, ap
pearance. ,of securing, place and power at. the
hands of the cunning captains of political patron
age? lie was a, wise, writer, who said: "A-gift
ddtli blind the eyes,.' ls the gift less seductive,
and will it less effectually dull the eye of the
magistrate t6't)ie;:iniqutiQsJ of the. giver because
it takes' the forni'of preferment in office? No
one will question the propriety of giving added
meaning to the vital truth expressed in the
motto of our state, "Equality Before the Low."
By what m$ans may this result be the better
maintained. Will it be by an immersion of the
judiciary in the seething pool of partisan poli
tics, or will it be by its separation from that
stirring feature of political life in the manner
pointed out by the act in question? The legis
lature, coming from the body of the people and
charged with legislative responsibility, solved the
problem in a manner satisfying to itself by the
passage of the non-partisan judiciary act. " Who
then is to pass upon the wisdom or the unwis
dom, the expediency or the inexpediency -that
may be involved in its declared purpose? Not
the judiciary for it is not within its constitu
tional province, but the legislature alone in the
exercise of its power to amend and its power
to repeal.
Will it be seriously urged, that loyalty to
party or to party leadership, because of past
achievement or promise of future performance
or for any sane reason, is always and every
where and regardless oi all else the paramount
duty of the citizen, whether in or out of office?
" i?. tobe. dePlored that in some Instances in
public history, in the exuberance of an in
tense partisan spirit, loyalty to party leadership
seems at times almost to have overcome loyalty
to all else. Political parties will be always with
us. Tlioy are inseparable from our form of
government, but danger lies in the direction of
the exercise of a spirit of excessive and unrea
soning loyalty to party or to party leaders. See
"Message of the Presidents," (Washington) n
54; Bryce's, "The American Commonwealth!"
vol. 1, p. 104.
The opinion holds In effect that because, under
the provisions of the act in question, only five
hundred petitioners in Adams county, the home
of relator, can take part in nominating him that
he might thereby be prevented from receiving
a1 nomination and the electorate of his county
which contains about 6,000 electors, would thus
be deprived the opportunity 'of voting for him
The point does not seem to be well taken. It
does not appear reasonable to believe the en
forcement of this feature bt the act would be
fraught with results so serious. There are eight
YOLTJME f, NUMBER 85
counties contiguous to that of relator, having a
population In each that is not much, if any, less
than that of Adams county.. Thus, in his own
and in the eight neigh pprlnjs counties with one
additional, the names of the requisite five thou
sand signatures might, be obtained by the rela
tor, or by any qualified candidate. In the state
at large the entire 'vote amounts to approxi
mately 250,000. Two per cent of- that number
Is the number of signatures required to place
the name -of, relatar.in. .nomination- The most
populous county in tie state has approximately
26,000 voters. Twd per, cent of that number
is tho maximum number' of signatures permitted
by the act in any one county so that upon a
percentage basis while it; Is true no percentage
is. named in, the act,. Jt is seen .there is no dis
tinction: between the different, portions of the
state and np dMift'ction'as tb jthe number of sig
natures required 6t cdhdi'daies for position in
the same class. The act seems to impose no
unusual or unreasonable burden or restriction
in th requirement that the signatures of five
thousand electors shall be obtained, with the
limit of five hundred in aiiy one county. These
are mere details of the law. regulations that are
within the power of the legislature to prescribe.
By the arrangement of the" ballot provision is
made that the votfer may write in the nanies of
such additional persons as may commend them
selves to his choice. Healey v. Wipf, 117 N. W.
(S. Dale.) 5.21; 23; Am. Law Review, 719; Paine
on, Elections, (1888), siec.' ,5.
The act is not obnoxious 'to tjie' constitutional
prohibition against; class legislation because' it
includes all candidates for judicial position in
courts of record, and all candidates for executive
school positions,. It adds no new qualifications
to the constitutional requirements respecting the
position sought by delator. State, v, Eturiter, 23
ilan.' 578; State ' v. Township 'Committee, 14
Atl; Rep. 587; City pf Topeka v. Gillett, 32
Kan. 431; State V. rBerlca, 20 Neb. 3 7 5; ; State
v. Irrigation Co;:, 59 faeb,:'lv
. The majority oftinlph1 'cites State y.t"Drexel'74
Neb. 776. ; There, a Candidate for nomination
was. required, jr ,'toact, there in question, .to
pay a sum equttj' "blip per. "cent of the salary
Of" the desired office, for ;the;term to entitle' hVls
name to apeaif.'on n,o 'lii brief,
the act required 'him to 'purchase t!he right to
submit his' name td iiie Electorate as' a, party
'candidate for nomination. 'The act Was held to
l)e clearly repugnant to th0 constitution, but it
'does- riot clearly appear 'that the rule there in
voked applies to the facts in the case at bar.
People v. Electibti Commissioners, 221 111. 9;
and Rouse v. Thompson, 228 111., 622, are cited
in the majority opinion, The soundness of all
that is said in the cited portions of the cases
may be conceded. For. the most part they ap
pear tb show a connection between the primary
election and the general election.
The opinion discusses two features that were
not argued in the brief of relator. Reference
is had to the feature limiting the number of
signatures that may be obtained in any one
county to five hundred, and to that other feature
which discusses freedom of speech and the right
to peaceably assemble. It is an established rule
of this court that assignments 'which are not
argued in the briefs of the party complaining
are deemed to be waived and will receive no
attention here. The reason for the rule and Its
application Is sound. It is fair to all litigants,
avoids surprise to counsel and gives to each
party an equal opportunity to be heard on con
tested matter. In Brown v. Dunn, 38 Neb. 52,
the rule was applied by Ragan, C. "We will
not examine errors alleged in a petition in error
unless such errors are specifically pointed out
and relied upon in the briefs filed in the case,
under the rules of this court." In support of
his ruling ho cites Phenix Ins. Co. v. Lord, 37
Neb. 423'. To the same effect are the following:
Peaks v. Lord, 42 'Neb. 15; Madsen v. State, 44
Neb. 631; Bibdgett v. McMuftry, f4 Neb. 71;
Scott v. Chope, 38 Neb. 41; Glaze v. Parcel, 40
Neb. 732; Gulick v. Webb, 41 Neb. 706; Erch
v. Batilc, 4!3' Neb.' 613; Jbiinson v". Gulick, 4C
Neb. 817; Wood Co. v. Gerhold,, 47 Neb. 397;
Mandell v.'Weldin, tf9f Neb. 699;.
The majority opinion holds: "Where it Ap
pears on the face of the legislative act that an
inducement for its passage was: a void provi
sion, the entire act falls," and that, "Where
valid and invalid parts df a legislative act are
so intermingled that they can not be separated
in such a manner as 'to leave an enforceable
statute expressing the legislative will, no part
of the enactment caii bo enforced." Even as
suming that the por't'idns of the act in question
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