ELY v. ELY.

(Supreme Court of New Jersey. Sept. 30, 1903.)

SLANDER-DECLARATION.

1. Where a declaration for slander states a cause of action, and by the innuendo therein alleges that the words set out in the declaration were uttered in a defamatory sense_ concerning plaintiff, it is sufficient, under Laws 1903, p. 568, § 106, providing that plaintiff may aver that the words or matter complained of were used in a defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged slander; and if the words or matter set forth, with or without the alleged meaning, show cause of action, the declaration shall be sufficient.

Action by J. Addison Ely against Stephen D. Ely. Demurrer to the declaration. Demurrer overruled.

Argued November term, 1902, before the CHIEF JUSTICE, and VAN SYCKEL, FORT, and PITNEY, JJ.

John M. Dickinson, for plaintiff. Alan H. Strong, for defendant.

PER CURIAM. This is a demurrer to a declaration in a suit for libel. We have considered this case upon all the grounds argued by counsel, and the declaration, in our judgment, states a cause of action, and by the innuendo therein alleges that the words set out in the declaration were uttered in a defamatory sense of and concerning the plaintiff. This, we think, is sufficient under the statute, and the demurrer is therefore overruled. Mott's Prac. Act, p. 55, § 106 (Laws 1903, p. 568, § 106).

The plaintiff is entitled to costs.

(69 N. J. L. 562)

HOPPER v. STACK, County Clerk. (Supreme Court of New Jersey. Sept. 19, 1903.)

PRIMARY ELECTION LAW-CONSTITUTIONALITY -SPECIAL ACT-SECRET BALLOT

POLICE POWER.

1. The statute entitled "A further supplement to an act entitled, 'An act to regulate elections,' "" approved April 14, 1903 (P. L. 1903, 56 A.-1

p. 603), popularly known as the "Primary Election Law," applies to general elections only. Held, that it is not on that account a special law, within the constitutional interdict.

Held, also, that it is not rendered special by reason of its provision that candidates to be elected by the voters of a single ward or township shall be nominated directly without the intervention of delegates, while those to be elected by the voters of more than one ward or township are to be nominated by delegates from such wards or townships assembled in party conventions.

2. The supplemental act in question is not repugnant to article 4, § 7, par. 4, of the Constitution, because by one of its sections it is provided that certain specified "sections of the act to which this act is a further supplement shall apply, as far as may be, to the primary elections held pursuant to this act."

3. The right to vote a secret ballot is neither a natural right nor a constitutional right; hence a legislative provision that, if challenged, a voter shall make affidavit that, at the last general election at which he voted, he voted for a majority of the candidates of the party with which he is proposing to act, violates no constitutional right of such voter.

4. It is of the essence of the exercise by the Legislature of its police power that citizens may, for the public good, be constrained in their conduct, even in respect to matters otherwise right.

5. The recognition by the Legislature of the existence of conditions that, in its judgment, require regulation under its police power, is to be distinguished from the creation by the Legislature of conditions that previously had no exist

ence.

6. Primary elections are so far matters of public concern that they are, at the discretion of the Legislature, proper objects of reasonable statutory regulation under its police power.

7. Section 42 of "An act to regulate elec tions" (P. L. 1898, p. 258) is repealed by the fourth section of the supplement to said act, approved April 14, 1903 (P. L. 1903, p. 606).

(Syllabus by the Court.)

Action by Andrew Hopper against Maurice Stack, county clerk of Hudson county, for a writ of mandamus to compel the defendant to receive and file a certificate nominating the relator as a candidate for the office of member of the common council for the city of Hoboken. Rule discharged.

Argued June term, 1903, before GARRISON, GARRETSON, and SWAYZE, JJ.

Allen L. McDermott, for relator. George L. Record and Robert H. McCarter, Atty. Gen., for defendant.

GARRISON, J. This is an application for a writ of mandamus to compel the clerk of Hudson county to receive and file a certificate of nomination made in accordance with the provisions of the forty-first section of "An act to regulate elections," as modified by section 1 of "An act relative to the time of elections," etc., "in cities of this state," approved February 28, 1901 (P. L. p. 41).

The right that is set up rests upon these statutes, which have admittedly been repeuled, if "a further supplement to an act entitled 'An act to regulate elections,' approved April 14, 1903 (P. L. 1903, p. 603), is a valid legislative enactment.

The case, therefore, turns upon the validity of the last-mentioned act, which is popularly known as the "Primary Election Law." As indicated by this subtitle, the act in question attempts to regulate the primary elections for candidates to be voted for at the general elections, which it undertakes to do-broadly speaking-by extending to such preliminary elections many of the features of the official ballot system, together with other provisions having for their object the prevention of the fraudulent intervention in such primary elections of persons not entitled to participate therein.

It is contended in the first place that this act is a special law regulating the internal affairs of certain towns, and hence is unconstitutional. This claim rests upon the fact that the act applies only to elections for officers to be voted for at the general election for members of assembly-to wit, fall elections-the argument being that, in order to be general, it should include spring elections as well. There are, however, two considerations that justify, in a legal sense, the classification adopted by the Legislature: First, that the expense of the proposed machinery would fall disproportionately upon many of the smaller municipalities that choose their local officers in the spring; and, secondly, that, as the act is admittedly a regulation of established party methods, it may legitimately be confined to those general elections that are commonly conducted upon party lines, to the exclusion of those in which, as a rule, purely local issues predominate. These welldefined characteristics afford a reasonable basis for the exercise of legislative discretion in the premises, so that the classification cannot be said to be illusory or a mere evasion of the constitutional interdict. This being so, the act is not unconstitutional for lack of generality.

The provisions that candidates to be voted for by a single ward or township shall be nominated directly, without the intervention of delegates, while those to be elected by the voters of more than one ward or township shall be nominated by delegates assem bled in party conventions, are not special or class legislation. They are merely incidental parts of the machinery of a general law, fully justified, if the Legislature can be call

ed to an account for them, by the relative complexity of the conditions.

In the next place, it is argued that the supplement is in violation of the constitutional direction that "no act shall be passed * which shall enact that any existing law or any part thereof shall be applicable except by inserting it in such act." The basis of this criticism is the thirty-third section of the supplemental act in question, which provides that certain specified "sections of the act to which it is a supplement shall apply, so far as may be, to the primary elections held pursuant to such supplemental act."

The answer to this contention may well rest upon the views expressed by Beasley, C. J., in State v. Hancock, 54 N. J. Law, 393, 24 Atl. 726, re-enforced by those stated in Bradley & Currier Co. v. Loving, 54 N. J. Law, 227, 23 Atl. 685; De Camp v. Hibernia R. Co., 47 N. J. Law, 43; Christie v. Bayonne, 48 N. J. Law, 407, 5 Atl. 805; and Evernham v. Hulit, 45 N. J. Law, 59-with the further remark that, inasmuch as supplemental legislation must always be construed with respect to the statutes that are supplemented, the legislative injunction in question is merely declaratory of a subsisting canon of construction, and hence might be excised from the act without impairing its effectiveness as a repealer of the sections of the original act upon which the relator must rely.

These are the only constitutional questions raised upon the argument that are susceptible of treatment in concrete form.

The rest of the relator's argument is addressed to the several provisions of the supplemental statute in detail, which are subjected to a variety of criticisms, in which the distinction between legislative power and legislative wisdom is not, perhaps, at all times rigidly observed. Thus, for example, whether the name of a voter's choice shall be printed at public expense, or be written with a black lead pencil, involves no constitutional question; and the same may be said of several of the minor objections urged.

So much, also, of the argument as assumes that the right to vote is a natural right, and that the secrecy of the ballot is guarantied by the Constitution, must fall with the faulty premises on which it rests. The right to vote is not a natural right; it is a political duty created by public law. The right to a secret ballot is not a constitutional right; it is given and may be taken away by legislative enactment. Ransom v. Black, 54 N. J. Law, 446, 24 Atl. 489, 1021, 16 L. R. A. 769.

The argument, therefore, that the affidavit to be made by a challenged voter violates any natural or constitutional right to secrecy possessed by him, is entirely without foundation. Moreover, as the voter is not required to say for whom he voted, but only that he voted for a majority of the candidates of the | party with which he claims to act, it is difficult to see wherein such partial avowal is any more inimical to secrecy than is the open