election, in view of the provision of section 41.

Cook

v. Election Commissioners, 172 Mich. 437 (138 N. W. 1).

2. It is the claim of relator that the statute does not disqualify him as the appointee of the city committee to fill this vacancy, even though it is held that he was not enrolled as a member of the National Progressive party, and that no restriction is placed upon the committee as to whom they shall select. On the other hand, it is the claim of the respondents that the nominee selected by the city committee must be enrolled in the party upon whose ticket he is to become a candidate, because of the provision of section 41 reading:

"Provided further, that all votes cast for any candidate upon the ballots of one political party, when such candidate is enrolled as a member of another party, shall not be counted."

This proviso is expressly limited in its language to the acts of the board of election inspectors in the counting of the votes at the primary election. We are here dealing with conditions that arose subsequent to the primary. It appears from this record that the relator had been duly certified to the board of election commissioners by the proper body and appears to be a member of the National Progressive party, and is entitled to a place on the ticket. We do not decide what the ruling might be had relator been a member of another party.

The practice in this case, wherein the answer is signed by the attorney for the respondents only, is not to be commended. Such answer is more than a mere pleading, and should be signed by the respondents, or by some one in their behalf duly authorized. 2 Stevens' Michigan Practice, § 467, p. 408.

The writ of mandamus will issue as prayed for by rela'tor, but without costs to either party.

MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred. STEERE, C. J., and MOORE, J., did not sit.

BROWN v. BOARD OF ELECTION COMMISSIONERS OF KENT COUNTY.

1. ELECTIONs-Ballots-BOARD OF ELECTION COMMISSIONERS. Some showing or evidence of a candidate's right to appear on the official ballot should be in the hands of the board of election commissioners to warrant the board in causing the name of the candidate to be placed thereon.

2. SAME-REGULATION.

Under article 3 of the Constitution the legislature has power to regulate but may not destroy the enjoyment of the elective franchise.

3. CONSTITUTIONAL LAW - PRIMARY ELECTIONS

CANDIDATE.

RIGHT TO BE

The provisions of section 37, Act No. 281, Pub. Acts 1909, as amended by Act No. 279, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 541 et seq.), requiring fifteen per cent. of the party votes at the preceding election to entitle a candidate at the primary to have his name printed on the ballot, do not destroy the right of franchise, since the electors may write in names of candidates, not appearing on the election ballot; and the statute is therefore constitutional. MOALVAY and BROOKE, JJ., dissenting.

Certiorari to Kent; McDonald, J. Submitted March 27, 1913. (Calendar No. 25,630.) Decided March 29, 1913. Rehearing denied April 8, 1913.

Mandamus by Alvah W. Brown and others against the board of election commissioners of Kent county to prevent respondents from placing the names of certain candidates for county road commissioner on the ballot. An order denying the writ is reviewed by relators on writ of certiorari. Reversed.

Roger I. Wykes and A. R. Dilley, for appellants.

A. A. Ellis and C. G. Turner, for appellee.

BIRD, J. The petitioners question the right of the election commissioners of Kent county to place the names of the Democratic and Progressive candidates for county road commissioners on the ballot for the coming spring election on the ground that such action would be in violation of section 37 of Act No. 281 of the Public Acts of 1909, as amended by Act No. 279 of the Public Acts of 1911, in that neither of such parties cast at the primary 15 per cent. of the vote cast for secretary of State at the preceding election. The material part of the section reads:

"Provided, that no candidate for any city, county, district or State office shall be deemed nominated and no certificate of nomination shall be given to any person whose political party with which he is enrolled casts at such primary election less than fifteen per centum of the vote cast by such political party for secretary of State at the last preceding biennial or November election; and in such case such political party shall not be entitled to have the names of any candidates printed upon the official election ballot." (1 How. Stat. [2d Ed.] § 541.)

The respondent makes reply that:

"The provisions of said section are unjust and unreasonable, and were not passed for the purpose of protecting the purity of elections, and do unjustly deprive an elector of his right of franchise, and are therefore unconstitutional and void."

At the outset attention is called to the fact that neither the Democratic nor the Progressive candidates received certificates of nomination by the board of canvassers, and that, when the board of election commissioners threatened to place the names of these candidates on the ballot, they had no prima facie nor other evidence before them entitling the candidates to a place thereon. We are of the opinion that, before placing the name of a candidate upon the ballot, some showing of his right to be placed thereon should be in the possession of the board. See De Foe v. Board of Election Commissioners, ante, 472 (140 N. W. 641).

If this provision of the primary law is unconstitutional

and void, the reason for its being so must be found in the Constitution itself. The only limitation upon the power of the Michigan legislature to enact laws is our own Constitution and the Federal Constitution. It follows, then, that this legislation must stand, unless it can be pointed out that it infringes some provision of the State or Federal Constitution. Article 3 of the State Constitution is devoted to the elective franchise. Sections 1, 7, and 8 are the important ones bearing upon this inquiry. Section 1 provides who shall be an elector, and that the legislature may provide the way in which his vote may be cast. Section 7 provides that all votes shall be by ballot. Section 8 provides that laws shall be passed to preserve the purity of elections and guard against abuse of the elective franchise. This court has on several occasions considered the limiting force of these provisions upon legislative enactments, and the conclusion reached was that the legislature may regulate, but cannot destroy, the enjoyment of the elective franchise. Common Council of City of Detroit v. Rush, 82 Mich. 532 (46 N. W. 951, 10 L. R. A. 171); Attorney General v. City of Detroit, 78 Mich. 545 (44 N. W. 388, 7 L. R. A. 99, 18 Am. St. Rep. 458); Todd v. Election Commissioner, 104 Mich. 474 (62 N. W. 564, 64 N. W. 496,29 L. R. A. 330); Attorney General v. May, 99 Mich. 538 (58 N. W. 483, 25 L. R. A. 325). In commenting upon the degree of restraint of these constitutional provisions upon the power of the legislature in Common Council of City of Detroit v. Rush, supra, Mr. Justice GRANT said:

"Under these broad provisions, it has been frequently held to be the exclusive province of the legislature to enact laws providing for the registration of voters, and the time, place, and manner of conducting elections. It may regulate, but cannot destroy, the enjoyment of the elective franchise. Whether such regulation be reasonable or unreasonable is for the determination of the legislature, and not for the courts, so long as such regulation does not become destruction. Attorney General v. City of Detroit, 78 Mich. 545 [44 N. W. 388, 7 L. R. A. 99, 18 Am. St.

Rep. 458]. Courts will not declare the law invalid because its enforcement might result in the restriction of the right to vote, else the registry laws would have been held void. Yet these laws have been universally sustained, on the ground of wise and necessary regulation. In 1832 Chief Justice Shaw sustained them, on the ground that they tended to

"Promote peace, order, and celerity in the conduct of elections, and as such to facilitate and secure this most precious right to those who are by the Constitution entitled to enjoy it.' Capen v. Foster, 12 Pick. [Mass.] 485 [23 Am. Dec. 632].

"The principles then enunciated have been adopted by this court in numerous cases. People v. Blodgett, 13 Mich. 127; People v. Kopplekom, 16 Mich. 342; Attorney General v. Detroit Common Council, 58 Mich. 213, 24 N. W. 887 [55 Am. Rep. 675]. When power is conferred upon the legislature to provide instrumentalities by which certain objects are to be accomplished, the sole right to choose the means accompanies the power, in the absence of any constitutional provisions prescribing the means. The finding by this court that the law impeded, hampered, or restricted the right to vote, and is therefore void, would be a clear assumption of, and encroachment upon, legislative power-a substitution of our judgment for that of the legislature. It can only be declared void when it destroys the right. Its unconstitutionality can be determined by no other rule."

The test is, then, whether section 37 destroys the elective franchise or simply regulates it. If it destroys, it is our duty to declare it void. If it merely regulates, our duty is to declare it valid and relief from its effects must be found in the legislature. An examination of section 37 will disclose that it is aimed at the voter's right to have his name placed upon the ballot, and not at his right to vote. The right to vote is protected by the Constitution. The right to have his name placed upon the ballot is one which is under the control of the legislature. But it is argued that it interferes with the exercise of the franchise in that the names of the candidates for commissioners will not be printed upon the ballot. This does not destroy the right of franchise because the voter may write the names