Decided: October 11, 1954.
BERT SALWEN, PLAINTIFF-APPELLANT,
ALBERT H. REES, INDIVIDUALLY AND AS COUNTY CLERK OF MERCER COUNTY, DEFENDANTS-RESPONDENTS
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None.
The judgment is affirmed for the reasons expressed in the opinion of Judge Drewen in the court below.
On appeal from a judgment of the Superior Court, Chancery Division, entered on order of Judge Drewen who delivered the following oral opinion. "The court fundamentally is asked to declare unconstitutional an act of Congress known as the Communist Control Act of 1954. The court declines to do so.
"Chiefly, what is argued as a reason for the court's doing so is that the federal enactment is without implementation and that the county clerk, who is the defendant or respondent in these proceedings, is setting up his own machinery and his own personal functioning for the carrying out of a law which is, as contended, without lawful sanction. It is the court's view that any argument which assumes the inadequate implementation of the federal statute is academic in the present situation. Valid and sufficient implementation is provided in our election law. Counsel for plaintiff admits he is here by due process.
"The reasons proposed as competent to move the court to find that the federal act is unconstitutional are without relation to the concrete problem before us. They are all based on the assumption that the federal statute or the conduct of the county clerk, or both, are directed to the plaintiff as an individual and that they deprive him of constitutional rights like that of free speech and the others cited by counsel. I think a misconception prevails here. Indeed, the plaintiff argues in his brief and argues here orally through his counsel that the federal statute has to do with the Communist Party as such and not with the plaintiff nor with any person individually. With that proposition the court is in agreement. And as for the conduct of the county clerk, he is dealing with the plaintiff in the manner that he does only in order that he may deal with the Communist Party as such. It is not the county clerk's fault. It is the plaintiff's fault who insists upon identifying himself with the party and becoming its embodiment, so to speak, in the choice of a campaign slogan as candidate for the office he seeks.
"It is all very well to argue that he may change his mind about one thing or another. But the fact of the matter is that he proclaims himself the candidate of the Communist Party, and proclaims to the electorate that a vote for him is a vote for the party enthronement. It seems to me that what we are really dealing with here is the choice of a slogan. We have a right to take the plaintiff at his word. On the other hand, if he proposed a slogan like 'Against Anti-Communist Legislation,' it would, in all probability, have to be acceptable. This, needless to say, is by way of obiter dictum.
"I want to make a reference to particular passages in plaintiff's brief, these having been also repeated in the course of counsel's oral argument this morning. They have to do with the duty of the county clerk to arrange for the placing of names of candidates of the parties entitled to participate in the election. They have also to do with the claim that the federal legislature is amending the qualifications for local public office. I see no such factor in the problem. However, if the larger objective requires in individual instances, like the one before us, that there be a pertinent restriction upon access to public office, then such restrictions must be supported. And if, in order to make good the outlawry of the Communist Party as such, it becomes unavoidable that individuals be prevented from carrying its banner, so to speak, well, that course will have to be taken in the administration of the law.
"The court is impressed with the idea that this peculiar method, as chosen by the plaintiff, is a keen way of circumventing the statute, because if it were valid for him to take the course that he has chosen, it would be valid for a complete set of candidates to do the same thing, the consequence of which, of course, would be to frustrate completely the design of the federal law.
"Counsel for the plaintiff speaks of the plaintiff's being prohibited or hampered 'in offering his program.' If this plaintiff has a program, something that is within the law (and I don't refer only to the federal law that we are dealing with), nobody denies to him the right of expounding his program to the people, even a program critical of the present law.
"Now, necessarily I have to decide this promptly. Circumstances deny to the court the opportunity of writing out its views at length. I do, for the reasons stated, decide that the order to show cause under the complaint filed herein must be dismissed."