57 Kan. 552 | Kan. | 1896
Lead Opinion
Section 10 of chapter 78 of the Laws of 1893, known as the Australian Ballot Law., provides:
“The certificates of nomination, and nomination papers being so filed, and being in apparent conformity with the provisions of this act, shall be deemed to-be valid, unless objection thereto is duly made in writing. Such objections or other questions arising in relation thereto in the case of nomination of state officers- or officers to be elected by the voters of a division less than the state and greater than a county, shall be considered by the secretary of state, auditor of state and attorney general, and the decision of a majority of these officers shall be final. Such objections or questions arising in the case of nominations for officers to-be elected by the voters of a county or township, shall be considered by the county clerk, clerk of the district court and county attorney, and the decision of a majority of said officers shall be final. ... In any case where objection is made, notice shall forthwith be given to the candidates affected thereby, addressed to their place of residence as given in the nomination papers, and stating the time and place, when and where such objections will be considered.”
“And, aside from testimony to that effect, it would seem inherently necessary in all party oganizations that there should be some governing head, some controlling power, some common arbiter, which, if an emergency" should arise therefor, can lay its hand on the heads of warring factions within the party, and compel the observance of wholesome regulations conducive alike to efficient party organization, order, fair dealing, and good government. Certainly a court of justice could not look with unpropitious eye upon all proper rules which would protect every citizen in the unt^ammeled exercise of their choice in selecting those for whom they desire that their suffrages shall ultimately be cast. The same considerations which should induce courts of justice to maintain the purity of the ballot-box, when the final vote is taken, should equally operate with them to promote honesty and condemn fraud when a preliminary vote is taken, or a nominating convention held.”
There is language of somewhat similar import in the case of In re Redmond, 25 N. Y. Supp. 381. In the case of Chapman v. Miller, 52 Ohio St. 166, the Supreme Court of Ohio held valid, and enforced, the decision of the Secretary of State as to certain nomination papers, without discussion of the broad question we are now considering. It will be observed that in the case under consideration no question is. presented as to the regularity of the nomination papers of the plaintiffs, as to the genuineness of the signatures attached thereto, nor yet as to the fact that a convention was held at the time and place stated
"When the call for a convention of a political party, results in the holding of two nominating conventions, it is not the province of the board of election commissioners to determine which convention represented the regular nominating convention of the party, but it is their duty to place upon the ballot the names of the candidates certified to them by the committee of either branch of the party represented by the two conventions ; and if the name of a party shall be certified by each of the two committees, it is the duty of the commissioners to print the names so certified without further addition or distinctive designation than such as is contained in the certificate so furnished.”
And in the case of The State v. Allen, 43 Neb. 652, it was held:
"Where two factions of a political party nominate candidates and certify such nominations to the secretary of state in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts, in case of doubt, to adopt that construction which affords the citizen the greater liberty in casting his ballot.”
And in the recent case of Phelps v. Piper, 67 N. W. Rep. (Neb.) 755, in a carefully considered opinion it was said :
"Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their own will. The voters ultimately must determine e.very such question. The voters constituting a party*564 are, indeed, the only body which can finally determine between contending factions, or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government.”
In the case of The People, etc., v. District Court, etc., 18 Colo. 26, it was said in the syllabus that “ it is not the province of either executive or judicial officers to give official sanction to the mere course, regularity or genuineness of any political organization as such.” These cases were decided under statutes substantially like ours, and fully sustain the proposition that no power is vested either in the special board provided by the Australian Ballot Law or in the courts to pass on the merits of the claims of rival factions of a political party ; but that where both hold conventions and nominate candidates, both must be recognized, and given a place on the official ballot. The Supreme Court of Missouri, in the case first cited, holds, that there was a .valid agreement to arbitrate; that the award was made in accordance with that agreement, which was binding on the parties. We have very serious doubts whether the courts can take cognizance of and enforce such agreements with reference to controversies of this character. But if the position of that Court be sound, there was an express withdrawal by the plaintiffs from the submission in this
A premptory'writ is awarded as prayed for.
Dissenting Opinion
(dissenting). In my view the plaintiffs are not entitled to the relief which they ask. While they had been named in a manner as the candidates of one of several conventions held in Wyandotte County, they had long before relinquished their claims as candidates and agreed to a reorganization of the Republican Party and to the nomination of another ticket. Dissensions had arisen in the Republican Party in that county. Two conventions had been held in the month of July, 1896, and two separate tickets had been
„ Another reason why the writ of mcmdamus should not issue is the fact that the tribunal provided by law for the decision of such questions has determined that the plaintiffs are not entitled to a place on the ballot as the nominees of the Republican Party. The Legislature recognized that questions would arise as to the regularity of party nominations and as to which one of several tickets was entitled to use the party designation, and in the interest of order and fairness provided tribunals to determine these questions. Objections or questions in relation to state or district nominations are to be considered and decided by a tribunal composed of the Secretary of State, Auditor of State and Attorney General, and as to county or township nominations by a tribunal composed of the
It was urged that the power was liable to be abused because the officers designated as tribunals to determine these controversies are likely to be interested in the result of the election, but this consideration is entitled to very little weight. We cannot assume that they will act dishonestly or abuse the power that is confided in them. The judges of the courts have political opinions and are generally adherents of some of the political parties, but they are not for that reason relieved from the duty and responsibility of determining questions like these, however disagreeable the task may be. Questions of this character must be decided by some one, and it is for the Legislature to determine where that power shall be vested. The courts need not be concerned about the wisdom or policy of the legislation. We cannot disregard the legislative declaration because it may appear to us not to be the best policy, nor because, as has been suggested, the managers of political parties may sometimes be actuated by selfish or sinister motives. It has also been suggested that the exercise of the power would tend to strengthen party machinery and the domination of party leaders, but this case does not afford an illustration of such peril, as the steps that were taken were to depose the existing managers and committees and to submit to the Eepublican electors the question as to who should be their party leaders and candidates. All know that under our system of government the preliminary steps in elections and the choice of officers are carried on through the political parties, their organizations and representatives ; and necessarily there must be rules and regulations for their guidance and control. The