122 Wis. 534 | Wis. | 1904
Lead Opinion
On October 20, 1904, the following opinion was filed:
At the outset in writing this opinion it seems proper to say that the court at no time since the cause was submitted has been insensible to the intense anxiety of the people of this state for a speedy determination of the important questions involved. That anxiety fully justified, if it did not do more, giving the cause preference over all ordinary business here and it has been given that preference. Obviously in such an important matter neither the circumstance referred to nor any other could have justified haste in reaching a decision, impairing the ability of the members of the court, individually, to carefully study and consider the arguments of the eminent counsel who, in their appropriate field as officers of the court, have aided it in arriving at a correct result. Such careful consideration of the arguments of counsel required the examination of a multitude of authorities cited therein, and authorities in great number not so referred to. Time for that careful study was due to those who must in the future bear the responsibility for the result. It was due to the court which stands for justice in our commonwealth, so far as it is given to men to effect it, laboring conscious of no thought'other than to discover and to declare what is right, and to condemn what is wrong. It was due to the people at large, whose interests
With the foregoing prefatory remarks we will take up the
"Whether the canse of the plaintiff is -within the original jurisdiction of this court, using the term “jurisdiction” in its strict sense, that of power as distinguished from mere judicial rules as to when it may be exercised in equity or at all, is determinable without difficulty by the test which has been so firmly established by a long line of decisions in this court, that it is as well known in its general scope as any legal principle that could be mentioned.
The cause involves the interpretation and enforcement of a legislative enactment in which all the people of the state are vitally interested. The question at issue is publici juris in the highest degree. The chief interest therein is not only public but extends to every section of the state in substantially an equal degree. It involves the correct enforcement of the legislative plan, making political parties important state agencies in the selection of candidates for public offices, incidentally in determining the policy which shall guide such officers in the performance of their official duties, and in the selection at the ballot box from those primarily named of persons to fill such offices. The theory of such plan is that a political party, so long established as to come within its provisions, stands for some distinct policy in public affairs, which is so identified with the party name that its candidates should have the exclusive use thereof as a characterization of such policy and the relations of its candidates thereto, upon the official ballot. It contemplates that candidates for office named on the official ballot stand for principles of supposed public concern, to be indorsed or condemned by the electors according as they shall indicate their opinions in respect thereto-, by their votes for or against them as the personal representatives thereof. It contemplates that such principles are of paramount importance in determining elections; hence that'
If there could be any doubt but that the conclusion above suggested is right a reference to previous decisions of this court effectively removes it. In Att’y Gen. v. Blossom, 1 Wis. 317, this court declared, in effect, that its original jurisdiction affords a remedy for the unauthorized exercise of power, which only the legislature, acting within constitutional restraint, can give; that it is the duty of the state to preserve pure and unimpaired every channel and agency through which its power is exercised or administered, and rebuke in the most speedy manner consistent with individual rights any and all who assume its name or usurp its authority or seize upon its franchises; and that such power effectively lodged somewhere, is necessary to preserve the liberties of the people and to secure the rights of its citizens. In Att’y Gen. v. Railroad Cos. 35 Wis. 425, a violation by railway corporations of a law regulating the enjoyment of their franchises was held to be a subject proper to be dealt with here in the first instance. In Att’y Gen. v. Eau Claire, 37 Wis. 400, the alleged abuse of a public watercourse, title to which was in the state in trust for the whole people thereof, was held to be such a subject. In State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724, a controversy as to the validity of a law apportioning the state into senate and assembly districts was also said to be a like subject. In the opinion the scope of the court’s original authority was thus spoken of: “In matters publici juris it would seem to embrace every matter of great public interest.” In support of that numerous early cases were cited, showing the broad range of subjects as
If the issues made by the pleadings and proceedings present judicial questions, it is no less clear that the case is one
No other questions than those already discussed go, strictly speaking, to the jurisdiction of the court. The others relate
It must be conceded that by the general rule there is no-legal effective remedy to prevent the alleged threatened wrongful act or to redress it, if commission thereof were permitted-The remedy by mandamus is not available, generally speaking, in advance of some actual default in respect to a clear-official duty. State ex rel. Board of Education v. Hunter, 111 Wis. 582, 87 N. W. 485. If special circumstances may create an exception to that rule, as suggested in the case cited, whether this case would fall within such exception is sufficiently involved in doubt to warrant a court of equity in-opening its doors so far as it can afford a remedy, if the commission of a great wrong is in fact impending as alleged. It seems quite plain, since the defendant cannot, by any action on the part of the relators, be put in default in respect to the matter until a few days before the official ballot must be pre
So, as we have seen, this is a proper case for tbe exercise of tbe original jurisdiction of this court in any aspect the same may be viewed. Therefore tbe court has assumed such jurisdiction for these purposes: To determine whether, upon tbe facts appearing;' plaintiff has any ground for relief; to determine all of tbe minor questions necessarily involved in the one ultimately to be solved; and if the latter shall be determined in favor of tbe plaintiff, to decide upon tbe measure and form of relief tbat should go against tbe defendant, and to render tbe proper decree and to enforce it.
Tbe time has long since passed for serious controversy as to whether in this class of cases judicial questions are involved. The idea urged upon our attention by defendant’s counsel tbat they involve only political questions, which should be left for solution to tbe party organizations directly inter
“When the legislature in its wisdom sees fit to regulate nominations and the printing of ballots by statutory enactment, the duty of interpreting such enactments devolves upon the courts, and they should not attempt to escape responsibility, or avoid disagreeable consequences by assuming that no judicial questions are involved. The auditor’s duty and the candidate’s right respecting the preparation of the official-ballot, having been determined by statute, . . . the performance of such duty and the protection of such right no-longer present merely political questions, but must be dealt with as other legal duties and other legal rights.”
The law making political parties state agencies, as before-indicated, in the selection of persons for public offices, shaping the policy that shall be their guide in the performance of' their official duties, and regulating the manner in which such parties shall execute their functions, created new rights and privileges to be conserved by old or new remedies, or in part by one and in part by the other, according as the legislative-will is expressed in terms or by necessary implication. Every law conferring a new privilege or right, or providing a new and legitimate condition for the enjoyment of an old one, necessarily gives rise to new possible wrongs in respect thereto,, with a corresponding necessity for the use of remedies for prevention and redress. To the maxim there is no wrong, asid.e-from purely moral transgressions, without a judicial remedy of some sort to prevent or redress the same, there is no exception, though such remedy, especially as to violations of mere legislative .privileges, or administrative regulations, as wo-shall hereafter see, is often limited to the correction of juris-
So it follows that the legislative' enactment specializing as to what political parties may have the use of the official ballot and the conditions to be observed to secure the enjoyment of -that privilege, impliedly renders all controversies between nival claimants to such privilege as to any particular political organization; judicial in character so far as necessary to a de-cisión upon the ultimate point involved. The precise extent -to which judicial inquiry may legitimately go, under any circumstances, need not be considered here. The cases where that has been treated in recent years are very numerous. Many of them will be found referred to in this opinion. The most recent and one of the most instructive thereof is the one to which we have referred, decided by the supreme court of South Dakota after this cause was submitted to the court. It is sufficient for this instance, that the question of whether a tribunal has been created by the legislature to determine, in "the circumstances presented to the defendant, as alleged, the matter of fact as to which of the two rival claimants is entitled to the use of a particular party name upon the official 'ballot, and if there be such tribunal the question of whether 'its jurisdiction as to the facts is exclusive, except as regards jurisdictional errors, are obviously, in view of what has been said, judicial questions. If such a tribunal has been created with exclusive jurisdiction as to the facts, within the limitation suggested, and this court for that reason refuses to invade it, it by no means follows that it does not possess jurisdiction to judicially declare which of the two sets of claimants of the privilege of appearing on the official ballot at the •coming general election as the regular nominees of the Ne-publican party is entitled to such privilege. This court, for -the reasons before stated, decides that it does possess that jurisdiction and that it might to and will exercise it.
As we understand tbe matter, it was frankly admitted on tbe argument by tbe eminent counsel for plaintiff that tbe legislature possessed authority to create a tribunal to decide controversies arising between rival claimants to tbe right to appear upon tbe official ballot under a particular party designation, and that if such tribunal exists for tbe purposes of tbe •controversy in question, its decision, within its jurisdiction, must be deemed conclusive. 'Whether -we are right or not as to such concession, such is doubtless tbe law.
Whatever privileges are within tbe power of tbe legislature to grant, may be granted upon such conditions and subject to such regulations as it in its wisdom may see fit to impose. That is elementary. In dealing with this subject care should be exercised to distinguish between common-law rights, which are within tbe protection of constitutional restraints upon legislative authority, and mere legislative creations. A failure in that regard would be quite likely to lead one astray. Tbe right to vote and to secrecy in respect to tbe elector’s opinion thus expressed cannot be impaired, but tbe enjoyment of those rights which are within constitutional protection may have every legislative aid wbicb tbe wisdom of tbe lawmaking power may see fit to afford. Tbe power of regulation to that
In respect to the genpral features of our present ballot law and legislative power in respect to such matters, the court said in State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482:
“Without wise and careful legislative regulations, supplementing the constitutional guaranty, the elective franchise-might be so abused and the means of such corruption as not only to nullify its controlling purpose, but every purpose-of popular constitutional government. That extremists may carry such regulations too far is by no means improbable, but when they do it will be met by that other safeguard, the court, without which constitutional guaranties might be easily evaded and rendered useless by the ingenuity of legislatures.
“We are unable to see anything in the present ballot law which passes beyond the bounds of reasonable regulation in-view of the end sought, — the right of all to vote in secrecy and upon the basis of political equality and purity.”
So the plan for an official ballot, and opportunity for party representation thereon, are matters of legitimate legislative-creation; hence the conditions of party representation upon such ballot are purely within legislative control. Whoever joins a political party impliedly submits to regulations in that regard, as in effect by-laws of the organization, the same as every member of any other voluntary association, upon joining the same irrevocably pledges himself to be bound by the decisions of its tribunals, save as regards jurisdictional errors. This court very recently dealt with such relations In Bartlett v. L. Bartlett & Son Co. 116 Wis. 450, 93 N. W. 473, and Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835.
Errors of judgment committed by such a tribunal however numerous or serious, even though by reason thereof justice, except as regards mere form, be denied and wrong from an
From the foregoing it is plain that whether the merits of the controversy between the two claimants of the right to a place on the official ballot as the Eepublican nominees, as to the facts, is within the special jurisdiction of a tribunal created by sec. 35, aforesaid, is of controlling importance in reaching a correct conclusion.
Those parts of sec. 35 which must be examined consist of the following two clauses:
*562 1. “In. case of a division in any political party, and a claim by two or more factions thereof to the same party name, the officer with whom the certificates of nomination are required to be filed shall, in certifying such nominations or preparing ballots, give preference of name to the convention or caucus thereof held pursuant to the call of the regularly constituted party authorities, and if the committee representing'the other faction present no other party name, such officer may designate the same in such manner as will best distinguish the nominations thereof.”
2. “When two or more conventions or caucuses shall be held and the nominations thereof certified, each claiming to be the regular convention or caucus of the same political party, preference in designation shall be given to the nominations of the one certified by the committee which had been officially certified to be authorized to represent the party.”
The calls of the first clause are: First, a division in a political party. Second, a claim by two or more of the factions to the use of the same party name, and by certificates of nomination duly filed. The calls of the second clause are: First, two or more conventions or caucuses held for the same jDurpose. ’Second, nominations made by each such convention or caucus. Third, the due certification of all the nominations. Fourth, the claim by each such convention or caucus to be the regular convention or caucus of the same political party.
It will be observed' at the first view of the quoted section that the element significantly present in the second clause and absent in the first, is the claim of each of the state conventions “¿o be the regular convention ... of the same political party.” The allegations of the complaint satisfy the calls of the first clause as regards mere party division and the claim by each faction to the use of the same party name, but the 'distinguishing element mentioned, the claim by- each of the conventions “to be the regulan• convention of the same political party,” not seen in the first clause, is most significantly present in the case before us and is fully and unmistakably covered by these words of the second clause: “When two or
Looking at sec. 35 from any reasonable standpoint and the foregoing proposition seems unanswered and unanswerable. The facts of this case respond to every call of the second clause of the section. The first clause cannot cover a case of a double claim to the same thing based on the conflicting actions of two conventions, each assuming to be the regular convention of the same political party. Eirst, because no such double claim is mentioned therein, and second, because it contemplates only conflicting claims, easily answered by the certify
The learned counsel for plaintiff, though freely confessing that at first sec. 35 impressed them as it does us, stated that by carefully scrutinizing the same they were able, or that some of them were, to discover a different meaning, which is urged with counsel’s customary ability upon this court. We have-carefully considered the reasoning indulged in to support such meaning, but must confess that it fails to impress us. Doubtless, the course of reasoning adopted by counsel is as convincing in support of their theory as any which the nature of the. case is susceptible of. We shall not follow it in all its details, but will consider the principal features thereof.
It is suggested that the test of regularity under the first clause of sec. 35 is not the source of the call, in response, to which either of the conventions was held; that there may be two conventions, each referable to the regular party authority, the nominations made by each duly certified to the proper officers, each claim the right to go upon the official ballot under the regular party designation, and all the circumstances satisfy the essentials of such clause. In that it seems not to be given due weight that, by the plain words of such clause, the certifying officer in every case thereunder must be guided by the “call of the regularly constituted party authorities,” referring, clearly, to the party authority provided for in sec. 31, which requires a record to exist in his office of the names of
With confidence counsel suggest, “If a convention called by one committee, and that the regular committee, splits into two conventions, each making and certifying nominations, each electing and certifying a committee to represent the party, and each claiming the right to the party designation on the ballot, are not there presented the precise conditions contemplated by the first clause?” Most assuredly not, because it ■clearly provides for a case of one convention, held pursuant to the call of the regularly constituted party authorities,, and one or more not so held.
Again counsel suggest, “It is the condition which gives the secretary of state jurisdiction” to decide a factional dispute as to the rightful claimant of a particular party designation. True, and the vital condition is one where there is no discretion to be exercised by the certifying officer in deciding as to multifarious claims to regularity referable to "the regularly constituted party authorities
Again counsel say, “The calls of the first clause are: first, a division in a political party into factions; second* the claim by each to the ‘same party namethird, tire holding by each of a convention or caucus; fourth, the making by each convention or caucus of nominations; fifth; the certification and filing of such nominations with the officer designated by law for that purpose; sixth, the election and certification by each with the nomination papers of a committee authorized to represent the party. All these conditions exist, or will exist, in this case.” Why the learned counsel'should stop there instead of naming that other condition existing here, viz.: multifarious claims to be “the regular convention of the same political
Tbe further point is made that tbe factional dispute in controversy in tbis case falls under sucb first clause because it was plainly tbe legislative purpose .to give each organized faction of a party, bolding a convention and certifying its nominations, as provided by law, representation upon tbe official ballot, and tbe only provision therefor is in tbe first clause and is contained in these words “and if tbe committee representing tbe other faction present no other name sucb officer may designate tbe same in sucb manner as will best distinguish tbe nominations thereof.” That tbe legislative purpose is clear, as claimed by counsel, may be conceded, but tbe idea that it is only satisfied by tbe first clause is clearly wrong. It is as definitely voiced in tbe second clause as in tbe first. There can be no mistaking tbe meaning of these words: “Preference in designation shall be given to tbe nominations of tbe one certified by tbe committee which bad been officially certified to be authorized to represent tbe party.” Tbe words “preference in designation” suggest at once and unmistakably two or more designations, one for tbe party ticket wbicb is regular, and one for each of those wbicb are irregular.
Further, our attention is called to the circumstance that tbe word “factions” nowhere occurs in tbe law, except in tbe first clause thereof, and it is suggested that as there is a factional dispute in tbe case in band, tbe situation is necessarily governed by sucb clause. That idea seems to have bad weight in creating tbe difference here. Why sucb weight, is buried in obscurity. It would seem that if any particular significance were to be given to tbe presence of tbe word “factions” in one clause and the absence of it in tbe other, it would point to a far different conclusion than tbe one contended for. Sucb word as regards political bodies, strictly speaking, suggests a division of tbe members thereof, and a separate organization
We will not follow the reasoning of counsel for plaintiff further in their construction, so called, of the law in question; the most salient features thereof we have given attention to. To our minds the fundamental infirmity in such reasoning is in the assumption that there is ambiguity when there is none in fact. Of course it will not do to use rules for judicial construction to create ambiguity, or to apply such rules for the purpose of reading, so to speak, a meaning out of words other than that which the plain ordinary sense thereof points to unless the result of applying such meaning to the subject dealt with and the nature of the result is such as to suggest pretty clearly an ambiguity, which is not the case here. There is no exception to Vattel’s rule of interpretation (Law of Nations, bk. 2, § 263). By slight re-phrasing thereof, without at all sacrificing the sense, it fits the situation before us.
‘It is not allowable to interpret what has no need of interpretation. When the meaning is evident and leads to no absurd conclusions there can be no reason for refusing to admit the meaning which the words naturally represent. To go elsewhere in search of conjecture, in order to restrain or extend the act, would be an attempt to elude it. Such a method if once admitted would be exceedingly dangerous, for there would be no law, however definite and precise, which might not by interpretation be rendered useless.’ Absoluta sententia expositore non eget.
That is an old and one of the most valuable maxims of the law. It sets the mark to be observed in determining when and when not to look for the sense in which words were used by the lawmaking power by the light of judicial rules. The efforts to keep such rule constantly in view in the performance of judicial labor is indicated by frequent reference thereto in decisions. Mundt v. S. & F. du L. R. Co. 31 Wis. 451; Gilbert v. Dutruit, 91 Wis. 661, 65 N. W. 511; State ex rel.
“The office of interpretation is to firing out the sense where the words used are in some manner doubtful, and where these are plain and unambiguous the court cannot depart from tlio language of the statute. It is only where the intention of the legislature is ambiguously expressed, so as to be fairly capable of two or more meanings, that interpretation or any latitude of construction is allowable.”
So it is seen that judicial construction can never legitimately commence until certainty as to what is the sense intended is found to be so obscure that it might reasonably be said to be one thing or another, either being within the fair scope of the words used to express the purpose. With that guide in view and having in mind that other well-known rule, that the literal meaning of words is always to be presumed to be the one in which they were used in legislative enactment, unless reasonable doubt arises from an examination of the. whole act, or from some unreasonable or absurd result such meaning might lead to, we find ourselves unable to take the first step in the direction of a departure from the plain language of the act before us. The words ‘‘when two conventions . . . shall be held and the nominations thereof certified, each claiming to he the regular convention . of the same political party' are about as plain as English words could well be. So we cannot escape from the conclusion that the legislature created a tribunal to determine just such ■controversies as the one which arose by the circumstances alleged in this case, and that such tribunal for the controversy so created was the Eepublican state central committee appointed by the convention of that party in 1902, and certified to the secretary of state under sec. 31, Stats. 1898, the one alleged and admitted to have assumed jurisdiction over such controversy.
That there is no relief from the decision of such a tribunal
The following cases cited in the briefs of counsel amply support the foregoing: Miller v. Clark, 62 Kan. 278, 62 Pac. 664; Chapman v. Miller, 52 Ohio St. 166, 39 N. E. 24;, Randall v. State, 64 Ohio St. 66, 59 N. E. 742; People ex rel. Ward v. Roosevelt, 151 N. Y. 369, 45 N. E. 840; People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896; State ex rel. Brewer v. Abbay, 82 Miss. 559, 35 South. 153; State ex rel. Yates v. Crittenden, 164 Mo. 237, 64 S. W. 162. In State ex rel. Brewer v. Abbay, the court said:
*571 “In. case of a primary election there is no tribunal vested with power to determine who is the party nominee, to correct the wrongs and frauds bearing upon the solution of that question, — save only the executive committee of the county.”
In a concurring opinion in State ex rel. Yates v. Crittenden this language was used as a guide in determining the right of matters respecting factional disputes similar to the one in question:
“The statute provides the test by which the right must be determined by the clerk or the court, if the court is called upon to act in the premises. It reads The action of the preceding regular convention of such party regularly called shall determine the action of the secretary of state, the county clerk, or the court in its decision.’ ”
In People ex rel. Lowry v. District Court, this language-was used:
“That the state central committed of a political party, or the state convention, as the case may be, is now the sole tribunal to determine such controversies as is here presented is to our minds clear beyond all doubt; and as a necessary consequence the courts do not have concurrent jurisdiction in the premises.”
It should be observed that the conclusion as to the exclusive jurisdiction of the special tribunal was not there based on a legislative declaration that its decision should be deemed final, but on the fact that it was the necessary result of unqualified jurisdiction being conferred thereon. Again in Miller v. Clark, supra, it is said that:
“It is a cardinal rule that when a right given is solely and exclusively of legislative creation, and does not derive existence from the common law, or from the rules prevailing in courts of equity, and jurisdiction is limited to particular tribunals and specific remedies are provided for its enforcement, the jurisdiction and remedy can be exercised and pursued only before the tribunals and in the mode the statute has provided.”
-, The only excuse for one’s feeling shocked at finding such .a piece of legislation as the one we are dealing with upon -the statute books and to discover that its legal effect is as indicated, is unfamiliarity with the trend of regulations that have become common since the official ballot law system was •adopted in this country. Many states have substantially such a law as sec. 35. Experience with the Australian ballot system early demonstrated that many serious disputes were liable to occur in its administration and of a nature which courts had not theretofore been called upon to deal with and which because of their political nature should, so far as practicable, be kept out of court. Authority to decide such matters, it was appreciated, should be lodged somewhere. The result of experience and legislative consideration was that here and elsewhere a tribunal was selected, which was thought to be as likely to decide justly as any, not strictly judicial, 'well knowing that its proceedings in order to meet emergen■cies as they arose would necessarily be of a somewhat summary character and its decision only be open to judicial review for errors other than those of judgment. The legislature had a right to enact such a law if it saw fit. It had the right to make the use of the official ballot by political parties subject to any condition which it deemed proper, particularly to require that, in cases of factional disputes, they should be settled as regards such privilege, by the party tribunal specially designated by law. There was no constitutional limita-; upon its power in that regard, which we are aware of, and none has been suggested. "When we observe how many tribunals there are commonly dealing with valuable rights with
Counsel for plaintiff insist that, notwithstanding the conclusions reached, the court should disregard the special tribunal and its decision for jurisdictional error in acting -at all, in that many of its members were disqualified because they were indirectly interested in the result and greatly prejudiced in the matter. Eurther, if that were not so, counsel contend that the tribunal did not keep within its jurisdiction,, in that it disregarded the decision of the national Eepublicam convention, which was binding on it as the highest party authority. We shall give attention to both of those propositions.
The first proposition stated is ruled against the plaintiff by State ex rel. Starkweather v. Common Council, 90 Wis. 612, 64 N. W. 304; State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172; and Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835. Counsel frankly confess that by the first of these cases neither interest nor bias disqualifies a member of an administrative body empowered to act judicially in re'gard to a privilege or right of legislative origin from performing duties of a judicial nature in respect thereto. Three members of the tribunal there were pecuniarily interested in a controversy as to the guilt of the mayor of charges filed against him, which, if sustained, warranted the council in depriving him of his office. One of the members,
We might forego saying anything further on the subject •of whether the tribunal answering to sec. 35, for this case, was competent to act. Upon a subject where the court has repeatedly and unmistakably spoken, it is generally supposed to be sufficient upon the same subject coming again to its ■attention to refer to its previous decisions. However, there are ‘special circumstances in this case that seem to warrant doing more.
We fully concede that there are decisions elsewhere out of harmony with the rule of this court, above indicated. The following are instances: State v. Crane, 36 N. J. Law, 394; State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317; Reeson v. General Council, L. R. 43 Ch. Div. 379; Queen v. London Co. Council (1892) 1 Q. B. 190. But why refer to those and similar cases as controlling authorities in the instance before us or even suggesting doubt as to whether the special tribunal in question was disqualified from acting, in the face of the obvious fact that the learned judges — who discoursed therein so eloquently, and none too much so, upon the general subject of the importance of courts of supreme control carefully guarding the fountain of justice from contaminating influences, with all of which we most heartily agree — wrongly assumed, as is apparent, that the standard for tribunals dealing with common-law rights was applicable to purely ministerial bodies acting judicially as to mere legislative privileges? Can there be any possible doubt as to the truth of the proposition, that what belongs to the people to do with as they • deem best, those things respecting which their will is unrestrained by any
We face a situation calling for approval or condemnation of a rule firmly grounded in our system, fully conscious that it is out of harmony with a few authorities, as indicated.
“It must be conceded if a similar state of facts had. occurred with regard to justices sitting in court of session the proceedings would have been invalid, but the distinction in the present case is that the county council were acting in the performance of administrative not judicial duties.”
We meet that situation both with the doctrine of stare decisis and the uniform course of approved legislation in this state.
No better illustration of the dangerous tendency above indicated can be given than hy referring to State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317, where the learned court went so far as to suggest that mere prejudice was a common-law disqualification of a judge and should likewise be of a member of a quasi-judicial tribunal. A standard authority was criticised for expressing a contrary view. We venture to say that the text referred to, 17 Am. & Eng. Ency. of Law (2d ed.) 52, to the effect that by common-law mere prejudice does not constitute disqualification of a judge, is elementary. In Peyton’s Appeal, 12 Kan. 407, the court said, “It will be admitted that at common law prejudice did not disqualify a judge.” In Conn v. Chadwick, 17 Fla. 439, it is said:
“In the time of Bracton and Eleta a judge might be refused for good cause, but at common law, as administered in England and the United States for centuries, judges and justices could not be challenged. There were disqualifying causes, such as interest, and being of kin to the party.”
In Davis’s Estate, 11 Mont. 1, 27 Pac. 342, a very full discussion on the subject will be found. It is there very conclusively demonstrated that disqualification for mere preju
But let alone every consideration above mentioned as to why the members of the tribunal in question were not disqualified and test their competency by the stem rule applied at common law to judges, and still no disqualification will be discovered. Common-law disqualification only went to real direct personal interest of some nature in the result, or kinship to some one of the parties. Case v. Hoffman, 100 Wis. 314-356, 75 N. W. 945; Turner v. Comm. 2 Met. (Ky.) 619; 2 Bacon, Abr. tit. Coubt; Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417; Moses v. Julian, 45 N. H. 52. Often it will be found said to be confined to interest alone. 17 Am. & Eng. Ency. of Law (2d ed.) 733; Russell v. Belcher, 76 Me. 501; Winchester v. Hinsdale, 12 Conn. 88 ; In re Dodge & S. Mfg. Co. 77 N. Y. 101. That interest by the weight of authority refers to some direct pecuniary interest. Hungerford v. Cushing, 2 Wis. 397; Taylor v. Williams, 26 Tex. 583 ; Foreman v. Hunter, 59 Iowa, 550, 13 N. W. 659; 17 Am. & Eng. Ency. of Law (2d ed.) 741, and cases cited. There is no claim here that any member of the special tribunal was of kin to any party to the controversy or in common-law sense interested therein. True, the determination of such controversy involved to a large degree the conduct of the members of such tribunal and the political fortunes of their friends. Time, the situation was one well calculated to strongly incline them, consciously or unconsciously, especially in case of doubt, to one side, and also incline them to discover doubts where otherwise none would be perceived, but that indicates merely prejudice. That situation was one warranting a court, upon its jurisdiction being properly invoked therefor, to scrutinize closely the conduct of the tribunal. In determining whether its decision was characterized by error so palpable
Eut going further and conceding for tbe moment that tbo .proposition last discussed could in any event be resolved in favor of tbe position of counsel for tbe plaintiff, we meet at once tbe stern rule of necessity, which puts aside all tbe grounds for judicial disqualification, when otherwise there would be no tribunal whatever to administer any remedy for tbe grievance waiting for redress. The' courts, in treating tbat rule, will be found generally to have restricted it to tbe precise case in band and yet viewed it broadly enough to fully suffice therefor. Its application to this case can readly be seen since tbe committee bad sole authority to decide tbe factional dispute, and yet according to tbe allegations of tbe complaint, a large majority of its members were highly prejudiced against tbe relators. This court has recognized tbo rule of necessity, where otherwise tbe one empowered to apply his judgment to tbe matter would have been disqualified, in Jefferson Co. v. Milwaukee Co. 20 Wis. 139. The same rule justified Chancellor Kent in Stuart v. Mechancis’ & F. Bank, 19 Johns. 496, to keep bis place upon the bench though pecuniarily interested in tbe trial before him. In In re Leefe, 2 Barb. Ch. 39, Chancellor Walworth deemed himself justified by it in presiding, though one of his relatives was a party, and by express statutory provision be was disqualified. In Mooers v. White, 6 Johns. Ch. 360, Chancellor KeNt again leaned on tbat rule in presiding, though by tbe literal sense of tbe statute disqualified, as in tbe case aforesaid. In tbe Tr. Book 8 Hen. YI, 19, 2 Eoll. Abr. 93, tbe judges who presided relied upon tbe same rule
In addition to the foregoing on the same subject the following are peculiarly in point: People ex rel. Burby v. Common Council, 85 Hun, 601, 33 N. Y. Supp. 165; People ex rel. Doherty v. Comm’rs, 84 Hun, 64, 32 N. Y. Supp. 18; People ex rel. Pond v. Trustees, 4 App. Div. 399, 39 N. Y. Supp. 607; People ex rel. Shannon v. Magee, 55 App. Div. 195, 66 N. Y. Supp. 849; People ex rel. Jones v. Sherman, 66 App. Div. 231, 72 N. Y. Supp. 718, affirmed 171 N. Y. 684, 64 N. E. 1124; People ex rel. Miller v. Elmendorf, 51 App. Div. 173, 64 N. Y. Supp. 775. In People ex rel. Shannon v. Magee, the officer acting judicially was also in ,a sense the prosecutor as well. The principle of the decision is well stated in the syllabus thus:
“Where by statute a police commissioner is made the only tribunal authorized to try charges against a janitor of the police station, his jurisdiction is not affected by the fact that lie is prejudiced against the janitor.”
In People ex rel. Burby v. Common Council, there was a trial, so called, before the common council, quite similar to that in the Starkweather Case. The point was made that certain members of the body were disqualified to act, testing their
“If tbe common council of a city is made by statute tbe only tribunal tbat can take certain proceedings against an officer of sucb city, tbe duty tbat devolves upon eacb member of tbe common council to take part in sucb proceedings is absolute, notwithstanding tbe fact tbat sucb member thereof inay have formed sucb opinion, or taken sucb action in tbe premises, as would disqualify himself if be were a judge or juror in an action at law.”
We note tbat it is said in State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 311, tbat this was overruled in People ex rel. Pond v. Trustees, 39 N. Y. Supp. 607. Not so, however, in any sense, as regards tbe competency of a member of such tribunal as tbat referred to, to take part in a trial before it so far as necessary to enable it to perform its function in tbat regard. Tbe case was referred to as authority, without any qualification, in subsequent decisions cited.
From the foregoing it will be seen tbat, viewing tbe situation of tbe members of tbe committee satisfying tbe call of sec. 35, as to tbe controversy in question, tbe claim tbat they bad no jurisdiction to act because disqualified by common-law rules as to judicial officers, has no support. But we choose to rest tbe competency of tbe members of sucb committee on tbe broad doctrine of State ex rel. Starkweather v. Common Council, 90 Wis. 612, 64 N. W. 304. It was a mere administrative body, not a court in any sense, nor were its members expected to exercise tbe functions of judges, strictly speaking. Tbe matter to be dealt with was a mere legislative privilege, grantable upon any condition tbe legislature saw fit to impose. Tbe tribunal was given unqualified authority in respect thereto, so long as it proceeded within its appropriate sphere. None of tbe rules disqualifying judges or jurors have any application to sucb a situation.
Tbe proposition tbat tbe special tribunal under sec.' 35 has
The briefs on both sides, particularly upon the side of the plaintiff, are replete with erudite judicial utterances indorsing judicial submission to the decision of political tribunals as to political party disputes, such submission as a mere matter of judicial policy, or in conformity with elementary principles as to the judicial treatment of tribunals of voluntary organizations, or by command, express or implied, of legislative power. The following illustrations of judicial wisdom, quoted by the learned counsel for the plaintiff, are quite as applicable to the side of the defendant as to that of the plaintiff, when it is appreciated that the tribunal created by sec. 35, by the will of the legislature of this state, answers fully to the call for the highest party authority.
Edwabds, J., in discoursing on the appropriate relation of courts to political controversies, in In re Fairchild, 151 N. Y. 359, 45 N. E. 943:
“It is much more proper that questions which relate to the regularity of conventions, to the nomination of candidates, and the constitution of committees should be determined by the regularly constituted party authorities, than to have every question relating to a caucus, convention, or nomination determined by the courts, and thus, in effect, compel them to make party nominations and regulate the details of party procedure instead of having them controlled by party authorities. We think that in cases where questions of procedure in conventions or the regularity of committees are in-involved, which are not regulated by law, but by party usages and customs, the officer called upon to determine such questions should follow the decision of the regularly constituted*584 authorities of the party, and courts in reviewing the deter' mination of such officers should in no way interfere with such determination. We think an opposite rule would be in conflict with' the spirit and intent of the statute, burden the courts with a class of litigation that would be unfortunate and embarrassing, and migit produce results entirely at variance with the will of a majority of the electors of the party.”
As to the necessity of submitting to duly constituted authority. in political party matters, even though seemingly unjust, such a course being absolutely essential to party integrity, Adams, L, in In re Redmond, 25 N. Y. Supp. 381, used this language:
“When it has once passed judgment upon conflicting claims, where questions of regularity only are concerned, it seems to me that its determination should be accepted as final. Such determination may be unjust, it may'be in direct violation of the equities of the given case, and, as contended by counsel, in theory it may be right and proper to disregard such an adjudication. . . . But if such a theory were put into practice it would be subversive of party discipline and would reduce political parties to mere associations of independent and irresponsible mobs. No such rule as the one contended for obtains in any voluntary organization, but, on the contrary, the very term ‘organization’ implies a recognition of order, and an obedience to duly constituted authority. These observations lead, of necessity, to the conclusion that where ¿'person allies himself with a political party he tacitly acknowledges allegiance to ■ all the rules and regulations of that party, as enunciated or expressed by what party usage recognizes as the supreme or superior authority of the organization. ... It follows that the applicant, having received his nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority within the party in the state, and which have by that bgdy been declared unfounded, cannot be regarded as a regular nominee of his party, and is consequently not entitled to have his name printed upon the official Democratic ballot.”
Hazelrigg, T., in Cain v. Page, 42 S. W. 336, 19 Ky. Law Rep. 977, speaking of the decision of the state convention
“The voice of that convention was the very voice of the Democratic party. The word of the convention is the law of the party, and the courts cannot look beyond this word or this law, because there is no other.”
The same justice, in Moody v. Trimble, 58 S. W. 504, 22 Ky. Law Rep. 692, as to the policy, legislative or otherwise, of leaving the settlement of party disputes to party authorities, said:
“The settlement of such questions, in the nature of things, ¡should be left to the party authority; and therefore we will not scan too closely party rules which undertake, however imperfectly, to confer authority on its various committees to manage party affairs to the best interests of the organization, nor deny such authority, even if it be conferred in terms somewhat general.”
The following cases, most of which are cited by counsel, are to a similar effect:
Prince Co. v. Linderman, 2 Pa. Dist. 4; Rose v. Bennett (R. I.) 56 Atl. 185; Ker's Nomination, 2 Pa. Dist. 14; State ex rel. Buttz v. Liudahl, 11 N. Dak. 320, 91 N. W. 950; In re Fairchild, 151 N. Y. 359, 45 N. E. 943; State ex rel. Yates v. Crittenden, 164 Mo. 237, 64 S. W. 162; State v. Martin, 24 Mont. 403, 62 Pac. 588; Miller v. Clark, 62 Kan. 278, 62 Pac. 664; State ex rel. Gilchrist v. Weston, 27 Mont. 185, 70 Pac. 519; People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896; Davis v. Hambrick, 109 Ky. 276, 58 S. W. 779 ; In re Woodworth, 16 N. Y. Supp. 147; S. C. 19 N. Y. Supp. 527; Stephenson v. Election Comm’rs, 118 Mich. 396, 76 N. W. 914; Shields v. Jacob, 88 Mich. 164, 50 N. W. 105; Phelps v. Piper, 48 Neb. 724, 67 N. W. 755; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; State ex rel. Sturdevant v. Allen, 43 Neb. 651, 62 N. W. 35.
All of those cases have been examined with care. To review them here at length would extend the discussion of this
The following expressions in decisions treating the subject will emphaize what has been said. In State v. Martin, 24 Mont. 403, 62 Pac. 599, this language was used:
“Organization and discipline are necessary to party existence. There must be some authority to which the subordinate-divisions may appeal for the settlement of disputes as to who shall represent the party and control its affairs. But in the settlement of these controversies this authority, established by rule or usage within the party, may not presume to disregard legislative enactments, with the enforcement of which the courts alone have to do, and tSke away rights which have*588 already become fixed. . . . To bold otherwise would be to put the convention above law, and to convert tbe court into an instrumentality through which, regardless of the law, penalties could be inflicted upon recalcitrant party members and •disloyal candidates, to enforce party discipline.”
In the state of Colorado, previous to the law of 1901, the court took jurisdiction to settle party disputes as before indicated. Spencer v. Malony, 28 Colo. 38, 62 Pac. 850. Thereafter, the law having made the state central committee of a party its tribunal to settle such disputes, the court said, in People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896:
“That the state central committee of a political party, or the state convention, as the case may be, is now the sole tribunal to determine such controversies as is here presented, is to our minds clear beyond question.”
Speaking of the previous case of Twombly v. Smith, 25 Colo. 425, 55 Pac. 254, where the doctrine of superior party authority was repudiated as regards an attempt to apply it to the settlement of a dispute in a district, by a decision of the •convention for territory including such district with others, the court said:
“Had such a statute been then in force here, those cases in which is upheld .the authority of the state committee of a party to settle factional disputes would have been followed.”
In State v. Martin, 24 Mont. 403, 62 Pac. 588, the court used essentially the following language, which seems directly in point here: The right of candidates duly nominated by a political party, whose certificates of nomination have been duly filed, to have their names printed upon the ballot, can be destroyed or waived only by death or resignation, or by •conviction of a felony, judicially declared insanity, or removal* from the state or county. This, and this only, can deprive a candidate of the right to be placed upon the ballot.
We indorse that. We are unable to find anything in the cited cases, rightly viewed, in conflict therewith.
It follows that the decision of the Eepublican national convention has no significance whatever as regards the duty of the defendant or the jurisdiction of the “committee that had' been officially certified to" his office within the meaning of the second clause of sec. 35, viz., the state central committee-of the Eepublican party elected at its state convention in 1902, and which acted in response to the contest in hand. No jurisdictional error was committed by such tribunal in-disregarding such decision. If it had omitted to apply its-judgment to the matter, in- deference to such decision, jurisdictional error would have been committed thereby.
Enough has been said to demonstrate that in full harmony with the law that, within jurisdictional limits, the decision of the highest tribunal of a voluntary organization as to any of its internal controversies is binding on the courts, and in full harmony with the logically resulting doctrine that political party disputes, in the absence of legislation, should be-left solely to the highest party authority, indicated by the nature of the organization itself, for settlement, or, at least,,
So by the law’s mandate what stands for the highest axi-thority in the matter in hand has spoken within its jurisdiction. It is not only in effect the voice of the party itself, but is the voice of the law. It must be so regarded, as to the official ballot system, in all courts and in all places. The proper tribunal having performed its function legitimately, so far as appears, it must be presumed, here and elsewhere in the administration of the law, to have reached a right result. All con
The foregoing enables us to rest from our labors without giving any consideration whatever to the facts in detail upon which the respective parties base their claims to having had the support, each, of a majority of the delegates entitled to participate in the convention regularly called. With the question of whether, as an original matter, the persons composing the convention which nominated the relators constituted a majority of the delegates duly qualified to participate in the convention called by the regular party authority and should have been permitted to organize as such, at the time and place named in the call, and whether they were wrongfully deprived of that right by the state central committee of such party and others participating in the convention which nominated Eob-•ert M. La Toilette and his associates, or whether the national Eepublican convention decided right or wrong,.for itself, in determining which of the sets of delegates applying for seats 'in such convention as the regular Eepublican delegates from this state, were entitled to be recognized as such, we have nothing whatever to do. We have ascertained that.the highest qiarty authority, as recognized by our laws, has spoken on the
By the Court. — Both the motion of the plaintiff and that of the defendant are'denied, and the cause is dismissed for want of sufficient facts appearing to constitute a cause of action.
Concurrence Opinion
The following opinion was filed October 24, 1904:
(concurring). When the legislative branch of the government deemed it best to print an official ballot and interdict the use of any other, to recognize political parties as legal entities, to regulate caucuses and conventions by law, and to give rights of representation on the official ballot to the nominees of such conventions and caucuses, there was doubtless opened a new field for litigation, which is also a field of vast importance. Before the existence of these'laws political parties were mere voluntary organizations with no standing before the courts. Conventions and caucuses were merely meetings of citizens, which the law permitted, but did not deign to regulate; and all questions as to party regularity were doubtless merely political questions, and were settled by one tribunal only, namely, the tribunal of the electorate. These new laws, however, created new legal rights and corresponding legal duties. They recognized the party not merely as a voluntary association of voters, but as a body exercising rights and performing duties closely akin to governmental rights and duties; a body entitled -to speak for its members and have its speaking heard; a body whose acts duly and regularly performed and recorded control the acts and mark out the duty of public officers in preparing the official ballot. Thus the political party has become really a quasi-governmental agency. By its action, duly taken, legal rights are conferred upon its nominees and duties are imposed upon
The question presented in the present case, therefore, being purely judicial, the inquiry, then, is whether this judicial question is one which comes within the original jurisdiction of this court. To my mind there is little difficulty in returning an affirmative answer to this question. In order to be within that jurisdiction, the question presented must be pub-lici jwriSj and must be one affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people. Att’y Gen. v. Eau Claire, 37 Wis. 400. The general interest of the state at large must be involved, not alone a mere private right; although the fact that a private right is incidentally involved and may be vindicated by the judgment will not deprive the court of jurisdiction, providing that the public right is the right primarily to be enforced. In re Court of Honor, 109 Wis. 625, 85 N. W. 497.
That the question which of two rival state tickets shall appear on the official ballot as the regular ticket of a great political party is a question puhlici juris, I cannot doubt. That the decision of this question materially affects the liberties of the people and involves the general interests of the state at large, I can as little doubt. It is easy to say that so long as the names appear at some place on the ballot, so that the voter may designate them if he chooses, every reasonable requirement is satisfied. This argument was made in the case of State ex rel. Runge v. Anderson, 100 Wis. 523, 76 H. W. 482. It did not convince me then and it does not now. We live in the days of party government. Whether it be desirable
In view of these well-understood conditions, the right to the use of the party name cannot reasonably be called a trivial Tight, nor the question who is entitled to its use an unimportant question. It is a question affecting the whole people, because upon its solution may depend the personnel of the government of the state as well as its policy for years. Such a question surely affects the “liberties of the people,” and is of such importance that this court should not hesitate to assume jurisdiction when the question is properly presented, unless other, considerations, now to be considered, forbid.
Before proceeding to these considerations, however, it is proper to remark that the relators were doubtless right in bringing their action in equity. Manda-mus would not lie under the general rule laid down in the case of State ex rel. Board of Education v. Hunter, 111 Wis. 582, 87 N. W. 485.
It is not sufficient, however, that the question be publici juris, that it affect the liberties of the people, and that it be of sufficient public importance to move this court to exercise
The right to have the names of party nominees put on the official ballot under the party name is a right not existing at common law, but created by the statute. "When a new right is created by statute, and the statute also provides a method by special tribunal for the enforcement of that new right, and says nothing about an appeal, it is well understood that the remedy so given is exclusive, provided always that the tribunal proceed without jurisdictional error. This principle is supported so uniformly by the books that it is not deemed necessary to cite many authorities. A few from Wisconsin will suffice. Hall v. Hinckley, 32 Wis. 362; Smith v. Lockwood, 34 Wis. 72; State ex rel. Gill v. Watertown, 9 Wis. 254; State v. McGarry, 21 Wis. 496; State ex rel. Willis v. Prince, 45 Wis. 610; Gillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042. It was optional with the legislature to give the right or withhold it entirely. Having given the right, it was entirely competent to subject it to such conditions, limitations, and remedies as in the judgment of the legislative body were •wise and proper. The power to create a right necessarily includes the power to determine the conditions under which it shall be exercised and the remedies which may be invoked for its enforcement. Daniels v. Racine, 98 Wis. 649, 74 N. W. 553.
So the question is whether the legislature has created a special tribunal for the decision of controversies as to rights upon the official ballot, and this question brings me necessarily to the consideration of sec. 35, Stats. 1898, for this is the only section which can be claimed to have that - effect. The first so-called “Australian Ballot” law_in this state was ch. 248,
In the year 1891 the subject was again considered by the legislature, and ch. 3T9, Laws of 1891, was enacted, which, while following the general plan of the previous law, contained many changes and additions. It is not necessary to consider the changes and additions at length, but it is sufficient to say that it recognized for the first time the party committee, and provided for the certification of the names of the committee and its powers, as well as the names of the nominees ; and that it also contained an entirely new section, numbered 8 in the act, entitled “Division of Parties.” This section passed without change into the general revision of .the election laws of the state passed in 1893 as ch. 288 of the Session Laws of that year, and later became, without substantial change, sec. 35' of the Statutes of 1898, where it is preceded by the catchwords “Candidates, if Party Divided.”' The question to be decided is whether this section provides a tribunal for the decision of the present controversy.
When ch. 379, Laws of 1891, was passed the state had passed through two years of experience under the new ballot system. It is very manifest from the complete revision made by the last-named chapter that defects and omissions had been discovered in the law, and that a serious attempt
Another thing is apparent from the section, and that is that it was intended that in all cases of dispute as to regularity of rival conventions the call of the regularly elected party committee was to govern.
With these propositions, which seem to me self-evident, in mind, let us examine the section. Is it obscure, or of doubtful meaning ? I confess that when I first read it I could see no difficulty in construing it, nor have I been able to see any such difficulty since that time. It then seemed and now seems to me to be clear and simple; so clear and simple in fact as not to need construction. The man who dre^V it had in mind the settling of such controversies out of court, by the party it
“In case of a division in a political party and a claim by two or more factions to the same party name, the officer . . . shall give preference of name to the convention or caucus thereof held pursuant to the call of the regularly constituted party authorities.”
Is it not apparent that this covers, and was intended to cover, the first case before mentioned? Notice that it only covers a case of (1) a division in a party and (2) a claim by
My conclusion is that the two sentences are to be construed together; that the basic idea is that, in case of contest as to the right to use the party name, the test to be applied in all cases is, Which convention was called by the party committee ? that in case the dispute is only as to the use of the name, it being admitted that only one convention was held under the call of the regular committee, the secretary of state simply turns to his records, ascertains who composed that committee, and certifies to the nominees of the convention called by it. This is a mere ministerial act, and if he declines to perform it he may doubtless be compelled to perform it by the courts. In case, however, the dispute is further complicated by both factions claiming to have held the regular convention under the regular call, then the committee which called the convention steps in and decides this question, and the secretary of state again performs the merely ministerial duty of certifying to the nominees of the convention which has thus received the stamp of regularity.
Thus construed, the two sentences seem to me to be as clear as language can well make them. They provide in a very reasonable way for the settlement out of court of all questions arising between factions as to the use of the party name. When I say “reasonable way” I say it advisedly. To me it seems entirely reasonable that the highest authority existing in the party at the time the party breach arises should decide which faction is regular; much more reasonable, indeed, than that such a contest should be submitted first to the judgment of a ministerial officer who may himself be involved in the dispute, and ultimately to. the decision of a court which will be obliged to investigate charges and counter charges of fraud, which may, as in the present case, cover many printed pages,
“Ever tie truth comes uppermost,
And ever justice is done.”
Indeed, it seems that temporary submission to some injustice is preferable to the adoption of a system which would make the courts the arbiters of contests between political factions. Under such a system it may well be doubted whether our judicial elections would remain free from partisan politics for any great length of time. .
Probably I have devoted more time to the question of con
It goes without saying that, if the construction which I have given be correct, the present case comes within the second subdivision of the section, and presents a case to be decided by the special tribunal created by that subdivision. It follows that the jurisdiction of that tribunal is exclusive so-long as it acts within its jurisdiction, and this brings me to the last serious question in the case.
It is argued by the relators that, even if the present case-comes within the second subdivision of the section, still the tribunal established by that section is disqualified from acting, and hence that the court may and should take up and determine the controversy. The claim is that it is established by the pleadings that a majority of the members of the old' committee are so interested in the result by reason of being, office-holders under the present administration, or are so-clearly prejudiced against the relators by reason of business- or political relations with the administration faction that they are disqualified from sitting as members of the tribunal. The-claim is, further, as I understand it, that because the persons-so disqualified met with and participated in the proceedings-of the committee, any action taken by the committee was-thereby rendered void, and the committee thereby incapacitated from again attempting to pass upon the contest.
Were this question a new one in this court it would open up an interesting field for discussion and research; but it is-not new. The contention now made was made and overruled in the case of State ex rel. Starkweather v. Common Council, 90 Wis. 612, 64 N. W. 304, and that case has been approved by at least two cases decided since that time. Nehrling v.
“Passion and prejudice frequently play an important part in such proceedings as those before us, but in the absence of constitutional or legislative restrictions they do not disqualify the members of the removing board from acting.”
If an office be not a vested right, and may be taken away by an administrative board, some of whose members are-moved by passion or prejudice, surely the right to have a name appear upon the ballot can have no higher dignity or importance.
It may be admitted that to the mind of the lawyer, accustomed to deal only with courts, where freedom from interest or prejudice both on the part of the judge and of the jury is so highly prized and carefully protected, it seems somewhat startling that important rights should be dealt with and determined by a prejudiced body; but when the great number of such administrative bodies which are daily passing upon such questions is considered, it will at once be seen that, if every such body is to be considered disqualified whenever its
But it was said upon the argument that the doctrine of the Starkweather Case had been seriously impaired, if not overruled, by the case of State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172. In that case it was held that a member of a town board, who had hired a minor to purchase whisky of a saloon keeper in violation of law, was incompetent to sit as a member of the town board in trying the question whether the saloon keeper’s license should be revoked for that illegal act. The decision was put upon the ground that the license was a vested property right, and it was expressly said that the Starkweather Oase was clearly distinguishable. Whether that decision was well founded or not, it cannot be said to have overruled the Starkweather Case, especially in view of the fact that the latter case has been twice expressly approved since the Bradish Case was written. The relators claim, however, that the Starkweather Gase is against the weight of authority, and, if it be held applicable to this case,
It is well first to note the nature of the objections made to-the members of the committee alleged to be disqualified. No member of the committee was nominated for office by either convention, nor was any relative of any member of the committee nominated. No member of the committee is financially interested in the controversy. It is not shown that any member will gain or lose a dollar, whatever be the result of this contest. Keally the sole objection is that the majority of the committee are adherents of the administration faction and have prejudged the controversy. If the same rule were to be-applied to this tribunal as was applied at common law to judges, not a memfier of the committee would be disqualified.. At common law the only grounds upon which a judge could be excluded from trying a case were interest and, possibly, consanguinity or affinity. Case v. Hoffman, 100 Wis. 314, 12 N. W. 390, 74 N. W. 220, 75 N. W. 945, see 100 Wis. 356, 74 N. W. 221. This latter ground is denied by many authorities. In re Dodge & S. Mfg. Co. 77 N. Y. 101. But the-question is not at all material here, as no consanguinity or affinity is charged. The interest, in order to be a disqualification, must be a pecuniary interest. Hungerford v. Cushing, 2 Wis. 397. There is no pecuniary interest shown here. The possibility that if one faction succeeds and its ticket is elected a committeeman may at some time in the future lose a position which he now holds, cannot be called a pecuniary inter
Before proceeding to tbe authorities, a few words on tbe legislative intention may be pertinent. Considering tbe well-known partisan character of political committees, can it be supposed for a moment tbat tbe legislature, in erecting this tribunal, imagined tbat tbe questions submitted to it would ever be adjudicated with a nice regard for legal rights and In a strictly judicial manner ? Did not tbe legislature know, as we all know, tbat in case of a violent breach and factional fight in a party tbe same fight would doubtless exist in tbe «committee itself, and tbat all members would necessarily prejudge tbe contest ? I confess tbat there seems to mo but one answer to these questions and tbat in tbe affirmative, and hence it seems to me tbat tbe legislative intent in passing •sec. 35 was not to obtain a judicial decision from a nonpartisan court, but to ascertain tbe choice of tbe highest authority in a party; tbe presumption being tbat tbe majority of tbe committee fairly represent tbe majority of tbe party. This •seems tbe more probable because not tbe slightest provision is made for tbe giving of notice to tbe contending factions of any bearing before tbe committee. So far as appears from ■the section itself, it is entii*ely reasonable to conclude tbat the ■committee was expected to make tbe certificate without bearing, basing tbeir decision simply upon their own knowledge.
But assuming tbat tbe intention was tbat there should be a bearing before this administrative tribunal, conducted in a judicial manner, does tbe fact tbat a majority of its members were prejudiced deprive tbe committee of power to bear and decide tbe contest, and render void its decision ? There are unquestionably authorities, which, if followed, would neces-
In discussing the case I have endeavored to consider it purely in its legal aspects. So looking at it, I have not reached nor shall I consider the charges and counter charges of fraud and wrongdoing contained in the pleadings. There are a few general observations, however, which the presence of these charges, coupled with the refusal to entertain the case by this court, seems to render appropriate here. It is quite often said that there is or should be a remedy for every wrong, and the idea is frequently more or less vaguely expressed that when a court thus refuses to entertain jurisdiction of a controversy on the grounds here stated there has been a failure by the court to perform the functions for which only it exists, and a consequent loss by the citizen of legal or constitutional rights which it was the duty of the court to conserve. Every good citizen wishes to see exact justice done, and the idea that cases may arise where charges of wrong and oppression will be refused a hearing, and the alleged injured parties turned from the doors of the temple of justice, is-repugnant to that natural sense of justice which prevails so-extensively among the citizens of a government like ours. Our constitution provides that:
“Every person is entitled to a certain remedy in the laws for injuries or wrongs which he may receive in his person,, property, or character. He ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”’ Sec. 9, art. I, Const.
This provision was certainly intended to preserve to the citizen every legal right, whether arising from common-law principles or granted by the constitution itself, and to require
And so when our constitution was adopted and, by its terms, recognized as law all such parts of tbe common law as were then in force not inconsistent with tbe constitution itself
So it seems to be a demonstration that the rights which are charged to have been violated by the complaint in this case are neither common-law nor constitutional rights. They are simply, then, rights which have been created by the ballot laws themselves. But if created by the ballot laws they are necessarily governed by the ballot laws. The legislature had the right to recognize the party and its conventions and caucuses, and endow them with rights just so far as it chose. It could withhold recognition entirely, or it could give such measure of partial recognition as it pleased. None could complain of the refusal to give greater recognition or fuller rights, because the legislature was the sole judge, in the absence of constitutional restrictions, as to what rights should be given. The right to have the names of nominees placed on the official ballot was limited by the provision requiring all contests as to the right to be settled by the former committee of the party. The party and all who claim to be its nominees must take the statute as it is given them. If they assert rights under one section of the law, they must also accept the limitations and conditions attached to those rights by another section of the law. They cannot take one part of the law and reject another.
The contention that the decision of the national convention is conclusive on the question of party regularity is to my mind very easily disposed of. The statutes of this state must, of course, outweigh in authority the conclusions of any mere voluntary association, however large or respectable. If, as we conclude, the case comes within the second clause of sec. 35, and the tribunal thereby created is not disqualified, the question is closed. The legislature had the right to choose for itself what party tribunal it would recognize as the highest party authority, and has done so. It may further be noted that the political party as named and regulated in the statutes is purely a state organization; it is an organized body of voters within the state which cast at least one per cent, of the total vote at the last general election.' Sec. 30, Stats. 1898. I do not find that the voluntary association of voters extending through all the states which is known as th$ national party is anywhere mentioned in the law. When, therefore, the highest authority in the party is spoken of and the claim is made that its decision is final as to contentions arising under the election law, must it not be the highest authority in the state ■organization or party which the law recognizes, not the highest authority in a foreign voluntary organization not known to the law ? If this question be answered in the affirmative, then the decision of the national Eepublican convention cuts no figure. But however it may be answered, the law of' the state must control, and I can see no escape from the conclusion that the decision of the committee was final and conclusive, and hence that the complaint states no cause of action.
Dissenting Opinion
('dissenting.) I am forced to dissent respectfully from the conclusion of by brethren as to the construction and effect of section 35 of the Statutes of 1898. In my judgment, the case presented comes squarely within and answers every call of the first clause of that section, which is copied in full into the conclusions of the court. The essential parts of the clause are to the effect that it applies whenever there is “a division in any political party and a claim by two or more factions thereof to the same party name,” in which case the secretary of state is therein “required” in “preparing ballots” to “give preference of name to the convention . . . thereof held pursuant to the call of the regularly constituted” state central committee. Here it is undisputed that all of the delegates were elected, or claimed to have been elected, under the same call, and to have assembled pursuant to that call; and, after having so assembled, they divided into two parts or factions,, each of which held a convention by itself and nominated a state ticket, and each claimed that it was entitled “to the same party name” on the official ballot. Nothing could be added to make it more specific or more complete, when applied to a party so split or divided into factions. It is, in effect, conceded that the duties of the secretary of state, as thus prescribed by that clause of the section, are ministerial, and hence subject to the control of the court. But it is claimed, as I understand, that the scope of the first clause of the section is supplemented and enlarged by the general language of the second clause of the section. It must be conceded that the language of that clause is very broad and general, and upon its face is free from limitations. It declares, in effect, that “when two or more conventions . . . shall be held and the nominations thereof certified, each claiming to be the regular convention ... of the same political party, pref-
It is true that tbe words “two or more conventions,” mentioned in tbe second clause of tbe section, are very general and broad enough to include tbe convention held by each of tbe two contending factions in tbe case at bar; but in my judgment they cannot be so construed when subjected to the well-established canons of construction. Thus it is said by a standard text-writer that:
“Where a general intention is expressed, and tbe act also expresses a particular intention incompatible with tbe general intention, tbe particular intention is to be considered in tbe nature of an exception; while, if a particular thing be given or limited in tbe preceding parts of a statute, this shall not*614 be taken away or altered by any subsequent -general words of tbe same statute.” Dwarris, Statutes (2d ed.) 514.
To tbe same effect, Stockett v. Bird’s Adm’r, 18 Md. 484, 488, 489; McFarland v. State Bank, 4 Ark. 410; Slate v. Rackley, 2 Blackf. 249. Tbe rule is perhaps stated as tersely in a Michigan case as in any, and it was there said and held that “the familiar rule for tbe construction of statutes” is that:
“Where there are two acts or provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the legislature are not to be presumed to have intended a conflict.” Crane v. Reeder, 22 Mich. 323, 333, 334.
That language of the Michigan court has been quoted with approval in a late case in the supreme court of the United States. Rodgers v. U. S. 185 U. S. 83, 87-89, 22 Sup. Ct. 582. In this last case the rule was applied even to a general act passed subsequently to the special act. Mr. Justice Bebwer, speaking for the whole court, there said that:
“It is a canon of statutory construction that a later statute, general in its terms, and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. In other words, where there are two statutes, the earlier special and the later general, the terms of the general broad enough to include the matter provided for in the special, the fact that the one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special.”
In support of such statement he cites Fitzgerald v. Champneys, 2 Johnson & Hem. 31, 54, 55; Thorpe v. Adams, L. R.
If tbe rules of construction thus quoted are applicable to the provisions of sec. 35 in question — and I think they are,— and if my conclusions as to the facts of the-case presented are correct — and I believe they are, — then the second clause of the section has no application, and the state central committee had no jurisdiction to determine the controversy in question. In other words, the official ballots should be- prepared by the secretary of state under the first clause of the section, subject to the control of the court.
There is another phase of the question calling for consideration. Assuming that my conclusions are wrong, and that my brethren are right in holding that the second clause of the section is applicáble to the case presented, still I would be constrained to dissent from the proposition that the state central committee had exclusive jurisdiction to determine the controversy. In reaching this conclusion I do not now and here lay special stress on what seems to be conceded by my -brethren, and what I understood, in effect, was conceded by counsel for the defendant at the bar, and that is that the committee was biased and prejudiced by reason of partisan affinity and its former action in the matter, nor upon the fact that some of the committee were directly interested in the result by reason of holding office by appointment from officials who had been thus renominated and to whom such committeemen were answerable. Counsel for the relators have certainly cited numerous adjudications holding that such bias, prejudice, and interest were sufficient to disqualify a person from acting ás a member of such tribunal; and the case upon which counsel for the defendant seem to specially rely is to my mind broadly distinguishable. State ex rel. Starkweather v. Common Coun
To avoid being misunderstood, it may be well to mention a few facts admitted in tbe record. Tbe call for tbe state convention, issued by that committee, “requested that credentials of delegates elected” to that convention should “be certified to tbe state central committee by tbe chairman and secretary of tbe county committee,” for tbe reason, as therein stated, that “tbe state central committee” would “act as the committee on credentialsThat call was for 1,065 delegates, each of whom, according to tbe call, would represent, or be supposed to' represent, “250 Republican votes, or tbe major fraction thereof.” It appears that about 1,000 of tbe delegates claiming tbe right to seats in tbe convention held certificates from tbe chairman and secretary of their respective county committees, to tbe effect that they bad been duly elected as such delegates; but tbe right to seats of several of them were contested. Tbe balance of those claiming seats in the convention held defective certificates. It appears that on tbe day prior to tbe convention, and pursuant to notice, tbe state central committee met to act “as tbe committee on credentials” and to bear tbe respective claims to such contested seats and defective certificates, and to make findings thereon to be reported to tbe convention. No serious objection to such action of tbe committee seems to be made. Tbe objection is that tbe committee went further and, as seems to be admitted by tbe pleadings, determined in advance just what delegates should be allowed to enter tbe ball of tbe convention and participate in tbe organization thereof, and that all others should be excluded from tbe convention; and that among those so excluded were a large number of delegates who- bad been duly
The state central committee, acting as such committee on credentials, certainly had no greater power than they would have possessed if they had been delegates in the convention and as such had been appointed by the convention as a committee on credentials. As such they were merely to advise and aid the convention, and were necessarily subordinate to and subject to the control of the convention. The delegates so properly certified to have been duly elected represented, or were supposed to represent, Eepublican voters, and as such were entitled to participate in the organization of the convention. If the committee which did not so represent Kepub-lican voters, but derived its authority solely from a former convention, could thus step in prior to the convention and exclude forty-nine or any other number of delegates so properly certified from entering the convention hall, and thus preclude the electors who sent them from being represented in the convention, then it was because the committee had power superior to the convention itself. The power thus exercised by the committee was not conferred upon it by the convention, but was assumed by the committee itself. This is a representative
As I understand, this court has not undertaken to determine which of the two conventions was composed of a majority of the rightfully elected delegates. On the contrary, the court holds,_ as I understand, that the certificate of the committee as to the regularity of the Gymnasium convention is conclusive upon the court. Of course, if that is correct, it would have been equally conclusive had they certified to the regularity of the Opera House convention. The whole question is thus made to turn upon the power of the committee, and not upon the question whether the one convention or the other was composed of a majority of the rightfully elected delegates. If such action of the committee in excluding from the convention such properly certified delegates and admitting others in their places, in May, was unlawful, then in my judgment it could not be made lawful by such certificate from a majority of such committee in September. To bar from the convention, even for the purposes of organization, the rightful representatives of voters, is, as it seems to me, in effect to-bar out the voters who sent them. The right to select candidates for office through representatives is just as sacred as the right to elect officers from the candidates so selected. The constitution declares who “shall be deemed a qualified elector.” Sec. 1, art. Ill, Const.;State ex rel. Hunt v. Stafford, 120 Wis. 203, 97 N. W. 923. It has often been held that the legislature cannot add' to such qualifications, nor take the right of suffrage away from one so qualified. State ex rel. Knowlton v. Williams, 5 Wis. 308; State ex rel. Cothren v.
In writing this opinion I have confined myself strictly to what I regard as the legal questions presented by the facts-admitted in the record, and upon which, under the decision-of the court, the case has been made to turn. It is unnecessary to say more.