State ex rel. Scharnikow v. Hogan, 24 Mont. 383

State ex rel. Scharnikow v. Hogan

24 Mont. 383 | Mont. | 1900

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the Court.

The relator’s argument is that the delegates chosen in the counties composing judicial districts to represent them'in the state convention called to nominate a state ticket are authorized by the practice which has prevailed in the Democratic party in this state, until it has grown to be an established custom, to join-in a judicial convention, and nominate candidates for the district judgeships, without regard to whether they have been directed by the electors, through the county conventions, to do so or not; that the bolting delegates from Deer Lodge and Granite counties, by their behavior in refusing to participate in the state convention, put themselves without the pale of the Democratic party, and thus lost their power to act in the judicial convention; that the action of the state convention in seating the Kennedy delegates from Deer Lodge county, with the three Toole delegates who retained their seats, constituted those the regular delegates, and clothed them with the authority to join with the loyal delegates from Granite county, and to make the nomination of relator; that the state convention is the supreme judicatory within the party to which appeal can be taken by contending factions, each claiming to represent the party principles, and to be entitled to bear the party name, and that its determination of the contention is conclusive upon the party and upon the courts, both as to state and local tickets; and, therefore, that the relator, having been *391nominated by delegates thus recognized by the state convention, is the regular nominee of the Democratic party in the Third judicial district, and is entitled to have his name printed upon the ballot under the regular party designation.

Counsel for the. defendant, not admitting the correctness of this reasoning, contend that, even if it be conceded to be sound, yet the nomination of relator was, upon his own showing, not made in conformity with the law, in this: That the mass meeting which selected the Kennedy delegates was not itself such a convention or primary meeting as is, under the law, authorized to nominate a ticket, and have it placed upon the official ballot under any party designation, and, therefore, that it could not select delegates for this purpose to act in a judicial convention, notwithstanding the fact that these delegates were recognized and seated by the state convention. In this contention we think the defendant is sustained both under the law and upon principle.

1. “All political power is vested in and derived from the people.” (Constitution, Section 1, Article III). This guaranty, under our system, refers as well to the right of naming of candidates for public office as it does to the right of the electors to vote for the candidates at the polls. The purpose of the Australian ballot law is to prevent fraud, bribery, intimidation, undue influence, and other methods of interference with the free exercise of the right of suffrage by the electors, by providing for the absolute secrecy of the .ballot, thus minimizing, as far as possible, these vicious influences. To this end it became necessary to print the ballot by public authority. This again required suitable regulations for the time and mode of making nominations by political parties, so that the officers intrusted with the duty of preparing and printing the ballot might be guided to a proper performance of their duties. Incidentally it was further necessary also to secure to the electors of political parties the right to conduct their own party proceedings through the medium of the convention and primary, free from interference from without: The provisions regulating the mode of making nominations are found in Sec*392tions 1310 to 1322 of the Political Code. Section 1310, sicpra, defines a convention or primary meeting as follows: ‘ ‘A convention or primary meeting within the meaning of this chapter is an organized assemblage of electors or delegates representing a political party or principle.” In speaking of this definition in State ex rel., Woody, v. Rotwitt, 18 Mont. 502, 46 Pac. 370, this Court said, citing State v. Weir (Wash.) 31 Pac. 417: “Such conventions are, however, in our judgment, meant to be organized assemblages of electors or delegates fairly representing the entire body of electors of the political party which may lawfully vote for the candidates of any such convention. In a similar case (State v. Weir [Wash.] 31 Pac. 417) the Supreme Court of Washington said: ‘The plain intent of said section, when examined in the light of all the other sections upon the subject, makes it perfectly clear that the primary meeting or convention must be by or on behalf of the entire body of voters of the respective party who are to be allowed to vote at the election of the officers therein nominated.’ ” The facts in that case were that the regular Republican convention of Missoula county called for the purpose of nominating candidates for county officers only assumed also to nominate a candidate for the office of judge of the Fourth judicial distxfict, composed of Ravalli and Missoula coxxnties. The electors of Ravalli county were not represented in the convention. No notice of the purpose to make this nomination had been given. The nomination was held to be void because the convexxtion was not a body representative of the electors of the district. The same conclxxsion was reached in State ex rel. Russel v. Tooker, 18 Mont. 540, 46 Pac. 530, 34 L. R. A. 315. In this case it was held that a political clxxb composed of 400 members, though regularly organized as such, and representing certain declared principles, was not an organized assemblage of electors representing a party or principle, so as to entitle the ticket named by it for public offices in the county to be printed upon the official ballot. Again, in the case of State ex rel. Metcalf v. Johnson, 18 Mont. 548, 46 Pac. 533, 34 L. R. A. 313, where it appeared that a *393body of 21 electors of Silver Bow county assembled without a call or notice other than personal invitation, and proceeded to hold county and state conventions, and to nominate county and state tickets under the designation of “Citizens’ Silver Party, ’ ’ their action was held to be void both as to the state and county tickets, for the reason that the body was not such a representative body as the statute contemplates, it having assembled without the prerequisites of the call and notice necessary to give its proceedings due publicity, and to afford to those persons among the great body of electors in the county and state who were of the same mind an opportunity to take part in the proceedings. (See, also, State ex rel. McLaughlin v. Bailey, 18 Mont. 554, 46 Pac. 1116.) “The very underlying principle of convention organization is in representation. ” (State ex rel. Metcalf v. Johnson, supra), Every elector of a particular party faith or belief is entitled to take part or to be represented in the conventions and primaries of his party when party measures are to be taken, or delegates are to be selected, to whom, under party rules and usages, authority is to be intrusted to name the party candidates and to preserve the party organization. He may or may not choose to attend, and interest himself in the councils of his party, yet he is entitled to do so, and any convention or primary which is held without reasonable notice in due time to afford such opportunity is not in conformity with the requirements of the statute. To hold otherwise would be to ignore the obvious purpose of the statute, and to render possible a condition of things in which the important rights of electors could be trampled upon and disregarded by disaffected or designing men with impunity, to the utter destruction of party organization, and the defeat of the purpose of the law.

In the light of these principles, the mass meeting held at Deer Lodge early on the morning of September 18th was not a lawful convention or primary. It was called without any notice to any person except to those who happened to be present. Within a few minutes it was engaged in the work of organization. The announced purpose was the formulation of *394a protest to the state convention against the threatened action of the committee to take the protestants and ticket out of the party. The adjournment to 9 o’clock the same morning was but a continuation of the same meeting. Eo other notice was given in the meantime; and, even if there had been, sufficient opportunity was not given for others to reach the place of meeting to take part in its proceedings and make it a representative body. The dispersing delegates were hostile to the meeting and its purpose. Their impulse would naturally be to refrain from giving it validity by circulating the notice. The publication of the fact of the meeting as a matter of news did not alter the case, as this was not upon the authority of any one connected with the meeting. So far as the record shows, as has already been said, within a few minutes after the idea of holding such a meeting was conceived, the participants were engaged in effecting its purpose; and before the end of the forenoon it had finally adjourned. Its announced purpose was to formulate a protest. Its accomplished purpose was a full delegation at Helena asking for admission into the state convention as the regular party representatives from .Deer Lodge county. Therefore the delegates chosen by it were not authorized to represent or bind the electors of Deer Lodge county. There being no proper representation of the electors in Deer Lodge county in the judicial convention, the nomination of the relator was of the same character as the one considered in State v. Rotwitt, and must be held to be invalid.

2. But the .relator contends that the action of the state convention in seating the Kennedy delegates was final as to which faction of the party in Deer Lodge county really represents the Democratic party, and that, it having decided that the Kennedy delegates were entitled to seats, this adjudicated all questions as to the regularity of the mass meeting, and legalized the action of the Kennedy delegates. As authority for this contention the following cases, among others, are cited: In re Redmond (Sup.) 25 N. Y. Supp. 381; In re Fairchild, 151 N. Y. 359, 45 N. E. 943; Cain v. Page (Ky.) 42 S. W. 336; Ex parte Sanders, 53 S. C. 478, 31 S. E. 290.

*395To what limit courts should go in holding that party disputes should be settled in the judicatories of the party, and be left undisturbed, is a question which does not properly arise in this case. The question here already considered and decided arises upon the force and meaning of a part of the election law, and involves an inquiry as to whether the requirements of the law have been complied with, so as to render the nomination in question a valid one. To permit a political convention to determine such a question would be to say that political bodies possess judicial power, and may oust the courts of jurisdiction in matters which should fall within their cognizance. The statement of this proposition is its own refutation. So far as we are aware, no court has ever assented to this doctrine. Nor is any argument needed to support the statement that no action of a state convention can validate a nomination for the office of district judge where the convention making it does not properly represent the electors of the district. The right to nominate and elect these officers belongs to the electors composing the district. (Constitution, Sec. 12, Art. VIII.) The cases cited are, therefore, not in point. If there were no question here as to the legality of the mass meeting held on September 18th, the case presented would be altogether different, and would involve considerations which are not now pertinent. We hold, therefore, that the proof offered tending to establish the custom touching the nomination of judges of the district courts, as well as that showing the action of the state convention in the premises, is immaterial.

The conclusion thus reached is based upon the theory of this case presented by counsel in their argument, and upon which they rest their claim, viz., that all the delegates finally seated in the state convention were so seated because they were selected by the mass meeting of the 18th. There is a suggestion in the brief, hov ever, that, inasmuch as three of these delegates were also selected by the regular convention of the 17th, and retained their seats in the state convention, they had power to act in the judicial convention for the whole *396delegation, in connection with the three loyal delegates from Granite county, who in like manner were empowered to act for the whole delegation from that county, and therefore that the nomination of relator by the judicial convention in which these six delegates participated was the regular democratic nomination. The fact that 28 other Kennedy delegates also participated in the convention without authority from any source would seem to be an insuperable objection to this conclusion. But, waiving this objection, and giving full weight to the proof offered for the purpose of showing the usage of the party in connection with the nomination of district judges, we do not think it sufficient to show any usage which should be recognized. It'is clearly shown that it has been customary in all parties in this state for the delegates to the state conventions from the counties forming judicial districts to meet in separate judicial conventions, and there nominate candidates for district judges; but it does not appear that such a nomination was ever made without express authority in these delegates to do so, except in one instance. The nomination for the Third district was thus made by the Democrats in 1896. The chairman of the Democratic state central committee was examined as a witness in this case, and stated that, so far as he knew, the usage prevailed as claimed by relator; but upon cross-examination he made it appear that he had no personal knowledge as to the calls usually made by the county conventions. There was no proof as to whether the call for the state convention contained any reference to candidates for district judges. Moreover, it appears that the central committee of Deer Lodge county, in calling the convention of the 17th, drew special attention to the matter of the candidate for district judge for the Third district, and the necessity of authorizing the delegates selected by it to act in the judicial convention. This tends to show that such usage was not recognized by the party authorities in that county. This proof clearly does not establish such a usage as would be recognized and enforced. Whether such a usage could finally become so established by uniform observance that it would be recognized *397and enforced in the face of the constitutional provision already-cited, giving the electors in the various districts the right to elect their own judges, we do not decide. In no event can such a usage be recognized until it has been so long and so uniformly observed that the presumption would obtain that the electors had knowledge of it, and acted upon it. From this point of view there was no authorized judicial convention.

It is therefore ordered that the alternative writ issued herein be vacated and set aside, and that this proceeding be dismissed, at the cost of relator.

Dismissed.

Mr. Justice Word being a nominee of the Independent Democratic party of Montona, did not hear the argument, and does not participate in the decision of this case.