25 Colo. 425 | Colo. | 1898
Lead Opinion
delivered the opinion of the court.
The two questions to be determined in this case, are:
First. Which was the regular convention of the party, which incidentally includes a consideration of the regularity of the proceedings terminating 'in the removal of chairman Fleming and the appointment of chairman Eddy.
Second. Did the recognition by the state convention of the Fleming delegation conclusively settle the question as to which was the regular convention in Arapahoe county?
1. Mr. Fleming was appointed chairman of the county central committee by that body, and although the executive committee may not have had power or authority to remove. him as- such chairman, the central committee, having the power to appoint was vested with authority to remove its appointees, and this governing body of the party having subsequently ratified the action of the executive committee in making such removal, and appointing chairman Eddy, in his stead, the latter, by virtue of this action became the authorized chairman of the central committee, and empowered to perform the duties usually devolving upon the recognized head of such organizations.
2. The convention which met at Colorado Springs, which the Fleming delegation attended, convened for the purpose of making nominations for state officers. The question as to whether the delegation selected by the Eddy faction, or the one selected by the Fleming, was the delegation chosen by the lawful authorities of the party for the county, was not before it, nor determined, because the Eddy delegation did not claim to be entitled to seats in this convention, and merely because the Fleming delegation was admitted to this convention, without contest, in no manner settles or adjudicates the question as to which was the regular convention of the party for this county, which assembled for the purpose of nominating a county ticket.
To what extent a convention of a party for a particular district is a law unto itself, and the result of its action depend upon whether or not it was called in pursuance of the legally constituted authorities of the party for that district, without respect to the action of the state or other convention, recognizing any particular faction of the party, when a contest between factions is heard and determined by such convention, it is hot deemed necessary to pass upon. This case is distinguishable from In re Redmond, 25 N. Y. Supp. 381, and Cain v.
In the latter case there appears to be a special statute by which the governing authority in the county or district in which a convention may be held for the nomination of candidates, is constituted a tribunal to hear and determine contests over such nominations, and a contest between rival candidates having been determined by this body and in the state convention of the party, the question as to whether or not the committee or governing authority which had determined the contest was the legal one of the party for the district in which it acted, having been directly presented and settled by the state convention in the affirmative, it was held that this action on the part of the state convention was conclusive of the question as to which was the regular committee for the district, and the judgment of such committee on the contest before it, therefore, final.
As above stated, no such question is presented in this case for our determination. There has not, in our opinion, been any adjudication by any authority or governing body of the party, in any manner determining which was the regular convention or who were the regularly constituted authorities of the party for the county of Arapahoe, nor does the judgment of this court, in the case of Whipple v. Broad, supra, under the circumstances affect the question as to which faction of the party for this county was the one called and held in pursuance of the legally constituted authorities of the party for that district. Without determining the question, directly,
There is no provision of the election law which authorizes the preparation of the official ballot in such manner as to permit state and county tickets to be voted separately, each as a whole, under the same or distinctive names and emblems.
The judgment of the district court, in holding that the •convention held in pursuance of the Eddy call was the legal •one of the party for the county of Arapahoe, is affirmed; but its judgment directing that the nominees of that convention appear upon the official ballot so that the state and county tickets may be voted separately, is set aside, and the cause remanded, with directions to sustain the ruling of the respondent.
Modified and remanded.
Dissenting Opinion
dissenting.
If the sole proposition involved was which of the rival conventions was the regularly constituted convention of the party, and if this was stripped of all other considerations affecting the real question before us, and arising out of what
Not only this, but the action of the Eddy faction, both before and after our decision was handed down, in voluntarily allying itself with the Blood faction, and in forming a new .and hostile party, estops it to claim any right or privilege which has been awarded by the governing body of the party or court to the Broad faction, or the Silver Republican party as it now is. To a demonstration of the soundness of these propositions I address myself.
Political parties have existed so long in this country, and their general methods in calling and holding conventions for selecting nominees for public office are so well understood, as to become matters of judicial cognizance. Were it otherwise, there is in the record enough to enable us to ascertain what these party practices and customs are. The political party whose rights are under consideration has existed in this state since the year 1896. Its organization extends throughout the state, congressional and representative districts, and into many, if not all, of the counties and precincts of the state, and is supplied with the usual party machinery therein. In the nature of such voluntary organizations, there must be some central power or governing body to which all questions of party policy may be, or are to be, referred, and by which all disputes or contests between its contending factions must be settled. The party itself, in one sense, consists of the aggregate of its individual members, but the party organization through which, and. which alone, the party acts, is rep
Limiting the discussion (as it should be in the case at bar) to the party in the state, the expression of that unit is the state organization, and the integral parts are designated by names appropriate to the respective subdivisions. If harmony in the party is to prevail, and if its objects are to be realized, there ought to be,—and, in fact, is,—some power within the party itself, connected with its party machinery, having authority to determine all questions of the regularity of conventions, the rights of delegates to attend them, and the validity of the claims of those alleged to be its nominees; and when, in good faith, such a determination is made, the courts cannot review it; for they possess no power to enforce their decrees, if the party authority chooses to disobey. In short, anarchy in the party would ensue, did not some governing body have the power of supreme control in party affairs. To my mind, this proposition is so clear that the statement of it is the best argument in its support.
By general and uniform custom, and very properly, the state organization of a party is recognized as the highest in point of authority in the state, and a state convention represents its supreme voice. The reason for this is apparent. The state convention is made up of delegates who come from the various counties of the state, and in this body, and in no other in the state, are the members of the entire party, from every precinct, represented.
With the utmost respect, and if I may be permitted to say so, the opinion seems to me somewhat ambiguous, as well as inconsistent, when it treats of the nature and extent of the authority of a state convention. In one case it is said that no such question is in the case, and therefore no ruling upon it can be made; while elsewhere is the statement that a convention of a party in one district has no authority to determine questions of the character here considered, and then the opinion proceeds to declare that when the regularity of the proceedings of rival conventions that make nominations is attacked,
An examination of this case shows that if any such ruling was, in fact, made, it was dictum. The statute in that state, as in this, provides that all certificates of nomination which are in apparent conformity with the provisions of the act shall be deemed valid unless objections thereto shall be made in writing within three days after the filing of the same. Two certificates of nomination were filed,—the one in conformity with the act, the other irregular on its face. The clerk, going behind the face of the certificates, ruled in favor of the latter, but the court reversed him, and declared the former entitled to the place on the official ballot, because, as was said: “No objections having been filed to this certificate, and it being in apparent conformity with the provisions of the act, it would seem that, by operation of law, the nomination was valid, and the county clerk was bound to recognize the person named as the regular nominee of the Republican party for the office.”
It is true that a county convention, and a county and state committee of the party had recognized as the nominee in question the one to whom the county clerk made the award, but the court held that there was no authority for going behind the face of the certificate, when no objection thereto had been filed, and upon this point the learned judge said, “ I cannot see that any authority is given by the act to the clerk or the court to decide between the claims of rival factions in a political party.”
It is apparent, therefore, that this case called, for a decision only upon the point that where no objection was made to a certificate of nomination apparently regular upon its face, neither the court nor the filing officer can go behind it, but the latter should certify it for printing upon the official ballot. In this regard the doctrine is in harmony with People v. District Court, 18 Colo. 26. Had no objection been made
But if it be supposed that the Gowie case justifies the conclusion of this court, I do not think its doctrine good law, and in subsequent decisions of the supreme court of New York it has been expressly disregarded. In In re Redmond, 25 N. Y. Supp. 381, the syllabus, fairly stating the point decided, is as follows: “ A determination by the state convention of a party, on a contest between two delegations, as to the regularity of the conventions by which they were nominated, will be treated by the courts as conclusive.” The case is on all fours with the one before us, and the thought and language of the learned judge who wrote the opinion are so perspicuous that the liberty is taken of quoting literally from it: '
• “ The act, in a variety of ways, recognizes what the experience of all teaches,—that under our system of government the affairs of the state are conducted through the medium of the representatives of political parties, and that, of necessity, such parties must, to a certain extent, provide for their conduct and management certain rules and regulations, which are not inaptly termed ‘ party machinery.’ That such machinery is frequently employed to accomplish personal and factional ends cannot be denied. • That it is sometimes used to crush any expression of sentiment by, and to defeat the desires of, a large majority of the political party it is supposed to representáis undoubtedly true. But, nevertheless, the party cannot exist without its machinery, and if that machinery is used oppressively, and for improper purposes, the right and the power to remedy the evil undoubtedly reside in the party itself; and so it will be found that, in the 50th section of the act in question, provision is made for the conduct of political parties by means of conventions and primaries, and by such rules and regulations as those bodies may adopt.
■The concluding part of the opinion, so directly apt, as well as so squarely in point here, is:
“ 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 body 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.”
In re Pollard, ibid. 385, was a case in which the court recognized the authority of a state convention on a question like that before us, even in the face of an adverse previous decision of the court, and the following language of the opinion is significant:
“ When this controversy first required a judicial determination, it became necessary to decide it upon such facts as were established by affidavits, unaided by the action of any convention of the party; and, as those facts were thus made to appear, I had no difficulty in reaching the conclusion before mentioned. I am still satisfied that such conclusion was justified, and should now adopt it without hesitation, were it not for the fact that a different one has been so uniformly reached by the party conventions. In determining a question similar to this which arose in Monroe county (In re Redmond, 25 N. Y. Supp. 381), where the question of regularity bad been passed upon by the state convention of the Democratic party, I have just held that the action of that body must be regarded as conclusive, and I see no reason why the same rule should
From the opinion in Cain v. Page, 42 S. W. Rep. (Ky.) 336, it does appear that there was a special statute conferring upon the committee, or governing authority, of a county or district in which nominations were made, the power to determine its nominees in ease of contest. A contest arose over nominations by a county convention. It was settled by the county committee, and the defeated nominee appealed to the state committee and state convention of the party, and both the committee and the state convention affirmed the ruling of the county committee. Application was then made to the court for relief, and the court of appeals of Kentucky said:
. “It seems to us that, whatever difficulties might have otherwise been found in the way of determining this question, they have been removed by the unequivocal action of the supreme authority of the party in the state convention assembled. * * * We hold this action of the. state convention to be a conclusive recognition of the Oneal committee as the governing authority of the Democratic party in the district in question, beyond which action and recognition the courts cannot go. * * * 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 courts cannot look beyond this word or this law, because there is no other. When counsel questions the authority of the state convention in party organization, it is as if the Mohammedan should doubt the Koran, or a Christian the Book of Books ! ”
Now, it will be observed that the statute gave the power to the county, not to the state, committee, or state convention, to determine the contest. Had the court rested its decision upon the ground that the act of the county convention was conclusive, it might be said that the special act, and not general principles of law, controlled. But the court based its ruling upon the fact that the state convention, being the supreme authority of the party—not made so by statute, but
But it is said that there was no contest before the state convention for decision. Referring again to the opinion, it is said that the state convention met to make nominations of state officers, and that the regularity of the Eddy and Fleming conventions was not before it, or, in fact, determined, because the Eddy delegation did not claim to be entitled to seats in the convention, and therefore there was no contest which the convention was called upon to settle.
Whether we are to conclude from this statement that the writer of the opinion would concede that if a contest had been waged in the state convention its decision would be controlling here, is somewhat difficult to determine; for, as we have seen elsewhere in the opinion, he apparently concludes that the action of the state convention would he immaterial.
But in legal effect, as I now proceed to show, there was a contest which the state convention decided. It is true that on the day the state convention met the Eddy delegation did not appear and claim seats therein; but three or four days before that, in accordance with the party usage, a list of the names of the delegates selected by the Eddy convention was filed with Mr. Broad, as chairman of the state committee, and their credentials as delegates therefrom were duly certified to the state convention, through its chairman, by the chairman and secretary of the nominating convention, and also by
Upon the day fixed for the convention the Eddy delegates chose to participate in a rival state convention, and no longer recognized Broad as the chairman of the state central committee after his attempted removal by Towne; but the decision of this court has stamped with the approval of regularity the convention called to order by Broad, and held his attempted removal by Towne inoperative; and so in faffing to select for their participation the only genuine convention of the party, and in choosing the one which they supposed at the time to be the regular convention, but which has since been judicially determined not to be, the Eddy delegates acted at their peril, and must take the consequences of their own mistake.
2. But if there was no contest pending between these n /al
3. In the foregoing discussion nothing has been said about that provision of our law pertaining to the emblem on the official ballot. The decisions of the New York courts were made under statutes containing, so far as we are advised, no similar provisions. When, however, we come to consider our statute, the vice in the majority holding is the more apparent. Section 18 of the election act of 1894 provides, inter alia, that when a political party has selected an emblem, the name of the party, together with the emblem, shall be placed in a line at the top of the ballot with a blank square opposite thereto in which a cross mark may be placed by the voter. All such party designations and emblems are to be placed in parallel lines, one under another at the top of the ballot above the list of candidates. For one who wishes to vote a straight ticket the manner of doing so is for him to make a cross mark in any such square following the party name and emblem, and that mark shall indicate and be counted as a vote for
This entire discussion might well have been premised with the statement that under the Australian ballot act the tribunals thereby constituted for hearing these election controversies are given the power to determine questions of regularity of party conventions and the ascertainment of their nominees because the counties are charged with the duty of preparing and printing the official ballots which must contain the nominees of the different parties, and the emblems selected by them. The public officers, therefore, in case of rival nominees claiming the same rights, must be advised by some authoritative tribunal what nominees are entitled to the party names and emblems. Further than it becomes necessary in preparing the official ballots, the courts, under the act, do not inquire into the doings of political parties.
Now it is admitted that since the rival county conventions in Arapahoe county were held, a decision of this court made the Broad faction of the state Silver Republican party the regular party, and its state ticket, and no other, became thereby entitled to the use of the party name and emblem. To obtain a place on the official ballot, and to retain standing as a political party, the leaders of the rival, or Blood, faction then, by petition or certificate, organized a new and entirely different political party which they called the Teller Silver Republican party, and chose for it an appropriate emblem, both the new name and the new emblem differing from that of the prior party to which this faction belonged.
As its nominees for state offices they placed on their certificate of nomination the same names that were on the former ticket. Similar action was taken by the leaders of all the subordinate divisions of the Blood faction of the old party, including the county organization of Arapahoe county. The new nominees, or the nominees of the new party thus organized in the county, were the same as those of that faction of the
It is to be observed that the contention of the Eddy nominees is that because they were nominated by a convention of the Silver Republican party which at the time was the regular convention, and that they once owed allegiance to this party, notwithstanding the fact that they now disclaim their former party allegiance and have become members of a rival political organization having a different name and emblem and different nominees, they are entitled still to be considered the nominees of their former party, and that they have the right to its name and emblem, as against another list of nominees who claim allegiance to the old party, and are recognized as the nominees of the latter by its highest authority in the state.
It should be borne in mind that, by reason of our previous decision, the Eddy party has not, as already stated, lost its place on the official ballot because its nominees are now the nominees of a new party having a new emblem, and the electors who desire to vote for it as a straight ticket are protected in that right. The evident meaning of the statute was that no name or emblem should do duty for any two sets of nominations ; that under a party name and emblem there should not be nominees of one party for state officers, and nominees of another.party on the congressional or senatorial, county or precinct, ticket of the former. But the ruling of this court accomplishes just such inconsistent and absurd,result; for having already judicially determined that the Broad state ticket was entitled to the name and emblem of the Silver Republican party, and in the case at bar having determined that the county nominees of the Teller Silver Republican party are entitled to the use of the same name and emblem, we have the curious result that if an elector desires to vote a straight Silver Republican ticket, and places a cross mark
Not only is there nothing in the statute that requires such a construction as my associates have given, but it is in the face of the letter of the act. The single fact, were there nothing else in the case, that the Eddy nominees and their sponsors have withdrawn from the Silver Republican party and have repudiated all connection with it, that they.refuse to recognize the lawfully constituted and governing body of the party, and have voluntarily united their fortunes with a new and antagonistic party under a new name and emblem, is enough, in good conscience and equity, to estop them now from claiming any right or privilege which otherwise they might have had to the use of their former party name and emblem; especially in view of the fact that if their claim is recognized it confessedly will result in confusion, will deprive the Iona fide members of the Silver Republican party of the right they have under the law of voting a straight party ticket through the medium of an emblem, and can operate only as a snare and a fraud upon unsuspecting voters.
We are not without authority in our own state upon the direct question we have been considering. Smith v. Harris, 18 Colo. 274, was a contested election case, and one of the causes of contest there considered was the refusal by the county clerk to print the contestor’s name upon the “ Miner ” ticket. .There, as here, there were two factions of the Democratic party, each holding a separate state convention, and the split extended to the local party in El Paso county, where two county conventions were held. Smith, being the nominee for county judge of the Democratic party in that county, insisted that his name should have been printed upon the official ballot as the nominee of both factions of the party, so as to have the use of both emblems. In speaking to the point this court says:
“ It appears that there were two factions of the Democratic
This is a direct and express adjudication to the effect that where there are two factions in a party, or where there are two distinct political parties, the nominees of one faction or party are not entitled to have their names printed on the ticket of the rival faction or party, or to have the use or benefit of its emblem. This decision has been called to our attention, but it has been wholly disregarded. See, also, Wiliams v. Lewis, 54 Pac. Rep. (Idaho) 619, which, in principle, is in harmony with my position.
The opinion of the learned district judge who tried the case at bar is brought up in the record, and a careful examination of it satisfies' me that he would not have entered the judgment he did had he not supposed that the state and county tickets might have been so printed upon the official ballot as to have avoided the confusion which must ensue should the ballots be printed as they ordinarily have been in this state. Speaking to this point, he says:
“ Counsel urges, however, that if a decision regarding the county conventions be not in conformity and in unity with the policy and the standing of the state convention that a condition of inconsistency would arise that would tend to defraud and impose upon the voters. In support of this it is urged that the nominees of the county convention must find their place under the list of nominees of the state convention. I have examined the law on this point, and so far as I can ascertain I am of the opinion that it is not the law; that the nominees of a county convention, if they be inconsistent in their name and emblem or in the policy, should be placed under the nominees of the state ticket; that in making up
This clearly indicates that the learned judge supposed that he was providing the proper safeguards to avoid confusion and deception. Just how the ballots can be prepared to prevent this confusion, we are not advised, except as the quoted language imparts that information, because the decree itself is not before us, in which it may be reasonably presumed ample directions are made in this particular.
If I correctly understand the ruling below, I do not agree with the construction of the provisions of the statute with reference to the arrangement of the tickets on the official ballot which the district judge apparently has made, but it is as fully warranted by, and is entirely harmonious with, his construction of other portions of the law, approved by this court, which allows a ticket to be printed on the official ballot which is composed of irreconcilable and antagonistic elements, and if the construction which they have made upon this point is tenable, in all fairness and justice to the voters and the rights of the Fleming nominees, it should have been supplemented by carrying into effect the arrangements which the district judge thought he was making to protect the rights of the electors of the Silver Republican party who desired to cast a straight ticket, that is, to vote for the state, congressional, senatorial, and county and precinct nominees of his party by placing a cross mark following the name and emblem of his party at the top of the official ballot. But this court has affirmed the decision below touching the regularity of the respective conventions, and entirely set aside that portion
For all the foregoing reasons I am clearly of the opinion that the judgment should be -reversed, and that petitioner should have judgment in accordance with the prayer of his petition.
