97 P. 396 | Idaho | 1908
This is an application for a writ of mandate to compel the defendant, as secretary of state, to file and certify to the various county auditors within the state the nominations certified and presented by Albertus L. Freehafer and John W. Constan, claiming to be chairman and secretary, respectively, of the Democratic state convention of the state of Idaho, held at Wallace, Idaho, August 4, 1908, and to strike from the files of his office the nominations certified and presented by J. L. McClear and F. G. Burroughs, claiming to be chairman and secretary, respectively, of the Democratic convention held at Wallace, Idaho, August 4, 1908. The petitioner was nominated for the office of secretary of state by the convention presided over by Albertus L. Freehafer, and brings this action on behalf of himself and the other nominees of said convention.
The petition, among other things, alleges that at a state convention of the Democratic party, held at Coeur d’Alene City, in the state of Idaho, on August 6, 1906, a state central committee was elected to act until their successors were chosen, and organized by the election of H. W. Lockhart, one of its members, as chairman, and C. E. Arney as secretary; that said state central committee met at Boise City, Ada county, Idaho, on February 27, 1908, at which meeting a call was made for a state nominating convention of the Democratic party, to be held at Wallace, Idaho, commencing August 4, 1908; that thereafter, on August 3, 1908, said state central committee met at the city of Wallace for the purpose of deciding any contests and preparing a temporary roll for said state nominating convention, and at such meeting a quorum of the duly elected members being present, said committee duly and regularly prepared a list of those delegates to said state convention who were entitled to participate in the temporary organization; that said convention met on the 4th day of August, and because of no quorum, adjourned until the 5th day of August, at which time it Was
The answer, after denying the allegations of the petition, alleges at length that after the election and organization of the Democratic state central committee in 1906, a conspiracy was entered into between Fred T. Dubois, who, it is alleged, had a controlling influence over a majority of said committee, and H. W. Lockhart, the chairman of said committee, and C. E. Arney, the secretary, together with C. H. Jackson and others, as members of said committee, for the purpose of securing control of the Democratic organization and the Democratic party within the state of Idaho; and, to carry out said conspiracy, C. E. Arney was added as a member of the
Upon the hearing of the demurrer, it was conceded and agreed that where delegations were under the unit rule, that such unit rule was the action of the convention selecting such delegates, and was a direction that such delegation vote as a unit. It was further agreed that the delegates withdrawing, organized a convention by the election of J. L. MeClear as chairman, and F. 6. Burroughs as secretary, and proceeded to make nominations which resulted in nominating the candidates certified to by said MeClear and Burroughs, and which certificate of nomination was filed by the defendant in this case as the nominations of the Democratic party of the state of Idaho, to be placed upon the official ballot according to law. The delegations not withdrawing from said convention proceeded to make nominations and nominated the ticket certified to by Albertus L. Frgehafer as chairman, and John W. Constan as secretary, which it is sought in this action to have filed and placed upon the official ballot as the legal Democratic ticket of the state of Idaho.
The plaintiff demurred to the answer upon general grounds. Upon the argument of the demurrer, it was contended by the plaintiff that the allegations in the answer with reference to a conspiracy and fraud were immaterial, and presented no questions or issues which the court would consider; that such matters, even if true, were matters entirely of a political nature, and that the settlement of the same should be in the party forum.
The answer denies the allegations of the petition, and alleges affirmatively that the delegates composing the convention presided over by McClear were elected according to the laws of this state, and that the convention composed of such legally elected delegates was the Democratic convention of the Democratic party of this state. • These allegations pre
The next inquiry presented by the record-in this case is: How far, if at all, do the laws of this state apply to political parties in the conduct of primaries, the selection of delegates and the holding of conventions?
The legislature of this state in 1899 passed a law providing a complete scheme for holding and conducting elections. Section 16 of this act provides: “Any convention or primary meeting, as hereinafter defined, held for the purpose of making nominations to public office, and also electors to the number hereinafter specified, may nominate candidates for public office to be filled by election within the state. A convention or primary meeting, within the meaning of this act, is an organized assemblage of electors or delegates representing a political party or principle. ’ ’
Section 17 of the same act provides for certifying nominations so made to the proper officers.
Section 19 of the same act provides that “Candidates for public office may be nominated, otherwise than by convention or primary,” by petition. The law then further provides for the preparation and arrangement of ballots and the conduct of elections.
It will thus be seen by this act that the legislature has recognized political parties and political conventions as. factors in the general scheme for nominating candidates for office, and conducting elections generally.
In 1903 (Laws of 1903, p. 360), the legislature of this state enacted a primary election law, supplementing the general election law, and provided for holding party primaries and the election of party delegates to conventions. Section 1 of the act of 1903 provides that:
“A primary election within the meaning of this act is an election held in any county, city, town or precinct in the*296 state of Idaho by any political party, for the purpose of electing delegates to political conventions, and the provisions hereof shall apply only to general state and county and general city or town elections.”
This section clearly indicates the intention of the legislature to provide party primary elections at which delegates shall be selected to political conventions. The political conventions contemplated evidently were the political conventions designated and recognized by the general election laws of 1899.
Section 2 of the act of 1903 provides and makes it the duty of the duly authorized committee of a political party to give notice of the holding of such primary elections.
Section 3 of said act provides that such primary election must be held in each voting precinct in the county, city or town on the same Monday afternoon, specifying the hours. Then follows the method of conducting such primary elections.
Section 6 provides that only regularly qualified voters who are entitled to vote at such primary elections are permitted to vote thereat or take any part therein, and it is unlawful for any person who was not affiliated at the last general election, or for any person who has not resided for at least thirty days in the election precinct where the primary election is held, to vote or take part in such primary election; provided, that one who has since the last election become of age may vote if otherwise qualified.
Section 9 provides that, “In ease any delegate elected to a convention fails to appear and serve, he shall not give his proxy to anyone, but the vote of such delegate must be cast by the balance of the delegation from the precinct, and if no delegate appears from the precinct, such precinct must be without any representation.”
Section 10 provides: “When at any primary election such irregularities or frauds on the part of the voters or of the officers of election or of any other persons shall occur, resulting in the election of delegates, which the convention to which they are elected is clearly satisfied would not have
Section 11 provides: “The application of this act to any political party which at the last general election cast less than ten per cent of the whole number of votes cast, is optional with such party. This act does not prevent any political party from providing and directing that the delegates elected under the provisions of this act to the county convention may select delegates to the state convention.”
It will thus be seen by this act that the legislature recognizes political parties and political conventions for the purpose of nominating’ candidates for office. A complete scheme is provided for holding primaries and the election of delegates. Counsel for plaintiff contends that this law is directory merely, and that a political party or organization may select delegates to county conventions in any manner they may adopt other than that provided by law, and that it is optional with such party whether primaries be held under this law, or no primaries held' at all. Section 1 of the act clearly provides that a primary election is an election held in any county, etc., by any political party, for the purpose of electing delegates to political conventions; that is, any election held by a political party for the purpose of electing delegates to political conventions is a primary election, and section 11 provides that the application of the act to any political party which at the last general election east less than ten per cent of the whole number of votes is optional with such party. If the application of the act is only optional with a party casting less than ten per cent of the whole number of votes cast at the last general election, it certainly is not optional with parties casting more than ten per cent, and if not optional, it must be mandatory that a primary election held by such party shall be held under the provisions of this act. The principle of construction expressio unius est exclusio alterius, applies.
This act further provides for the qualification of voters at such primary election, the rights of delegates elected thereat,
It is true that the courts generally in the absence of a statute regulating such matters, have inclined to the holding that a judicial inquiry, as to the legality of party conventions and primaries, and the rights of'persons to participate therein, would not extend beyond the inquiry of which contending party or faction had behind it the political organization to which it belonged. In other words, when the party organization recognizes the right of persons or delegates to a seat in a convention or to participate in the deliberations of a convention, the courts would not make any further inquiry except to ascertain what that decision was, and this, we understand, is the contention made by plaintiff, and to support which we are cited to Williams v. Lewis, 6 Ida. 184, 54 Pac. 619; Addle v. Davenport, 7 Ida. 282, 62 Pac. 681; In re Pollard, 25 N. Y. Supp. 385; In re Redmond, 5 Misc. Rep. 369, 25 N. Y. Supp. 381; State ex rel. Mitchell v. Larson, 13 N. D. 420, 101 N. W. 315; State v. Lavik, 9 N. D. 461, 83 N. W. 914; State v. Porter, 11 N. D. 309, 91 N. W. 944; State v. Lindahl, 11 N. D. 320, 91 N. W. 950; State v. Board of Election Commrs., 167 Ind. 276, 78 N. E. 1016; Matter of Fairchild, 151 N. Y. 359, 45 N. E. 943; State v. Weston, 27 Mont. 185, 70 Pac. 519. But we believe we are safe in saying that all of the courts recognize the power and jurisdiction of the court to inquire into the legality of conventions and the authority and rights of delegates to participate therein, to the extent of ascertaining the application of the law thereto. In other words, in determining such matters, the court will follow the law and go as far as the law goes, and if the legal rights of a contending delegate are invaded or denied by a party committee or convention, the court will extend its inquiry to the extent of determining what legal rights of the individual have been so invaded or denied, as a basis for prescribing and enforcing a remedy.
The authorities relied upon by counsel for plaintiff, some of which are cited above, as we read them, do not hold to the contrary. An examination of. these authorities clearly dem
A few of the authorities discussing and dealing with this question directly are cited below: State v. Houser, 122 Wis. 534, 100 N. W. 964; State v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. R. A. 331; Ladd v. Holmes, 40 Or. 167, 91 Am. St. Rep. 457, 66 Pac. 714; Neal v. Young, 25 Ky. Law Rep. 183, 75 S. W. 1082; State v. Hogan, 24 Mont. 383, 62 Pac. 583; State v. Martin, 24 Mont. 403, 62 Pac. 588; Brown v. Cole, 105 N. Y. Supp. 196; Spencer v. Maloney, 28 Colo. 38, 62 Pac. 850; Whipple v. Broad, 25 Colo. 407, 55 Pac. 172; In re Woodworth, 16 N. Y. Supp. 147, 19 N. Y. Supp. 525, 46 N. Y. St. Rep. 432; 15 Cyc. 332; In re Fairchild, 151 N. Y. 359, 45 N. E. 943.
In the ease of State v. Metcalf, supra, in discussing the question, the court says:
*301 “Whenever the legislature in its wisdom sees fit to regulate nominations and the printing of ballots by statutory enactments, 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 duties and the candidate’s rights respecting the preparation of ballots, haying been defined by statute in this state, the performance of such duties and the protection of such rights no longer present merely political questions but must be dealt with as are other legal duties and other legal rights. So we are compelled to conclude that it is a duty of this court in this proceeding to determine which, if either, of these sets of candidates is entitled to be recognized as representing the Republican party in Roberts county. ’ ’
In State v. Houser, supra, in discussing this question, the court says:
“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, if settlement was so made, it should be deemed binding on the court, section 35 and all similar laws had their origin.”
In Neal v. Young, supra, the court of appeals of Kentucky, in discussing this question, says:
“Since the adoption of the official ballot system by the constitutional convention, since the legislative branch of the state government provided for the regulation of primary elections by law, questions involving the legal rights of individuals will arise for the determination of the courts. The necessity for such adjudications has been placed upon the courts by the changes which have been made by the organic and statutory law of the state. However much the courts desired to do so, they could not avoid the responsibility of*302 deciding such questions, even if perchance some one should fail to discriminate between political rights and those legal rights which arise under the law, and declare the court was adjudicating purely political questions.”
The supreme court of Montana in State v. Hogan, supra, after discussing the finality of the decision of the party authorities with reference to the regularity and legality of a mass meeting in choosing delegates, says:
“To 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 possessed 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.”
These cases, we think, recognize the doctrine adhered to by all the courts dealing with this subject, and that is, that party conventions, committees or the party authority, cannot decide or determine a matter which is regulated by law, and thereby abrogate the law or oust the courts of jurisdiction to hear and determine such matter, and that the courts will deal with such question as any other legal controversy, uninfluenced by any action or decision such party authority may make in the matter.
The legislature, then, having enacted a primary election law providing for holding and conducting primary elections and prescribing the qualification of voters thereat, thereby confers upon every member of the party holding such primary, a legal right — the right to have -his vote counted as cast; the right to have the persons receiving the majority of votes cast at such primary, represent such majority in the conven
In discussing this question, the supreme court of Illinois in People v. Board of Election Commrs. of Chicago, 221 Ill. 9, 77 N. E. 321, says:
“The right to choose candidates for public offices, whose names will be placed on the official ballot, is as valuable as the right to vote for them after they are chosen, and is of precisely the same nature. There is scarcely a possibility that any person will or can be elected to office under this system unless he shall be chosen at a primary election, and this statute which provides the methods by which that shall be done and prescribes and limits the right of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law.”
The supreme court of New York in Brown v. Cole, supra, well says:
“There no longer remains any distinction, so far as enforcement is concerned, between civil and political rights of citizens; but it will be presumed that every right recognized or conferred by statute may be enforced by proper legal method, and that every wrong, whether civil or political, has its remedy.”
The same court in the same ease, 105 N. Y. Supp. 196, says:
“Every voter has the right to vote at the primaries of his party, and he cannot be deprived of this right, but will be protected in it by the courts.”
This leads us to a consideration of the power and authority of the state central committee in making up the roll of delegates to participate in. the temporary organization.
The Democratic state central committee met on August 3, 1908, prior to the opening of the convention, and made up a temporary roll of the delegates which it considered entitled to seats in the convention during the temporary organization, and it is contended on the part of the defendant that such committee had no power or authority to prepare such temporary roll of delegates, and that it was for the convention to decide who were entitled to seats and to participate in the temporary organization. Preliminary to this matter, however, it is charged in the answer that after the organization of the state central committee in 1906, and the appointment of H. W. Lockhart as chairman, that he appointed certain members of such committee without authority. There is no statute upon this subject, and in the absence of a showing to the contrary, the court will presume that the appointments were made in accordance with the general authority of the chairman. This question, however, is not material, as the action of the state central committee in making up the temporary roll does not seem to have been controlled by the vote or acts of the parties so appointed, and for that reason, the court is of the opinion that a further consideration of this' question is unnecessary. The laws of this state do not in
It certainly will be conceded that some person, body' or authority must, in the first instance, determine who are entitled to seats in the convention, and to participate in the deliberations thereof, and where a party state central committee has been elected to represent the party during the interim between conventions, and in arranging for a convention of the party, decides that it will prepare a temporary roll of delegates in the first instance, it has authority to do so. The state central committee, then, having power and authority to make up a temporary roll of delegates to participate in the temporary organization, could only place upon such roll such delegates as had been elected to such convention in accordance with the laws of this state, and the fact that delegates were placed upon such roll, who had not been elected in accordance with law, did not give to such delegates any legal right to participate in the temporary organization of the convention. In other words, only delegates elected in accordance with law could be placed upon such roll and participate in the temporary organization of such convention.
This same rule applies to the convention, as neither the committee nor the convention is superior to the law, nor can the committee or convention make rules and regulations in violation of the law, or confer rights or privileges upon dele
This now brings us to a consideration of the facts involved in this controversy.
The following facts are agreed to by the respective parties: That at the regular Democratic state convention of the Democratic party, held at Coeur d’Alene City on August 6, 1906, a state central committee was regularly elected to act during the ensuing two years, and until its successor should be chosen, and that such committee, organized by the election of H. W. Lockhart, one of its members, as chairman, and C. E. Arney, as secretary; that said state central committee was the representative of the Democratic party during the interim between the convention held in August, 1906, and the convening of the convention in 1908, and had power as such to select a time and place for holding the Democratic state convention for the nomination of presidential electors, a member of Congress, and candidates for the various state offices, to be voted on at the general election to be held on November 3, 1908; that said state central committee convened on February 27, 1908, and fixed the time and place for holding said state convention, and issued a call therefor, calling said convention to meet in the city of Wallace, the county of Shoshone, on August 4, 1908; that said convention convened in accordance with the call of the state central committee, at 3 P. M., on August 4, 1908, and was called to order by H. W. Lockhart, as chairman, and there being no quorum pres
Ada county....... 31 delegates
Bannock county... 14 “
Bear Lake county. 2 “
Bingham county... 14 “
Blaine county..... 11 “
Boise county...... 10 “
Bonner county. 14 “
Canyon county.-... 28 “
Cassia county..... 3 “
Custer county..... 7 “
Elmore county.... 8 “
Fremont county... 12 “
Idaho county...... 18 “
Kootenai county... 15 “
Latah county..... 13 “
Lemhi county..... 8 “
Lincoln county.... 8 “
Nez Perce county.. 21 “
Oneida county_____ 4 “
Owyhee county.... 7 “
Shoshone county.., 22 “
Twin Falls county. 9 “
Washington county 19 “
That the counties of Ada, Bannock, Blaine, Boise, Canyon, Cassia, Custer, Elmore, Idaho, Kootenai, Latah, Lemhi, Lincoln, Nez Perce, Owyhee, Shoshone, Twin Falls and Washington, held regular primaries in said counties, in accordance with law, and thereat elected delegates to county conventions, which thereafter regularly elected delegates to the state convention; that primaries were regularly held in the county of Bonner on a Saturday instead of Monday, the day fixed by law, at which delegates were elected to the
The controversy arises as to the regularity of the delegates selected to said state convention from the counties of Fremont, Bingham, Bear Lake and Oneida, the legality of the convention of Bonner county, and the contested delegation from Ada County.
As to Bonner county: It is stipulated that primaries were regularly called and held on Saturday instead of Monday, and that no other primaries were held in said county; that the delegates so elected at such primary held on Saturday met in convention and elected delegates to the state convention, which delegates were also afterward appointed by the county central committee, and that these delegates so elected to the state convention were recognized by the committee on credentials as the legal delegates from Bonner county, and acted with the Dubois faction in the convention presided over by McKinley.
Under this stipulation, Bonner county had no legal delegates in the state convention. The primary election law is mandatory, and must be substantially complied with. To hold primaries on some other day than that fixed by law, in effect substitutes the action of the party or its central committee for the law itself, and renders the same nugatory. If the patty authorities can evade the law as to the day upon which the law requires the primaries to be held, it would seem that they could evade the law in any other substantial particular. Certainly the day on which the primaries are required by law to be held is important. The members of the party have a right to rely upon the law and to believe that primaries will be held in accordance with law and upon the day fixed by law, and the party authorities have no right to set aside the provisions of the law and hold primaries on a day not fixed by law; neither can the county central committee appoint delegates, because that is not the manner in which the law requires such delegates to be selected. If this can be done, then the party authorities may substitute rules and regulations for the law, and the law becomes of
It may be argued, however, that inasmuch as there was no contesting delegation from Bonner county, and no one claiming the right to participate in said convention as against the delegates elected at said county convention, that such delegates should be recognized and considered as legal delegates to the convention. This argument might have some force if it were not for the fact that this court is now called upon to determine the question as to whether or not the ticket nominated by the convention in which the Bonner county delegates were admitted and participated is the Democratic ticket, or whether the ticket nominated by the convention in which said Bonner county delegates did not participate is the Democratic ticket. True, in this instance the legality of the Bonner county delegates can make no difference for the reason that even admitting that said delegates so elected were legal, it would not change the result or give the Dubois faction a majority of the legally elected delegates. Inasmuch, however, as the court is called upon to determine which was the Democratic convention, and this depends upon which convention had a majority of the legally elected delegates, we have not evaded the responsibility upon the grounds above suggested.
As to Frémont county: The parties stipulate that at the regular Democratic county convention, held in Fremont county in the summer of 1906, to which delegates were regularly elected for the purpose of electing delegates to the Democratic state convention, to be held at Coeur d’AleneCity, Idaho, on August 6, 1906, certain differences arose-among the delegates, which resulted in the formation of two-factions of the Democratic party in said county, designated as Dubois and anti-Dubois, both of which were represented
The stipulation then contains certain resolutions and a list of candidates upon the American party ticket, which to the court are of no consequence and are immaterial, so far as this case is concerned.
The stipulation then further admits that on July 1, 1908, the Democratic county central committee elected by the Democratic county convention, held in 1906, which organized by electing a chairman and secretary, but which made no nominations, met and authorized its chairman and secretary to issue a call for primaries to a county convention for the purpose of electing delegates to the state convention to be held at Wallace, on August 4, 1908; that such primaries were held on July 27, 1908, in accordance with the primary elec
Under this stipulation it appears that the Democratic party of said Fremont county met in a county convention in 1906, and organized by the election of a chairman and secretary, and thereafter adjourned without nominating a county ticket. Because this convention was not in harmony with the platform as adopted by the state convention, and made no county nominations, is given as the reason why M. J. Walter and others thereafter attempted to organize a Democratic party in said Fremont county, and by reason of their acts, it is claimed that the organization so made constitutes the legal Democratic authority in said county, and supersedes and takes the place of the Democratic county central committee selected at the county convention in 1906. There is no law which imposes any duty upon a county convention as to nominating candidates for county offices, and there is no law which imposes upon a county convention any duty as to-adopting or favoring all of the policies adopted by the state convention. In the absence of any statute upon this subject, the county convention held in 1906, being the Democratic convention legally held, had authority to adjourn without nominating any county ticket, and the failure to nominate-a county ticket or to adopt resolutions supporting the platform of the state convention, or the fact that the county convention was not in all matters in sympathy with the policy or acts of the state convention, would not dissolve the Democratic county organization or terminate its existence. This fact alone would not authorize persons claiming to be-in sympathy with the Democratic state platform to gather themselves together and organize a Democratic party in said county, and thereby succeed the regular organization of said party. The affairs of the Democratic party in the interim between one convention and another were in the hands of
As to Bingham county: The facts as to Bingham county are presented in the record, partly by stipulation and partly by evidence. It is stipulated that in 1906 primaries were regularly called, according to law, to select delegates to a Democratic county nominating convention; that this convention was regularly held on October 1, 1906, and was controlled by a majority who were not in harmony with the state platform adopted that year; that seven of the delegates composing said convention who were in harmony with the Democratic state platform, withdrew from said county convention, and on the same day associated themselves with others in a public meeting and organized an American party, and thereafter nominated a county ticket, which was placed upon the official ballot to be voted for at the general election that year under the name of the American party ticket; that after withdrawal of said seven delegates from said county convention, said convention proceeded regularly with its business, nominated a county ticket and elected a county central committee to serve for the ensuing two years, from sixteen precincts in said county, out of a total of thirty precincts; that thereafter said county. central committee organized and elected one W. A. Beakley as chairman and J. T. Carruth as secretary; that on April 24, 1908, a call purporting to be the call of said county central committee was issued, signed by W. A. Beakley as chairman, and George Chapin, as secretary pro tern., for primaries to be held in said Bingham county, on the 18th day of May, for the purpose of electing delegates to a county convention to elect delegates to the state convention to be held at Twin Falls, for the purpose of electing delegates to the national convention, and to the state convention at Wallace, for the purpose of nominating candidates for state offices; that notices of such primaries were duly posted and published as provided by law, and primaries held and delegates elected to said county convention from the different precincts; that said convention met and consisted
The point upon which counsel were unable to stipulate and upon which evidence was introduced relates solely to the question as to whether or not the call made on April 24, 1908, signed by W. A. Beakley, as chairman, and George Chapin, as secretary pro tern., for primaries to be held on May 18, 1908, was the call of the Democratic county central committee. The evidence upon this point is conflicting, but it must be conceded that upon said date, W. A. Beakley was chairman of the Democratic county central committee, and it is admitted that the notices he issued for primaries were in accordance with the laws of this state, and that primaries were held at which delegates were elected to the county convention, and that the county convention met and no one made objection to the legality of the convention or to any of the delegates attending such convention. No complaint is shown that any member of the Democratic party was misled or denied any right to participate at such primaries, or that any person intending to affiliate with such party was denied that right. It appearing that the call was made by one who was the chairman at the date the call was made, and that the call was in accordance with law, and that the members of the party intended to be affected by such call participated in such primaries, and that no one was denied any right by reason of such call, the court will presume that the chairman
Following the rule announced as to Fremont county, the delegates selected at the county convention held at Idaho Falls on May 22, 1908, and who participated in the Dubois convention at Wallace, presided over by McKinley, were the legal delegates and had the right to be recognized as such from said county of Bingham.
As to Bear Lake county: It is stipulated that at the time of the Democratic state convention held at Coeur d’Alene City in 1906, there arose in said county two factions; that a Democratic county convention for said county was duly and regularly held after primaries were held in accordance with the laws of this state; that such convention elected a county central eommitttee, after which it adjourned sine die, without placing in nomination any Democratic county ticket; that after the adjournment of said convention an independent ticket was nominated by petition in said county, and that a large majority of the persons who signed the petition represented that faction of the Democratic party which was refused seats in the Dubois Twin Falls convention, presided over by McKinley, and the Dubois Wallace convention presided over by McKinley; that the delegates to the anti-Dubois Twin Falls convention elected in 1908 were elected at a mass meeting, and that the delegates of the Dubois faction of the Democratic party of said county who were seated in the Dubois conventions at Twin Falls and at Wallace, were appointed as such delegates by one Joseph McCart, state central committeeman for said county, who had been appointed by H. W. Lockhart, chairman of the said state central committee, which said appointment was ratified by the state central committee on February 27, 1908; that at the Twin Falls convention there were two factions of the Democratic party which held conventions, both of which elected delegates to the Democratic National Convention to be held in Denver, and that the delegates elected by the Dubois faction, presided over by McKinley, were given seats, and the delegates
From this stipulation it appears that there was a regular Democratic organization in the county of Bear Lake in .1906; that a county convention was held; that a central committee was elected, and it further appears that this central committee regularly issued a call for primaries, and that such primaries were regularly and legally held in said county for the purpose of electing delegates to a county convention to elect delegates to' the state convention to be held at Wallace, August 1, 1908; and that such delegates so elected were denied seats in the Dubois convention presided over by McKinley, but were admitted and participated in the antiDubois convention presided over by McClear.
For the reasons heretofore given, it appears that the delegates elected at the county convention in 1908, composed of delegates elected at primaries in accordance with law, constituted the regular Democratic convention called by the regular Democratic organization in said county, and that the delegates so elected were the only legal delegates elected from said county to said state convention. There was no authority of law which authorized the state central committeeman from said county to appoint delegates to the state convention.
From this stipulation it appears that the delegates participating in the anti-Dubois convention held at Wallace were the only delegates elected from said county as provided by law, and it further, appears that such delegates were elected at a county convention, called by the then Democratic county central committee and composed of delegates elected at primaries held according to the laws of this state.
In this connection it may be stated that it is unnecessary, and it would be going beyond the issues as presented, for this court to determine which faction of the Democratic party in each of these counties has the control of the Democratic organization at the present time. For the purposes of this case, it is only necessary to inquire whether or not the Democratic authority as it existed at the time the respective delegations were selected, called the primaries which resulted in electing the delegates according to law and not what faction controls the party at the present time. What may have happened since is a matter of no consequence and in no way affects the result to be reached in this case.
As to Ada county: It is stipulated that a Democratic county convention was regularly had and held in said county in 1906, after primaries had been held in accordance with law, at which delegates were elected thereto and after election of a Democratic county central committee to serve for the ensuing two years, by said convention, the same adjourned without nominating a Democratic county ticket, and that said Democratic convention was controlled by the Dubois faction of the Democratic party as represented by the conventions
From this stipulation it clearly appears that there was but one set of delegates elected from Ada county to the Democratic state convention to be held at Wallace on August 4, 1908, which were elected according to law, and that was the delegates elected by the county convention after primaries held according to law. These were the legal delegates from said county, and had a legal right to participate in the temporary organization of said convention. The delegates selected by J. M. Woodburn were selected without authority of law, and were not legal delegates and had no right to sit or participate in either the temporary or permanent organization of said convention, and as shown by the stipulation of facts, were not permitted to so participate or sit.
It is further stipulated that the state central committee placed upon the temporary roll as delegates entitled to participate in the temporary organization of the convention, the admitted legally elected delegates from the counties of Bannock, Blaine, Boise, Canyon, Cassia, Custer, Elmore, Idaho, Kootenai, Latah, Lemhi, Lincoln, Nez Perce, Owyhee, Shoshone, Twin Falls and Washington, and in addition, the delegates elected by the county convention of Bonner county, and the delegates representing the Dubois faction from the counties of Fremont, Bingham, Bear Lake and Oneida. These delegates were permitted to participate in the temporary organization of the -Dubois convention presided over by McKinley, and upon the report of the committee on credentials having been made to said convention in favor of seating said delegates, and also the Ada county delegates, the same delegates were permitted to vote upon said report, and the delegation from Ada county and the delegations chosen by the anti-Dubois faction in the counties of Fremont, Bear Lake- and Oneida counties, were not permitted to vote upon said', motion. By such action of the convention, it will be seen that the legal delegates from the counties of Ada, Fremont,. Bear Lake and Oneida were denied the right to vote upon the report of the committee on credentials, while the illegally^
It is further stipulated that after the adoption of the majority report of the committee on credentials, and prior to the adoption of the report of the committee on permanent organization and order of business, the following delegates withdrew from the Dubois convention presided over by McKinley, to wit: Blaine, 11; Boise, 10; Canyon, 28; Cassia, 3; Elmore, 8; Kootenai, 15; Lincoln, 3%; Nez Perce, 21; Owyhee, 7; total, 106%.
It thus appears that the Dubois convention, presided over by McKinley, after the withdrawal of the delegates above named, was composed of the following legally elected delegates : Bannock, 14; Bingham, 14; Custer, 7; Idaho, 18; Latah, 13; Lemhi, 8; Lincoln, 4%; Shoshone, 22; Twin Falls, 9; Washington, 19; total, 128%.
The 106% delegates admitted to be legally elected, withdrawing from the Dubois convention, presided over by McKinley, united with the 31 legally elected delegates from Ada county, the 12 legal delegates from Fremont county, the two legal delegates from Bear Lake county, and the 4 legal delegates from Oneida county, making a total of 155% legal delegates, organized the convention presided over by McClear as chairman. We thus see that after the withdrawal of the delegates, the Dubois convention was composed of 128% legal delegates, and the - anti-Dubois convention was composed of 155% legal delegates.
It is argued by counsel for petitioner that by withdrawing from the Dubois convention, the delegates waived their-right to participate in the same, and that their action could' not affect the identity of such convention or deprive it of the-right or power to proceed with the business before it, even though the delegates withdrawing constituted a majority of' the delegates of said convention, and to support which our-attention is directed to the eases of State v. Lavik, 9 N. D. 461, 83 N. W. 914; Hutchinson v. Brown, 122 Cal. 189, 54 Pac. 738; State v. Porter, 11 N. D. 309, 91 N. W. 950; and
This principle is correct as applied to conventions or meetings of which the representatives therein are not required to be elected in accordance with a particular law of the state; but where the statute prescribes the method of electing delegates to participate in a convention, only those so elected are entitled to sit or participate, and the convention cannot convert a legal minority into a legal majority by permitting illegal delegates to vote with said legal minority. The Dubois convention could not convert a minority of the legal delegates into a majority, by permitting the illegal delegates from the counties of Fremont, Bear Lake and Oneida to vote with said, legal minority; neither could such legal minority, acting with illegal delegates, constitute the legal minority the convention, or preserve the identity of the convention, or take away the power or authority of the majority of the legal delegates entitled to sit in said convention. The convention was composed of a certain number of legal delegates, and it was the legal delegates who had the power and authority to control such convention and determine its procedure, policies and acts, and if a minority of the legal delegates could associate with such legal delegates a sufficient number of illegal delegates to make a majority over the legal delegates, then the purposes and objects of the primary election law of this state would be defeated. If this could be done, then illegal delegates would be exercising the same power in convention as legal delegates, and the convention would be recognizing as legal delegates, delegates not elected according to the laws
Taking this Mew of the matter makes it unnecessary to enter into a full discussion of the details and incidents of the state central committee and the Dubois convention up until the time the majority of the legal delegates attending such convention were in a position to control the acts of such convention. Whether or not protests and contests were filed before the state central committee or presented to the convention in such form as the central committee and convention would entertain, becomes of no consequence, in Mew of the fact that the central committee or the convention had no
It is shown by the record in this case that legal delegates were in attendance at said convention from Ada, Fremont, Bear Lake and Oneida counties, attempting to be recognized as such by the Dubois convention, and when they were unable to be recognized as such, they were permitted and did participate in the convention presided over by McClear, composed of delegates elected to said convention according to law. There is nothing in the authorities to which counsel has directed our attention to the contrary. Those were cases under the common-law rule as to assemblages generally, where no particular or legal qualifications of the members were fixed by law.
It follows that as the anti-Dubois convention, presided over by McClear, was composed of a majority of the legal delegates elected to the Democratic state convention, held at Wallace, Idaho, on August 4, 1908, it therefore was the Democratic state convention, and a ticket nominated by such convention and certified to as required by law should and will be recognized as the state Democratic ticket entitled to be filed and certified to the various county auditors to be printed on the official ballot at the general- election to be held on November 3,1908.
Judgment is ordered entered for defendant, the prayer of the petitioner is denied and the cause dismissed. Costs awarded to the defendant.