text:
    STEPHENSON v. BOARDS OF ELECTION COMMISSIONERS.
    1. Political.Conventions — Qualifications of Delegates.
    The decision of a political convention as to the qualifications of its own members is conclusive upon the courts.
    2. Same — Temporary Organization — Presiding Officer.
    The custom that prevails in political conventions, of permitting the chairman of the party committee to preside until a temporary organization is effected, may be disregarded in a particular convention, although there are contesting delegations, between which, in respect to the right to vote upon matters of organization, the chairman is. directed by the committee to decide.
    3. Same — Nominees of Rival Factions — Judicial Inquiry.
    Courts will not, at least in the absence of a statute imposing the duty, attempt to determine as to which of the nominees of rival factions in a political convention regularly called, neither of which factions appears to have had a majority of the delegates admittedly entitled to seats in the convention, is the regular nominee of the party.
    A Same — Official Ballots — Party Tickets —Duty of Election Commissioners.
    In such case the names of both nominees, if regularly certified, should be given places upon the ballot, the one with the general ticket of the party, the other in the next column, under the party name and vignette; the board of election commissioners deciding which shall go upon the general ticket.

      Mandamus by Samuel M. Stephenson to compel the boards of election commissioners for the counties of the Twelfth congressional district to place relator’s name on the official ballot as the regular congressional nominee of the Republican party in that district.
    Submitted October 18, 1898.
    Writ denied October 25, 1898.

      Brown & Trudell (H. Olin Young, Byron S. Waite, and Fred A. Baker, of counsel), for relator.

      George Hayden and Gad Smith (H. H. Hatch', Harrison Geer, A. G. Cook, and J. H. Cole, of counsel), for respondents.
   Hooker, J.

The relator asks a mandamus to compel the several boards of election commissioners of the Twelfth congressional district to place the name of the relator upon the Republican tickets throughout the district as candidate for Congress, to the exclusion of the name of Carlos D. Shelden, each claiming to be the nominee of the regularly called convention of the Republican party. The record shows that a congressional convention was called, and the delegates assembled. It is admitted to have been a regularly called convention, and therefore its nominee, if ascertainable, is lawfully entitled to have his name printed upon the ticket.

At the appointed time a large number of persons assembled. Previous to its meeting, George A. Newett, the chairman of the congressional committee, assembled his committee, which, by á vote of three for and two against the proposition, decided that the committee should ascertain in advance what persons were lawful delegates from those counties where there were contesting delegations, and that such persons, and such only, should be permitted to participate in the preliminary work of organizing the convention. For the purposes of this opinion it is sufficient to say that two counties — Dickinson and Marquette — had contesting delegations, and it appears to be admitted that, leaving these counties out, there were 35 delegates who favored'the nomination of Mr. Shelden, and 31 who supported the relator. Here, then, was one assembly, in which 87 delegates were entitled to seats, and there were 66 present who are conceded to have been entitled to seats. The chairman of the committee called the convention to order, and, while reading or about to read the call for the convention, a delegate whose right to a seat was unquestioned arose and said, “I nominate Chase Osborn for chairman,” and himself put the question, and declared it carried; whereupon Osborn, also a delegate whose right to a seat is undisputed, appeared upon the platform, and attempted to preside over the convention; and, as appears by the proceedings of the convention set up in the return of the respondents and affidavits accompanying the same, the business was proceeded with, credentials examined and passed upon, and Carlos D. Shelden nominated,- when the convention, or that portion which had not declined to take part in these proceedings, adjourned sine die, and its members left the hall. Meantime Mr. Newett, who occupied the same stage, had been elected chairman by a faction of the assembly, a secretary chosen, and committee on credentials appointed, who, after the lapse of a couple of hours, and therefore after the adjournment of the other faction, made a report seating delegations favorable to the relator, and, this being adopted, this faction nominated the relator, and adjourned sine die. The officers of each faction filed certificates of nomination with the several boards of election commissioners, and, while we do not find it explicitly so stated, it is perhaps inferable that in some cases these boards refuse to place relator’s name upon the ballot, and that others are disposed to do so, to the exclusion of Mr. Shelden.

The relator contends that it was the right and duty of the chairman, acting under the direction of a majority of ' the committee, to preside over the assembly until the convention should be organized, and to determine who were entitled to vote in effecting such organization, and that the organization of a meeting through the election of Mr. Osborn as chairman was irregular and void, and that the organization perfected by the other faction was the only valid organization, and therefore the only “regularly called convention” whose nominee the law permits to have a place upon the ballot. Political conventions are deliberative bodies, supposed to be made up of representatives of a political party, who assemble at the appointed time and place for the purpose of holding the convention. The delegates usually come armed with something in the nature of credentials which tend to show that they are there by authority; and it has usually been supposed that the assembly itself passes upon the authenticity and sufficiency of such credentials, and it has been quite common for conventions to admit bystanders from an unrepresented district to seats as representatives of tbeir locality, although without other authority. While it has doubtless been the common practice for chairmen of political committees to use the gavel to procure order and silence, to read the call, and then to ask the assembly its further will or pleasure, and put motions until a temporary chairman is chosen, we have not understood it to be the province of the chairman to do more, or so much even, if against the will of the assembly. Certainly, we know of no rule of law authorizing it. The assembly is a law unto itself, and has uniformly been the judge of the qualification of its own members, and its decision final.

The contention of the relator seems to be based upon the assumption that the assembly cannot be trusted to faithfully discharge the duty of sifting out the disqualified, and that for that reason there must be some outside authority which shall have power to determine what individual members of the assembly are prima facie authorized delegates, and what are not, to the end that the convention shall be legally organized; and the claim that party custom has conferred that power upon the committee. It is said that outsiders may capture the convention under any other rule, or that enough contesting delegates may be sent to control the assembly, thus frustrating the will and thwarting the intentions of the constituency. To this the opposition retorts that the relator’s theory is a still better scheme for perpetrating fraud and thwarting the popular will, placing it within the power of a majority of a committee to recognize the partisans of a particular candidate to an extent sufficient to control the organization and the seating of delegates, thereby making his nomination sure and the convention a farce. These difficulties do not now present themselves for the first time. From our earliest recollection party politics has always been a matter of shrewdness and management, not always defensible; yet the people have been left to deal with the difficulties as they arise. It is not to be supposed that committees on credentials, however fairly selected, have always dealt justly; and, no doubt, expediency or political exigency has governed their action, to the exclusion of abstract justice. The remedy has usually been either a bolt on the part of the dissatisfied, and the selection of an opposition candidate within the party, or a refusal by the electors to support the nominee; and the courts have been careful not to interfere with the application of these remedies, which have usually been found adequate.

Nothing is more certain than that, when this assembly met, it constituted what the law calls “a regularly called convention; ” and, had there been no split, the right of its nominee to a place upon the ticket could not have been successfully questioned upon the ground that it was organized upon the motion of Hambitzer, instead of under the leadership of Newett. But it did split; and we must do one of two things, viz.: Either follow the precedents, and say that we will not decide between the rival factions, or ourselves decide who were the lawfully elected delegates to the convention. To do this, we might be called upon to investigate every ward or township caucus and county convention, held in the two disputed counties, and, had either side asked it, throughout the district. We have intimated that the assembly is the judge of the qualification of its members; and that back of its decision we cannot go. ’ Its presiding officer is its creature, and it must protect itself. In turn, its voters must protect themselves against fraud upon their convention or misconduct of its delegates, officers, and candidates; and when a considerable faction of a convention leaves the meeting, and nominates a ticket, claiming to be the representative of the party which called the. convention, it is not the province of the courts to determine* upon technical grounds that it is not, and that its action is void, and deny it a place upon the ballot, thereby defeating the purification of methods within the party, or to say which faction was right and which wrong. It is a right of the voter to repudiate wrong and corruption and fraud, if it exists, and to prevent, or unearth and defeat, corruption, and he should not be hampered by technical rules. If in this case this convéntion was unable to conclude its business in harmony, and the delegates divided and made two nominations, they should not be denied the privilege of going to the polls with both. Each nominee is here contending that he represents the only pure republicanism of the district, and is the lawful nominee of the true party. The electors must decide between them. In such case we know of no way of determining which of these names ought of right to go upon the Republican ticket. If it were left to the voters, there would doubtless be an honest difference of opinion upon the merits of the question. • The same may be true of the boards. They may not know what they should do, and we cannot tell them further than to say that, under the admitted facts and the precedents, both' are entitled to places upon the ballot.

It has been held in this State that, where rival factions of' a regularly called convention of a party nominate and certify different tickets, the election commissioners have no authority to accept one, to the exclusion of the other; and it was held, further, that, under such circumstances, both tickets should be printed upon the ballots; and it was said in that connection that the name of the party as certified should be placed above the ticket, without further addition or distinctive designation than such as was contained in the certificates furnished. See Shields v. Jacob, 88 Mich. 164 (13 L. R. A. 160). That case arose under Act No. 190, Pub. Acts 1891, which provided for what is ordinarily called an “Australian Ballot,” requiring the adoption of a vignette by each party, under which the party ticket was required to be printed.

A similar question arose in Colorado the next year, under a law of like character, which provided that the officer with whom the certificate was filed should pass upon objections seasonably filed. At a convention regularly called, a disagreement arose, which resulted in a division and two tickets; each faction claiming to represent the party, and each filing the certificate provided for by the statute. It was claimed that the secretary of state had authority to determine, which ticket was entitled to a place upon the ballot; but the court held otherwise. It was said that his power extended only to the correction of informalities. The court said :•

“As to what were the duties of the secretary of state under the circumstances of this case is still, however, to be decided. Here we have to deal with two conventions, each claiming the right to represent the same political party. The act itself will be searched in vain for any provision for such a contingency. It was not contemplated by the legislature, and therefore not provided for. It should not be a matter of surprise that the act as originally passed is not perfect in all particulars. The beneficent laws of the world have grown with time, as the result of experiment and amendment. There being no provision in the act for a condition such as we have presented in this case, some have reached the conclusion, upon reading section 3 of the act [Sess. Laws 1891, p. 143 ], that the secretary of state could only certify one ticket as the ticket of the Democratic party, and that, therefore, of necessity, the duty devolved upon him of determining which of these conventions was entitled to speak for the Democratic party of the State of Colorado. Certainly a court would be doing violence to the intelligence of any legislative body to assume that it was intended that such a question could be determined within 48 hours from the time objections were filed. The validity of the organization and acts of each convention is embraced in the controversy, the determination thereof involving party usages, party practices, and party principles, necessitating, perhaps, the taking of evidence of witnesses living at widely separated points. The section of the act under which it has been claimed the duty devolves upon the secretary of state to determine which convention is entitled to represent the Democratic party applies to county, city, and town clerks equally as well as to the state officer. It is as follows:
‘“Seo. 3. Any convention of delegates of a political party which, presented candidates at the last preceding election, held for the purpose of making nominations to public offices, and also voters to the number hereinafter specified, may nominate candidates for public offices to be filled by election within this State. A convention, within the meaning of this act, is an organized assemblage of voters or delegates representing a political party which, at the last election before the holding of such convention, polled at least ten per centum of the entire vote cast in the State, county, or other political division or district for which the nomination may be made. A committee appointed by any such, convention may also make nominations to public office when authorized to do so by resolution duly passed by the convention at which such committee was appointed. ’
“The argument upon this section is that, to entitle the convention of any party to nominate candidates for public offices, such party must have polled at least ten per centum of the entire vote cast in the State at the last preceding election, and that only one set of nominations can be filed by a single political party. That the argument has force will be admitted. It is quite probable the legislature had in contemplation the nomination of one ticket only by a political party, as the statute makes no provision for the condition with which we are confronted. In this case we have two certificates of nomination, each in apparent conformity with the law. As we have shown, the secretary of state is not empowered to decide as between these certificates. Therefore it is his duty to certify both tickets to the county clerks, in order that both may be printed upon the official ballots. By pursuing this course, the merits of the opposing candidates will be submitted to the people, the tribunal under our system of government that must ultimately pass upon such questions. The conclusion that the secretary of state should, under the circumstances, certify both sets of nominations to the county clerks, to be printed upon the official ballots, is in harmony with the rule of construction which requires the courts, in cases of doubt between two constructions, to follow that which will afford the citizen the greater liberty in casting his ballot. This is in accordance with the previous decisions of this court. In the case of Kellogg v. Hickman, 12 Colo. 256, Mr. Commissioner Stallcup, in an able opinion, which was adopted by this court after careful consideration, held that this should be the policy of- the courts. See, also, Allen v. Glynn, 17 Colo. 338 [15 L. R. A. 743, 31 Am. St. Rep. 304]. The severe penalties provided by the act for the filing of a false certificate of nomination will, we think, furnish a sufficient safeguard against fictitious certificates; if not, the power is in the legislature to provide adequate protection.
“ Little weight should be attached to the argument that the voters may be deceived by having two Democratic tickets in the field. At one time, no doubt, voters were often misled by having names printed under certain designated headings that did not properly belong thereunder. But this deception was only accomplished by secrecy, and by the lateness of the hour at which such irregular tickets were distributed, usually only upon the day of election. But, under the present law, the danger of deception in the manner indicated is certainly reduced to the minimum. The secretary of state is required to certify these tickets to the county clerks, and the coufity clerks must, in turn, cause the same to be published several days before the election. Thus the fullest opportunity to expose fraud and prevent deception is provided for. In the present instance, different emblems were selected by the two conventions, and this furnishes an additional safeguard against deception.” People v. District Court, 18 Colo. 26.

Phelps v. Piper, 48 Neb. 724 (33 L. B. A. 53), was a case where different conventions, called by different committees, but both claiming to represent one and the same party, held conventions at different times and places; and the question of the right of one ticket to a place on the ballot came before the court of last resort. It was held that both tickets were entitled to places upon the ballot. The court said:

“The relator, by this proceeding, seeks to prevent the certification of the candidates of the Lincoln convention as Democratic candidates. If the action of the secretary of state can be controlled by the court in this manner, it must be because it is his duty in such case to determine, as between two bodies or factions, each claiming to represent a political party entitled to have its candidates’ names placed upon the ballots, which of such bodies or factions, according to the rules and customs of such party, rightfully represents it; and, further, that, when the secretary fails to so adjudicate such question, the court shall determine it, and issue its mandate to the secretary of state accordingly. To our minds neither proposition is tenable. Indeed, we think that the case of State v. Allen, 43 Neb. 651, is conclusive on the first question, at least. It was there held that it is not the province of the secretary of state to determine which, of two rival state conventions of the same party is entitled to recognition as the regular convention ; and, further, that where two factions of a political party nominate candidates, and certify such nominations to the secretary of state in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts, in case of doubt, to adopt that construction which affords the citizen the greater liberty in casting his ballot. In the case cited, candidates representing the same faction as that represented by the candidates which we will here, for brevity, designate the ‘Mahoney Ticket,’ applied for a mandamus to compel the secretary of state to certify their names as the candidates of the Democratic party, the secretary having refused to do so. The court denied the writ, holding as we have already stated, and, further, that, the record not disclosing that the relators had been nominated by any convention whatever, the secretary of state could not. be required to certify the nominations, because it is his duty to determine, in the case of a certificate filed with him, whether such candidates were in fact nominated by a convention or assemblage of voters or delegates claiming to represent the party; that is, he should satisfy himself of the genuineness of the certificate. But he has no authority, where a convention in good faith, claiming to represent the party, has in fact certified its nominations to him in due form, to refuse to recertify the same to the county clerks. We entertain no doubt of the correctness of the principles announced in that case; and it follows that the court, by a writ of mandamus, cannot compel the secretary of state to perform an act which he has no legal authority to perform. If it was the duty of the secretary to certify both sets of nominations, and if he had no power to determine, between the rival factions, which faction represented the Democratic party, then it seems perfectly clear that the court can neither require him to make such decision, nor can the court itself determine which faction rightfully represents the party, and upon such determination require the secretary to omit from his certificate one set of candidates, which State v. Allen declares it is his duty to include in the certificate.
‘ ‘ The legislature has not provided any means for determining such controversies. Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their will. The voters ultimately must determine every such question. The voters constituting a party are, indeed, the only body who can finally determine between contending factions or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believe to be the representatives of its political doctrines and its party government. We doubt even whether the legislature has power to confer upon the courts any such authority. It is certain, however, that the legislature has not undertaken to confer it.”

The case of State v. Johnson, 18 Mont. 556, .arose under a similar statute, and bears a striking resemblance to the present case. The convention was regularly called, but trouble arose when- the secretary of the committee attempted to call the convention to order. In the confusion that ensued, some of the delegates withdrew, and assembled at another place, claiming to act under the regular call. Each faction nominated a full ticket. The question of the respective rights as to places upon the ballot reached the supreme court of Montana, which disposed of the question as follows :

< “The question is simply one of the relative rights of rival factions within the ranks of the regularly elected delegates. Such a contention, under all the facts of the case, it is well to leave to the electors to determine. They cannot well be misled, because the names of the two factions should appear under different heads on the ballot, and each faction will appear but once. At all events, we shall follow the rule laid down in Phelps v. Piper, 48 Neb. 724 [33 L. R. A. 53], and decline to interfere.”

It is observable that all the cases cited deny the authority of the officer or court to determine that the candidate of one or the other of two factions of a party is regularly nominated,.and entitled to a place upon the ballot, where the statute has not expressly or by necessary implication conferred the power. Several of these question the expediency of committing such power to either, and some doubt the power of the legislature to pass such a law. There are several decisions in the State of New York which hold that the courts have authority to pass upon such questions, and determine, between factions of a party, the right to a place upon the ticket. These decisions are not adjudications by the court of last resort, however, and they arise under a statute expressly conferring the power. In the year 1897 a case was decided by the court of appeals (In re Fairchild, 151 N. Y. 359), where it was held that the action of the party authorities — i. e., conventions and committees — should be recognized as of controlling importance. We do not understand from what we are able to gather from the case that it was held that such decision was final or binding upon the court, but that it was proper to follow the determination of the party authorities; but, be that as it may, the important fact that the statute of New York expressly gives the courts jurisdiction in such cases does appear. So, it is not at variance with the other cases cited, except as some of •them doubt the wisdom and others the constitutionality of laws permitting courts to decide one of two rival factions regular. The laws of New York provide that in such a case as the one then under consideration, viz., when two factions claim the same device or name, the secretary of state shall decide such conflicting claims, ‘ ‘ giving preference of device and name to the convention or primary, or committee thereof, recognized by the regularly constituted party authorities.” The constitutionality of such laws does not seem to be questioned in the New York case. The case is interesting, if not important, for its bearing upon the claim made here that the State convention determined between the rival factions in this case. But we are not disposed to follow it, in the absence of a statute requiring courts to settle these questions. See, also, In re Redmond, (Sup.) 25 N. Y. Supp. 381, and .In re Pollard, Id. 385.

As illustrative of the kind of difficulties which arise when the legislature imposes these duties upon the courts, one of the New York cases may be cited, viz., In re Woodworth, (Sup.) 16 N. Y. Supp. 147. That was not the first time that the matter there litigated was before the courts, as will be seen later. It was a proceeding under a statute to compel a county clerk to print the names of certain parties claiming to be regularly nominated candidates of the Republican party of the county, and its determination involved an adjudication between rival factions (each claiming to be the regular organization) of the regularity of their respective nominations. At the outset the court expressed reluctance, saying:

‘ This simple statement of the nature of the duty imposed is sufficient to indicate that it is one from which any judicial officer would gladly escape, were it possible to do so without disregarding the plain mandate of the lawmaking power of the State.”

Objections were filed to the certificates, and passed upon by the county clerk, and then presented to the court, as the law provided. The court said that the certificates were regular, and that it was therefore necessary to go into extrinsic facts. These disclosed that the county convention split, and, as there were contesting delegations from four towns, which sent delegates enough to control the convention (in view of the fact that the undisputed delegates were evenly divided),it was only possible to determine which faction had a majority by ascertaining which of the contesting delegations were entitled to seats. This the court proceeded to do by investigating the proceedings at the caucuses. For convenience, we call the respective factions “Patterson” and “Mongin.” Each faction had a town committee and a town caucus, and a judicial inquiry was had after the caucuses were called, and the same court decided in favor of the Patterson caucus; but the opinion says: “That fact did not deter the Mongin party from holding the caucus which elected Mon-gin and four others to represent the town of Waterloo in the county convention.” Without discussing the details of the caucuses held in the other three towns, we will come at once to the county convention, and here we find a striking resemblance to this case. The opinion states that—

“Previous to the hour appointed for the convening of the convention, a meeting of the county committee was held. This committee, with a single exception, was composed of persons in sympathy with the Mongin wing of the party; and at the meeting in question it was determined to place upon the roll of delegates the names of the Mongin delegates from the towns of Waterloo, Fayette, and Tyre, while the delegation from the town of Varick was made to consist of 5 Patterson delegates, together with 5 other persons, who made no pretense to an election by any caucus whatever, and each of said delegations was given the privilege of casting one-half a vote. It was further determined that the chairman of the committee should call the convention to order, and declare J. B. H. Mongin, of Waterloo, a pretended delegate, whose title was absolutely without foundation, its chairman. It was also determined that no one should be admitted to the hall unless provided with tickets furnished by the committee, and, to carry this provision into effect, policemen were stationed at the door. As thus constituted, the convention, when it assembled, consisted of 15 Mongin and 15 Patterson delegates whose election was not contested; 10 Mongin delegated from the towns of Waterloo and Fayette, who, as it has been made already to appear, had no right upon the floor of the convention; 5 Mongin delegates with half a vote from the town of Varick, who could not, under any circumstances, make any just claim to an election; and 5 Mongin delegates from the town of Tyre, concerning whose election there was, to say the least, grave doubt.
“The programme thus outlined by the action of the county committee was carried out to the letter, and, when an attempt was made on behalf of the Patterson faction to substitute the name of a delegate whose title to a seat was uncontested for chairman of the convention, the motion was not entertained by the chairman of the county committee. A committee upon contested seats was then appointed, which committee, within half an hour after its appointment, and without affording an opportunity to any one to be heard, reported in favor of seating the delegates placed upon the roll by the county committee. At this point in the proceedings the delegates from the towns of Ovid, Romulus, Yarick, and Junius withdrew from the convention, and organized a separate convention in another place, which was participated in by regularly elected delegates from the towns of Waterloo and Fayette, and also by the Patterson delegates from the town of Tyre; and proceedings were had which resulted in the nomination of persons whose names it is demanded in these proceedings shall be printed upon the official ballot. This body was composed of at least 30 delegates who were duly and fairly elected, while the Johnson Hall convention contained, at most, only 20 whose election, by any stretch of the imagination, can be claimed to be valid. It would seem, therefore, that, within the letter as well as the spirit of the act in question, the former body constituted ‘ an assemblage of voters or delegates representing ’ the Republican party of Seneca county.
“But it is insisted that a political convention is a law unto itself, and that whatever methods it adopts for its own government are conclusive, and cannot be made the subject of judicial inquiry. To a certain extent this contention may be, and doubtless is, true. It certainly was presented with the most consummate force and ability by one whose experience in and knowledge of such matters lends great weight to his opinions. But, where the duty is cast upon courts and judges of determining the regularity and fairness of political methods, those methods must be subjected to the same tests as would those of any other , body of men whose good faith is questioned; and no court or judge would be justified in sustaining them when found to be inconsistent with that degree of sound morals which must characterize an ordinary affair of business, even though they be recognized and approved by senatorial and state conventions of the same political organizations. The trend of public opinion, as well as of legislation, at the present time, appears to be in favor of a radical reform in our political methods; and it is the plain duty of all good citizens, and especially those clothed with judicial authority, to encourage such a sentiment with all the force they can command.”

In short, the court assumed to determine who were the lawful delegates, and held that the faction having the largest number of such delegates was entitled to a place upon the ticket, irrespective of the regularity or irregularity of the organization or action of the convention, upon the assumption, we suppose, that it was a deliberative body only in name, whose delegates would blindly vote for the candidate favored, without deliberate consideration of merits.

But the case did not end here. It came again before the same court, and we quote from the opinion:

“The controversy which has resulted in this application^ is one which arose in the year 1891, between conflicting" factions of the Republican party in Seneca county, each of which claimed to be regular in its organization. At the time mentioned, a proceeding similar to this was instituted for the purpose of obtaining a judicial determination of the matter; and, after a careful examination of the papers submitted, I found myself constrained to decide in favor of that element in the party known as the ‘ Patterson Faction,’ and my reasons therefor were stated in an opinion which was designed to cover all the facts of the case. In re Woodworth, (Sup.) 16 N. Y. Supp. 147. This decision was subsequently affirmed by the general term (64 Hun, 522), and the following year was approved by my learned associate, Mr. Justice Bradley. Notwithstanding these several adjudications, every state convention, and every judicial, congressional, and senatorial convention of the district in which Seneca county is located, which has been held since they were rendered, has seen fit to ignore the same,, and to recognize the opposing or Mon-gin faction as the only lawful representative of the party. The Patterson delegates have been refused admission to all of these conventions to which delegates were sent, while those of the Mongin faction were received into full fellowship, and the county committee of that faction has been made the custodian of such funds and documents as were distributed by the state committee. This being the situation, I am again asked to determine the question of regularity upon facts which, other than as above stated, are precisely the same as those which existed at the time the first adjudication was had. The proposition, therefore, which presents itself, is simply this: Shall the precedent which has been established by courts and judges, or that which has been established by political conventions, be followed ?
“ 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 had 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 not obtain in this case. The only difference is that here the state organization did not pass upon the question until after it had been determined judicially; but, nevertheless, both factions submitted their claims to that body and, for the reason stated in the opinion in the Redmond Case, I think the defeated party must now acquiesce in its decision. I am aware that this view is at variance with the one expressed by me upon the former hearing, and it likewise appears to be in conflict with that entertained by Mr. Justice Bradley in his opinion in this same matter; but, so far as any contrary view appears in my own opinion, it will be found to be merely the expression of an opinion which was not called for by the facts of the case, and it is one which, upon more deliberate reflection, I am disposed to modify. The conflict between the views here expressed and those of Mr. Justice Bradley is more apparent than real, inasmuch as it now appears that, since his decision was made, the regularity of the Mon gin faction has been passed upon by several additional conventions, and that the opposing faction has so far acquiesced in their decisions as to omit in more than one instance to make any further demand for recognition.
“I still think, as already stated, that the title to regularity of the Patterson faction was pretty clearly established upon the original hearing, and that it would, in view of the provision of the statute which authorizes this proceeding, have been no more than courteous for the party conventions to have adopted the decision of the general term, which was deliberately made, after a careful and impartial hearing; but there is no way in which they can be compelled to do so, and consequently it seems to me that the only rule for courts and judges to adopt in this and all similar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved. The adoption of a different rule would inevitably tend to bring party organizations and the courts into unseemly conflicts over questions which are peculiarly within the cognizance of the former tribunals, — a result which most certainly ought, if possible, to be avoided.” In re Pollard, 25 N. Y. Supp.' 385.

Thus, it will be seen that Mongin and politics triumphed over the judicially determined rights of Patterson. A more unseemly and humiliating chapter is not to be found in the history of jurisprudence in this country, and it is all due to the misguided attempt to impose upon the court the duty of presiding over political conventions and caucuses through the medium of actions or proceedings at law, unfitted for the purpose. In the Case of Fairchild, 151 N. Y. 859, the matter was not disposed of until after the election, and therefore, when heard and decided, involved only a question of costs.

In the case before us, had issue been joined, and the case sent down for trial of the facts, it is not improbable that it would be still dragging along when the term of office for which the parties are candidates shall have expired.

We have seen that this court held in the Shields Case that the tickets of both factions were entitled to places upon the ballot. The same is true in this case, unless we can find a change in the law forbidding it, and requiring us to determine which ticket is entitled to the place.

Another case where two factions resulted from a regularly called convention is that of Beck v. Wayne Co. Election Com’rs, 103 Mich. 192. The application prayed that the respondents be required to rescind their action in placing the name of Joseph R. McLaughlin upon the ballot as candidate for senator, and to place thereon, the name of Robert Y. Ogg. The application was denied. The court discussed several subjects bearing upon the question which faction had a majority of the delegates, and held that the convention was regularly called, and that, after the retirement of the supporters of Mr. Ogg, a majority of the delegates elect remained, constituting a valid convention, and nominated McLaughlin. The court was able to say this from the undisputed facts upon the record. It might also have denied the writ upon the authority of Shields v. Jacob, both cases having arisen under the same law. This case does not discuss Shields v. Jacob, and cannot be said to overrule that case, or even cast doubt upon its correctness, unless it is to be implied from the disposition of the case upon other grounds.

The next case that received the attention of this court was Baker v. Wayne Co. Election Com’rs, 110 Mich. 635. That was not a case where rival factions asserted an exclusive right to a place upon the ballot, but was a controversy over the question of the order in which the tickets should be placed thereon. The crucial question in the case was whether the party represented by the relator, known as the Democratic People’s Union Silver party, was entitled to be printed in the second column as the representative of the Democratic party of the previous election. It was conceded upon all hands that, if it was such representative, it was entitled to second place. The facts upon which the case turned were undisputed, and the question was one of law. The application was denied. Some language in the opinion is thought to have a bearing upon the question before us, and is cited in support of the claim that we have recognized the authority, if not duty, of the commissioners and courts to determine the questions of fact upon which the order of tickets upon the ballot depends, and that they must therefore decide all questions of regularity. It is as follows:

“The reluctance of the courts to enter upon an inquiry, or to permit an inquiry by the election commissioners, into the question of fact as to which of two contending factions truly represents a political party, has been manifested in various cases. State v. Allen, 43 Neb. 651; Phelps v. Piper, 48 Neb. 724 [33 L. R. A. 53]; Shields v. Jacob, 88 Mich. 164' [13 L. R. A. 760]. In Shields v. Jacob it was held that the court would not undertake to determine which of two rival conventions, resulting from a split in a regularly called convention, should be treated as the regular convention of the party; and a mandamus was issued requiring the election commissioners to give to both tickets a place upon the ballot. At the time that decision was rendered, however, the provision requiring that the ticket of the party having the greatest number of votes within the county at the last preceding election should be placed first upon the ballot, and that the position of other tickets should be governed relatively by the same rule, was not a part of the statute, and it was not necessary to determine which of these tickets should be placed first on the ballot. Under the law as it now exists, such an investigation seems necessary, and it would seem that the commissioners did determine the question, and place the Shelby ticket second on the ballot.”

Two questions were involved in the determination in that case: First, the identity of the parties; and, second, their previous votes as compared with those of others. About neither of these is there much opportunity for dispute over the facts, and little danger in leaving the subject to the election boards. In that case it was stated that the facts -were not in controversy.

We are not dealing with a case in which a candidate has been nominated in a regularly called convention, by a majority of the delegates regularly elected, and admittedly entitled to seats in the convention, or shown by the undisputable evidence to be entitled to seats therein, as was the case in Beck v. Wayne Co. Flection Com’rs, 103 Mich. 192. In such a case the question presented may be a mere question of law, and the candidate regularly nominated entitled to a place on the party ticket, to the exclusion of one who may have been nominated by the refractory minority.

It is urged that the statute assigning certain places upon the ballot gives rights to candidates which may be enforced by the court, and that, if the courts may determine the status of parties, they may also determine‘between factions of one party; and the effect of this contention, if sustained, would be to open up the entire field, and make it incumbent upon courts to investigate the regularity, not only of" conventions, but caucuses and primaries as well. We think there is a marked- distinction between determining the places to be given to two'different tickets upon the ballot, and denying to a faction of a party any place whatever. If this claim does not ascribe undue weight to the alleged rights of the candidate, and too little to public interests, it is at least true that judicial methods are too slow, and are inadequate to effectively and justly settle the questions which arise from political contests. Among the dangers that courts should guard against is the unwarranted assumption of power under the false impression that they, and they only, can right all of the wrongs which arise from the conduct of public affairs. They have only such powers and authority as the Constitution and the laws confer upon them. We have seen that several courts have held that not until the intention of the legislature is clearly manifested will they undertake' to control political action. We have held in the Baker Case that it was the province of the court to decide the status of political parties upon admitted facts; but we think it does not follow that it was intended that we should go further, and settle all political controversies. Under the law as expounded in the case of Shields v. Jacob, the commissioners had no authority to decide between these two factions. It was, their duty to print both upon the ballot.

It may be said that under the law of 1895 (Act No. 17, Pub. Acts 1895, § 10), providing that “it shall be unlawful for said board of election commissioners to cause to. be' printed in more than one column on the ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office,” one or the other of the nominees will be at the disadvantage of having his name appear in a column by itself, as in the Todd Case. Todd v. Kalamazoo Co. Election Com’rs, 104 Mich. 485 (29 L. R. A. 330). We think, however, that the public good requires the private inconvenience; and we cannot hold, in the absence of a statute requiring it, that the nominee may stickle for a comparatively unimportant right, to the general public inconvenience to result from his pursuit of an unauthorized remedy of doubtful efficacy and expediency.

It may be asked which of these nominees should be subjected to this disadvantage. Manifestly, we have no means of determining this question, nor can we lay down the rule for such a case as this further than to say that their names should appear in adjoining columns.

It is therefore ordered that the several respondents give to the names of the nominees adjoining columns, said respondents themselves determining which shall be placed upon the general ticket of the Eepublican party, the other to be in a separate column under the party name and vignette; the full ticket to be placed first upon the ballot. No costs will be allowed-

The other Justices concurred,


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    EDGAR v. BOARD OF ELECTION COMMISSIONERS OF LIVINGSTON COUNTY.
    Elections — Official Ballot — Party Tickets.
    The term “general election,” as used in Act No. 271, Pub. Acts 1895, § 14, requiring the board of election commissioners in each county to place first on the official ballot the ticket of the party having the greatest number of votes within the county “ at the last preceding general election,” must be held to mean the November, and not the April, election, since section 2, subd. 19, 1 How. Stat., requires such construction to be'given to the term, “unless inconsistent with the manifest-intent of the legislature.”

      Mandamus by James W. Edgar, chairman, of the Republican county committee of Livingston county, to compel the board of election commissioners of said county to place the Republican party ticket first on the official ballot.
    Submitted October 31, 1898.
    Writ denied October 31, 1898.

      Claude A. Brayton {J. M. C. Smith, amicus curice), for relator.

      L. E. Howlett (A. A. Ellis,'of counsel), for respondent.
   Per Curiam.

Subdivision 19, § 2, 1 How. Stat., provides that the term “general election” means the election held in November, “unless such construction would be inconsistent with the manifest intent of the legislature.” _ There can be no doubt that the election in the spring of 1897 was in- a sense a general election, and that general elections are periodically held, under our statutes, at times other than in the month of November. But that does not lessen the force of the statute quoted, or its application to cases growing out of acts which do not indicate that the term was to be given a different meaning from that provided by section 2. What is there in this statute (Act No. 271, Pub. Acts 1895, § 14) to remove the presumption which arises from section 2 ? If nothing, that section must apply. We find nothing in said act to indicate what is meant by the term further than the use of the term, and it must therefore be held to mean “the general election held in November.

The writ is denied, without costs.


text:
    LOCKTON v. EDWARDS.
    Insane Persons — County Charges.
    Under 3 How. Stat. § 1930e8, providing that an unrecovered patient, removed temporarily on trial from the insane asylum, shall not forfeit his right to State support “if returned to the asylum within one year from date of removal,” such patient, if returned after the expiration of the year, becomes a charge upon the county.

      Mandamus hy Andrew W. Lockton, prosecuting attorney of Calhoun county, to compel William M. Edwards, medical superintendent of the Michigan Asylum for the Insane at Kalamazoo, to receive an indigent-insane person as a State charge.
    Submitted October 21, 1898.
    Writ denied November 1, 1898.

      Andrew W. Lockton, in pro. per.

      Henry E. Chase, Deputy Attorney General, for respondent.
   Per Curiam.

The sole question in this case is this: Is an indigent patient, who has been confined in the asylum for the insane at Kalamazoo, and has been removed therefrom as an unrecovered patient, and remained away from the asylum more than one year, entitled to be returned to the asylum as a State charge ? The statute is as follows:

“ An unrecovered patient, removed temporarily on trial, if returned to the asylum within one year from date of removal, shall not forfeit his right to State support.” 3 How. Stát. § 1930c8.

The patient in this case has been away from the asylum for two years and four months. The usual proceedings were then taken before the probate court to have her adjudged insane, and sent to the asylum. The probate court directed that she be received as a State charge.

The clear implication is that a return within one year is necessary to entitle the patient to be received at the expense of the State. If returned after the expiration of a year, an insane person becomes a charge upon the. county. The respondent was right in refusing to admit the patient.

The writ is denied.


author: Long, J.

text:
    CLARK v. VILLAGE OF DAVISON.
    1. Municipal Corporations —Claim for Personal Injuries — Verified Statement — Waiver—Agreement to Arbitrate.
    Presentation to the common council of a village of a verified statement of claim for personal injuries, required by Act No. 3, Pub. Acts 1895, chap. 5, § 7, before suit can be maintained therefor, is not waived by the council’s agreeing to arbitrate, if the person injured refuses to proceed under the arbitration agreement.
    2. Same — Pleading—General Issue.
    In an action against a village for personal injuries, the defense that plaintiff failed to present a verified claim to the village council before commencing suit, as required by Act No. 3, Pub. Acts 1895, chap. 5, § 7, may be asserted under the plea of the general issue.

      Error to Genesee; Wisner, J.
    Submitted October 4, 1898.
    Decided November 1, 1898.
    Case by William H. Clark against the village of Davison for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Black & Brown (Heims & Martin, of counsel), for appellant.

      Ed. S. Lee (James 8. Parker, of counsel), for appellee.
   Long, J.

This action was brought to recover for injuries received on a defective sidewalk. Defendant pleaded the general issue to the declaration filed in the cause. The injury occurred on October 20, 1897, and the suit was commenced on December 6th thereafter. After the plaintiff was sworn in his own behalf on the trial, counsel for defendant objected to any evidence being given in the case, for the reason that the declaration did not set out that the claim made by plaintiff was ever presented to the village council prior to bringing suit. The record ds silent as to what disposition the court made of this motion; but the plaintiff was permitted to proceed with his proofs, from which it appeared that on October 20, 1897, while he was passing along the walk on Second street, in the village, he stepped with his right foot on the end of á plank in the walk, when the other end rose up, catching his left foot, and throwing him to the ground, severely injuring his left knee; that, the next morning after the injury, he sent for two members of the council, who were members of the sidewalk committee; that they came to see him, and examined his knee; and that, on November 10th following, a resolution was unanimously carried by the common council of the village, as follows:

“Moved by trustee Hurd that the president and clerk consult with Mr. William H. Clark in regard to injuries claimed by him to have been received in a fall upon a defective sidewalk in the village of Davison, and obtain the consent to settle said claim, provided such claim is proven; such settlement to be made with the village of Davison by a board of arbitration, and entering into bonds for said settlement.”

It appeared, further, that the president and clerk of the village called on plaintiff thereafter, and an agreement to arbitrate was entered into, and signed by the parties; that a bond was also drawn up to be signed, and the arbitrators were agreed upon; that plaintiff failed to procure a surety on the bond; that the time was set for the arbitrators to meet, but that they failed to meet at the time fixed; that an agreement was then made to arbitrate without plaintiff’s giving a bond; that thereafter plaintiff refused to arbitrate, and notified the members of the council that he should take the matter into court. It also appeared that the plaintiff failed to file any verified statement of his demand with the council, as required by Act No. 3, Pub. Acts 1895. Thereupon the court directed the verdict in favor of defendant.

Plaintiff now contends:

1. That the action of the council in passing the resolution to settle the matter by arbitration, and the agreement entered into to arbitrate, amounted to a waiver of the right to have a verified statement of the demand from the plaintiff, or, at least, that it was a question for the determination of the jury whether the action taken amounted to a waiver of that right.

2. That the defendant, having pleaded the general issue, without setting forth any notice that it would insist on the trial that the notice was necessary, waived this defense. "

Section 7 of chapter 5 of the village act of 1895, above referred to, provides: .

“It shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the village, for personal injuries or otherwise, that it has never been presented, certified to or verified as aforesaid, to the council for allowance.”

The preceding portion of the same section provides:

“ The council shall audit and allow all accounts chargeable against the village; but no account or claim or contract shall be received for audit or allowance unless it shall be accompanied with a certificate of an officer of the corporation, or an affidavit of the person rendering it, to the effect that he verily believes that the services therein charged have been actually performed or the property delivered for the village, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof; except such as are indorsed or referred to in such account or claim; and every such account shall exhibit in detail all the items making up the amount claimed, and the true date of each.”

It will be noticed that this section of the statute is almost identical with section 20, chap. 8, Act No. 215, Pub. Acts 1895, which is cited and construed in Griswold v. City of Ludington, 116 Mich. 411. In that case it was held that—

“It is the evident intent of the legislature, by these sections of the charter, to compel all parties having claims against a city to make a statement of the claim under oath, or to obtain the certificate of an officer of the corporation certifying to the correctness of the claim; and, until this is done, no action can be commenced or maintained.”

The provisions of a similar charter were passed upon in the case of Springer v. City of Detroit, 102 Mich. 300. In that case the declaration did not contain any allegation that the claim had been presented to the common council, and the proofs disclosed the fact that none had ever been so presented. The plaintiff having recovered below, the judgment was reversed in this court, and a new trial awarded.

But counsel contend, as we have stated, that these provisions of the statute have been waived by the village authorities. It is claimed that the case falls within Canfield v. City of Jackson, 112 Mich. 120; that as good cause exists here for holding, that the provisions of the statute have been waived as in that case. But in the Canfield Case no claim was made under the statute by the defendant until after verdict and judgment, and then only on motion for new trial, which this court held to be too late. That case was not like the present; nor is it like the case of Germaine v. City of Muskegon, 105 Mich. 213, where the claim was not rejected for the reason it was not properly verified; nor Griswold v. City of Ludington, supra. Here the parties proposed to submit to arbitration. The village stood ready to try the case in that way, even without the plaintiff’s giving the bond which was first agreed to be given by him. Arbitrators were agreed upon, when the plaintiff refused to go on, and soon thereafter commenced this suit. It is difficult to understand how, under these facts, it can be claimed that the village council waived the provisions of this act. If the arbitration had taken place without the village authorities insisting upon the verified claim being filed, the case would have undoubtedly fallen within the rule of Canfield v. City of Jackson, supra; but the plaintiff himself put a stop to these proceedings, and commenced his suit within 47 days after the injuries were received, without filing a sworn statement. Under these circumstances, the court very properly held that there was no evidence to be submitted to the jury on the question of waiver.

The second point made — that is, that the plea contained no notice of statutory defense — has no force whatever. This fact can be shown under the plea of the general issue. This requirement of the statute is for the benefit of the village, and is a matter which may be used by it by way of defense. Wright v. Village of Portland, ante, 23.

The judgment below must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MOORE v. TOWNSHIP OF HAZELTON.
    1. Bridges — Defects—Notice to Township.
    Notice to the contractor of a township bridge that it is being built of defective material is not notice to the township.
    3. Same — Lapse of Sufficient Time to Repair — Presumptions.
    One may properly presume, in the absence of any knowledge or indication to the contrary, that a township has repaired a weak and shaky bridge after the lapse of a year from the time that it was known to be in that condition.
    3. Same — Knowledge of Continuing Defect — Contributory Negligence — Question for Jury.
    The question whether a thresher, who sustained damages by reason of such a bridge, had such knowledge, or opportunity of knowing, of the continuance of the defect as would render him guilty of contributory negligence in driving his machine upon the bridge, was for the jury, under proper instructions.
    4. Same — Witnesses—Cross-Examination.
    In an action against a township for damages caused by the giving way of a bridge under a threshing outfit, the plaintiff, who had knowledge the year before the accident that the bridge was weak and shaky, was properly asked on cross-examination whether he did not think it was an act of carelessness to attempt to cross the bridge .without first examining it to see whether, in his judgment, it was strong enough to sustain the weight of the machinery.
    5. Same — Duty of Township.
    While townships must construct bridges sufficiently strong to meet the ordinary requirements of travel in the community, they are not obliged to provide structures that will sustain loads that could not reasonably be anticipated.
    6. Same — Threshing Outfits.
    Whether a ten-horse traction engine and tank full of water was such a load was a proper question for the jury.
    „ Error to Shiawassee; Smith, J.
    Submitted October 4, 1898.
    Decided November 1, 1898.

      Case by Nathan Moore and James Moore against the township of Hazelton for damages caused by a defective bridge. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      A. L. Chandler (George JR. Cold, of counsel), for appellant.

      Watson & Chapman, for appellees.
   Hooker, J.

The plaintiffs recovered a judgment for damages resulting from an injury to a steam threshing machine outfit, occasioned by the fall of a bridge upon which it was crossing a stream. It was claimed that the bridge was out of repair and unsafe, and that the timbers were rotten. The jury must have found that the load placed upon the bridge by the plaintiffs was not extraordinary for that vicinity, and that the township had actual or constructive notice of the weakness of the bridge, and was negligent in permitting it to go unrepaired. The contract for building the bridge was let some years before to one Austin, who hired a man named Garner to work upon it. Garner testified that in boring a hole through a timber— which there was evidence tending to show to have been the piece used for the needle beam, which is alleged to have given way- — the bit stopped drawing, and he then turned it, and bored from the other way, when he met the same difficulty ; that it was owing to a condition of dry rot; that he informed Austin of it, who said the timber should be put in; and a bolt was obtained, and driven through the stick where the auger failed to do its work, and the stick was used in the bridge. He also testified to another conversation upon the subject at the supper table, in the presence of his brother’s wife. Mrs. Garner was called by the plaintiff, and she testified that on the latter occasion the following occurred:

“I remember of a talk between George Garner and Mr. Austin about a stick of timber they put in the bridge. It was at the supper table one night. They came home to supper, and during the eating of the supper George says to Mr. Austin, he says: ‘Andrew,’ he called him, ‘it is a shame to put that stick of timber into that bridge, for,’ he says, ‘it is rotten.’ Mr. Austin says, ‘ Never mind, I will risk but what I will get it accepted;’ and that was the conversation exactly.
“Mr. Chandler: I move to strike out this testimony as being incompetent and immaterial, and in no way binding the township.
The Court: What position did Mr. Austin occupy at that time?
“Mr. Chapman: He had taken the contract from the township to build this bridge. They had let it to him.
The Court: As an admission it would not bind the township, but as a matter of. notice it would. I will let it stand.
“Mr. Bichards: What the contractor may do or say would not bind the town.
“The Court: If Mr. Austin was there, having charge of the work on the defendant’s highway, — having charge of public work,— I think there would be a presumption there that he was helping, and doing it in the interest of the defendant. Now, the fact that such a person, in such a position, had notice of what was being done, would be competent for the purpose of showing notice only, but not as any admission by the township. I will deny the motion. (Exception for defendant.)
“Cross-examination by Mr. Chandler: I don’t remember anything more that was said there about the bridge at that time. I was there all the time during the supper hour.
“The Court: I think, gentlemen, that the fact that Mr. Austin was informed of the condition of the timber might stand, but as to what Mr. Austin said about it may be stricken out of this witness’ testimony.
“Mr. Chandler: I move to strike it out, — all of it.
‘ ‘ The Court: I will strike out what Austin said about it, but let the fact stand that Austin was notified in regard to that stick of timber. (Exception for defendant.)”

Austin was not an officer of the town at that time, that we discover, but merely one who had contracted to build the bridge; and we think that notice to him that the bridge was not properly built would not be notice to the town that the bridge was weak, nor would this conversation between Austin and Garner at the supper table be proper evidence to prove that it was so.

Among other questions in the case was that of contributory negligence. There was some evidence tending to show that, a year before, the plaintiffs knew that the-bridge was weak and shaky, and that one of the stringers was out of place, and that one of them took an ax, and drove it into position, before going upon the bridge. The defendant’s counsel offered the following request:

“If you find the plaintiffs crossed this bridge, with the engine, the year before the alleged accident, and that the bridge at that time shook and gave evidence of weakness, and if such shaky and weakened condition of the bridge was then known to the plaintiffs, or either of them, in the absence of actual knowledge by them that the bridge had been subsequently repaired, they would have no right to presume that it had been repaired, and it would be negligence for the plaintiffs to draw their engine on said bridge without first inspecting its condition; and, if they drove the engine on the bridge without inspecting it, they placed themselves in a place of danger,- — -they took their chances on getting safely over the bridge, — and, if they were injured in so'doing, they cannot recover in this case.”

The judge refused this request, and instructed the jury as follows:

“ ‘ If the bridge had been out of repair the year before, and the plaintiffs did know it, they would have a right to presume that the township had put the bridge in a reasonable repair before the-following year.’ * * *
“ ‘ If plaintiffs, .or either of them, had actual knowledge, or if they, or either of them, were in possession of such facts or matters or circumstances or information concerning the condition of this bridge at the time of the alleged injury as would put reasonable, careful, and prudent men upon inquiry as to whether this bridge was out of repair, and not in a condition reasonably safe for them to drive their engine upon, it would be negligence for them to drive their engine upon the bridge without first making careful examination for the purpose of determining whether said bridge, at the time of the alleged injury, was safe for them to drive their engine upon.’
‘ ‘ The fifth I give with some interlineation: ‘ If the plaintiffs, or either o£ them, knew, or if they were in possession of such facts relative to the condition of this bridge at the time of the alleged injury as would put reasonable, careful, and prudent men upon inquiry as to the strength and safety, of this bridge, and its condition of repair, it would, under such circumstances, be negligence of the plaintiffs to attempt to drive their engine upon and over the bridge (I have added the words, “without inspecting it”); and if, under such circumstances, they did drive the engine upon the bridge, and their engine was broken and damaged by the breaking down of the bridge and the falling of the engine into the creek, the plaintiffs cannot recover in this case, and your verdict must be for the defendant, “No cause of action.” ’
“The sixth: ‘I instruct you that, although you may believe from the evidence that the defendant township had negligently suffered this bridge to be and remain in an unsafe condition for driving traction engines upon and oyer it, still, if you also believe from the evidence that such unsafe condition of the bridge was known to the plaintiffs, or either of them, before and at the time they attempted to drive their engine upon and over the bridge, and if, knowing that said bridge was unsafe and out of repair, they attempted to drive their engine upon and over said bridge (I will add, ‘ ‘ and did drive it upon the bridge ”), they would not be using due care and prudence to avoid an injury, which the law in this State requires, but plaintiffs would, in such case, be guilty of (I have added the word “contributory”) negligence; and, if you so find the facts to be, you must find a verdict for the defendant, “No cause of action.”’”

Taken together, we think the instructions fair. The latter sentences qualified the instruction that the plaintiffs had a right to presume that the bridge had been repaired, if such qualification was necessary. We think that, in the absence of any knowledge upon the subject, or anything apparent to observation that should lead to a contrary opinion, it may be presumed that a township has repaired a weak and shaky bridge after the lapse of a year from the time that it was known to be in that condition ; but it was eminently proper to submit to the jury the question of the plaintiffs’ knowledge, and opportunities for knowing, that it had not been repaired. We think no error was committed in refusing defendant’s request, or in the instructions given.

On cross-examination one of the plaintiffs was asked the following:

“Q. Do you say in your judgment it was not carelessness to drive a load of that dimension on that bridge without first examining the strength of it, to see whether it would hold or not, in your judgment? (Objected to, as. witness had a right to assume the bridge was strong enough to run an ordinary threshing engine over it in that manner.)
The Court: I think that is a matter of law. (Exception for defendant.) ”

This was a proper question to ask the plaintiff on cross-examination.

A witness for the defendant was asked whether, in his opinion, a ten-horse engine, with a tank full of water attached, was an extraordinary load in that vicinity, and his ' answer was excluded. Unless we are to say that townships must construct bridges suitable to'sustain the weight of any load that may be put upon them, we must say that they must provide only for the ordinary wants of travel in such communities. We recognize the right to use traction engines upon the highways, and the necessity for townships to keep abreast of the improvements of the age, and the necessity for better and stronger bridges now than in earlier times. The obligation is, however, to provide reasonably safe bridges under existing conditions, and they are not liable for a failure to provide structures that will sustain loads that could not reasonably be anticipated. Whether a ten-horse engine and tank full of water constituted such a load was a question of fact, and it was proper to take testimony upon the subject. The plaintiffs were allowed to testify that other engines as large or larger frequented the highways of the township, and the defendant should have been allowed to introduce testimony to the contrary.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    BAKER v. MICHIGAN MUTUAL PROTECTIVE ASSOCIATION.
    1. Life Insurance — Assessments — Place of Payment —Forfeiture.
    Failure of insured to make a monthly payment on a life-insurance policy does not work a forfeiture, where, at the issuing of the policy, the agent stated that the company would send a collector to the insured’s house between the 1st and 10th of each month, to.whom the monthly payments should be made, and the insured had the money ready for such collector, who failed to come,, and no notification was received that payments should or might be made elsewhere.
    2. Same — Action on Policy — Special Defenses — Amendment of Plea — Discretion of Court.
    Refusal of the trial judge to permit an insurance company, in an action against it on its policy, to amend its plea of the general issue, on the statement of counsel that a special defense was first made known by the cross-examination of the plaintiff, is not an abuse of discretion, where, from the questions propounded on the cross-examination, it is apparent that some thought of such defense must have been entertained, and preparation made therefor, before the trial, and the refusal to pay the loss, which was small, was based upon an entirely distinct claim.
    Error to Kalamazoo; Buck, J.
    Submitted October 4, 1898.
    Decided November 1, 1898.

      Assumpsit by Ella Baker against the Michigan Mutual Protective Association on a policy of life insurance. Prom ' a judgment for plaintiff, defendant brings error.
    Affirmed.

      N. H. Stewart, for appellant.

      Howard, Boos & Howard, for appellee.
   Montgomery, J.

The plaintiff is the beneficiary named in an insurance policy issued by the defendant. On a trial before a jury, she recovered a verdict of $104.50, and defendant brings error.

The policy was issued December 3, 1896, and the assessment for that month paid. The assured died on the 14th of January, 1897, after the second monthly payment became due, and while the amount remained unpaid. The plaintiff was therefore not entitled to recover unless the default in making this payment is excused. The plaintiff introduced testimony tending to show that, at the time the policy was taken out, the agent of the company stated to plaintiff that the company would send a collector to the house of the assured between the 1st and 10th of each month, and that payments could and should be made to such collector; that the deceased'had the money ready for such collector, but that none came; and that no notification was received that the dues should or might be paid elsewhere. Plaintiff’s husband was taken sick, and died on the 14th, and the plaintiff afterwards, learning that the company had an agent in the city, tendered the dues to him, but he refused to receive them. The circuit judge instructed the jury, in substance, that, if they found this claimed state of facts to exist, the policy did not lapse because of the delay in making payments. We think this instruction a correct statement of the law. If the plaintiff’s testimony on this point was true, — and the jury so found, — it would be a gross injustice to permit the company to profit by its own- default in calling for the dues. The place of payment was the home of the assured, and no other was known to plaintiff. Even when the right to make payment at the residence depends upon custom, good faith requires that this custom should not be discontinued, and payment required at the office of the society, without notice to the assured. Nibl. Acc. Ins. & Ben. Soc. (2d Ed.) § 299.

Defendant sought to show that the plaintiff had made certain misrepresentations and warranties at the time the policy was issued. The circuit judge ruled out this testimony as not admissible under the pleadings. The plea was simply the general issue, and the ruling was clearly right, under paragraph d, Cir. Ct. Rule No. 7. The defendant, after the main testimony for the defense had been introduced, asked leave to amend. No showing under oath was made, but counsel stated that the defense was first made known by the cross-examination of the plaintiff. It appeared, however, by some of the questionspropounded on cross-examination, that some thought of such a defense must have been entertained before the trial, and some preparation made along these lines. Besides this, other considerations may have influenced the action of the trial judge, — the fact that the amount involved was small, and that the refusal to pay the loss had been put upon the single ground that the policy had lapsed. Under these circumstances, we are not prepared to hold that the refusal to permit an amendment was such a clear abuse of discretion as justifies us in reversing the case. King v. Wayne Circuit Judge, 41 Mich. 727.

The judgment is affirmed, with costs.

The other Justices concurred.


author: Grant, C. J.

text:
    WALBRIDGE v. BARRETT.
    1. Attorney and Client — Action for Services — Premature Commencement.
    Plaintiff, an attorney, agreed to perform certain services for defendant in and about a suit at law, for which he was to receive no pay until a judgment was obtained and the case settled. After judgment in the client’s favor, the money was placed by the adverse party in the hands of attorneys, to be paid over to the judgment creditor. A dispute having arisen meantime over the amount of plaintiff’s claim, he brought suit. Held, that it was not premature.

      2. Same — Compensation Contingent on Success.
    The fact that services rendered by an attorney under an agreement to charge vvhat they are actually worth are performed with the further understanding that, unless he recovers judgment in his client’s favor, he is to receive no compensation at all, has no bearing in determining the amount to which he is entitled if successful.
    3. Same — Attempted Settlement — Hearsay.
    Evidence tending to show that an attorney, before bringing suit against a client for professional services, attempted to bring about an adjustment of their differences, is inadmissible in such suit; and the introduction of proof, as tending to show such attempted adjustment, of the declarations, brought home to the client by the plaintiff, of the judge in whose court thp services were rendered, that the attorney ought to have half of the judgment recovered before him as compensation for his services, is prejudicial error.
    4. Evidence — Offer of Judgment — Witnesses.
    A defendant who has testified, on cross-examination, that he ' never tendered a certain amount in court, cannot be shown an unaccepted written offer of judgment, and asked if he ever made an offer of such amount, since such a proceeding places the writing before the jury as effectually as if it were read in evidence, in contravention of 2' How. Stat. § 7372, which provides that such an offer, if unaccepted, is to be deemed withdrawn, and “cannot be given in evidence.”
    5. Same — Attorney’s Services — Value—Instructions.
    Refusing an instruction, in an action by an attorney against his client to recover for services rendered, that the opinions of lawyers who testified as to the value of the services are not conclusive, is erroneous, where there was other evidence bearing upon the question of such value. Wood v. Barker, 49 Mich. 295, distinguished.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted October 5, 1898.
    Decided November 1, 1898.

      Assumpsit by Edward L. "Walbridge and James T. McAllister against Ervin E. Barrett for services as attorneys at law. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Bundy & Travis, for appellant.

      J. Byron Judkins (Henry E. Walbridge, of counsel), for appellees.
   Grant, C. J.

Plaintiffs are attorneys, bringing suit to recover for their services rendered for defendant in and about a suit brought by him against the Grand Bapids Veneer Works. Defendant was defeated in that suit in the circuit court, appealed it to this court, and obtained a reversal. Barrett v. Grand Rapids Veneer Works, 110 Mich. 6. The case was again tried in the circuit, resulting in a verdict and judgment for plaintiff for $6,198.40, and costs, taxed at $646. Defendant disputed plaintiffs’ claim, and this suit followed. Plaintiffs obtained a verdict and judgment for $1,130.50. The testimony, so far as is material, will be stated in connection with the points determined.

1. Defendant requested the court to direct a verdict for him, on the ground that the action was prematurely brought. This request was based upon the contract for services as stated by plaintiffs, — that they were to receive no pay for their services until a judgment was obtained and the case settled. A settlement of the case was made on May 17, 1897, and a check of the veneer company for the amount given to its attorneys, to be paid to Mr. Barrett. Meanwhile the dispute arose over the amount of plaintiffs’ claim for services. Plaintiffs had employed other attorneys, and were endeavoring to obtain the money. Under these circumstances, the request was properly refused.

2. There was evidence tending to show that plaintiffs refused to take the case upon commission, but agreed to charge nothing unless they obtained a judgment, and, if they obtained a judgment, were to receive what their services were worth. Several witnesses were asked to state what would be a reasonable charge for plaintiffs’ services, rendered “with the express understanding, that, unless they finally recovered judgment in the case, they were to get nothing.” This testimony was incompetent. They agreed to charge what their services were worth. They were worth no more and no less because of the agreement to charge nothing unless they were successful. A carpenter or plumber or machinist who ¿grees to do a certain piece of work upon the agreement that, if he does not accomplish the purpose in view, he'shall receive nothing, but, if he does, he is to receive what his services are worth, can recover no more than their actual worth. The value of his services is not enhanced or lessened by the contingency. An agreement made by a lawyer stands upon no different basis.

3. The case of Barrett against the veneering company was tried before Judge Adsit. Plaintiff Walbridge was permitted to testify that he told Barrett that Judge Adsit had told Mr. McAllister that plaintiffs ought to have half of the judgment as a compensation. The sole ground upon which plaintiffs defend the competency of this evidence is that they had a right to show what inducement and influence they had used with defendant to bring about an adjustment without litigation. We cannot concur in this view. It was immaterial what efforts had been made to adjust their differences. The attempt had failed, and the sole questions were, What was the agreement, and how much were their services worth ? The opinion of the judge who tried the case, though hearsay, might have great influence with the jury.

4. On cross-examination defendant testified that the balance due the plaintiffs was about $350. He was asked if he had not claimed it to be $526. He replied that ,he had not,'and denied that he had ever tendered “that amount in court.” Plaintiffs’ counsel then handed him a written offer of judgment filed in the case, made under 2 How. Stat. § 7372, which provides: “If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence,” and asked if he ever made them an offer of $526. After objection and exception the witness replied: “Under certain circumstances, I did; yes, sir.” The offer was not read to the jury, and counsel offered it to contradict his statement that he had never tendered that amount in court. The entire subject was brought out upon cross-examination. The jury must have understood that this was a written offer, and contained the tender of the amount. It was as effectually before the jury, and just as damaging, as though the written document had been offered in evidence. It was clearly incompetent.

5. Some attorneys testified as experts to the value of plaintiffs’ services. Defendant requested the court to charge:

“You are the judges of the value of plaintiffs’ services. The opinions of the lawyers who have testified as to such value are not conclusive, but merely advisory. If you find it necessary in this case to pass upon the question of the value of any of the services, you, as jurors, must use your own judgment in determining such value, taking into consideration all the evidence in the case bearing thereon.”

The court refused this request, and instructed the jury that they must determine from the sworn evidence in the case how much was justly due. Had there been no testimony of the value of plaintiffs’ services aside from that of the attorneys, the case would undoubtedly have been ruled by Wood v. Barker, 49 Mich. 295; but there was other evidence bearing upon the value of the services. Bills had been rendered amounting to less than that claimed upon the trial. There were conversations between plaintiffs and defendant, and also agreements for per diem charges. The bill of exceptions which plaintiffs had prepared was in evidence, together with their statement of the time spent in preparing it. Under these circumstances, the rule in Wood v. Barker was not applicable, and the court should have instructed the jury that the opinions of the attorneys were not conclusive. 2 Jones, Ev. § 389; Moore v. Ellis, 89 Wis. 108; Johnson v. Railroad Co., 37 Minn. 519.

6. Mr. EL E. Walbridge, an attorney, and brother of plaintiff Walbridge, had assisted upon .the first trial and in preparing the case for the Supreme Court. Defendant had negotiations with him in regard to assisting and taking the main management at the second trial. These negotiations fell through. Mr. H. E. Walbridge was permitted to testify to these negotiations, and to produce certain letters passing between him and defendant. They had no relevancy to the issue involved in this case, and should have been excluded. They contained statements which might have prejudiced the defendant. It was competent for Mr. Walbridge to testify to the time spent in preparing and trying the case, his knowledge of what plaintiffs did, and give his opinion of the value of the services.

Other objections are raised, but we find no error in them.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    KELSEY v. MING.
    b Mortgages — Irregular Foreclosure — Rights of Purchaser.
    An irregular foreclosure sale does not extinguish the mortgage, but operates to transfer to the purchaser the rights of the mortgagee.
    2. Replevin — Judgment—Priority of Liens.
    Valid liens existing upon replevied property at the time the suit was commenced are not extinguished, nor is their priority affected, by the exercise by the defendant of his right to waive a return of the property, and have its value assessed, since this right is expressly declared by the statute conferring it (2 How. Stat. § 8847) to be subject to section 8842, providing that, where either party to an action in replevin has a lien upon the property, such fact shall be determined, and such judgment shall be rendered as shall be just between the parties.

      Error to Cheboygan; Adams, J.
    Submitted October 5, 1898.
    Decided November 1, 1898.
    Replevin by Eber L. Kelsey against Fred R. Ming. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frost & Sprague (Moore & Moore, of counsel), for appellant.

      Humphrey & Grant, for appellee.
   Moore, J.

In October, 1895, Charles E. Kelsey executed a mortgage upon a quantity of lumber, to the Union Trust Company, as trustee, to secure a debt due the plaintiff of $13,000, and one to Charles L. ’Kelsey of upwards of $2,000, and stated the lumber was clear of all liens, “except possible legal liens for saw bills,” etc. The lumber was then piled upon the docks belonging to the owners of the mills where the lumber was cut. This mortgage was properly filed. In December following, a writ of attachment against Charles E. Kelsey was placed in the hands of defendant, who was sheriff of the county, and, by virtue of his writ, he levied upon the lumber in question. Afterwards a judgment was obtained in this attachment suit. In April, 1896, the mortgagee attempted to-foreclose the mortgage, and sold the property by mortgage sale, subject to the liens for saw bills, to the plaintiff in this case, for about $9,000. It is the claim of plaintiff that he afterwards paid the saw-bill liens, amounting to upwards of $4,000. After the sale, he caused a demand to be made upon the sheriff for the lumber, and, upon his refusal to give it up, commenced this action in replevin.

It was the claim of defendant upon the trial that the mortgage was void as to the creditors of Charles E. Kelsey, and that the foreclosure proceedings were so defective that plaintiff did not obtain title. The plaintiff asked the judge to direct a verdict in his favor. He declined to do so, but directed a verdict in favor of defendant for two reasons:

“1. That there is no sufficient evidence that the notices of sale provided by said mortgage and by law were given prior to the making of the sale.
‘ ‘ 2. That at the time of said sale the property pretended to be sold was not in the possession of the person making said sale, but was held adversely to him by the- defendant in this suit, as sheriff, under a writ of attachment, and that the plaintiff in this case is not entitled to recover.”

He also instructed them as follows:

“Your verdict must be in favor of the defendant for the amount of the defendant’s lien, the defendant having waived a return of the property; and the amount of the lien is the judgment and the costs and the interest, amounting to $10,078.57. You will render a verdict in favor of the defendant for that amount.”

Exceptions were taken, by plaintiff to this action of the judge, and error is assigned.

There was sufficient testimony of the posting of the notices of sale so the question should have been submitted to the jury; but, as the notice itself is not in the record, we are not able to say the court erred in instructing the jury there had been no compliance with the provisions of the mortgage in relation to the notices of sale.

It is claimed by plaintiff that, even if the sale was defective, he succeeded to the rights of the mortgagee, and had a lien upon the lumber to the amount due upon the mortgage; that he also had a lien upon the lumber for the saw bills; that these liens were prior to the lien of the sheriff, and, as they amounted to the value of the lumber, defendant was entitled to only nominal damages. The record does not disclose when, or the circumstances under which, the saw bills were paid; so we are unable to decide whether the lien for saw bills was discharged or not.. The record shows a dispute as to the validity of the chattel mortgage. This raised a question of fact; and, as it was not submitted to -the jury, we cannot say whether the mortgage was void as to creditors or not. If it was a valid mortgage, it was not extinguished by an irregular sale, but the purchaser would succeed to the rights of the mortgagee. Jones, Chat. Mortg. § 811; Gilbert v. Cooley, Walk. Ch. 494; Lillibridge v. Tregent, 30 Mich. 105; Hoffman v. Harrington, 33 Mich. 392; Lyle v. Palmer, 42 Mich. 314; Morse v. Byam, 55 Mich. 594; Rose v. Page, 82 Mich. 105.

Defendant urges that, as plaintiff claimed in the court helow to be the owner of the property, he cannot now claim to be a lienor. The plaintiff duly excepted to the action of the circuit judge in directing a verdict for the amount of the judgment and costs which were obtained in the attachment case. If the plaintiff was not entitled to the possession of the property, defendant was entitled to its return. If it was returned to him, no one would claim that it would be discharged of the valid liens which existed at the time the replevin suit was commenced, or that their priority would be affected. Is it possible such a result can he worked out by simply waiving a return of the property ? The right to waive a return of the property, and to have its value assessed, is given in 2 How. Stat. § 8347. This section expressly provides that the right shall be subject to -the provisions of section 8342; and this section provides -that, where either of the parties has a lien or part ownership in the property, that fact shall be determined, and such judgment shall be entered as shall be just between the parties. If it is true, as claimed by plaintiff, that this chattel mortgage and the saw bills were liens upon the property at the time the levy was made, and that he -had succeeded to the rights of the mortgagee and the lienors, it would not be just to render such judgment as was directed in this case.

We do not deem it necessary to discuss the-other questions, for they are not likely to arise in a new trial.

Judgment is reversed, and new trial ordered.

The other Justices concurred.