author: MR. JUSTICE WORD PER CURIAM.

text:
    FARLEIGH, et al., Respondents, v. KELLY, Appellant.
    [No. 1575.]

      On Motion to Dismiss Appeal.

    [Decided October 17, 1900.]

      Mew Trial — Statement of Case — Preparation and Service— Extension of Time — Judges — Change —Power—Statute— Constitutionality — Appeal—Briefs.

      1. Under Code Civ. Proc., Sections 36,1821, giving a judge of one district, when holding court for tlie judge of another district, “the same power, either in court or chambers, as a judge thereof,” and providing “that orders made out of court may be made by the judge of the court in any part of the state,” a judge who has returned to his own county after trying a cause in another county, in the place of the judge thereof, who was disqualified, has power to make an order extending the time to prepare and serve the “statement of the case” on a motion for a new trial, as provided by Section U7'3, giving the “court” or “the judge thereof” power to make such orders.
    2. Code Civ. Proc., Section 36, giving the judge of One district, when holding court for the judge of another district, “the same power, either in court or chambers, asa judge thereof,” does not enlarge the authorityjgiven by Const., Art. 8, Section 12, providiog that one judge “may hold court” for another, and hence does not violate the constitution.
    3. Upon proper showing the appellate court will not dismiss an appeal because appellant’s brief was not served or filed in time.

      Appeal from District Court, Jefferson County, Henry C. Smith, Judge.

    Petition by Caroline Kelly for probate of the will of John D. Allport, deceased, to which Lillie Sue Farleigh and others filed objections. Contestants moved to dismiss proponent’s appeal from a judgment against her and an order denying a new trial.
    Denied.

      Mr. T. J. Walsh, and Mr. Geo. F. Cowan, for Appellant.

      Messrs. Walsh cfi Newman, Mr. Robt. B. Smith, and Mr. Chas. R. Leonard, for Respondents.
   MR. JUSTICE WORD

delivered the opinion of the court.

Respondents move the court to strike from the record on appeal the statement of the case on motion for new trial, and to dismiss the appeal in said action, for the following reasons:

(1) Because the said statement was not served on respondents’ attorneys, or settled, allowed, or filed, within the time prescribed by the Code of Civil Procedure, the.time for serving settling, or filing such statement not having been extended by stipulation of parties, or by an order of the court in which the case was tried, or by- the judge thereof.

(2) Because no brief has been served on respondents’ attorneys or filed within 60 days of the filing of the transcript on appeal.

The facts as disclosed by the record, are as follows:

The proponent filed for probate in court an instrument purporting to be the last will and testament of John D. Allport, deceased. The contestants duly filed objections to admitting said will to probate, alleging, among other things, that it was a forgery. To these objections a replication was filed, and thereafter an amended answer was filed. Hon. M. H. Parker, judge of the court, was disqualified, and Hon. Henry C. Smith, judge of the First judicial district, was requested to hold court for Judge Parker during the trial of the case.

The case was tried before a jury. The jury returned their verdict November 19, 1899, whereby it was found that the will was forged. Thereafter the proponent served notice of intention to move for a new trial, stating that it would be based upon a statement of the case and upon affidavits.

The District Court of Jefferson County adjourned on the 19th day of November, 1899, and no other term of court was held between that time and December 4, 1899. On December 4, 1899, Judge Smith, at Helena, Montana, made an order extending the time within which proponent might serve her statement.

The contestants, at all stages of the proceedings relating to the settlement of the said statement, objected to the settlement or allowance thereof, upon the ground that the same was not served in time, and that Judge Smith did not have authority to extend the time within which it might be served. These objections were embodied in the statement, and the statement was settled by Judge Smith, over the objections.

J udgment was entered in the case, February 5, 1900. The motion for a new trial was overruled May, 12, 1900. On May 24, 1900, notice of appeal was served, whereby an appeal was taken from the order overruling the motion for a new trial, but not from the judgment.

The question presented is: Did the Honorable Henry C. Smith, the judge who tried said cause, have the power to make the order of December 4, 1899, extending the time within which proponent might prepare and serve her statement?

Counsel for respondents take this position: Admitting that, under the Constitution and Code of this state, a judge of one district, called in to hold court for a judge of another district, for some reason disqualified, has the same power, either in court or chambers, as the judge thereof, and that while in the Fifth judicial district his honor, Judge Smith, had the power to make the order of ‘ December 4th, yet respondents contend that when his honor, Judge Smith, returned, to his own district he did not and could not take with him, and there exercise, any of the powers of the judge for whom he was holding court.

In the discussion of the questions involved in this motion, both the counsel for respondents and for appellant seem to have overlooked Section 1821 of the Code of Civil Procedure, which is as follows:

“Sec. 1821. Motions must be made in the county in which the action is brought, or in any adjoining; county in the same district. In case of the absence of the judge of the district from his district, such motion may be made before the judge of aDy adjoining district. Orders made out of court may be made by the judge of the court in any part of the state.”

Under Section 12 of Article VIII of the Constitution, Judge Smith had the power to hold court in the Fifth judicial district, and to try said cause. While holding said court, Judge Smith had the same power, either in court or chambers, as the judge thereof. (Code of Civil Procedure, Sec. 36). Under Section 1173 of - the Code of Civil Procedure, the power to extend the time within which the statement must be prepared and served is expressly given. The order extending the time was one which the judge could make at chambers (Code of Civil Procedure, Secs. 170, 171, 190); and under Section 1821 of the Code of Civil Procedure, supra, Judge Smith had the power to make such order after his return to his own district. Briefly stated, these are the conclusions we have reached upon the first ground of this motion. .

Authority for our position is found in the case of Matthews v. Superior Court, 68 Cal. 638, 10 Pac. 128, where the supreme court of that state — under a state of facts practically the same as that of' this case — reached the same conclusions. The Code of Civil Procedure of California (Section 1004), as does our -own, provided that ‘orders made out of court may be made by the j udge of the court in any part of the state. ’ ’ (See, also, Ex parte Nelson & Kelly, 62 Ala. 376; Gould v. Duluth & Dakota Elevator Co., 3 N. D. 96, 54 N. W. 316; Holden v. Haserodt, 2 S. D. 220, 51 N. W. 340.)

Respondents’ counsel question the constitutionality of Section 36 of the Code of Civil Procedure; this, upon the ground that by Section 12, Article VIII, of the Constitution, the authority of one judge, when acting for another, is limited to the act of holding court, while Section 36 of the Code of Civil Procedure gives to the judge holding court for another judge the same power, either in court or chambers, as a judge thereof. In our opinion, this section of our Code of Civil Procedure just referred to is constitutional. In the case of Wallace v. Helena Electric Railway Co., 10 Mont. 24, 24 Pac. 626, 25 Pac. 278, it was intimated that an act of the legislature granting to a judge holding court for another judge such powers as are conferred by said Section 36 of the Code of Civil Procedure would be constitutional. While the constitutionality of this section of our Code has never been passed upon by this Court, yet we find that in other states acts granting like powers have been held to be consistent with constitutional provisions, the same as, or similar to, those of Section 12 of Article VIII of our own Constitution. (Gardner v. Jones, Judge, 126 Cal. 614, 59 Pac. 126; Gould v. Duluth & Dakota Elevator Co., supra; Holden v. Haserodt, supra.)

As to the second ground urged by counsel for the dismissal of this appeal, we are of the opinion that under the circumstances of the case, and upon the showing made, the motion to dismiss must be denied upon this ground also; this, upon the condition, however, that appellant files in this Court and serves upon respondents briefs in her behalf within 30 days from the date hereof.

Denied.

ON MOTION FOR A REHEARING.

PER CURIAM.

— The respondents move for a rehearing of their motion to strike out the statement of the appellant upon the ground, as alleged, that the question presented by the motion is, whether or not a judge of one district who holds, court for another judge may, after he returns to his own district, make orders in cases tried before him while presiding in the other district. It is now insisted that the authority granted or recognized by the provision of Section 1821 of the Code of Civil Procedure, that “orders made out of court may be made by the judge of the court in any part of the state,” is confined to the regularly elected or appointed judge of the district court wherein the action is pending in which chamber orders are made, — in short, the position of the respondents is that the use of the definite article ‘ ‘the, ’ immediately preceding and qualifying ‘ ‘j udge of the court, ” is to be understood as referring only to the regular judge of the district court and as excluding a judge of another district who tries an action in a district court other than his own.

In our opinion this argument is without merit. While the question suggested in the motion for a rehearing was not expressly considered or dwelt upon in the opinion heretofore filed in the case at bar, it nevertheless was given due attention and was necessarily decided. To the end that no misapprehension may exist in respect of our views, we deem it proper to say that the provision of Section 1821 quoted must be interpreted in the light of the other provisions of that section and of the provisions of Section 12 of Article VIII of the Constitution, and of the provisions of Sections 36, 170, 171 and 190 of the Code of Civil Procedure, which are referred to in the. original opinion. So interpreting the last sentence of Section 1821, quoted supra, it seems quite manifest that the judge of one district may in any part of the state make chamber orders in a cause pending in another district m which other district such judge acts with respect to that cause as the judge of the court. Although not the judge of the court elected or appointed to that office, such judge is the judge of the district court for that district with respect to such a cause and all orders which might be made therein, either in court or at chambers, were the regular judge of that district qualified and sitting. He has the same power touching the cause as the j udge of the district would have if the matter properly came before him. For this view we also find support in the provisions of Section 2530 of the Code of Civil Procedure as amended by Senate Bill No. 42 of the Fifth Legislative Assembly (Session Laws of 1897, page 244). This section, after enumerating the causes which disqualify a judge from sitting in probate matters, provides: “Whenever it shall be made to appear of record that any judge presiding in any court in which proceedings in probate matters have been or are about to be instituted is disqualified from acting therein it shall be the duty of such judge to as soon thereafcer as practicable request the nearest district judge to preside in the place of the judge so disqualified in such proceedings. It shall be the duty of the judge so requested, if he [is] not himself disqualified, to, from time to time as occasion may require, preside in the place of the disqualified judge in all proceedings in such probate matters.” The last sentence quoted, though clumsily framed, constitutes the acting judge, or the judge acting in place of the disqualified j udge, the j udge of the court in so far as the particular probate proceeding is concerned from the time of its institution until it is finally concluded. If, after reading the other sections above cited and the provision of the Constitution, any doubt remain, this provision should cause all such doubt to disappear.

The motion for a rehearing is therefore denied.

Denied.

Mr. Justice Word, being absent, does not participate in this opinion.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    STATE, ex rel. GEHRETT, Relator, v. WINE, Respondent.
    [No. 1617.]
    [Submitted October 17, 1900.
    Decided October 17, 1900.]
    Elections— Voters — Registration—Necessity.
    Pol. Code, Secs. 1206, 1210, requiring’biennial registration o£ electors, as amended by Sess. Laws 1897, p. 113, provides “that, except in registration districts included in an incorporated town or city containing, at tlie last preceding state election, over one thousand registered voters, such general registration * * * shall only be required every eighth year, from and after the year 1898, and any person who has been registered in any district, except as above noted, at any time within said eight year period * * * shall be entitled to vote, if otherwise qualified, without further registration.” Sess. Laws'1899, p. 54, amends the act of 1897, but the proviso quoted is substantially the same in both acts. See. 1210, Subd. B, which was not amended by the act of 1899, provides “that, whenever a person is registered under the provisions of this chapter, such registration is good for eight years, except as otherwise provided in Sec. 1206.” Held, that the eight years exemption from the necessity of registering of the persons provided for in the acts of 1897 and 1899 began with and included the registration of 1898, and hence an elector of an election district included in an incorporated town of less than 1,000 registered voters, who was properly registered in 1898, was not required to be registered in 1900, as a prerequisite to his right to vote at the general election in November, 1900, and he could not compel the registry clerk to register him.

      Mandamus. — Original application by the state of Montana, on relation of Joseph Gehrett, against Joseph R. Wine, as registry agent of election district No. 1, in the county of Broadwater, for writ of mandate to compel the respondent to register the relator as a qualified voter.
    Dismissed.

      Mr. N. W. McConnell and Mr. J. B. Clayberg, for Relator.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

Application for writ of mandate. The material facts upon which the application is based are stated as follows:

That the relator, during the year 1898, was, and still is, a resedent of precinct No. 7 of election district No. 1 of the county of Broadwater, included in Townsend, an incorporated town, which at the state election of 1898 contained less than 1,000 registered voters; that he was and is a qualified elector under the laws of Montana, and entitled to vote at the general election to be held on the 6th day of November, 1900; that he was duly registered as a voter in said election precinct in the year 1898; that the respondent, Joseph K,. Wine, is the duly appointed and acting registry agent for the registration of voters for the year 1900, and is now engaged in registering the voters in said precinct who are entitled under the laws of Montana to be registered for the year 1900; that on the 16th day of October, 1900, during the hour of said day within which the voters might be lawfully registered, the relator presented himself before said Joseph li. Wine at his office, and demanded of the said Wine that he register the name of the relator among the qualified voters for the year 1900, and that the respondent refused to so register his name.

The question presented is whether the relator, who was properly registered in the year 1898, under the provisions of Section 1206 of the Political Code, as amended by Senate Bill No. 57 of the Laws of 1897 (Sess. Laws 1897, p. 113), and Senate Bill No. 6 of the Session Laws of 1899 (Sess. Laws 1899, p. 54), is required to have his name enrolled among the registered voters for the year 1900 as a prerequisite to his right to vote at the general election in November. The act of 1899, above cited, is amendatory of the act of 1897. The provision of the former touching the matter here involved is subtantially the same as that of the latter. This provision, being-part of Section 1206 of the Political Code as amended by the acts above cited, is as follows:

“Provided that, except in registration districts included in an incorporated town or city, which town or city contained at the last preceding state election, over one thousand registered voters, such general registration of all voters shall only be required every eight years from and after the year 1898, and any person who has been registered in any district, except as above noted, at any time within said eight year periods, and who has been a continuous resident of such district since such registration shall be entitled to vote, if otherwise qualified, without further registration. ’ ’

Subdivision 5 of Section 1210 of the Act of 1897 (Sess. Laws 1897, p. 119), which was not amended by the Act of 1899, contains the following provision: “Whenever a person is registered uhder the provisions of this chapter, such registration is good for eight years, except as otherwise provided in Section 1206.”

The purpose of the act of' -1897 was to amend the provisions of the Political Code requiring biennial registration of all qualified electors in the state of Montana so as to make such registration necessary but once in eight years in all election districts, including the year 1898, except those districts included in incorporated cities and towns containing at the election preceding the regular biennial registration more than 1,000 registered voters, leaving in force the provisions of the Political Code in so far as they applied to such incorporated cities and towns.

The Act of 1899 re-enacts Section 1206 of the Actof 1897, making amendments thereto in respects which are not pertinent to the question here involved. With respect to the provisions involved here, the two acts are identical in purpose and legal effect, and the proviso quoted, which is the same in substance in both acts, is to be enforced so as to effectuate the purpose of the Act of 1897, which, as we have just stated, was to become operative at once, and to apply to the registration of electors for the purpose of the general election held in 1898.

Construing these provisions together, the intent and purpose of the act is clear: That the eight years’ exemption from the necessity of registering of those persons provided for in that part of the amendatory acts of 1897 and 1899 to which we have referred began with and included the registration of 1898. This yiew receives strong support in the fact that the act of 1897 was approved on the 9th day of March in that year. It is not reasonable to assume that the legislative assembly designed that the operation of the act should be suspended, and that it should have no effect whatever, until the time for registration for the year 1900 should arrive,- — a period of about 3-1- years.

The alternative writ heretofore issued herein is quashed, and the proceeding is dismissed, at the costs of the relator.

Dismissed.


author: MR. JUSTICE PIGOTT

text:
    STATE ex rel. SCHARNIKOW, Relator, v. HOGAN, Respondent. STATE ex rel. KENNEDY et al., Relators, v. MARTIN, Respondent.
    [No. 1612.]
    [No. 1615.]
    [Submitted October 15, 1900.
    Decided October 16, 1900.]

      Prohibition — Writ to Prevent Ministerial Acts — Supreme Court■ — Original Jurisdiction — Statutory Construction — Elections.

    1. Section 579 of the First Division of the Compiled Statutes of 1887 provides that the writ of prohibition is the counterpart of the writ of mandate, and arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. Held, that such provision did not enlarge the common- aw office of the writ so as to permit its use to arrest proceedings not of a judicial, but merely of a ministerial character.
    2. Constitution, Article VIH, Section 8, confers power on the Supreme Court to issue and to hear and determine writs of prohibition. Code of Civ. Proc., of 1895, Section 1980, provides that the writ of prohibition is the counterpart of the writ of mandate, and arrests the proceedings of any tribunal, corporation, board or person, “whether exercising functions judicial or ministerial,” when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. An application was filed in the Supreme Court for a writ of prohibition to prevent the secretary of state from certifying a certain person as a candidate for a judicial office, and an application for a separate writ to prevent a county clerk from printing the names of certain persons on the official election ballot. Held, that the Supreme Court had no jurisdiction to issue the writs, since its original jurisdiction in such cases is confined to arresting proceedings of a judicial character.
    ObiterNothing in this opinion contained is to be understood as denying to the district courts jurisdiction, under Section 11 of Article VIII of the Constitution, of the writ of prohibition defined by Section 1980 of the Code of Civil Procedure of 1895.

      Application by the State, on relation of Edward Scharnikow, for a writ of prohibition to prevent Thomas S. Hogan, secretary of state, from certifying the name of Welling Nap-ton as candidate for judge of the Third judicial district; and application by the state, on relation of J. M. Kennedy and others, for a writ of prohibition to prevent Martin Martin, county clerk of Deer Lodge county, from printing certain names in the column headed ‘ ‘Democratic’ ’ on the official ballot. Both applications were considered together.
    Proceedings dismissed.

      Mr. JV. W. McConnell, Mr. T. O'Leciry and Mr. J. B. Clayberg, for Relators.

      Mr. T. J. Walsh, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

These are original proceedings in this Court. In No. 1,612 it appears that a certificate of the nomination of the relator as the candidate of the Democratic party for the office of Judge of the District Court of the Third judicial district of the state of Montana was duly filed with the secretary of state, and that a certificate of the nomination of one Welling Napton as the candidate of the Democratic'party for said office was also duly filed with the secretary of state. Both certificates were filed under the provisions of Sections 1312 and 1316 of the Political Code. By Section 1317 of the Political Code, the secretary of state must certify to the county clerk of each county within which any of the electors may be entitled to vote for candidates for such office the name and description of each person nominated, as specified in the certificates of nomination filed with him. The secretary of state threatens to certify both of the nominations to the clerks and recorders of Deer Lodge and Granite counties, these counties comprising the Third judicial district of Montana, and it is sought to prevent him from so certifying the nomination of Mr. Napton.

In No. 1,615 the relators seek, by the writ of prohibition of this Court, to prevent the county clerk and recorder of Deer Lodge County, Montana from printing in the column headed “Democratic,” upon the official ballot to be prepared by him for use at the general election in Deer Lodge County, to be held on the 6th day of November, 1900, the names of the persons nominated by a Democratic convention of that county held on the 17th day of September, 1900, and certificates of whose nominations’ were duly filed wich the county clerk within the time prescribed in Section 1316, supra.

An alternative writ of prohibition was issued in each proceeding. It is now suggested that this Court is without jurisdiction in the premises.

□Except as otherwise provided in the Constitution, this Court has appellate jurisdiction only. (Section 2 of Article VIII of the Constitution); it has power in its discretion, to issue, and to hear and determine, writs of prohibition. (Section 3 of Article VIII of the Constitution). At the time the Constitution was adopted, Chapter III of Title XIII of the First Division of the Compiled Statutes of 1887 was in effect, Section 579 whereof provided that “the writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without, or in excess of, the jurisdiction of such tribunal, corporation, board or person.” This section did not enlarge the common-law office of the writ so as to permit the arrest of proceedings not of a judicial character. Mandamus lies to compel the performance of a ministerial duty, whereas, under Section 579, prohibition arrests judicial action in proceedings which are without or in excess of the power to hear and determine; and in this sense prohibition is the counterpart or opposite of mandamus. (State ex rel. B. & M. C. C. & S. M. co. v. Second Judicial District Court, 22 Mont. 220, 56 Pac. 281; Maurer v. Mitchell, 53 Cal. 289). We are aware that in Williams v. Lewis, 54 Pac. 619, the Supreme Court of Idaho entertained a different view of the provisions of a statute identical with Section 579, supra, but we decline to approve it.

Such was the condition when the Constitution was adopted in 1889. In 1895, Section 579, supra, was supplanted by Section 1980 of the Code of Civil Procedure of that year, which reads: “The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person;” and it may be argued that by virtue of the change worked by means of the incorporation of the words, “whether exercising functions judicial or ministerial, ” the Supreme Court possesses the right to issue the writ of prohibition to an officer exercising ministerial functions only. Although, as was held in State ex rel. B. & M. C. C. & S. M. Co. v. Second Judicial District Court, supra, the section as it now stands does not change the scope of the writ so as to permit proceedings to be arrested unless they are without or in excess of the jurisdiction, yet, manifestly, the words quoted, have expanded the office of the writ so as to include acts other than those judicial. The section does not, however, add to the jurisdiction of this Court, whatever effect it may be deemed to have upon proceedings cognizable in the district courts. The Constitution clothes this Court with power to issue, and to hear and determine, writs of prohibition in proceedings wherein the writs lay at the time the Constitution was adopted, and the act of the legislative assembly passed subsequently thereto could not confer upon the Supreme Court jurisdiction of proceedings in prohibition instituted to arrest the exercise of functions by a mere ministerial officer. (Camron v. Kenfield, 57 Cal. 550; People v. Board of Election Commrs., 54 Cal. 404; Spring Valley Water Works v. Bartlett, 63 Cal. 245). There may have been instances, as in Pigott v. Board of Canvassers, 12 Mont. 537, 31 Pac. 536, and Donovan v. State Capitol Commission, 21 Mont. 344, 53 Pac. 1133, in which the attention of this Court was not called to the principles here announced.

Nothing in this opinion contained is to be understood as denying to the district courts jurisdiction, under Section 11 of Article VIII of the Constitution, of the writ of prohibition defined by Section 1980, supra; nor as intimating a doubt of the jurisdiction of the Supreme Court on appeal from judgments and from orders made by district courts in proceedings instituted under that section.

The several alternative writs of prohibition are therefore set aside, and the proceedings dismissed for lack of jurisdiction.

Dismissed.

Mr. Justice Word, being a nominee of the Independent Democratic Party of Montana, did not hear the argument, and does not participate in the decision of these cases.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    STATE ex rel. SCHARNIKOW, Relator, v. HOGAN, Respondent.
    [No. 1613.]
    [Submitted October 13, 1900.
    Decided October 10, 1900.]

      Elections — Nominating Conventions — Judicial Nominations— Qualification of Delegates — Party Custom — Evidence—■ Constitutional Law.

    1. Constitution, Article III, Section 1, provides that “All political power is vested in and derived from the people.” This guaranty refers as well to the right of naming of candidates for public office as it does to the right of the electors to vote for the candidates at the polls.
    2. A mass meeting in one of two counties composing a judicial district, called without notice, except to those present at the final adjournment of a regular county convention, for the announced purpose of formulating a protest to the action of the con. vention, has no authority to name delegates to represent the county in a state and judicial convention in place of those named by the regular county convention; and delegates named by such meeting, though recognized and seated by the state convention, have no authority to represent the county in the judicial convention, and a nomination made by it is invalid, because the electors of both counties are not represented.
    3. Under Constitution, Article VIII, Section 12, the right to nomininate and elect district judges belongs to the electors of th9 district, and no action of a state convention can validate a nomination for the office of district judge, where the convention making it does not properly represent the electors of the district.

      4. In a contest involving tlie validity of a nomination made by a judicial convention, proof that the delegates claiming to represent one of the counties composing the judicial district had been recognized and seated by a state convention of the party, ana that it was the custom for delegates to the state convention from counties composing judicial districts to form judicial conventions during the sitting of the state convention, and to nominate candidates for judges in their districts, whether authorized by the electors of their respective counties or not, was immaterial where the delegates so recognized had been chosen by a mass meeting which was illegal because called without notice.
    5. In a contest involving the validity of a nomination made by a judicial convention it was shown that it had been a party custom in the state for delegates to a state convention from counties composing judicial districts to meet in separate judicial conventions, and there nominate candidates for district judges; but it did not appear that such nominations had ever been made without express authority in the delegates to do so, except in one case. Held insufficient to establish that id was the custom of such delegates to nominate candidates for judges, whether authorized by the electors of their respective counties or not.
    Original application by the state of Montana, on the relation of Edward Scharnikow, against Thomas S. Hogan, as secretary of state of the state of Montana, for writ of mandate to compel him to certify to the relator’s 'nomination.
    Dismissed.
    ¡Statement of the Case.
    This is an application for a writ of mandate to compel Thomas S. Hogan, as secretary of state, to certify to the county clerks of Deer Lodge and Granite counties, respectively, to be printed upon the official ballot, the name of Edward Scharnikow as the regular democratic nominee for district judge for the Third judicial district, which is composed of said counties.
    Omitting formal matters, the facts appearing from the proof, and the admissions of the parties, showing their respective claims and contentions, are the following: The regular democratic central committee of Deer Lodge county, through its chairman and secretary, upon proper notice, called a convention of democrats of Deer Lodge county to assemble at Deer Lodge on September 17, 1900, for the purpose of nominating candidates for county offices and for the legislative assembly, and to name delegates to represent • the county in the state convention, which had been regularly called to assemble in Helena on September 19th. The convention was also authorized by the call to take proper steps, in conjunction with the party authorities in Granite county, to nominate a candidate for district judge for the Third judicial district. In answer to this call there assembled in Deer Lodge, on the day appointed, 129 delegates, representing all the precincts in the county. There were no contesting delegations, nor was the right of any delegate to his seat questioned. The convention organized, completed its business, and adjourned about 1 o’clock on the following morning. After the business provided for in the call had been concluded, and immediately before adjournment, the following resolution was adopted by the convention, some 33 of the delegates protesting and voting against it:
    “Be it resolved, that John R. Toole, John Madden and Thomas McTague are hereby elected as the executive committee, who shall have power to fill all vacancies in the county and legislative tickets, to adopt a name for the ticket, and to pass such resolutions as may or may not be necessary to have a. ticket placed on the ballot in its proper place under the state ticket, so that the same may become a part of the ticket nominated at the state convention, and to transact such other business as is usually transacted by executive action. ’ ’
    These committeemen were members of the convention. At the time of the assembling of this convention there existed certain factional differences among the delegates, growing out of local matters and the candidacy of a certain member of the party in Montana for the United States senate. The majority faction, consisting of 96 of the delegates, was led by John R. Toole. The remaining 33 delegates, who were under the leadership of the relator herein, interpreted this resolution to mean that the majority faction anticipated a split in the coming state convention upon the subject of the United States senatorship, and that in case such a split should occur, and the delegates selected by that convention and those who sympathized with them should conclude to retire from the state convention, and nominate a state ticket under some other party designation or name, the committee mentioned therein should, in such event, be empowered to give" such new name'to the Deer Lodge county ticket also, and thus to withdraw it from the democratic party.
    Immediately upon the adjournment of the convention the relator called upon all the delegates present, and all other democrats who agreed with him, to remain and organize for the purpose of formulating a protest against this contemplated action of the majority faction before the state convéntion at Helena. Thereupon the convention dispersed. The 33 delegates representing the minority, including the relator, with a number of spectators, remained in the hall, and immediately organized a mass convention by selecting, respectively, as chairman and secretary, J. M. Simpson and W. W. Goodman. The meeting thereupon adjourned until 9 o’clock the same morning, when it reassembled for the purpose of carrying out the objects for which it was called. Fifty or sixty persons,— including the 33 protesting delegates, — claiming to represent the regular democrats, took part in the meeting. No other notice was given of the mass meeting than the announcement made at the time the same was called on the morning of the 18th, except such as may have been disseminated over the county by the dispersing members of the convention, and by the publication of the fact of such meeting, as an item of news, in the Butte Miner, a daily newspaper published that morning in Silver Bow county, and the Anaconda Standard, also a daily newspaper, published in Deer Lodge county, at a distance of about 30 miles from the place of the meeting. The mass meeting proceeded to business, and selected 63 delegates to the state convention, the county being entitled to that number in the state convention under the call of the state central committee. Three of these were also named among the delegates selected by the convention. What powers were conferred upon these delegates by the mass meeting the proof fails to disclose further than may be. inferred from the call under which it assembled. As many of these delegates as could be. notified, to the number of about 50, took the afternoon train for Helena to attend the state convention. At Helena they presented their claims to the convention through the committee on credentials, insisting that they were the regularly accredited delegates to that convention to represent the democrats of Deer Lodge county. The 63 delegates chosen by the regularly called convention of the 17th also presented their credentials, claiming to be the such regularly accredited delegates. The mass meeting delegates were led by J. M. Kennedy; the other delegates were under the leadership of John R. Toole. For convenience they are hereafter referred to as the Kennedy and Toole delegates. After examination into the merits of these contending claims, the committee on credentials reported to the convention in favor of seating the Toole delegates.
    There were similar controversies before the committee on credentials between contesting delegations from Ravalli and Silver Bow counties, the main point in the controversy in each of these counties being the same as in Deer Lodge county. The committee on credentials, in the same report in which they recommended the seating of the Toole delegates, also recommended that the delegates from Ravalli and Silver Bow counties — who were in sympathy with the Toole delegates— be declared not entitled to seats in the convention. This report was adopted by the convention. Thereupon 60 of the 63 Toole delegates and 10 of the 13 delegates from Granite county (13 being the full number to which the latter county was entitled), who also sympathized with the Toole delegates, but over whose right to seats in the convention there was no controversy, withdrew from the convention, and retired, in company with the repudiated delegations from Silver Bow and Ravalli counties, to another hall, for the purpose of consultation. This was late in the evening of the 19th. The delegates thus assembled organized by electing a chairman and secretary and appointing a committee to formulate an address to the people, and to make recommendations as to their future course. An adjournment was then taken until noon on the following day. In the meantime, at 10 o’clock on the following morning, the 60 Toole delegates from Deer Lodge county and 10 of the 13 delegates from Granite county, being those who had retired from the convention on the evening before, assembled as a judicial convention, and nominated Welling Naptonas the candidate of the Democratic party for judge of the Third judicial district. On the same morning, but after this nomination was made, the state convention reconsidered its action upon the report of the committee on credentials of the day before in so far as it declared the Toole delegates entitled to seats in the state convention, and by resolution declared that, inasmuch as 60 of these had withdrawn from the convention, and had refused to be further bound by the rules and regulations of the Democratic party of Montana, 28 persons named in the resotion, constituting a part of the contesting delegation, together with the 3 of the Toole delegates who did not join in the bolt, were entitled to seats in the convention in their stead. It was ■ further declared by the convention that the delegates so seated were entitled to cast the entire vote of Deer Lodge county upon all questions coming before the convention and ‘before the district convention to select a candidate for judge of the district court for the Third judicial district. ” The member of the state committee subsequently selected by these delegates so seated from Deer Lodge county was also instructed by the convention to caíl a convention of the supporters of the party principles and candidates of the state convention in the county of Deer Lodge" to select candidates for county offices, and to transact such other business as might properly come before a county convention of the Democratic party. At 12 o’clock on the same day the 3 delegates from Granite county who had not retired from the convention with their associates and the 31 seated delegates from Deer Lodge county met and formed a judicial convention for the Third judicial district, and nominated Edward Scharnikow, the relator herein, as the candidate of the Democratic party for judge of the Third judicial district.
    The call for the county convention of Granite county at which the delegates to the state convention were selected contained no reference to the office of district judge, nor did the convention of that county — so far as the proof shows — authorize the delegates to the state convention to join with the delegates from Deer Dodge county to the same convention in nominating a district judge. The record does not show whether the convention of Deer Dodge County authorized the Toole delegates to join in a judicial convention. The mass meeting held in Deer Dodge county, claiming to represent the Democratic party, gave no instructions to the Kennedy delegates to unite with any delegation from Granite county in the selection of a candidate for district judge. At noon on the 20th the bolting delegates from the state convention reassembled pursuant to the adjournment taken on the evening of the 19th, and took steps which resulted in a call for a state convention of Independent Democrats to assemble in the city of Butte on Octotober 2d. Such a convention did assemble, consisting of delegates selected in the various counties through the medium of primaries and county conventions. Through the organization thus affected a full “Independent Democratic” state ticket was nominated, and also county tickets in most of the counties in the state. The county convention held in Deer Dodge county named the same ticket as that nominated by the regular convention of September 17th.
    That the state convention at Helena seated only 28 of the Kennedy delegates is accounted for by the fact that, after the convention seated the Toole delegates on the 19th, all the Kennedy delegates except this portion of them dispersed to their homes.
    Proof was offered and admitted, over objection, which tends to show that it has been the practice of the Democratic party in this state, until it has grown to be the established custom, for the delegates to the state convention from counties comprising judicial districts to form a judicial convention during the sitting of the state convention, and to nominate a candidate for the judgeship in their district, whether given authority by the electors of their respective counties or not.
    The judicial conventions which nominated Edward Scharnikow and Welling Napton each filed a certificate of nomination of its candidate as the regular Democratic nominee with the secretary of state. He having refused to certify the name of Edward Scharnikow as that of the regular nominee, this proceeding was instituted to compel the performance of that duty.

      Mr. N. W. McConnell, Mr. T. 0 Leary, and Mr. J. B. Clayberg, for Relator.

      Mr. T. J. Walsh, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

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

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

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

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

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

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

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

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

Dismissed.

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


author: PER CURIAM.

text:
    STATE ex rel. SCHARNIKOW, Plaintiff, v. HOGAN, Defendant.
    [No. 1619.]
    [Submitted October 19, 1900.
    Decided, October 20, 1900.]

      Elections —Nominations —Filling Yacancies —Filing Certificate — Time.
    1. Where a convention of a political party lias made a nomination, and authorized its committee to fill vacancies, and there is an error in the certificate of nomination filed, consisting of a misnomer of the party which the convention represented, sucli error renders the certificate void, thereby creating a vacancy to be filled by the committee, as provided by Pol. Code, Section 1320, which permits a duly authorized committee to fill vacancies when caused by death or declination of the candidate, or, when “any certificate of nomination is or becomes insufficient or inoperative from any cause.”
    2. Pol. Code, Section 1316, requiring certificates of nomination to be filed not less than 30 days before the day of election, refers only to certificates of original nomination made by conventions, primaries, or the requisite number of electors, and not to committee nominations to fill vacancies permitted by Section 1320, when the vacancy is caused by death or declination of the candidate, or by the insufficiency of the original certificate of nomination.
    Original application for mandamus by the state, on relation of Edward Scharnikow, against Thomas S. Hogan, as secretary of the state of Montana, to compel defendant to certify relator’s nomination for the office of district judge. Granted.

      Mr. T. O’Leary, Mr. N. W. McConnell and Mr. J. JB. Clayberg, for Relator.

      Mr. T. J. Walsh, for Respondent.
   PER CURIAM.

— This is an application for a writ of mandate commanding the secretary of state to certify the name of the plaintiff to the clerks of the counties of Deer Lodge and Granite, which counties comprise the Third judicial district of the state of Montana. Omitting formal allegations, the petition states the following facts, which are admitted by the attorney general: At a judicial convention composed of delegates of the People’s party from the counties of Granite and Deer Lodge the plaintiff was, on the 21st day of September, 1900, duly nominated as the candidate of that party for the office of judge of the district court of the Third judicial district; the People’s Party is commonly known by the name of “Populist Party,” but its true name is “People’s Party;” In printing the ballots, the column in which will be placed the names of the candidates of the People’s party will be designated as the “People’s Party” column; the chairman and secretary of the convention prepared a certificate of the nomination of the plaintiff, and filed it with the secretary of state on the 4th day of October, 1900, and more than 30 days before the 6th day of November, when the general election of the year 1900 is to beheld, but in the certificate, through mistake or inadvertence, they designated the People’s Party as the ‘Populist Party, ’ ’ so that the certificate is inoperative or insufficient as a certificate of the nomination of the plaintiff as the candidate of the People’s Party. The convention had delegated to an executive committee the power to fill all vacancies that might occur from any cause, and, in pursuance of such authority, the committee filled the vacancy which was deemed by its members to have occurred by reason of the supposed insufficiency of the certificate of nomination originally filed, and through its chairman and secretary, on the 17th day of October, 1900, and less than 30 days before the day of election, made and lodged with the sectretary of state a certificate setting forth the cause of the alleged vacancy, the name of the person nominated (who is the plaintiff), the fact that he was nominated for the office of judge of the district court of the Third judicicial district of Montana, the fact that the committee was authorized to fill the vacancy, and stating the name of the plaintiff, his residence, and his business address, and that he was the nominee of the People’s Party. The secretary of state refuses to certify to the clerks of the counties of Granite and Deer Lodge the nomination of the plaintiff as the candidate of the People’s Party for the office of judge.

Two questions are suggested in opposition to the granting of the writ:

It is argued that the committee was without authority to make the nomination, because there was no vacancy to be filled. Under the provisions of Sections 1310 to 1313, inclusive, of the Political Code, nominations to public office may be made by conventions, by primary meetings, and by electors not less in number than 5 per cent, of the number of votes cast for the successful candidate for the same office at the next preceding election. Section 1320 is as follows:

‘ ‘If any person so nominated dies before the printing of the tickets, or decline the nomination as in this chapter provided, or if any certificate of nomination is or becomes insufficient or inoperative from any cause, the vacancy or vacancies thus occasioned may be filled in the manner required for original nomination. If the original nomination was made by a party convention which had delegated to a committee the power to fill vacancies, such committee may, upon the occurring of such vacancies, proceed to fill the same. The chairman and secretary of such committee must thereupon make and file with the proper officer a certificate setting forth the cause of the vacancy, the name of the person nominated, the office for which he was nominated, the name of the person for whom the new nominee is to be substituted, the fact that the committee was authorized to fill vacancies, and such further information as is required to be given in an original certificate of nomination. The certificate so made must be executed in the manner prescribed for the original certificate of nomination, and has the same force and effect as an original certificate of nomination. When such certificate is filed with the secretary of state, he must, in certifying the nominations to the various county clerks, insert the name of the person who has thus been nominated to fill a vacancy in place of the name of the original nominee. And in the event he has already transmitted his-certificate, he must forthwith certify to the clerks of the proper counties, the name and description of the person so nominated to fill a vacancy, the office he is nominated for, the party or political principle he represents and the name of the person for whom such nominee is substituted. ’ ’

We are of the opinion that there was a vacancy, within the meaning of this section. The judicial convention of the People’s Party had duly nominated the plaintiff for the office of district judge. It then became the duty of the chairman and secretary of the convention to certify the nomination to the-secretary of state, designating in the certificate the party which such convention represented. But instead of giving to-the party its true name, which is the “People’s Party,” they called it the ‘'Populist Party” in the certificate. By the error-in the certificate, consisting in the misnomer of the party which the convention represented, the certificate was insufficient to accomplish the purpose for which it was designed. The plaintiff was not the candidate of the Populist Party, eonomine, but was the candidate of the People’s Party. There being a vacancy occasioned by the insufficiency of the certificate of nomination, the executive committee, under the power delegated to it by the convention, was authorized to fill the vacancy by nominating the plaintiff or any qualified person as-the candidate of the People’s Party. The case of State v. Clark, 56 Neb. 584, 77 N. W. 87, while based upon facts differing somewhat from those here presented, is a direct adjudication upon the question now being considered, and we believe the rule there announced to be correct upon principle. Although decided under statutes dissimilar in many respects from Section 1320, supra, the cases of Bower v. Clemans, 61 Kan. 129, 58 Pac. 969; People v. Hartley, 170 Ill. 370, 48 N. E. 950, and Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20, are in point, and lend support to the conclusion we have reached.

Sections 1310, 1312 and 1316 of the Political Code, when read together, prescribe that certificates of nominations made by conventions, primaries, or electors of candidates for offices to be filled by the voters of any division or district of the state greater than a county must be filed with the secretary of state not more than 60 days, and not less than 30 days, before the day fixed by law for the election. The certificate of the nomination of the plaintiff by the convention was filed in due season; the certificate of his nomination by the executive committee was filed on the 17th day of October, 1900, and less than 30 days before the 6th day of November. Argument is advanced that the last mentioned certificate, not having been filed within the time specified in Section 1316, is nugatory. But this section has to do only with original nominations. In State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301, it was held that a convention could delegate to a committee the power to fill a vacancy left in the ticket by the convention, —in other words, that a convention might omit altogether to make a nomination, and authorize its committee to name a candidate after the adjournment of the convention— in short, that a committee may by resolution be authorized to fill a vacancy, even rvhen there was no original nomination by the convention. If the interpretation there given to the statute be correct, the inevitable conclusion is that in such a case the nomination by the committee is an original one, the certificate of which must be filed within the time limited by Section 1316 for the filing of certificates of nominations made by conventions. Indeed, the reason assigned for the holding in the Benton case was that, by authorizing the committee to fill vacancies that then existed, the convention ratified in advance any nomination thereafter made by the committee, and that such committee nomination was a convention nomination; whence follows the necessary consequence that such a nomination is an original nomination by the convention, which must be certified to the proper officer within the limits of time fixed by statute for the filing of nominations made by conventions. Such is manifestly the doctrine announced in the Benton case. That decision, however, is not a precedent governing or pertinent to the solution of the question now before us; for in the present proceeding a party convention made a nomination, and delegated to a committee the power to fill vacancies; a vacancy was occasioned by the failure of the chairman and secretary of the committee to file a sufficient certificate of nomination, and the committee, in virtue of its delegated authority, filled the vacancy by nominating the plaintiff. The command of Section 1316 is that certificates of nominations must be filed not more than 60 days, and not less than 30 days, before the day of the election, but this has reference only to certificates of original nominations made by conventions, primaries, or the requisite number of electors, and has nothing whatever to do with committee nominations permitted by Section 1320. The statute is silent touching the time within which must be filed the certificate of nomination made by a committee to fill a vacancy occasioned by the insufficiency of the certificate of the original nomination. When a convention has made a nomination, and has authorized its committee to fill any vacancy that may occur, the filling of the vacancy by the committee upon the death or resignation of the candidate, or because the original certificate of nomination was or became insufficient or inoperative, may be made at any time before the day of election. In the case at bar the committee filled a vacancy occurring where the convention had previously made a nomination. It is true that the certificates of original nominations made by party conventions must be filed within the periods prescribed by Section 1316, supra, but there is no such requirement in respect of nominations made by virtue of the delegated power in a committee, which, as in this case, has filled a vacancy where the convention had theretofore made a nomination. (Section 1353, Political Code; Bower v. Clemans and Rathburn v. Hamilton, supra).

Let the peremptory writ issue as prayed. Judgment will be entered accordingly.


text:
    STATE ex rel. KENNEDY et al., Relators, v. MARTIN, Respondent.
    [No. 1614.]
    [Submitted October 15, 1900.
    Decided October 22, 1900.]

      Elections — Party Conventions— Contesting Candidates — Right to ¡¡lace under Party Designation on Official Ballot.

    1. It is the policy of the election law that only one ticket shall appear upon the ballot under a particular party designation.
    2. A political convention is a law unto itself and must be allowed to judge of the qualifications of its own members; but this authority, settled by rule or usage within the party, may not presume to disregard legislative enactments and take away rights which have already become fixed.
    3. Where candidates for county offices have been duly nominated by a regularly called and organized county convention of a political party, and the proper certificate of nomination filed, the right to have tlieir names printed on the official ballot, in the proper column, under the appropriate party designation, to the exclusion of any others under that designation, becomes fixed, and is not affected by the subsequent misconduct of the properly authorized delegates constituting such convention, in betraying their party and departing from its principles, nor by a resolution adopted by a state convention authorizing loyal members of the party to take charge of its afiairs in the county and to nominate another county ticket; such resolution being ineffectual, except to change the administrative agencies of the party.
    4. Quaere: Whether the legislature has power, under the Constitution, to enact provisions under which the courts would be required to recognize and enforce the determination of the party judicatories.
    Original application by the state of Montana, on the relation of J. M. Kennedy and others, against Martin Martin, as county clerk and recorder of Deer Lodge county, Montana, for a writ of mandate to compel him to file relators’ certificate of nomination.
    Dismissed.

      Statement of the Case.
    Application for writ of mandate to compel Martin Martin, as clerk of Deer Lodge county, to file the certificate of nomination of the relators for the various county offices in Deer Lodge county, and to print their names upon the official ballot in the column headed “Democratic.”
    The facts necessary to be considered in this controversy, in connection with the history and action of the mass meeting or convention held in Deer Lodge county on September 18, 1900, and the subsequent action in the matter by the state convention held in Helena on the 19th, have already been stated, in part, in the case of State ex rel. Scharnilcow v. Hogan, ante p. 383,62 Pac. 493. They will not be restated. Other facts necessary to be considered here are the following: The Deer Lodge county mass meeting of the 18th, before its adjournment,‘by resolution authorized J. M. Simpson, its chairman, to appoint a central committee to represent the Democratic party of Deer Lodge county, and to manage its affairs. The state convention, before its final adjournment, formally recognized the Kennedy delegates chosen by the mass meeting as the “representatives of the Democratic party in the county of Deer Lodge, ” by the adoption of the following resolution:
    “Be it resolved by the Democratic party in convention assembled, and by this convention, that the delegates of Dear Lodge county now holding seats in this convention be, 'and they are, recognized as the regular Democratic delegation of the Democratic party of the state of Montana from the county of Deer Lodge, in this state, and that they are hereby authorized, empowered, and directed to take charge and control of the affairs of said political party in the county of Deer Lodge, and to return to said county of Deer Lodge, and there, by their nominations and conventions, and otherwise, to carry out the principles of Democracy as expressed in the platform adopted by this convention, and to call county conventions and make nominations of county officers and such other officers as they may be entitled to nominate by law for the election to occur in November, 1900.”
    In pursuance of this resolution, and under the authority given him by the county mass meeting, Mr. Simpson, aided by H. J. Toomey, the state committeeman appointed for Deer Lodge county by the state convention, appointed this committee, ivhich met on September 24th, and organized by electing T. O’Leary and W. M. Goodman, respectively, its chairman and .secretary. On the same day, by published notice, the committee, through its chairman and secretary, called a convention of the Democratic party, of Deer Lodge county to assemble in Deer Lodge on October 2d. It was directed in the call that delegates be selected by caucuses held in the various precincts on September 29th, according to the apportionment made in the call. On October 2d the convention assembled. Representatives were present from all precincts in the county except one. A full ticket for the county offices and for members of the legislative assembly was nominated, the names of all the relators being placed thereon. A certificate of nomination containing the information required by laAV to be contained therein, and signed by. the chairman and secretary of the convention, was on October 5, 1900, and within the time provided by law, tendered to the defendant, with request that he file the same, and print the ticket named therein upon the official ballot to be used at the November election, under the designation “Democratic.” This the defendant refused to do, for the reason that he had already filed, and intended to print upon the ballot under that designation, the nominations made by the Democratic county convention had at Deer Lodge on September 17 th.
    It is alleged by relators that the members of the Toole faction of the convention of September 17th, and the candidates then nominated, have gone over in a body to the Independent Democratic party, and that for this reason the ticket nominated by that convention should not be printed under the party designation. The proof tends to show that some of the participants in that convention, and some of the candidates nominated by it, took part in the independent movement subsequent to the adjournment of the state convention of September !9th. ‘Under these circumstances, it is asserted that it is the duty of the defendant to file the certificate containing the names of relators, and to print them upon the ballot under the designation ‘ ‘Democratic. ’ ’

      Mr. N. W. McConnell, Mr. J. B. Clayberg', and Mr. T. O' Leary, for Relators.

      Mr. T. J. Walsh, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

The question presented in this case is: What is the legal effect of the action of the state convention, wheieby ic gave authority to the Kennedy delegates to take charge of and control the affairs of the party in Deer Lodge county, to call a convention, and to nominate candidates for such offices as it was within the powers of that convention to make, under the regular party designation? Is this conclusive upon the rights of the candidates named by the convention of October 2d to have their names appear upon the printed ballot under the the party designation, to the exclusion of those nominated by the convention of September 17th?

The inevitable result of a decision sustaining the right of the former to appear upon the ballot under the party name would be a denial of this right to the latter; for it is the policy of the statute that only one ticket shall appear upon the ballot under a particular party designation. This is apparent from a careful reading of all the provisions pertaining to the making of nominations, the preparation of the ballot, and the methods provided by which an elector may vote. Particular reference is made to the provisions of Sections 1311,1354 and 1361, (Political Code). The first of these sections prescribes what the certificate shall contain. Among other things it must contain a designation of the party or principle which the ticket represents. This requirement is evidently designed to guide the proper officer in printing the ballot, so that he may group the candidates and distinguish them by this designation, in conformity with the directions contained in Section 1354, viz: “The list of candidates of the several parties shall be placed in separate columns on the ballot, in such order as the authorities charged with the printing of the ballots shall decide. ’ ’ Then follows the form of the ballot, with the tickets arranged in parallel perpendicular columns, each designated by the word “Republican,” “Democratic,” etc., with a circle at the head of each. A requirement is added that the ballot shall follow this form as to all candidates to be voted for at the election. Under the latter part of this section, and under Section 1361, the elector may vote his entire party ticket by placing a cross in the circle at the head of the column, under his party designation. If he does not desire to vote a ‘ ‘straight’ ’ ticket, he must place the cross opposite the name of each candidate of his choice. If, while reading all these provisions together, we keep in mind the purpose of the Australian ballot system, as stated in State ex rel. Scharnikow v. Hogan, ante p. 383, and also the fact that the ballot was thus arranged with a view to aid in its accomplishment by enabling the elector — the illiterate as well as the literate — readily to give an affirmative expression of his choice, free from the confusion and embarrassment so often incident to elections under the old system, by reason of the great variety of ballots of like name and emblem hawked about the polling places to defraud and deceive the unwary or illiterate voter, all doubt on this point disappears. If two tickets may appear upon the ballot under the same designation, then any number may be printed thereon, thus adding greatly to the embarrassment and discomfiture of the ordinary voter. Again, for illustration, if there be only one state ticket under the party name, but two or more county tickets, only one of these can be printed in the same column with the state ticket. Thus the county clerk will be put in a position where he cannot obey the statute, and the voter who wishes to vote a ‘ ‘straight’ ’ ticket cannot do so, unless he also belongs to the faction of the party which favors the county ticket printed in the column with the state ticket. If neither is printed in that column, then the law is violated, and the right of voting a ‘ ‘straight’ ’ ticket cannot be exercised at all. Evidently the legislature, in enacting the statute, did not contemplate the condition of things presented in this case. The case of State ex rel. Gillis v. Johnson, 18 Mont. 556, 46 Pac. 440, cited by counsel, does not give us any aid. In that case two factions of the Republican party had filed separate county tickets under different designations. This Court held that under such circumstances, as no confusion would result from the presence of both upon the ballot, it would not interfere, but would leave the contention for the electors to decide.

Reverting to the question presented in this case, let us briefly examine the conditions out of which this controversy arose. The undisputed facts are that the convention of September 17th was properly called, and that it assembled and organized under the regular party authority; that the business before it was properly and regularly done; and that all the delegates took part in its proceedings until it finally adjourned. The candidates who were nominated by it sought their places upon the ticket with the knowledge that, if they secured these places, their names would be printed upon the ballot in the appropriate column with the rest of the party ticket. After their names were thus put upon the ticket, and the proper certificate was filed, the right to have their names appear upon the ballot became fixed; for there ih no provision of the ballot law by which their places can be made vacant for the substitution of other names, except by death or resignation (Political Code, Sections 1319, 1320), or by conviction of a felony, judicially declared insanity, or removal from the state or county. The happening of either of these latter contingencies would necessarily create a vacancy, for each disqualifies an elector from holding office. (Constitution, Sections 8, 11, Art. IX; Political Code, Section 1181). It follows, therefore, that the names of such candidates must be printed in the proper column, to the exclusion of any others under that designation. No subsequent behavior of the properly authorized delegates constituting that convention, no matter how flagrantly they may have betrayed their party, or how far they may have departed from its established usages and principles, can be held to have vitiated the nominations regularly made while they were still within the party lines and acting as its representatives. True, the state convention at Helena recognized the delegates of the mass meeting of the 18th as the proper representatives from Deer Lodge county. But why? Because, as appears from the resolution passed at the time the Kennedy delegates were seated (see statement in State ex rel. Scharnilcow v. Hogan, supra), 60 of the 63 Toole delegates ‘ ‘had withdrawn from the convention, and had refused to be further bound by the rules and regulations of the Democratic party. ’ ’ This resolution did not undertake to decide upon the regularity of the convention of the 17th, or to deny party recognition to the candidates then nominated. The subsequent resolution of that convention is more explicit, and its purpose was to empower the Kennedy delegates to take charge of the affairs of the party and to nominate a ticket. The action of the convention in seating the Kennedy delegates we would not presume to question. A political convention is a law unto itself, and must be allowed to judge of the qualifications of its own members. Organization and discipline are necessary to party existence. There must be some authority to which the subordinate or local divisions may appeal for settlements of disputes as to who shall represent the party and control its affairs. But in the settlement of these controversies this authority established by rule or usage within the party may not presume to disregard legislative enactments, with the enforcement* of which the courts alone have to do, and take away rights which have already become fixed. The dispute which we are told was adjudicated by the state convention arose after the regular party authorities in Deer Lodge county had nominated a ticket. ' The power of the party for the purpose of making nominations had been exhausted. However desirable it was after the occurrances of the 19th and 20th, and the subsequent behavior of the Toole faction and some of the candidates, that another list of candidates should be substituted for the one already made up, it was not possible for this to be done, and the resolutions of the state convention were ineffectual to grant authority for this purpose. They were effectual, however, to change the administrative agencies of the party in Deer Lodge county; and for the present campaign and thereafter, until the electors in the county again work a change, in the exercise of their powers under the party usages, its future control belongs exclusively to the organization effected under them. To this extent only can the action of the state convention be regarded as effectual for any purpose, under the circumstances of this case. To hold otherwise would put the convention above the law, and convert the Court into an instrumentality through, which, regardless of the law, penalties could be inflicted upon recalcitrant party members and disloyal candidates, to enforce party discipline. If the party desires to administer punishment upon its own members, it must do so at the polls, and it may do so effectively, so far as concerns the objectionable candidates. Under the provisions of the law, any voter may make out a full ticket after he enters the voting booth on election day, by pasting or writing upon the ballot, at the proper places, in the party column, the names of other candidates, and indicating his choice of these by a cross placed opposite them. If he does not choose to follow this course, he still has the privilege of voting the opposition ticket.

It is probably within the power of the legislature to so amend our election law that tickets nominated by rival factions in the same party may be given places upon the ballot. It is perhaps also worthy of consideration whether the legislature has power, under the Constitution, to enact provisions under which the courts would be required to recognize and enforce the determinations of the party judicatories, as it seems has been done in New York, Kentucky, South Carolina, and other states. (In re Fairchild, 151 N. Y. 359, 45 N. E. 943; Cain v. Page (Ky.) 42 S. W. 336; Ex parte Sanders, 53 S. C. 478, 31 S. E. 290). But, until changes are made in the law, we must enforce it as it stands, according to its manifest spirit and intent.

The alternative writ heretofore issued herein is vacated, and the proceeding dismissed, at the costs of the relators. Judgment may be entered accordingly.

Dismissed.

Mr. Justice Word being a candidate upon the Independent Democratic ticket, did not sit at the hearing of this cause, and takes no part in its decision.


text:
    STATE ex rel. HOFFMAN, Plaintiff, v. DAVIDSON, Defendant.
    [No. 1621.]
    [Submitted October 22, 1900.
    Decided October 22, 1900.]

      Elections — Bi-ennial Registration of Voters.

    Under Laws of 1899, page 54, bi-ennial registration of voters Is necessary only in registration districts included wholly within an incorporated town or city containing at the last preceding state election more than 1000 registered voters; and it is immaterial whether or not any such registration district itself contained at the preceding state election over 1000 registered voters.
    Application by the state of Montana, on the relation of Charles W- Hoffman, for a peremptory writ of mandamus against A. E. Davidson, as registry agent of election district No. 13, in Gallatin county, requiring said defendant, as such registry agent, to register the plaintiff.
    Application denied and proceeding dismissed.

      Messrs. Hollowway <& Hoffman, Mr. N. W. McConnell and Mr. J. B. Cla/yberg, for Relator.

      Mr. G. B. Nolan, Attorney General, and Mr. A. I. Loeb, for Defendant.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This is an application to the Supreme Court for a peremptory writ of mandate requiring the defendant, as registry agent of election district No. 13 of Gallatin county, Montana, to register the plaintiff, who is a citizen of the United States, residing in South Bozeman precinct, in the election district named and in the city of Bozeman, and otherwise qualified to vote in that district at the general election to be held on the 6th day of November, 1900. It appears from the petition that the plaintiff was duly registered as a qualified voter of said precinct and district in the year 1898, so as to entitle him to vote at the general election held in that year, and that ever since he has been a resident of said precinct and district, and that his registration has not been cancelled. It further appears that Bozeman is an incorporated town or city which did not contain at the election of 1898 one thousand registered voters; that each of the election districts Nos. 12, 13 and 14 in the county of Gallatin includes a portion of the territory embraced within the incorporated limits of Bozeman as well as other territory without such limits; and that at the election of 1898 there were more than one thousand registered voters in the three election districts mentioned. The defendant, who is represented by the attorney general, demurs to the petition for insufficiency.

Bi-ennial registration as a prerequisite to exercising the elective franchise is, by the act designated as ‘‘Substitute for Senate Bill No. 6,” approved February 17, 1899, and found at page 54 of the Session Laws of 1899, required in those registration districts only which are included in an incorporated town or city containing at the last preceding state election over one thousand registered voters. It is alleged and admitted that the town or city of Bozeman contained at the state election of 1898 less than one thousand registered voters, and that the plaintiff was registered for the election of that year. It is entirely clear that the plaintiff is not required to register for the year 1900. Whether or not the registration district in which the plaintiff resides contained at the last preceding state election over one thousand registered voters is immaterial, for the town or city in which the registration district is included must have contained at the last state election over one thousand registered voters in order to make necessary a new registration by the plaintiff, The fact that in registration districts Nos. 12, 13 and 14 there were at the last state election more than one thousand registered voters is likewise without relevancy. If a registration district is wholly included within an incorporated town or city containing at the last preceding state election more than one thousand registered voters, bi-ennial registration is necessary to confer upon the residents of such district, (being otherwise qualified) the right to vote; but in other districts such registration is required but once in eight years. The meaning and the intent of the statute cited in respect of the question here presented seems plain and hardly susceptible of misinterpretation.

The demurrer is sustained and judgment is ordered to be entered denying the application for a peremptory writ and dismissing the proceeding.

Dismissed.