text:
    STATE ex rel. HATCH et al., Plaintiffs, v. SMART, Defendant.
    [No. 1610.]
    1 Submitted October 12, 1900.
    Decided October 22, 1900.]

      Elections — Rival Factions within a Party — County Conventions— Regularity — Nominating Candidates — Rights of Candidates — Powers of State Conventions.

      1. Under the Statutes of Montana there can be upon the official ballot but one nominee of a party for each office to be filled.
    2. Duly elected delegates to a party county convention have no greater authority than has been conferred upon them by the electors at the primaries where they were elected.
    3. A county convention of a political party, called by the county central committee to select delegates to a state convention, and for no other purpose, cannot depose the chairman of such committee, and supersede him by a chairman of its own selection, where the custom of such party was to select such chairman at a convention called to nominate county officers. Hence a convention for nominating candidates for office, called by such central committee through its duly elected chairman, though he had been deposed at such convention, was the authorized convention of such party.
    4. In a political party convention, the will of the majority of the delegates duly elected and entitled to seats is the will of such convention, irrespective of the mere manner in which the will of the majority may have been expressed.
    5. Where, in a political convention, the presiding officer directs that the temporary chairman be selected by ballot, and in his temporary absence from the platform a delegate addresses the convention, and requests all in favor of a certain candidate for the temporary chairmanship to rise, and a majority of the the convention does so, such candidate is the duly elected chairman of the convention; and its proceedings will be the acts of the convention, though the minority in the same hall proceed with the election by ballot, select a temporary chairman, and proceed independently of the majority.
    6. A legally eligible candidate is entitled to have his name appear on the official ballot in the column of every political party which has regularly nominated him.
    7. The state convention of a political party, within the scope of its powers, is the paramount and final judicatory of such party: yet its powers are limited; it cannot set aside nominations of a county convention which was held under a call by the regularly constituted authority of a party.
    Original application for mandamus by the state, on the relation of L. D. Hatch and others, against Howard D. Smart, as county clerk and recorder of Ravalli county, to compel the printing of their names on the official ballot in the Democratic column.
    Granted.

      Mr. 11. L. Myers and Mr. T. J. Walsh, for Relators.

      Mr. W. W. McConnell, Mr. J. B. Clayberg, and Mr. T. O’ Leary, for Defendant.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Mandamus. By this proceeding the plaintiffs seek a peremptory writ commanding the clerk of the county of Ravalli to cause to be printed on the official ballot, in the column headed ‘ ‘Democratic, ’ ’ and under the names of the nominees of that party for state offices, the names of the plaintiffs and two other persons, as the nominees of the Democratic party for the several offices to be filled in the county of Ravalli at the ensuing general election on the 6th day of November. Asserting that they and the two other persons are the duly nominated candidates of the Democratic party, the plaintiffs allege that the clerk wrongly refuses to cause their names to be printed upon the official ballot as the candidates of the Democratic party. To the petition and alternative writ, answer was made, and upon the filing of a reply the issues were joined. A hearing was had, at which evidence was taken. There is no controversy concerning any nlaterial issue of fact raised by the pleadings.

The cause may be stated thus: Prior to the general election held in 1898, the Democratic party of the county of Ravalli, in convention assembled, appointed a county central committee, consisting of one committeeman from each precinct, in the county, and empowered the committee to call subsequent conventions of the party. The convention chose the chairman, following the usage of the party in that county, under which nominating conventions had elected the chairman. Subsequently the office of chairman became vacant, by reason of the removal from the state of the man elected, and the committee in May, 1900, selected one McCullough as chairman. During the session of the committee at which McCullough was selected chairman, a convention of the Democratic party was called for the 18th day of June, 1900, for the purpose of electing delegates to the state convention to be held in Butte on the 20th day of June, 1900, which latter convention was called for the purpose of appointing delegates to the national convention of the Democratic party to be held at Kansas City on the 4th day of July, 1900. The call for the county convention of the 18th of June contained no mention of any matters other than those pertaining to the selection of delegates, and made no reference to other business. Primaries were held, and the convention of June 18th met. After appointing delegates to the state convention to be held on the 20th of June, the convention declared the office of chairman of the county central committee vacant, and, in form, elected one Ward as such chairman. There were two factions of the party in Ravalli county, which for convenience may be designated as the Clark and the anti - Clark factions. McCullough adhered to the Clark faction, and Ward to the anti-Clark faction. McCullough refused to recognize Ward as his successor, and thenceforward each claimed to be the only true chairman of the committee. A few days prior to the 31st of August, Ward called a meeting of the committee for the day last mentioned. A quorum of the committee attended, and, after directing primary meetings ,to be held therefor, appointed the 17th day of September as the time for holding the convention ' to nominate candidates for the legislative assembly and for county offices, and to elect delegates to the state convention to be held on September 19th. McCullough called for a meeting of the committee to be held on the éth day of Septemper, and ,on that day (as may be conceded for the purposes of this case) a quorum met, and ordered the holding of primaries for a county convention to be held on the 13th day of September for the purpose of nominating candidates for the legislative assembly and county offices, and for the purpose, also, of selecting delegates to attend the state convention on the 19th day of September. In pursuance of these two calls, primary meetings were held by the Clark and anti-Clark factions of the Democratic party. The larger part of the anti-Clark faction, including some of the plaintiffs, attended the primaries held under the call issued by McCullough, and this faction composed the primary meetings held under the call of Ward; none of the Clark faction participated in the anti-Clark primary meetings. In obedience to the call issued by McCullough as chairman of the committee, a county convention met on the 13th day of September, in which 52 delegates were entitl/d to seats. Fifty-one delegates were duly elected at the primary meetings held by virtue of the call issued by Chairman McCullough, and attended the convention. Of this number, 27 were members of the anti-Clark faction, and 2é were members of the Clark faction. The Clark delegates sat in a body upon one side of the hall in which the convention was held, and the anti-Clark delegates occupied the opposite side. At the hour appointed for the opening of the convention, McCullough, assuming to act as the chairman of the county central committee, called the convention to order, and the secretary of the committee read the call for the convention. McCullough then called for nominations for temporary chairman. One Meyers, the leader of the anti-Clark wing of the convention, placed one Crutchfield in nomination for that office, and a Clark delegate named one Landrum for the office. Thereupon McCullough directed that the vote be taken by ballot and immediately left the chair and the platform, and went down upon the floor of the hall, for the purpose, as he testifies, of obtaining from a delegate pencils and blank ballots. In his progress through the hall he was met by the delegate who had placed Crutchfield’s name before the convention, who demanded that he call for the credentials and prepare a temporary list of delegates before the ballot was taken, and protested against taking the vote in the manner in which the chairman declared it must be taken. The chairman declined to entertain the suggestion, and the delegate mentioned then requested that the matter of the temporary chairmanship of the convention be decided by a rising vote. McCullough thereupon announced from the floor of the convention that the ballot should be proceeded with, and moved on among the delegates. Meyers, the delegate who had nominated Crutchfield, then addressed the convention, and asked all those who favored Crutchfield for temporary chairman to stand. This occurred while the chairman, McCullough, was upon the floor of the convention, and while there was no presiding officer upon the platform. The so-called anti-Clark delegates, being in number 27, arose in response to the request of Meyers. There was no call made upon those who were opposed to Crutchfied to stand up, the reason given being that a clear majority had voted for him. Meyers then declared Crutchfield elected, and Crutchfield was escorted to the chair. A temporary secretary was then elected by the 27 delegates who had voted for Crutchfield. Meanwhile blank ballots had been handed to all the delegates; the anti-Clark delegates, however, did not cast any ballots. When the vote was canvassed for temporary chairman, it was discovered that Landrum had received 24 votes, as shown by the ballots, and that Crutchfield’s name did not appear on any ballot. A temporary secretary was then elected by ballot in the same way that Landrum had been elected to the office of temporary chairman, the number of ballots cast for the temporary secretary being the same as the number deposited for Landrum, — the anti-Clark delegates not voting. The chairman and secretary of the Clark faction occupied one side of the stage and hall, and the chairman and secretary selected by the majority of the convention occupied the other side. Each supposed convention proceeded to transact its own business. Thereafter the 24 Clark delegates refused to act with the majority of the convention presided over by Crutchfield. The convention presided over by the latter nominated a Democratic ticket for the county of Ravalli, including two candidates for representatives in the legislative assembly, and chose delegates to the state convention. This convention remained continuously in session from the time it was organized until its adjournment. While the meeting of which Landrum was chairman, after dispatching preliminary matters, adjourned to meet in the afternoon, when it reconvened and nominated candidates, and selected delegates to the state convention. The Crutchfied convention had meanwhile completed its labors and adjourned sine die. Certificates of the nominations of the several candidates were duly filed by the proper officers of each convention. O’Brien, one of the nominees of the Crutch-field convention for the office of representative in the legislative assembly, declined the nomination. On the next day, September 14th, the convention called by Ward met, and nominated a full legislative and county ticket. The candidates nominated by the Ward convention were the same men who had been nominated by the Crutchfield convention, with the exception of O’Brien, in whose place the plaintiff B. F. See was nominated; this convention elected as delegates to the state convention the same men selected by the Crutchfield convention. Certificates of these nominations were also duly filed. The state convention of the Democratic party met on the 19th day of September. The delegates to that convention selected by the Clark faction, presided over by Landrum, appeared, demanding to be seated; and the delegates selected by the Crutchfield and Ward conventions also appeared, and asserted their rights to represent the county of Ravalli in the state convention. After a hearing before the committee on credentials, the state convention determined the contest against the anti-Clark delegates, and seated the Clark delegates, thereby recognizing the 24 delegates presided over by Land-rum as constituting the regular Democratic county Convention.

The state convention of the Democratic party nominated candidates for presidential electors, a candidate for representatives in congress, and candidates for all state offices to be filled at the ensuing election. On the 20th day of September the Independent Democratic party of the state of Montana was organized, the delegates selected by the Crutchfield and Ward conventions of Ravalli county participating in the organisation of the new party. This party on the 2d day of October met in state convention, and named a full state ticket. In the county of Ravalli, also, the Independent Democratic party has held its convention and nominated a complete legislative and county ticket, the candidates so nominated being the same persons who were nominated by the Ward convention, who are also, with the exception of the plaintiff B. F. See, the nominees of the Crutchfield convention. Certificates of all these nominations by the new party have been filed. Many of the anti-Clark faction have abandoned the Democratic party and joined the Independent Democratic party; but, of the plaintiffs, only two (Hatch and McCorkle by name) have left the party first mentioned and united with the latter. These two plaintiffs participated in the county convention of the Independent Democratic party.

With the exception of See, the plaintiffs, together with the other two persons referred to, are the nominees of the Crutch-field convention; the plaintiffs, the two others, and See are the nominees of the Ward convention. The plaintiffs contend that the Landrum convention was not a convention of the Democratic party, and assert the right to places upon the official ballot under the party name, insisting that either the Ward convention or the Crutchfield convention — the one or the other — was the true convention. Their position is that the Ward convention was the regular one, and that, if the court should hold otherwise, then the Crutchfield convention must, be adj udged the true convention of the party. The defendant contends that neither of the conventions last named was a legal convention, but that the meeting presided over by Landrum must be held to be the only true one, and that its nominees are entitled to places in the official ballot under the party name.

There is here presented a contention between rival factions within a political party, each asserting itself to be entitled to the use of the word ‘Democratic, ’ ’ and to have its candidates placed in the Democratic column upon the official ballot under the nominees of the state convention of that party. Under the statutes of this state, as interpreted in State ex rel. Scharnikow v. Hogan, 24 Mont. 383, 62 Pac. 583, and State ex rel. Kennedy et al. v. Martin, 24 Mont. 403, 62 Pac. 588, this day decided, there can be but one nominee of a party for each office to be filled. The necessity therefore arises of determining which of the three sets of nominations is valid.

It was the universal practice for the county convention which assembled for the purpose of making nominations to county offices to appoint a new county central committee and elect its chairman. The county committee and chairman so elected remained in office until the next nominating convention appointed their successors. These conventions were held every two years, and were called for the purpose of nominating candidates for public office, and to transact such other business as might properly come before them. That the county central committee had power to select its own chairman to fill a vacancy occurring while a nominating convention was not in session is conceded by the plaintiffs’ counsel. He contends, however, that the convention called for the sole purpose of electing delegates to the state convention which was held in Butte on the 20th day of June, 1900, was, by virtue of a usage of the party, clothed with the right to depose McCullough from the chairmanship and supersede him by a chairman of its own selection. We do not think that such power resided in the convention of June 18th. The sole purpose for which the convention was assembled was to choose delegates to the state convention at Butte, and this was the only object expressed in the call. The Democratic electors of the county of Ravalli at the primaries selected certain persons to represent and speak for them in the convention. These delegates had no greater authority than was conferred upon them by their principals, the Dem-, ocrats of Ravalli county. The only express authority they possessed was to send delegates to the state convention; they might also do whatever was incidentally necessary or proper to the full exercise of that authority, for example, they could adopt a platform and instruct the representatives to the state convention. Nor is there evidence tending to show a practice or usage — much less, a custom — for such a convention as that of June 18th to elect a chairman of the county central committee. It follows that, notwithstanding the action of the convention in declaring the chairmanship vacant, McCullough was the chairman of the county central committee at the time he issued the call for the convention of September 13tb, and when the convention met, and as such chairman rightly (the convention not objecting) presided over the convention until a temporary organization was perfected.

The convention of Septemper 13th having been called by the central committee, through its duly elected chairman, was the true convention of the Democratic party in the county of Ravalli. This determination leads to the next question.

Who were the nominees of the convention, of September 13th? Did the convention nominate the candidates selected by the Landrum faction, or those chosen by the Crutchfield faction? The nominees of both cannot, as the law is now in this state, be placed on the official ballot under the party name.

The convention consisted of 51 delegates, all of whom are admitted to have been duly elected and entitled to seats. The will of the majority was the will of the convention. The theory underlying popular government is that the majority must rule, and this doctrine applies as well to the- action of political parties in making a choice of their candidates for public office as it does to the action of the electors at the polls. We must look through, and, if necessary, disregard mere forms, and ascertain what was the desire of the convention of September 13th, as expressed by the majority of its members. If the nominations were made by a majority of the delegates, they are valid, despite the fact that the manner in which the result was reached may have been without strict adherence to parliamentary rules. Whatever may be the rule applicable to the proceedings of the minority where the majority withdraws from the convention, manifestly a minority of the delegates present could not make legal nominations. In the case at bar a delegate, in the temporary absence of a presiding officer to whom a motion might be addressed, put to the vote of the convention the question of the election of a temporary chairman. It was for the convention itself to decide whether it would select a chairman by ballot, by viva voce vote, by standing vote, or otherwise. It chose to select that officer by a rising vote. A clear majority of the delegatós voted in favor of Crutchfield, and the minority voted for Landrum. No vital or even serious objection can reasonably be urged against the method adopted for the purpose of obtaining an expression from the convention of its will. Crutchfield, being the choice of the majority, was the choice of the convention and its chairman. The proceedings of the majority presided over by Crutchfield were the acts of the convention. This majority in the presence of the minority made nominations; these nominations were the nominations of the Democratic party of Ravalli county.

Argument is advanced that because some of the relators attended the primary meetings'called by Ward, and two of the relators have left the Democratic party and have united with the Independent Democratic party, which also has nominated them, the nominations made by the Crutchfield convention should not appear upon the official ballot. The right of candidates duly nominated by a political party, whose certificates of nomination have been duly filed, to have their names printed upon the ballot, can be destroyed or waived only by death or resignation, or by conviction of a felony, judicially declared insanity, or removal from the state or county. These, and these only, as was held in State ex rel. Kennedy et al v. Martin, supra, deprive the nominee of the right, theretofore existing, to be placed upon the ballot. Under the statutes of Montana, the same candidate may be nominated for the one office by several political parties, even though their principles be diametrically opposed the one to the other. Such a candidate is entitled to have his name appear in the column of every party which has nominated him.

The defendant insists that, in determining the question of whether the nominees of the Crutchfield convention or the nominees of the Landrum convention are entitled to be placed on the official ballot in the Democratic column, the Court is bound by-the action of the Democratic state convention, which decided in favor of the regularity of the delegates selected by the minority of the county convention. This point is disposed of by the decision in State ex rel. Kennedy et al. v. Martin, supra. Within its legitimate field, the Democratic party of the state in convention assembled is paramount and the final judicatory. Its determination of matters within the scope of its powers cannot be questioned or set aside by the courts. Such state convention represents the Democratic party of the state as an entirety, and in a limited sense it speaks for the territorial subdivisions of the party. It is the judge of the election and qualification of its members; it may adopt a general policy, and nominate candidates for office, to be filled by the vote of the electors of the state, and (so long as it keeps within its legitimate sphere) do whatever may be necessary or proper to maintain the integrity and advance the interests of .the party. In the present condition of the statutes, however, its jurisdiction is not unlimited; it certainly cannot do what a majority of the party would not have authority to do if assembled in mass convention; for the state convention has only delegated authority, and must not exceed the power possessed by those who have clothed it with such authority. The members of the party in each county have the right to control their own local affairs. A county convention is without right to interfere with or overturn the regular and duly authorized proceedings of a township primary, mass meeting or convention, and the state convention is likewise without jurisdiction to set aside nominations of a county convention which was held under a call by the regularly constituted authority of the party.

A peremptory writ of mandate will issue. It appearing that the plaintiff See was not nominated by the convention of September 13th, the writ will command the defendant to cause to be printed upon the official ballot to be prepared by him for use at the election of November 6, 1900, in the column headed ‘ ‘Democratic, ’ ’ and under the names of the nominees of the Democratic party for the several state offices, the names of the plaintiffs, except that of See, and of the two other nominees of the convention of September 13th as prayed. The right, if any, which See may have acquired since the institution of this proceeding to have his name upon the ballot in the Democratic column, is not adjudged, and this decision is without prejudice to such right.

Let judgment be entered accordingly, with costs.

Writ Granted.

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.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE ex rel. BAKER, Relator, v. SECOND JUDICIAL DISTRICT COURT et al., Respondents.
    [No. 1543.]
    [Decided October 23, 1900.]

      Costs — Supreme Court — Special Proceedings — Fees of Clerics of Courts — Transcript Fee —Appearance Fee — Printing Briefs.

    1. Under Code of Civil Procedure, Section 1852, providing that costs must be allowed, of course, to the defendant on a judgment in his favor in special proceedings, costs will be allowed in the Supreme Court to the defendant where a special proceeding is dismissed, though the judgment awards no costs, and judgment for costs will be entered on application.
    2. Code of Civil Procedure, Section 1943, declares that the clerk of a court to which a writ is directed in special proceedings shall return the writ with the transcript required; and the fee bill of the clerk, as provided by Political Code, Section 4636, makes no provision for the collection of a fee for making a transcript in such case. Held, that a fee for making the transcript was not a necessary disbursement, and that the clerk was not authorized to collect a transcript fee.
    3. The fee bill of the clerk of the Supreme Court, as provided by Political Code, Section 872, makes no provision for the collection of an appearance fee from the defendant in si e 'ial proceedings. Hence none can be charged by such clerk in such proceedings.
    4. Code of Civil Procedure, Section lf-66, provides that a party entitled to costs may include in his bill of costs the reasonable expense of printing papers for a hearing, when required by a rule of court; and Supreme Court Rule 10 requires that briefs be printed in all cases brought there by appeal, and also original proceedings instituted there. Held, that the cost of printing briefs in a special proceeding in the Supreme Court, which was dismissed, will be allowed the defendant on his application.

      Certiorari by the state, on the relation of B. L. Baker, against the Second Judicial District Court and another. On a dismissal of the proceedings, defendants made a motion to tax costs.
    Granted as to part.

      Mr. J. F. Mealy, for Relator.

      Mr. Wm. M. Be Witt and Mr. T. Bailey Bee, for Defendants.
   PER CURIAM.

— Motion to tax costs under Section 1867 of the Code of Civil Procedure. Upon the dismissal of the proceeding under this title, (ante p. 238, 61 Pac. 882), counsel for defendants filed with the clerk of this Court a memorandum of the costs claimed to have been necessarily incurred therein, to be included in the judgment entered in this Court. This memoradum consists of three separate items, viz: Preparation of transcript, $5; printing brief, $3.75; and appearance fee $5. Counsel for plaintiff and relator now moves this Court to strike out and disallow the bill as a whole, on the ground that the judgment entered in this Court awarded no costs to defendant, either in express terms or by implication of law. Objection is also made to the various items in the bill on the ground that there is no provision of law under which they may be taxed.

The provisions of law touching the disposition of costs are found in Chapter VI, Title XIV, Sections 1850 — 1879, of the Code of Civil Procedure. Some of these provisions are general in their terms, and apply to all the courts, so far as applicable, while others of them have special application to particular courts. Costs on appeal to this Court are regulated by the provisions of Section 1855. In special proceedings brought into this Court from an inferior court by any other way than by appeal, the provisions of Section 1860 apply. In proceedings originating in this Court, recourse must be had to the general provisions contained in Sections 1851 and 1852. “Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: * * * (4) In a special proceeding.” (Section 1851.) “Costs must be allowed, of course, to the defendant, upon a judgment in his favor in the actions mentioned in the next preceding section, and in special proceedings.” (Section 1852). It is clear, therefore, that in these special proceedings the successful party is entitled to a judgment for costs as a matter of course. Whether the inferior court, or its judge, who is made the defendant, pays the necessary costs during the progress of the case, or the adverse parties in the proceedings in that court out of which the special proceeding arises, the unsuccessful plaintiff in this Court is liable for the costs accrued at his instance, and he should be adjudged to pay them. The order disposing of the application adversely to plaintiff fixes this liability, and, if the costs are not paid upon demand, judgment may be entered in this Court for them upon application, just as in the same class of cases in the District Court. Formal judgment for costs in these proceedings is not usually entered in this Court. It was not entered in this case when the order' of dismissal was made. This does not prevent the entry of such judgment, upon proper application, if it becomes necessary to do so to enforce the collection of costs.

The motion must be sustained, however, as to the charges for transcript and appearance fee. There is no provision of law authorizing the clerk of the District Court to charge anything for the transcript in this class of cases. Section 1943 of the Code of Civil Procedure makes it the duty of the clerk of the court to which the writ is directed to return the writ with the transcript required. The fee bill of the clerk is found in Section 4636 of the Political Code. This section contains no provision authorizing him to collect any fee for such duty. The provisions in this section allowing 10 cents per folio for certified copies of papers in his office has no reference to transcripts to be furnished by him in these proceedings. We find no provision elsewhere authorizing him to collect such fee. Under the familiar rule that no officer may demand a fee for any official service unless clearly authorized to do so, the clerk of the District Court could not lawfully collect the fee charged in the bill. It was not a necessary disbursement in this proceeding, and cannot be collected from the plaintiff.

The same may be said of the appearance fee charged by the clerk of this Court. The fee bill of the clerk of this Court is found in Section 872 of the Political Code. No provision is there found directing or authorizing him to collect an appearance fee from the defendant in special proceedings.

As to the charge for printing brief, the motion must be denied. Under Section 1866 of the Code of Civil Procedure, this is a proper charge. The printing of briefs is required, under the rules of this Court (Pule X), in all cases brought here by appeal, and also in all original proceedings instituted here, whenever the requirement is not unreasonable, in view of the shortness of time to elapse after the issues are joined until the hearing. Charges for the printing of briefs “are taxable according to the course and practice of the Court,” under this rule.

The items of charge for transcript and appearance fee are disallowed, and ordered stricken from the bill. The other item is allowed to stand, and judgment will be entered for the amount of it, upon application, unless the same is paid on demand.


author: MR. JUSTICE WORD

text:
    STATE ex rel. NORTHERN PACIFIC RY. CO., Relator, v. LOUD, Judge, Respondent.
    [No. 1589.]
    [Submitted September 6, 1900.
    Decided September 10, 1900.

      Contempt — Punishment — Powers of Judge at Chambers — Manda/mus.

    1. Under the provisions of the Code of Civil Procedure, where there has been disobedience of an order made at a term of court, the judge at chambers in vacation has power to punish the same as a contempt.
    2. Where the District Judge dismissed contempt procedings, holding that he was not authorized to entertain them, mandamus to compel him to hear and determine them was the proper remedy, since an appeal from the order of dismissal would not lie.

      Mandamus by the state on the relation of the' Northern Pacific Railway Company, against C. H. Loud, as judge of the Seventh judicial district in and for Custer county.
    Writ granted.

      Mr. Wm. Wallace, Jr., for Relator.

      Mr. Geo. W. Farr, and Mr. Geo. R. Milburn, for Respondent.
   MR. JUSTICE WORD

delivered the opinion of the Court.

Application for writ of mandate to compel respondent to hear and determine certain proceedings for contempt growing out of an alleged violation by one James B. Kempton of a certain injunction theretofore issued against said Kempton in a certain action in said district court of said county wherein the said Kempton was defendant and Thomas F. Oakes, Henry C. Payne, and Henry C. Rouse, as receivers of the Northern Pacific Railway, were the plaintiffs.

The facts are these: On the ,18th day of August, 1895, in an action theretofore begun in the District Court of the Seventh judicial district, Custer county, Thomas F. Oakes and others, as receivers of the Northern Pacific Railway, plaintiffs, obtained a temporary restraining order against said James B. Kempton, defendant, in said action, enjoining him from diverting the water from a certain stream known as ‘ ‘Sand Creek, ’ ’ in said county and state or from in any way preventing the said plaintiffs from using the water of said stream for the purpose of supplying Avater to the water tank of the Northern Pacific Railroad Company at the station of Terry, in said county of Custer. Thereafter, on the 31st day of March, 1899, judgment was rendered in said action in favor of said plaintiffs and against said defendant, and the temporary restraining order theretofore issued in said cause was made permanent.

On the 6th day of August, 1900, in behalf of the relator herein, affidavits Avere filed in the said District Court of said county, setting forth the facts above given, and further alleging that said James B. Kempton, defendant in said action, had theretofore violated, and then was willfully and maliciously violating, the said injunction order issued on the 18th day of August, 1895, and also the perpetual injunction granted in said cause on the 31st day of March, 1899. Upon the shoAving made, the respondent, at chambers, caused an order to issue under the seal of said court, and to be served upon said Kempton, requiring him to show cause on the 11th day of August, 1900, why he should not be punished for contempt of court for violating the degree of said court made and entered in said action on the 31st day of March, 1899. Thereafter on the 11th day of August, 1900, the said Kemp-ton appeared before respondent at chambers, and moved that the proceedings in contempt be dismissed for two reasons, the second of which is as follows: “Because the judge of said District Court in vacation had no authority in law to make sucha rule tó show cause, orto hear or determine contempt proceedings for the violation of any order or decree made by said court in term time. ’ ’

The respondent, after hearing argument on said motion, granted the same, and dismissed said proceedings in contempt, for the reason set forth in the second ground of said motion above given.

If this ruling of the respondent upon the motion to dismiss was correct, then the writ of mandate should not issue; but if, under the statute, respondent had the power, and it was his duty, to hear and determine the proceedings in contempt in vacation, then the writ should issue.

The position taken by counsel for respondent may be thus stated: A contempt committed in the immediate view and presence of the court, or judge at chambers, under the statute, may be punished summarily (Code of Civil Procedure, Section 2172); that under this section of the Code a judge at chambers would have the authority to punish as for a contempt the violation out of his presence of an order made by a judge at chambers. But respondent contends that there is no authority given by Section 2172, supra, or by any other section of the statutes, by virtue of which a judge at chambers may punish as for a contempt the violation of an order or decree made in term time.

To determine the questions presented, it becomes necessary to examine the statutes by which it is claimed the power to punish at chambers, and as for a contempt, disobedience of the judgments or orders of court is given. Section 171 of the Code of Civil Procedure, among other things, provides: “The judge of the District Court may at chambers * * * grant all orders and writs which are usually granted in the first instance upon an ex parte application, and at chambers hear and dispose of such orders and writs; and may also, at chambers, make any order, issue any process, and hear and determine any matter necessary in the exercise of his powers in matters of probate, or in any action or proceeding provided by law. If a jury is necessary the judge may open court and obtain a jury as in other cases.”

Section 2170 of the Code of Civil Procedure declares certain acts or omissions in respect to a court of justice, or proceedings therein, to be contempts of the authority of the court. Subdivision 5 of said section is as follows: “Disobedience of any lawful judgment, order, or process of the court. ’ ’

The affidavits presented to respondent, and upon which the order to show cause was based, charged that the defendant Kempton had willfully disobeyed and disregarded a valid and existing order and decree of the court. Under Section 2170, supra, this was a contempt of the authority of the court. One of the steps that may be taken in proceedings for contempt is an application for, and the granting of, an order to show cause. In the opinion of the Court, express authority to make the order to show cause and to hear and determine the proceedings for contempt in vacation is expressly given by Section 171, supra. An order to show cause is one “usually granted in the first instance upon an ex parte application;” and this section, which gives to the judge at chambers the power to make such an order, likewise gives him power at chambers to hear and dispose of the same. This Section (171) further provides that a judge at chambers “may make any order * * ant| hear and determine any matter necessary in the exercise of his powers * * * in any action or proceeding provided by law. ’ ’ Here, also, is express authority found to grant the order to show cause and to hear and determine the proceedings for contempt. Nor does this section of the Code limit the powers of a judge at chambers to the punishment, as for contempt, of the disobedience of orders made in vacation. Disobedience of an order made during a term of court may Be punished at chambers in vacation. To hold otherwise would be to overlook one of the patent purposes of this statute, and that was: to give to the judges of the district courts of this state, not continually in session, the power to enforce, in vacation, obedience to orders and decrees made in term time.

Support for this construction is to be found in the several sections of Title V of Chapter III of the Code of Civil Procedure, entitled ‘ ‘Contempts. ’ ’ An examination of this title shows that it is the court or judge, and not the court alone, who is authorized to punish in the manner and fonn prescribed by statute those acts and omissions designated therein as con-tempts of the aúthority of the court. For instance, the last section of this title (Section 2183) provides that “the judgment and orders of the court or judge,- made in cases of contempt, are final and conclusive, and there is no appeal, ’ ’ etc.; thus plainly showing that the judgments and orders contemplated by the statute are those which may emanate from a. judge at chambers as well as from the court itself. When Sections 2170 — 2183 of the Code of Civil Procedure are read in connection with Section 171, supra, we are of the opinion that the conclusions we have reached are those in keeping with the intent and spirit of the statute^

Counsel for respondent cites a number of cases in which the powers of judges at chambers are considered and defined. A leading case is that of People v. Brennan, 45 Barb. 347. The court in this case reached the following conclusions: ‘ ‘That the court cannot punish as for a contempt a disobedience of an order made by a judge out of court, unless-such order is made in an action pending in the court; and that a judge out of court has no authority to punish as for a contempt a disobedience of an order made by him in a statutory proceeding before him, unless authority so to punish is expressly conferred by law.” This case, and those of like holding, are not in conflict with the conclusions reached herein, because our statutes give to a judge at chambers the power and authority denied him by the statutes of those states wherein the cases cited by counsel for respondent were decided. It may be added that in many states, besides our own, statutes have been passed which authorize at chambers and in certain cases the exercise of the power to punish as for a contempt the disobedience of a lawful judgment or order of the court. (4 Enc. Pl. & Prac. p. 340).

Under the authority of Raleigh v. First Judicial District Court, 24 Mont. 306, 61 Pac. 991, mandamus is the proper remedy, and it follows from the conclusions we have reached that the writ should issue as prayed for, and it is so ordered.

Writ Granted.


author: MR. CHIEF JUSTICE BRANTLY, Mr. Justice Wore: Mr. Justice Picjott:

text:
    STATE ex rel. CLARKE, Relator, v. MORAN, Defendant.
    [No. 1620.]
    [Submitted October 24, 1900.
    Decided October 29, 1900.

      Constitution — Supreme Court — Original Jurisdiction — Injunction — Mandamus — Election Laws.

    1. Under the constitutional grant of original jurisdiction to the Supreme Court, the writ of injunction is the equity arm of the Court’s original jurisdiction, and it with the other writs granted, fully equip the Court as a court of first resort on all judicial questions affecting the sovereignty of the state, it franchises, or prerogatives, or the liberties of the people.
    2. Under the constitutional grant of original jurisdiction to the Supreme Court, the writ of injunction is made correlative with that of mandamus', and may be resorted to to restrain excess just as the writ of mandamus may be used in the same class of cases to compel action and supply defects.
    3. Under the constitutional grant of original jurisdiction to the Supreme Court, the writ of injunction may properly be used to control a public officer in the exercise of his duties under the election laws, — i. e. to restrain him from proceeding under a valid election law to act in excess of his duty.
    4. Under the constitutional grant of original jurisdiction to the Supreme Court, mandamus wiil not lie to restrain a public officer who is proceeding to do what the law does not permit.
    5. Under the constitutional grant of original jurisdiction to the Supreme Court, where the facts stated, in an application for the writ of injunction, present a case affecting the interests of the whole people of the state, the Court has jurisdiction to issue the writ.
    6. It is proper that a proceeding in the Supreme Court for an original writ should be instituted in the name of the state by the attorney general, but where public and private rights meet — under the election laws — the proceeding may be instituted upon the relation of an elector who seeks redress for himself and the great body of the electors to which he belongs.
    7. Under the election laws there can be only one regular organization of a party under a particular designation representing a party principle.
    8. A political convention not being composed-of delegates selected under the regular party call has no authority to act in any capacity for that party.
    9. Facts reviewed, and held, to warrant the Supreme Court in the exercise of its original jurisdiction to issue the writ of injunction.
    Mr. Jnstice Pigott concurring In the disposition of the case upon the merits, but dissenting from the holding that there is a jurisdictional writ of injunction provided for in the Constitution, and from the holding that mandamus is not the remedy.
    Original application by the state on the relation of George A. Clarke for an injunction to restrain John E. Moran, county clerk and recorder of Silver Bow county, from printing upon the official ballot a ticket designated as the “Eight Hour Republican Party” ticket.
    Demurrer overruled and writ granted.
    Statement of the Case.
    Original application for an injunction to restrain John E. Moran, clerk of Silver Bow county, from printing upon the official ballot a ticket designated as the ‘ ‘Eight Hour Republican Party” ticket, which named candidates for county and judicial offices, and for members of the legislative assembly, for Silver Bow county.
    The petition states the following facts: .On August 27, 1900, there assembled in the city of Butte, pursuant to a call of the regularly constituted authorities of the Republican party, a convention of the party for the purpose of naming-party candidates for county and judicial offices, and for members of the legislative assembly. This convention made its nominations and, through its chairman and secretary, filed the proper certificate with the county clerk. The petitioner herein was one of the nominees of this convention for the office of representative in the legislature.
    On the 16th of the same month a convention was called by one John Bevan and one W. H. Nichols, signing themselves, respectively, as chairman and secretary, and claiming to represent the regular party organization, to assemble in Butte on August 25th for the purpose of jmaking the party nominations. Another purpose of this convention was to select delegates to represent the party in the state convention, which was to sit at the city of Helena on September 5th. In the call of this convention apportionment of delegates was made among the various precincts, but there was an omission to designate places for holding primaries in fourteen out of forty-eight precincts in the county. The convention assembled pursuant to the call and organized by selecting Samuel H. Treloar and Joseph M. Pyle as chairman and secretary, adopted a platform commending the national administration and declaring in favor of its policies, and, after selecting delegates to the state convention, adjourned subject to the call of the chairman and secretary. The delegates so selected sought admittance into the state convention but were repudiated on the ground that they had been selected by a convention called without authority and had no right to represent the party. Delegates selected by the convention of August 27th were seated in their stead.
    On September 26th, Samuel H. Treloar and Joseph M. Pyle, as chairman and secretary of the convention of August 25th, published in the Butte Miner, a daily newspaper, the following notice:
    “Notice. ”
    “The Republican convention which was held on August 25th and which was adjourned subject to the call of the chair, is hereby called to reconvene on Wednesday 26th inst. at 12 o’clock, noon, at Sutton’s Family Theatre to transact such business as may come before it.”
    At the hour fixed a portion of the delegates assembled. A full list of candidates for county and judicial offices, and for the legislative assembly, was named, after the adoption of the following resolution: “We adopt as our party name that of Eight Hour Republican Party, and that it be used at the head of our ticket. ’ ’ A certificate was properly executed and filed with the defendant as clerk of the county, under the designation stated in the resolution.
    It is further alleged, in substance, that the persons composing the convention last mentioned claimed to represent the regular Republicans of Silver Bow county; that their convention was called as a Republican convention; that notwithstanding these claims, when they found that the were not recognized as such representatives by the state convention, they thereupon under the resolution aforesaid, without further consultation of the people, and without any call, or caucuses, or primaries for any “Eight Hour Republican Party” convention, assumed to nominate a ticket under that designation, when, as a matter of fact, no such party had ever had any existence in Silver Bow county or the state of Montana; that such designation is not of special significance or distinctive of any principle, inasmuch as all the conventions of all parties in the state of Montana, and especially the Republican county convention of Silver Bow county have adopted resolutions favoring an eight hour day for labor; that the ticket thus named was intended and designed to injure the regular Republican ticket by drawing votes therefrom to the Democratic and Populist Fusion ticket; and that the defendant, unless restrained from so doing, will print said ticket upon the official ballot to the injury of petitioner and those in like situation with him.
    The petition was filed by consent of the attorney general. Thereupon an order to show cause was issued returnable on October 24th. The defendant interposed a demurrer to the petition and rested upon the questions thus raised. The grounds of the demurrer are: (1) That this Court has no jurisdiction of the subject matter of the action; (2) that the state has no legal capacity to sue; and (3) that the petition does not state facts sufficient to state a cause of action.

      Mr. Wm. 11. Be Witt, and Mr. M. J. Cavanaugh, for Relator.

      Mr. N. W. McConnell, and Mr. J. B. Clayierg, for Defendant.
   MR. CHIEF JUSTICE BRANTLY,

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

The argument of counsel upon the first ground of the demurrer is, that this Court, in injunction proceedings, sits as a court of equity; and that as such its powers are limited to the protection of civil rights only; that the rights involved herein are purely political; and that this Court therefore has no power to consider or adjudge them, whether the relator be aggrieved or not.

Although this Court in the exercise, of its original jurisdiction under Article VIII, Section 3 of the Constitution, has frequently granted writs of injunction to restrain ministerial officers from violation of their duties in connection with the administration of the election laws (State ex rel. Woody v. Rotwit, 18 Mont. 502; State ex rel. Russel et al. v. Tooker, id. 540; State ex rel. Metcalf v. Johnson, id. 548; State ex rel. McLaughlin v. Bailey, id. 554; State ex rel. Gillis v. Johnson, id. 356; State ex rel. Matts v. Reek, id. 557; State ex rel. Matts v. Fisher, id. 560), the first q.uestion presented by the demurrer has never been decided. The power of this Court to issue any original writ was challenged in In re McKnight, 11 Mont. 126, but it was there held that the provision in the section cited: “Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction, ” is a clear grant of original jurisdiction. The purposes for which the grant was made are not discussed, Mr. Justice Harwood contenting himself by saying: “The writs named are defined in law; and their use in the administration of justice is fixed by long usage and well settled principles.” This is well said of all the other writs, except injunction, for they are all common law writs of weli defined and well known functions. It is also true as applied to the writ of injunction used, as it ordinarily is, as a judicial writ, by courts of equity in aid of jurisdiction and not as a foundation of jurisdiction. But when we examine the Constitution for other provisions throwing light upon the purpose for which the power to issue this writ was conferred upon this Court, and the nature of the relief to be granted by it, we find that we are entirely in the dark; for there is no other jurisdiction granted anywhere which this writ may aid, and no suggestion outside of the use of the word itself and the associations in which it is found, to aid us in declaring and defining its uses. For in view of other provisions (Const. Art. VIII, Section 11), giving the district courts original jurisdiction “in all cases at law and in equity,” and to this Court appellate jurisdiction in the same class of cases (Art. VIII, Section 3), we must conclude that whatever may be its appropriate functions, it is not intended to be used as a judicial writ in ordinary equity proceedings for the protection or enforcement of private rights. The contrary assumption would render the jurisdiction of this Court merely concurrent with that of the district courts, and its appellate jurisdiction of no practical use. Fortunately, however, pressed for time as we are in a decision of this and other important questions pending before this Court, we find the nature and functions of this writ discussed and defined by the court of another state having a similar constitutional provision. In Attorney General v. Railroad Companies, 35 Wis. 425, an application was made to the Supreme Court for a writ of injunction to restrain the defendant railroad companies from exacting tolls for the carriage of passengers in excess of the rates provided by law. After calling attention to the fact that this non-jurisdictional writ is grouped with other jurisdictional writs, the Court proceeds to discuss the anomalous character thus impliedly given it and concludes: “And, plainly recognizing the intention of the Constitution to vest in this Court one jurisdiction, by several writs, to be put to several uses, for one consistent, congruous, harmonious purpose, we must look at the writ of injunction in the light of that purpose, and seek its use in the kindred uses of the other writs associated with it. Nosoitur a sooiis is an old and safe rule of constrnotion, said to have originated with as great a lawyer and judge as Lord Hale, peculiarly applicable to this consideration. Lord Bacon gives the same rule in a more detailed form, more emphatic here. Copulatio uerborum indicat acceptionem in eodem sensu. Here are several writs of defined and certain application classed with one of vague import. We are to be guided in the application of the uncertain, by its certain associates. The joinder of the doubtful writ with the defined writs operates to interpret and restrict its use, so as to be accepted in the sense of its associates; so that it and they may harmonize in their use, for the common purpose for which it is manifest that they were all given. And thus, in this use and for this purpose, the constitution puts the writ of injunction to prerogative uses and makes it a quasi prerogative writ.”

Thus, along with the common law prerogative writs of well defined uses, we have a new prerogative, or quasi prerogative writ to be applied to uses for which we find it most appropriate; and the result of that case is, that this writ is the equity arm of the Court’s original jurisdiction, and that it with the other writs granted, fully arm and equip the Court as a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. The writ is made correlative with that of 'mandamus, and thus it may be resorted to to restrain excess, just as the writ of mandamus may be used in the same class of cases to compel action and supply defects. The language of the Wisconsin court is: ‘‘And it is very safe to assume that the Constitution gives injunction to restrain excess, in the same class of cases as it gives mandamus to supply defect; the.use of the one writ or the other in each case turning solely on the accident of overaction or shortcoming of the defendant. And it may be that where defect and excess meet in a single case, the court might meet both, in its discretion, by one of the writs, Avithout being driven to send out both, tied together with red tape, for a single purpose;” and these views are adverted to" and approved in subsequent cases by the samo court. (Attorney General v. City of Eau Claire, 37 Wis. 400; State ex rel. Attorney General v. Cunningham, 81 Wis. 504, 15 L. R. A. 561; State ex rel. Lamb v. Cunningham, 83 Wis. 90, 17 L. R. A. 145, and cases cited; see also Wheeler v. N. C. Irrigation Co., 9 Colo. 248; State ex rel. Moore v. Archibald, 5 N. Dak. 359, 66 N. W. Rep. 234).

The execution of the election laws, defendant insists, is a pure exercise of political power, and it therefore does not fall within the jurisdiction of this Court ,to interfere with a public officer in the discharge of his duties under them, in other words, as no property rights are involved which may be injured by a wrong on his part, this Court has no power to restrain him by means of the writ of injunction, but the relator must be aided, if at all, by means of the writ of mandamus. The same question was presented and urged in the case of State ex rel. Attorney General v. Cunningham, 81 Wis. 504, 17 L. R. A. 561. In that case an application was made upon the relation' of Adams county, for an injunction to restrain the secretary of state from giving notice to proceed to the election of members of the legislative assembly under the apportionment act of 1891, on the ground that the act was unconstitutional and void. The relief was granted, the court holding that the controversy presented involved-the preservation of a constitutional legislature as well as of the rights of the people of the state to equal representation in the "legislative assembly, and as such fell within the original prerogative jurisdiction of the court. Mr. Justice Finney, in a concurring opinion, says in this connection: “It may well be conceded that courts of equity would not, by reason of their original jurisdiction, have authority to interfere by injunction in a case such as this; but it is to be borne in mind that the writ of injunction under our constitution is put to prerogative uses, of a strictly judicial nature, as a remedy of a preventive character in case of threatened public wrong to the sovereignty of the state, and affecting its prerogatives and franchises and the liberties of the people; their rights being-protected in this court by information in the name of the state, on relation of the attorney general. ” And again, in another place, he says: “The truth is that the power of the respondent to notify elections is in no just sense whatever political; and, in view of the purely ministerial nature of his duty, it is a misuse of terms to assert that his power or duty is in any sense political. The act he is required as a ministerial officer to assist in executing, by giving the notice, is the result of legislative power, and therefore, it may be said, of political power; but this does not make the act required of the respondent, in giving or refusing to give the notices, which is a mere consequence of the exercise of political power, a political act, so as to prevent judicial examination of his conduct in acting or refusing to act for that reason, if the law is void for conflict with the constitution. ” So in the present case, though the question is presented in a different way. It is not here, a question whether a law is unconstitutional and the defendant should be restrained from proceeding under it, but a case where, as we shall presently see, he is proceeding under a valid election law to act in excess of duty. He is proceeding to print upon the official ballot a ticket which he has no authority of law to print upon it. The relator is a candidate for public office. He is entitled to have his name appear upon the ballot under the proper designation equally with his associates. Equally with them and all the other voters in the county he is entitled to vote, and to the use of a ballot for this purpose, with the tickets, and those only, upon it which the law authorizes to go upon it. He is entitled to insist that the defendant shall not only do his duty in causing to be printed the tickets properly nominated, .but he, in common with all the other voters, may also insist that their rights may not be impeded and perhaps imperilled by having the ballot weighted down by other tickets which can serve no purpose other than to delay, mislead and confuse them in the exercise of their rights at the ballot box. The right to vote and to be a candidate for office are political rights. The duties of the defendant to prepare and print the ballot have to do with these political rights, for they are the media through which the citizen may properly and safely express his will in the choice of those who shall serve the public. They are the result of the action of political power, and are themselves only other modes by which the same power is given expression. They nevertheless involve substantial rights which are the subject of judicial examination, protection and enforcement, just as are all other rights which are guaranteed and protected by law.

It is claimed in this case that mandamus is a proper remedy and, therefore that injunction is not. With this contention we do not agree. There is not here presented a case in which there is a default in the performance of duties required by law, but one in which the defendant is proceeding to do what the law does not permit. To restrain this excess, as prohibition may not go to a ministerial officer (State ex rel. Scharnikow v. Hogan, ante p. 379, 62 Pac. Rep. 493), injunction is best suited.

It is urged by counsel that the state has no legal capacity to sue in this case, because it appears that the public has no interest in this controversy. The argument is that this Court should exercise its original jurisdiction under the writ of injunction only in cases of gjublici jwds, and that as the facts stated in the petition show that only private rights are involved, or, at most, that only the people of Silver Bow county are interested. Our attention is called to Section 23 of the Code of Civil Procedure, which provides that * * no action to obtain an injunction must be commenced in the Supreme Court, except in cases where the state is a party, or in which the public is interested, or the rights of the public are involved, but the proper district court has jurisdiction of all inj unctions, and the commencement of all actions therefor, except as in this section provided * * *’ ’ Waiving the question as to the power of the legislature to prescribe the cases in which this Court may issue an injunction, the argument might be of force if only the election of local officers in Silver Bow county were involved in this case. It might then be urged, though we do not say effectively — for it is not necessary to decide the point — that the case affects only the people of that county and the controversy should be left to the district court in the ordinary course of litigation. The facts stated present a case affecting' directly the interests of the whole people of the state. In our representative form of government the whole people are interested in having the election laws enforced, to the end that the best possible results may be obtained. Especially is this true when we are engaged in the selection of men to whom we at the same time entrust the power to enact laws for the state, to otherwise regulate public affairs, and to provide for tbe collection, appropriation and disbursement of the public revenues. Not only is every patriotic citizen interested in the selection of suitable candidates for members of the law-making body, but every citizen in the state has a direct personal interest in the proper conduct of the election by which a choice of candidates is made. Each county elects its own members of this body, but, in doing so, it acts on behalf of the whole people, and the state is just as vitally interested in the ultimate result as if all the legislators were chosen by the people at large.

While, in settling such controversies, the Court protects the personal rights of the candidates, it also performs the much more important function of restraining a public officer to the bounds of duty and preserves the ballot from unlawful interference by sinister influences the object of which is to injuriously affect the result to accomplish selfish ends. So it is that, conceding the power of the legislature to lay down a rule limiting the classes of cases in which this Court may issue the writ, this case falls clearly within the class of those in which the public is interested or the rights of the public are involved, and the objection that it is one in which the Court has no. jurisdiction is not sustained.

It is proper that the proceeding should be instituted in the name of the state. It is none the less proper that in a case like the present, where public and private rights meet, the proceeding should be instituted upon the relation of an elector who seeks redress for himself and the great body of electors to which he belongs. It is not for the attorney general to determine, whether such a proceeding shall be instituted, but for the Court to say whether it will entertain it when the case is presented for its consideration. A relator is not indispensable, but it is desirable that some one should stand to answer for the propriety of the suit and be chargeable with costs if it be determined that the relief sought should be denied. (State ex rel. Lamb v. Cunningham, 83 Wis. 90, 17 L. R. A. 145; State ex rel. Attorney General v. Cunningham, 81 Wis. 504; State ex rel. Drake v. Doyle, 40 Wis. 185; Merrill on Mandamus, Sec. 233). The relator in the present case has such an interest in the case, both as a citizen and a candidate, that this Court may in its discretion and at the relator’s instance, restrain the defendant from a violation of his duty. The writ has heretofore been issued by this Court on the relation of private parties, as appears from State ex rel. Woody v. JRotwitt, supra, and the other cases cited, though the propriety of the practice was not considered in any of them.

The facts stated in the petition are clearly sufficient to warrant the relief sought. It appears that a regular convention of the Republican party was called by the proper party authorities in Silver Bow county, to assemble in the city of Butte on August 27, 1900. This is not controverted. No other persons belonging to the party, although they assumed to act for it, were clothed with authority to assume control of the party machinery and act for it. So long as this fact ■ remains, the members of the Republican party of that county, and also this Court, are concluded by it (State ex rel. Scharnikow v. Hogan, ante p. 383, 62 Pac. Rep. 583; State ex rel. Kennedy et al. v. Martin, id. 403, 62 Pac. 588; State ex rel. Hatch et al. v. Smart, id. 413, 62 Pac. Rep. 591). For there can be only one regular organization of a party under a particular designation representing a party principle. It is said by defendant that sufficient appears from the peti tion to show that there were two rival factions in the party, that the name ‘Eight Hour Republican Party” was assumed in order to give the dissenting faction a distinguishing designation for the information of the electors, and that this case falls clearly within the principle of State ex rel. Gillis v. .Johnson, 18 Mont. 556. Passing over the allegation of the relator that, as a matter of fact, all the parties in their county platforms favored an eight-hour day for labor, and that the designation assumed is not distinctive of any principle, we do not think this contention sustained. There were rival conventions, ■ the one called by authority, and the other without it. Each claimed to represent the party. The subsequent behavior of the convention of August 25 demonstrates the fact, however, that it did not, after the meeting of the state convention, any longer assume to represent the regular organization. If authorized to act at all, the delegates composing it were authorized to act as Republicans, for they were selected, so far as selections were made at the county primaries, as delegates to a Republican convention. They had no authority to name any other than a Republican ticket. The somewhat summary proceedings of September 26 were taken without consultation with the party electors in the county, and, so far as appears in this proceeding, the delegates assumed power to act as they did in venturing to adopt a name and to nominate a ticket, and to this extent acted for themselves only. The case does not therefore fall within the principle of the case cited, but is governed by the principle of State ex rel. Scharnikow v. Horgan, cited, and State ex rel. Russel v. Tooker, 18 Mont. 541; State ex rel. Metcalf v. Johnson, id. 548; and State ex rel. McLaughlin v. Bailey, id. 554. The convention not being composed of delegates selected under the regular party call, it hud no authority to act in any capacity for the Republican party. The delegates could acquire no authority to act for anyone else until the electors were again consulted, and a representative body selected from among those electors who entertained political opinions in sympathy with those entertained by themselves. It seems that the whole purpose sought was the naming of a different Republican ticket from that named by the regular convention, and to secure it a place upon the ballot to the detriment of the regular ticket.

The demurrer is therefore overruled. The defendant having stated to the Court at the hearing that he does not care to resist the issuance of the writ in case the questions presented by the demurrer are decided adversely, it is accordingly ordered that the defendant be enjoined and restrained from printing upon the official ballot the “Eight Hour Republican Party” ticket, and that the defendant be adjudged to pay the costs of this proceeding.

Writ Granted.

Mr. Justice Wore:

I concur.

Mr. Justice Picjott:

I dissent. In my opinion mandamus., not injunction, is the remedy to compel the county clerk to certify the proper list of nominations. His ministerial duty, the performance of which the law requires, is to include in the list the names of those candidates who have been nominated conformable to the statute in that behalf enacted, and the names of no others. Injunction will not lie when the remedy at law is plain, speedy and adequate. In the case at bar injunction is used to accomplish the precise result that mandamus would effect. The extraordinary jurisdiction of the chancery arm of the Court should never be exercised except in those cases where the remedy which the legal arm of the Court can give is inadequate. I am of the opinion also that Section 3 of Article YIII of the Constitution does not grant to this Court authority to issue the writ of injunction as a jurisdictional writ. I think the writ of injunction mentioned in the section is a writ which may be issued only in a pending suit. It is a remedy in an action. At the time the Constitution was adopted, there was no such writ of injunction as the one issued in the present proceeding; nor was such a writ known to courts of chancery.

While I concur in the disposition of the case upon the merits, I dissent from the holding that there is a jurisdictional writ of injunction provided for by the Constitution, and from the holding that mandamus is not the remedy.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. LANNEN et al., Relators, v. ARMS, Respondent.
    [No. 1624.]
    [Submitted October 30, 1900.
    Decided November 1, 1900.]

      Elections — Injunctions.

    Application to the Supreme Court for injunction to restrain a county clerk from printing upon the official ballot a ticket designated as the “Bryan Democratic” ticket. Pacts reviewed, and Held, that under the facts the relators were not entitled to the relief sought.
    Original application by the state on the relation of Edward Lannen and others, for an injunction to restrain Daniel Arms, as county clerk and recorder of Granite county, from printing upon the official ballot a ticket designated as the ‘ ‘Bryan Democratic” ticket.
    Dismissed

      Mr. I J. Walsh, for Delators.

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

delivered the opinion of the Court.

Original application for injunction to restrain the defendant, as clerk of Granite county, from printing upon the official ballot a ticket designated as the ‘ ‘Bryan Democratic’ ’ ticket. Under an order to show cause, the defendant appeared and hied an answer admitting many of the allegations of the petition, but controverting others and setting up matters in avoidance. To this relators interposed a general demurrer, and upon the questions arising out of the facts thus admitted the parties rested.

These admitted facts are: The county Democratic convention under regular .call of the central committee, assembled at the court house in the city of Philipsburg on September 17, 1900, and after selecting delegates to the state convention to meet in Helena on the 19th, adjourned to October 1, at which time the relators Lannen and Lucas were selected as candidates for the legislature, and the other relators for the various county offices. A proper certificate of these nominations was filed with defendant. There were two factions in this convention, the points of difference between them growing out of charges by nineteen of the forty-three delegates composing it, that the majority faction was dominated by corporate influences which intermeddled in the administration of the affairs of the state. These nineteen delegates, being in the minority, withdrew from the convention of September 17, and, proceeding to the city hall, organized another convention. After appointing delegates to the state convention a central committee was selected. The convention adopted as its party designation “Bryan Democratic” and thereupon the persons selected as chairman and secretary of the central committee formulated an address to the “Bryan Democrats” of the county. In this address all who believed in the principles of the Kansas City platform of the Democratic party, and who were opposed to corporate control of county politics were invited to join with that faction at an adjourned meeting of the convention to be held at the opera house on October 2. Delegates were apportioned among the various precincts in the county, and all precincts not represented in the convention on that day were invited to send delegates. The convention then adjourned to October 2. In the meantime the call was duly published, and in pursuance thereof primaries were held in all save six small precincts in the county. When the convention assembled on October 2, full delegations were present from all precincts, except one entitled to one delegate, and five small precincts entitled to six delegates, not holding primaries, were represented by delegates who attended the first convention. The remaining fourteen of the nineteen bolting delegates attended as members of the delegations from the various precincts in which they were chosen under the regular call. The convention duly organized and nominated candidates to the legislature and a full county ticket.

The defendant insists that the admitted facts present a case fairly within the principle of State ex rel. Gillis v. Johnson, 18 Mont. 556; and that, as no confusion can possibly arise from the presence of the ticket in question upon the ballot, the contention involved may well be left to the electors to decide. We are not inclined to extend the principle of this case to .circumstances not identical with those presented therein. The situation presented in that case was anomalous and we are inclined to doubt its correctness, in view of conclusions reached in other cases decided at the present term (State ex rel. Clarke v. Moran, ante)\ but, whether correct or not, we do not think it applicable to the facts presented here. There the convention divided into two factions, and each acted without consulting the electors. In this case, the seceding faction, not content to act alone, proceeded to call to their aid representatives óf all others in the county who were of like mind. It is true the call apparently excluded from the convention called for October 2, the electors in those precincts which were represented by the seceding delegates, yet as a matter of fact primaries were held in all the precincts in the county, except six, and these were entitled to only seven delegates. All, save one of these, were represented by the delegates to the former convention. Applying a strictly technical rule we would be compelled to say that the convention was not a representative body; for in so far as any of the electors were excluded from representation under the call, the convention, to that extent, was not representative; but adopting a less technical view, and bearing in mind that it is often the case in these political meetings that persons who happen to be present from localities that are unrepresented, are permitted to take part, we are inclined to think the assemblage was a fairly representative one, and that the ticket named by it is entitled to a place on the ballot. To state the proposition in a different way, we are not so well satisfied that the meeting was not a representative one so that the ticket should be omitted from the ballot. We are.more inclined to this view for the reason that it permits the people of a particular county to contest the control of their local affairs upon distinctive principles, which are often important but of local interest only, and do not concern, except in a very remote way, the public at large. There seems to be enough of a distinctive principle in the designation chosen for the ticket, as interpreted by the circumstances attending the factional strife, to warrant the conclusion that these differences were actual and substantial. In any event, we have concluded that under the facts stated the relators are not entitled to the relief sought. Accordingly the demurrer is overruled and the petition dismissed at the cost of the relators.

Dismissed.


author: MR. JUSTICE PIGOTT

text:
    STATE ex rel. ALLEN, Plaintiff, v. NAPTON, Judge, Defendant.
    [No. 1598.]
    [Submitted October 2, 1900.
    Decided November 13, 1900.]

      Certiorari — Appeal from Justice’s Court to District Court— Jurisdiction — Appeal Bond— Sureties — Justification.
    1. The fact that one is an agent or attorney of a party beneficially interested in an application for certiorari does not attract to him the beneficial interest of his principal, so as to enable him to make the application under Code of Civil Procedure, Section 1942, requiring the application to be made by the party beneficially interested.
    2. Code of Civil Procedure, Section 1942, declares that an application for Certiorcvri must be made by the party beneficiaily interested. Section 774 declares that the court may allow a party to amend any pleading by adding or striking out the name of any party or correcting a mistake in the name of a party; and Section 778 requires the court to disregard any error in a pleading not affecting substantial rights of the parties. Held, that where it appeared from an application for certiorari that the application was not made by the one beneficially interested, but by another on his behalf, and the defendant had not been misled or jeopardized by reason of the error, an amendment substituting the real party in interest as plaintiff should be allowed.
    3. Code of Civil Procedure, Section 1942, requires an application for certiorari to be made on affidavit by the party beneficially interested. Section 731 declares that all complaints required to be verified may be sworn to by the agent of the party beneficially interested having knowledge of the facts. Held, that Section 1942 should be construed as meaning tliat tile application should lie made by the party beneficially interested, but that the affidavit in support thereof might be made by anyone conversant with the facts.
    4. Respondent in certiorari could not lie heard to say that the proceedings were defective because the verified application for the writ was not served on him, where he appeared generally, and moved to dismiss the writ, since he thereby cured any defect in the service.
    5. An appeal will not lie from an order of a district court requiring that appellee on an appeal from justice’s court give tire bond required of a plaintiff not a resident of the state, or that the action would be dismissed at his cost, since Code of Civil Procedure, Sections 3722,1723, as amended by Sess. Laws 1899, p. 146, enumerating the orders and judgments from which appeals may be taken to the Supreme Court, is exclusive, and does not designate any such order.
    6. Where a district court erroneously made an order that an appellee in an appeal from a justice’s court give bond as a nonresident, or that the action would be dismissed at his cost, a writ of certiorari to review such order would not be dismissed on the ground that plaintiff had a plain, speedy, and adequate remedy other than certiorari.

    7. Where the respondent, on an appeal from a justice’s court, duly excepted to the ' sufficiency of the sureties on appellant’s appeal bond, and said sureties did not justify, nor was any notice given that they would justify, but only notice of the filing of a new undertaking with different sureties who likewise never justified nor gave notice that they would justify, and it appeared that respondent never waived a justification. Held: that by reason of noncompliance with the mandatory provisions of Sections 1760,1763 of the Code of Civil Procedure, governing appeals to the district courts, the district court was without jurisdiction of the action, — even to enter an order therein providing for the dismissal thereof at the respondent’s costs unless he complied with certain requirements specified in the order.
    8. The ‘notice” mentioned in Section 1763 of the Code of Civil Procedure, is not notice of the filing of a new undertaking, but notice of the time and place when and where the sureties will be examined touching their qualification.
    Certiorari by the state of Montana, on the relation of C. W. Allen, substituted for J. H. Duffy, to Welling Napton, judge of the district court of the Third judicial district of Montana for the county of Deer Lodge, to vacate an order requiring plaintiff in an action appealed from a justice’s court, in which he was appellee, to give bond required by statute to be given by a nonresident plaintiff.
    Motion to quash the writ denied.

      Messrs. Duffy dé Casey; for Plaintiff.

      Mr. B. F. Maiden, for Defendant.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Certiorari. In the case of Allen against Gibbs, pending lief ore a justice of the peace in the county of Deer Lodge, on the 24th day of March, 1900, judgment was rendered in favor of the plaintiff for $25 and costs; on the 4th day of April Gibbs served and filed a notice of appeal to the district court, and on the 20th day of the same month he filed an undertaking on appeal. On April 23d Allen served and filed his exceptions to the sufficiency of the sureties. On April 27th Gibbs gave notice to Allen of the filing of a new undertaking executed by sureties other than those who had signed the first tindertaking, and on April 28th the new undertaking was filed. None of the sureties justified; nor was notice that they would justify ever given; neither did Allen waive justification. On May 3d the justice of the peace transmitted to and ‘caused to be filed by the clerk of the district court of the county of Deer Lodge the proper transcript on appeal; and on the same day Allen served and filed a notice of motion to dismiss the appeal upon the ground that the sureties on neither undertaking had justified as required by the statute. On May 9th the Court denied the motion to dismiss the appeal. Thereafter Gibbs obtained from the district court an order, dated the 7th day of August, 1900, which, after reciting that Allen, at the commencement of the action, was, and then remained, a nonresident of the state of Montana, and the motion of Gibbs for an undertaking to secure costs, required that Allen must, within 30 days from that date, file an undertaking in the sum of $300, conditioned according to the provisions-of the statute, “failing which this action will stand dismissed at plaintiff’s costs.” Since this order was made, no further action, so far as the record discloses, has been taken in the court below. This proceeding was instituted for the purpose of annulling the order of August 7th. In the title of the proceeding J. H. Duffy is named as the relator and plaintiff, and in the body of the affidavit in support of the application for the writ Duffy is described as the “petitioner;” the further averments being that he is the agent and one of the attorneys for Allen, and as -such is beneficially interested therein, and that Allen is a nonresident of and absent from the county of Deer Lodge and state of Montana, wherein Duffy resides.

On the hearing in this Court the defendant, the judge of the district court of Deer Lodge county, moved to quash the writ and to dismiss the proceeding upon the grounds hereinafter stated. Counsel for the plaintiff then asked leave to amend the application and writ by substituting the name of Allen as the plaintiff in the place of that of Duffy.

The first ground of the motion to quash the writ and to dismiss the proceeding is that the application was not made by the party beneficially interested. There is no allegation of fact indicating that Duffy is the proper party plaintiff in this proceeding. The fact that he is the agent and attorney of the party beneficially interested in no wise attracts to him the beneficial interest of his principal or client. The amendment sought to be made is, however, one of form, for the body of the application for the writ states facts which show beyond question that the only person beneficially interested is Allen; and the averment therein that Duffy is beneficially interested must be disregarded in the consideration of this phase of the proceeding. By Section 774 of the Code of Civil Procedure, the Court may, in furtherance of justice, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may, in its discretion, allow an amendment to any pleading or proceeding-in other particulars; and by Section 778 of the same Code, the Court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.

We have, then, a special proceeding wherein the wrong party is named as the plaintiff, although it clearly appears from an inspection of the application for the writ that another person is the party beneficially interested, and that the proceeding is prosecuted in behalf of such person. The use of Duffy’s name instead of Allen’s resulted from a'mistaken view with respect to the person having the beneficial interest. The defendant was not, and could not have been, misled or injured, or his rights jeopardized, by reason of this formal error. The statement that Duffy is the party beneficially interested is a mere conclusion of law, which is not only unsupported by the averment of any fact, but is conceded to be untrue. The amendment prayed for is one authorized by the statutes, and will be allowed, and the name of Allen is directed to be substituted for that of Duffy. The title will be changed accordingly.

That the affidavit for the application was not made by Allen, the party beneficially interested, is another ground of the motion. Section 1942 of the Code of Civil Procedure requires the application for a writ of certiorari to be made on affidavit by the party beneficially interested, and it is insisted that such party must personally make the affidavit. But that section was not intended to deprive an applicant for the writ of certiorari of the right to support his application by the affidavit of any person conversant with the facts. No reason is perceived w'hy the rule concerning affidavits in certiorari should be more strict regarding the proper affiant than is required by Section 731 of the plaintiff in an action. An affidavit by the duly authorized agent or attorney of the party beneficially interested, in which the material averments are stated as true to the knowledge of the affiant, is sufficiant. Again: Section 1492 does not require the affidavit to be made by the person beneficially interested; the application must be made by him, and must be on affidavit. The meaning is made clear by inserting a comma before and a comma after ‘ ‘on affidavit, ’ ’ thus: “The application must be made, on affidavit, by the party beneficially interested. ’ ’ The application must be made by such person, and must be based upon statements under the oath of some one conversant with the facts. In the case at bar the matters contained in the application are stated and sworn to positively by Duffy; hence the question of whether an affidavit upon information and belief only would be sufficient is not raised.

It is argued that the writ should be quashed because the verified application was not served upon the defendant. What miffht have been the riarht of the defendant in this regard had he appeared specially, we do not decide. In his motion to quash and dismiss he appeared generally, and thereby cured the supposed defect in the service.

Counsel for the defendant insists that if the district court committed error in making the order of August 7th, the error may be corrected by an appeal therefrom, and that, therefore, under the provisions of Section 1911 of the Code of Civil Procedure, certiorari will not lie. The order sought to be reviewed does not fall within the description of orders or judgments from which appeals may be taken to the Supreme Court (Sections 1722, 1723 of the Code of Civil Procedure, as amended by House'Pill No. 121, Session Laws of 1899, p. 116); nor is there a plain, speedy, and adequate remedy, unless it be certiorari.

Another ground of the motion to quash the writ and to dismiss the proceeding is, that the application does not state facts sufficient to warrant the issuance of the writ. Sections 1760 and 1763 of the Code of Civil Procedure provide that an appeal may be taken to the District Court from a judgment rendered in a civil action in a justice’s court, at any time within 30 days after the rendition of the judgment, by filing a notice thereof with the justice and serving a copy on the adverse party, and that an appeal from a justice’s court is not effectual for any purpose unless (within 30 days) an undertaking be filed, with two or more sufficient sureties, conditioned as therein provided; “the adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.” Within five days after the first undertaking was filed, the adverse party, Allen, duly excepted to the sufficiency of the sureties; neither the sureties excepted to nor the other sureties ever justified; nor was any notice given that they would justify; neither was there any waiver of a justification. The statute is mandatory: Unless the original sureties or the other sureties justify within five days after the exception, upon notice to the adverse party, the appeal must be regarded as if no such undertaking had been given. The plaintiff seasonably moved the District Court to dismiss the appeal for want of jurisdiction, and, after the court had erroneously denied the motion, it was without authority to proceed with the action, or make any order therein. The District Court had no jurisdiction of the action so attempted to be appealed. (Wood v. Superior Court, 67 Cal. 115, 7 Pac. 200; McCracken v. Superior Court, 86 Cal. 74, 24 Pac. 845; Moffat v. Greenwalt, 90 Cal. 368, 27 Pac. 296). An appeal from the judgment of a justice’s court is but the means whereby the action is transferred to and brought within the jurisdiction of the district court, where the cause is tried anew. Compliance with the laws in the taking of the appeal devests the lower court of further jurisdiction and invests the higher court with jurisdiction of the action. Where there is a fatal defect in the taking of an appeal from a justice’s court, and the respondent does not waive his right, but moves a dismissal of the appeal for lack of jurisdiction thereof, the District Court is without power to hear or determine the action, — even to dismiss it or to order a dismissal unless the respondent shall perform that which is required by the Court. Since the plaintiff seeks to annul- only the order of August 7th dismissing the action unless an undertaking for costs be filed, an enquiry touching the jurisdiction of the Court in denying the motion to dismiss the appeal is not pertinent. The argument is advanced, however, that since Gibbs notified Allen of the filing of the new undertaking the statute was complied with. But it is manifest that the statute requires the sureties, when their sufficiency is excepted to, to justity upon notice to the adverse party that they will justify. The notice mentioned in that part of Section 1763 which has been quoted is not notice of the filing of a new undertaking, but notice of the time and place when and where the sureties will be examined touching their qualification.

The other grounds of the motion need not be stated or discussed. The plaintiff is entitled to a judgment annulling the order of August 7, 1900, with costs. Let such judgment be entered.

Mr. Justice Word, being absent, takes no part in this decision.