Whipple v. Broad

Chiee Justice Campbell delivered the opinion of the court. This controversy is between two factions of the state Silver Republican party of Colorado, the object being to determine which one has the right, at elections, to the use of the party name and emblem. Under our Australian ballot act the political party, by which any list of candidates is nominated, may be designated on the official ballot by an appropriate emblem or design, but no two sets of nominations shall have or use the same emblem or device; and each political party shall have the prior right to use the device used by it at the last similar election. In the pleadings, as in the argument, these factions are designated as the “Broad” and “Blood ” factions, after the chairmen of the two state central committees, and for brevity the same appellation is used in the opinion. Before the secretary of state, in whom the statute vests original jurisdiction to hear and determine such disputes, the Blood faction prevailed; in the district court of Arapahoe county, which has the power to review the rulings of the secretary of state, the findings of the latter were set aside, and judgment was entered in favor of the Broad faction. The discretionary power of this court, which the statute gives, is now invoked by-the former to review that judgment. The delegates from Colorado to the National Republican convention held at St. Louis in 1896 withdrew from that convention because of dissatisfaction with its action in relation to the free coinage of silver; and under their leadership there was formed in this state, by former members of the Republican party, what is known as the Silver Republican party of Colorado, and its basic principle was the free coinage — 409 — of silver at the ratio of sixteen to one by the United States alone. At the November election of that year the party had on the official ballot its state, congressional, and various county tickets, and then adopted as its name the Silver Republican party and chose for its device or emblem a dove bearing a scroll inscribed with the words “16 to 1; ” and at all succeeding elections has maintained its organization, the same name and emblem, and has had its tickets on the official ballots. At the regular November election of 1896 there was a fusion of the silver forces of the state, consisting chiefly of the Silver Republican, Democratic and People’s parties, upon presidential electors and candidates for congress, but only a partial fusion as to state and county tickets. At the state election for supreme judge in 1897 the silver forces were not united, the Democratic and People’s parties supporting one, while the Republican and Silver Republican parties supported another, candidate. In the summer of 1897 a number of Silver Republicans from the different states of the Union met at the city of Chicago, and organized a provisional national committee of the National Silver Republican party to act in that capacity until a national convention of the party was called. Thereafter that committee, through its chairman Charles A. Towne and •the chairmen of the National Democratic committee and the People’s party national committee, issued a joint address to the people advising and recommending that all the friends of silver in the different states of the Union act in harmony at all elections for the purpose of carrying out the basic principle of free coinage of silver, as above referred to. The respective state committees of the Silver Republican, Democratic, and People’s parties, of Colorado, prior to calling a convention of their respective parties, the present year, voted to act in accordance with such joint plan, and each appointed a subcommittee to attend a joint conference for the purpose, so far as they could, of binding their respective parties thereto. This joint committee, however, was unable to agree upon any — 410 — definite plan, and referred the entire matter to the state conventions of the respective parties when they should meet. About forty-eight hours before the meeting of the state convention of the Silver Republican party, which was called to be held at Colorado Springs September 8, 1898, for the nomination of a state ticket to be voted for at the ensuing November election, the evidence shows that charges were made that Richard Broad, who, ever since the organization of the Silver Republican party of Colorado had been chairman of its state central committee, was not acting in good faith and for the best interests of the party, but was conspiring with the leaders of the Republican party to defeat the silver forces of the state, and turn over the organization of the party to the leaders of the Republican party. Charles A. Towne, chairman of the provisional national committee of the Silver Republican party, was summoned to the state, and, without any hearing or notice to Broad of any charges against him, summarily removed him from the chairmanship of the state committee, and appointed in his place James H. Blood. There is no question about the regularity of the proceedings of Broad and his committee in calling the state convention up to the time of the attempted removal. When the delegates who responded to the call met at Colorado Springs, it was found that some of them were in favor of fusion with the Democratic and People’s parties, and others opposed, and as the result of these differences two separate conventions were held in separate halls, one called to order by Mr. Broad, the other by Mr. Blood, each claiming to be the regular convention of the party. Each convention nominated a state ticket, and filed a list of its nominees with the secretary of state in accordance with the statute, each certificate being regular upon its face, and purporting to contain the regular nominees of the party. The position of the respective parties here may thus be stated: The Blood faction claims that its list of nominees is entitled to the use of the party name and emblem because of its adherence to the basic principles of the party, and its — 411 — favoring a fusion of all the silver forces of the state; while, as they charge, the Broad ticket, being nominated by delegates to a convention which has departed from their basic principles, has no longer any right to the party name and emblem. The Broad faction, on the other hand, claims its ticket to be the only genuine one, because it was nominated by a majority of the uncontested delegates who were regularly elected and responded to the call therefor duly issued, and that such majority had the unquestioned right to change the policy of the party, and even to depart from its basic principles, if it saw fit to do so. In other words, that the decision of a convention of the delegates of a political party with respect to party policy is final and controlling; that the same is purely a political question over which the courts have'no control, their inquiry being limited to a determination of the question as to the regularity of the proceedings of the convention in accordance with the party customs and usages. The record is voluminous and contains a vast amount of evidence upon issues which, in the opinion of a majority of tins court, are entirely irrelevant. The evidence is unquestioned that the Broad state convention contained a majority of the uncontested delegates who responded to the call; and for this reason Mr. Justice Gabbert concurs with me in holding that the action of that convention is conclusive upon this court, in the absence of proof that the convention thus constituted was improperly influenced, or that its delegates were not members of the party which they claimed to represent. In our judgment the courts have no control over questions of party policy, but those must be determined by the party itself in its regularly called and organized convention. With the wisdom of the policy, we have nothing whatever to do; and even though the court may be satisfied that the action complained of is unwise and destructive of the party organization, that is a question solely for the party itself in its proper convention, and not for the court. I have referred to the attempted removal of Chairman — 412 — Broad by the National Chairman Towne because I think it has an important bearing upon one phase of this question. From the record in this case I am satisfied that there was no authority for this act, and that the attempted removal was of no force whatever. I do not deem it necessary to go into this question at any length, for to my mind the act was so clearly unauthorized that a bare statement of the proposition is a sufficient argument in that behalf. It would be an anomalous and entirely unheard of proceeding if a self-constituted committee styling itself a provisional national committee of a political party could come into a state, and without any authority from the national, or state, convention of the party, proceed to remove at will, and without notice, the officers of the state organization formed prior to that of the national party. The significance of this is apparent when regularity, and composition, of the respective conventions are considered. There is no question but that the Broad convention was composed of a majority of all the uncontested delegates. But if this were not so, and if we should agree with the contention ■of counsel for the Blood faction that this apparent majority was, in part, made up of members of a rival political party, viz: the Republican party, so that a majority of party delegates was not present, still we must hold that it was the regular convention of the party, for even if, prior to the temporary •organization, a majority of all the lawful delegates entitled to seats hi the convention under the party call were not present, still the convention could proceed with its business, and a majority of the delegates who did respond would be competent to act and bind the party. The fact that some of the delegates refused to recognize the authority of Broad, as chairman of the state central committee, and as a consequence claimed that Blood, and not Broad, was the only proper person to call the state convention to order, and therefore attended the convention called to order by Blood,—cannot operate to make the Broad convention irregular, even though their absence therefrom left less than a majority of the whole number of delegates. Were it otherwise, it would be impossible to — 413 — organize a convention at all, if, for any reason, a majority of those entitled to seats should fail to attend. To the rule which we have laid down that that convention is the party convention which is properly summoned, called to order, and attended hy a majority of the legally elected delegates, and that the proceedings of that majority will hind the party, there may he, and doubtless is, an exception. If fraud is alleged and proven of such a character as that the act of the convention is not the free and untrammeled expression of the will of the delegates, the rule maybe otherwise. It is true that counsel for the petitioner representing the Blood ticket have vigorously contended that a fraud upon the party would he perpetrated if the Broad ticket should be declared to be entitled to the use of the party name and emblem. In the original argument this claim was based upon the proposition that the convention nominating that ticket departed from the basic principles of the party and was, in part, controlled by members of an antagonistic party in adopting a course that is destructive of the original object and organization of the party. As we have already seen, this, of itself, is not the character of fraud that would vitiate the proceedings of a convention. The members of a party may honestly differ as to the course it should pursue in elections. Some might believe that fusion with the Democratic and People’s parties, or either, would be destructive of their own organization ; and other members that an alliance of any kind with the Republican party would have the same result. So when a voluntary political party, speaking only as it can, through a majority of the legally elected delegates of the entire party in an appropriate convention called for the purpose of deciding upon questions of party policy, declares what its policy shall be, the court, in the absence of proof of fraud that would vitiate that act, cannot substitute its judgment for that of the party, or visit its acts, though they constitute a change of the principles upon which the party was founded, with the penalty of a forfeiture of the right longer to use the party name or emblem. — 414 — As we had a very limited time for the examination of the voluminous record before it was necessary to announce our decision, we requested counsel, after the case was submitted, to point out in the record evidences of fraud of such a character as would vitiate the work of the Broad convention, and further oral argument was heard. Nothing new was then brought to our attention, nor has our subsequent examination revealed anything which, in our judgment, will sustain any such claim made by counsel. If it could be shown that a' sufficient number of delegates were guilty of fraud, or that their votes were secured by bribery or other improper means, or that members of a rival party improperly obtained seats in the convention, and controlled its action, so that the work of the convention would not be that of the majority of the party delegates, the court would be at liberty to go behind the action of the convention. But there are no such allegations in the pleadings in this case, and if there were, there is no sufficient evidence in support of it. It is true the claim was made in oral argument that some members of the Republican party (an antagonistic party) were present and participated as delegates in the Broad convention, but the number present was not shown, nor did it appear that they controlled its action, or influenced the votes of the delegates conceded to be in regular standing. For aught that appears to the contrary,—indeed the proof itself sufficiently shows it,—there were present in the Broad convention as uncontested delegates and bona fide members of the Silver Republican party a clear majority of all those entitled under the call to membership in the convention, and that their votes determined its acts. We can designate this controversy most fittingly by saying that in a contest for supremacy between two rival factions of the party over a question of party policy, the determinar tion of which was properly submitted to a convention of delegates of that party, duly called for that purpose, and to nominate a list of officers in harmony with its decision, the Broad faction had a clear and undisputed majority thereof, — 415 — and nominated a ticket in line with its defined policy. The other, or Blood, faction, containing a minority of the delegates, nominated a different set of candidates in favor of a contrary policy. The ticket of the Broad convention, therefore, contains the genuine nominees of the party, and is entitled to the use of the party name and emblem. The judgment of the district court, being in harmony with this conclusion, is affirmed. Affirmed. Mr. Justice Gabbert concurs. Mr. Justice Goddard dissents.