State ex rel. Pigott v. Benton

De Witt, J. As appears by the statement of the case above, the material point of the relator’s contention was that respondent was not nominated by the People’s party, and if not so nominated, the People’s party votes cast for him were illegal votes, and he had not enough legal votes to elect him. Upon a nonsuit, that which the evidence tends to prove will be considered as proved. (Creek v. McManus, ante, p. 152, and cases cited.) Did the evidence, on the trial tend to prove that respondent was not nominated by the People’s party? The name of Charles H. Benton as candidate of the People’s party appeared upon the official ballot. (Ballot Laws, § 17, p. 139,16th Sess., 1889.) That name so appeared because a certificate of nomination had been filed with the county clerk, and recorded. (Supra, § 4.) That certificate was' signed by the chairman and secretary of the executive committee of the People’s party. It is held that a certificate of election is prima fade evidence of the election of the person to whom the certificate is issued. (State v. Kenney, 9 Mont. 223.) By analogy we are of opinion that it should be held that a certificate of nomination, regular upon its face and filed with the proper officer, is prima facie evidence of the nomination of the person so certified. Therefore when it appeared, as it did, that such certificate of Benton’s nomination by the People’s party was executed and filed with the county clerk and recorder; that his name was thereupon placed upon the official ballot as candi — 323 — date of the People’s party; that he was voted for as such; that those votes so given him gave him a majority of all the votes cast; that he was declared elected by the canvassing board; that he was commissioned by the proper authority of the state; that he qualified as judge and is acting as such, then I am of opinion that the relator entered upon this contest facing the prima fade evidence that respondent was nominated by the People’s party. If respondent was nominated by the People’s party, then there is an end of relator’s case. Did relator’s evidence overcome this prima fade situation; that is, did his evidence tend to show that Benton was not nominated by the People’s party? The ease went no further than relator’s evidence. Benton was not yet before the court-, on the trial, undertaking to combat testimony that he was not nominated. He was waiting for the relator to introduce evidence tending to show that alleged fact. We will now look at the evidence to ascertain whether it tends to show that Benton was not nominated by the People’s party. The district court held, that it did not, and hence the nonsuit. The only witness whom relator called to establish this point in the case was the acting secretary of the People’s party executive committee, namely, George L. Wales. His testimony on this point is set out in the statement of the case above, in full, as it appears in the record. It seems that this committee, as created by the convention, consisted of seven original members, Campbell, McKay, Dickinson, and Porter of Great Falls, and Marion, McLaughlin, and Gillen of Sand-coulee. The committee was empowered to add to their number persons from other precincts. Holmes and Wales, each from Great Falls, and not from other precincts, became members of the committee, or acted as such, by some method not appearing. But if they were added to the committee without direct authority from the convention, I cannot understand that such action would destroy the life of the committee, or nullify the authority given it by the convention. Moreover, it does not appear that it was required that the secretary of the committee should be a member thereof. I cannot understand how, if the duly constituted members of the committee should actas authorized by the convention, their acts would be void by rea — 324 — sou of tlie presence of two or more persons who are not regular members of the committee, and who were not required to make a quorum or majority, which quorum or majority determined upon an act of the committee which was afterwards attacked. Now, it does not appear from the testimony that the nomination of Benton was made by a simple majority of the committee, of which majority Wales and Holmes were members. As will be plainly seen, there is no evidence that any member of the committee opposed Benton’s nomination, and the evidence tends to show that all members of the committee favored the nomination. What is the fair import of the tendency of Wales’ testimony ? It is true that Wales says he was not present at a meeting of the committee when a formal resolution was offered and a vote taken for the nomination of Benton. But many meetings were held, and no written minutes were kept. The witness says he was present at a committee meeting when Benton received the nomination; that such meeting was held at several places; that there were present McKay, Campbell, and Porter, who were original committee men, and, at other times, other members. He says that Porter, McLaughlin, and Campbell told him that Benton was nominated. This is criticised as hearsay evidence; but, whatever it is, it does not seem to me to be evidence tending to show that Benton was not nominated. Witness says he was present at several meetings “where Judge Benton’s name came forward,” and that his nomination was decided on several times, and that at one of these meetings Campbell, Porter, and McLaughlin were present, and there may have been others. He says he cannot tell how long before the making of the certificate the meeting was held at which Benton was nominated. There were so many meetings, and no minutes kept. He says that the whole of the committee present spoke of Benton’s nomination. He cannot name the particular meeting at which he was nominated. There were various conferences and favorable discussions. No minutes were kept. Then, when the time had about expired in which certificates could be filed, McKay, chairman, and Wales, secretary, executed and filed the certificate introduced in evidence. I think that the fair conclusion from Wales’ testimony is that — 325 — ilie committee, in an informal way, actually determined upon Benton’s nomination. It was the general conclusion of the committee. The committee was small, and there was no necessity to proceed in the formal method of a large deliberative body, by resolution or motion and vote, and record of the same. We do not hear of an objection made at any time by any member of the committee to Benton’s nomination. All that we can hear about the committee or any officer or member is that they favored and agreed to that nomination. Take all of Wales’ testimony, direct, cross, and redirect, and examine it from the point of view of the situation of these committeemen, and the conclusion comes to my mind that the evidence rather tends to show that the committee did nominate Benton. I say rather tends to show, but let there be no misunderstanding on this point. I am not required to reach that conclusion from the testimony in order to support the action of the court below, and do not pass upon such conclusion. All that I need to observe is that the testimony does not tend to show that the committee did not nominate Benton. Of that I am altogether satisfied. There were several members of the committee besides Wales. If it were true that the committee did not nominate Benton, that was a fact within the knowledge of the members of the committee. But none of them were called as witnesses, and it was not shown that any effort was made to procure their attendance. Belator rests upon the testimony of Wales, and that testimony, I cannot doubt, did not tend to show that the committee did not nominate Benton. Therefore, there being a prima facie showing that the committee nominated Benton, and that prima fade situation not being overthrown upon the trial, we arrive at this point: The committee did nominate Benton. Then, did that nomination and the certificate to the county clerk entitle Benton’s name to go upon the official ballot as the candidate of the People’s party? That is to say, the matter reduces itself to one inquiry: Was that nomination of Benton, as it was made, a valid one, under the Montana ballot law ? The appellant argues that under section 12 of the ballot law the committee had no authority to fill the vacancy in the position of candidate for district judge, for the reason that no — 326 — original nomination for district judge Lad been made by the convention, and that such a committee can fill a vacancy only ■when such vacancy occurs from one of the causes mentioned in section 12 — a vacancy by reason of there being no original convention nomination not being a vacancy contemplated by section 12, tobe filled by a committee. The contention over this point has been very earnest, and very ably conducted, but I do not consider that the People’s party nomination of Benton need be here tested by the provisions of section 12; that is, this nomination was not a substituted nomination, under section 12, but was rather an original one, made by the convention of the People’s party. Whatever may be sáid in terms, in the pleadings or the evidence, to the effect that the convention did not nominate Benton, is not of importance. We may take all the facts before us, either admitted by pleadings or proved, and determine whether those facts may be properly construed as a nomination by the convention; that is, whether the act of the committee was, in effect and substance, the act of the convention. I am of opinion that such is the case. Suppose a political convention met, and there was before it the nomination of candidate for district judge. The convention appoints a committee to make the nomination. That committee retires. It returns to the convention, and reports that it decides to nominate Charles H. Benton. The convention receives the report, and adopts and ratifies it. Such nomination would certainly be the act of the convention, and the nomination would be the nomination of the convention. Such supposititious case differs from the facts in the case before us in only one particular: Instead of the convention ratifying the act of the committee after it was done, as above illustrated, it, in the actual case before us, ratified the act of the committee in advance, and did so expressly. It gives the committee power “to fill all vacancies that now exist or that may hereafter occur.” The vacancy in the position of candidate for district judge did “now exist” at the time of passing the resolution empowering the committee to make such nomination; for the convention had not named, and did not name, a person for district judge, except as it delegated power to name one to the committee. The conven — 327 — tion represented the voters of the People’s party. The convention had authority from the political organization known as the “ People’s party” to nominate a candidate for district judge. Instead of making that nomination in convention assembled, it made it through its delegated agent — the committee. "What it was authorized to do it did in oneway rather than another. I am of opinion that the Montana ballot law does not attempt to prescribe rules of order and procedure for political conventions. If it did, it would be a decidedly large undertaking. It is a matter of common knowledge that political conventions frequently operate just as this convention did; when it may seem not expedient at the session of the convention to make one or more nominations in the list of offices to be filled. The convention therefore leaves that duty to a committee selected by the convention, the committee having the trust and confidence of the convention, and the convention having the trust and confidence of the members of the party who elected it. I am not ready to conclude that the Montana ballot law intended to forbid conventions from operating in this manner by a selected committee. Nor can it be contended that a political convention is inhibited by any organic law from delegating power to a committee. Why can it not do so? No answer to that inquiry presents itself to me. Such a convention is not, like a legislature, controlled by a constitution. It is not, like a municipal corporation, controlled by a charter. It is not, like a business corporation, created and governed by the law incorporating it. It is not a body bound by any organic law, like legislature, municipality, or business corporation. Therefore, rules as to the delegation of power, in my opinion, have no application to a political convention. I am not able to see any argument or reason why such a convention may not, if it pleases, do through a committee what it has power to do by itself. “ Qui faoit per alium, facit per se.” I am therefore of opinion that the nomination of Benton by the executive or county committee created by the People’s party convention, and by that convention delegated the power to make the nomination, was, in substance and effect, a nomination by the convention. I therefore arrive at this result: The People’s party convention nomi — 328 — nated Charles H. Benton, the respondent. His nomination was certified to the county clerk and recorder. His name was properly placed on the official ballot. The votes cast for him as Republican and as People’s party, together, gave him a majority of all the votes cast. He was therefore elected judge of the eighth judicial district, and the judgment of the district court should be affirmed. This case is full of interesting and perhaps difficult propositions in reference to the construction of the ballot law of this state. The view taken above renders unnecessary the discussion of those points. The decision in this case is placed solely upon the ground discussed hereinbefore, and all other questions are reserved. Affirmed. Pemberton, C. J., concurs.