State ex rel. Gray v. Olsen

McCOY, P. J. Plaintiff makes application -for injunction restraining defendant Sarpuel C. Polley, as Secretary of State, from certifying to the various county auditors the nominations for presidential electors selected by the Republican state convention held at Huron July 2d, under the provisions of the primary law. The "electors .so nominated are also defendant^. Plaintiff as a Republican voter' and elector, by his petition, claims the right to such injunction on the ground that such presidential eelctors selected at said Huron convention were not and are not Republicans-, and that their selection and the placing of their names upon the official ballots in the regular Republican column results in a fraud upon-plaintiff and .-all other Republican voters of this state who desire to vote for President Taft by means of the regular Republican ticket. Defendants have demurred, and also moved to -quash plaintiff's petition on the ground- that the same does not state facts sufficient to warrant the injunction relief demanded by plaintiff. " [1] It is the -contention, among- others, of -defendants that as no other Republican, or Taft, electors have been nominated whose names might in any manner appear on the regular Republican ticket in !the Republican column, plaintiff would be in no different or better position if the injunction were granted than he is now, in so far as his said- political right to vote for President Taft on the regular ticket is concerned. - We are of the opinion that this contention of defendants is -well taken. Plaintiff is- not a candidate .himself for presidential elector, or for any other office affected by the action of the 'Huron convention. The specific right which plaintiff claims will be violated and invaded i-s that of voting, or the opportunity of voting, for President Taft by means of the regular Republican ticket on the official ba-llots to be -used at die November election. The only effect of the injunction, if granted, would be to prevent the names, of these electors appearing in the Republican column in the Republican ticket on the official ballots, and would [71] accomplish nothing further than to leave a vacancy in the Republican ticket on the official ballots as to- Republican nominees for presidential electors, and would in no manner -protect or operate to enforce or secure to plaintiff, or any other Republican so situated, the right or opportunity to vote f-or President Taft by means of the regular Republican ticket on the official ballots. [2] It seems' to be generally held that the applicant for an injunction has the burden of showing that he would in some manner be injured or deprived of some lawful right without -the aid of such injunction, and that by the granting of such injunction he would obtain tire deired relief. Section 197, Code Civ. Pr. It is another general rule or principle of law that courts should never be required to perform idle or useless acts. [3] The granting of the injunction, as prayed for by plaintiff, under the circumstances of this case, and in view of the present situation- existing in this state, with reference to the nominaton for Republican presidential electors, of which this court will take judicial notice, would- he air empty and idle aot in so far as it would affect the right or opportunity of plaintiff, or any other Republican so situated, to vote for President Taft by means of tire regular Republican ticket on the official ballots. On this ground we are therefore of the opinion that -the showing made by plaintiff is not sufficient to empower the court to grant the prayed for injunction. [4] Another contention of plaintiff is that chapter 201, Session Raws of 1911, commonly known as the “Richards Primary Law,’’ is now in full force and effect as a law of this state. We are of the opinion that this contention is not tenable. W-e are of the opinion that this statute was never passed as- or for the purpose of becoming a law, but only for the purpose of being submitted to a vote of the people under the- initiative and referendum, as conclusively appears from the title of the act itself. It is contended that, because this act contains an emergency -clause, it was not -therefore submitta-ble -to a vote of the people under the referendum. If this act had-, in the first instance, been passed as a law intended to take -effect immediately' u-p-on- its passage- and approval, and a referendum petition ther-eon seeking to submit said law to a vote of the people had been duly filed, then this contention- of plaintiff would 'have been applicable, but, not having been so passed, the [72] emergency clause thereof is nothing more than.' ineffectual 'sur-plusage. [5] Some of our associates contend that the injunction prayed for by plaintiff should be granted on the ground that this is an ex rel. action maintainable by the Attorney General of the state on behalf of the people of the state, and' that it is the people of the state who are injured by the names of the defendants, nominees for presidential electors, appearing on the official ballots in the Republican column, and, on account of the allegations contained in plaintiff’s petition, that the Attorney General has refused to institute this action in the name of the people of the state plaintiff’s demand for injunction should be granted. Neither plaintiff nor his counsel have presented or argued any such contention or question, nevertheless, .we are of the opinion that this contention is also untenable. Whether this action be maintainable by the Attorney General on behalf of the state, or by private individuals as the members of a political party, does not relieve the party plaintiff, whoever it may be, from making out a good and proper case or cause for injunction under the rules of equity applicable to the granting of such relief. Again, we cannot concur in the view that this is a.cause properly maintainable by the Attorney General on behalf of the people of this state. We are of the opinion that neither a political party nor any considerable number of the members thereof constitute the people of-this state for the purpose of seeking relief by injunction such as demanded in the petition in this case. Plaintiff in his petition, in substance, states that he is a Republican voter and elector of this state who desires to vote for President Taft, and that this action is -brought by himself as such voter and elector and also on behalf of all other Republican voters so situated, and that he is injured and defrauded of his said right to- so vote by reason o-f -the presence of the names of .defendants, electors, appearing on the regular Republican ticket. Conceding that plaintiff has legal capacity to sue and maintain this action as a party plaintiff for himself and other Republican voters similar situated, still he must show that he and all others so- -similarly situated, would be beuefitted -by the grantin g'of said injunction by- riving him the right or opportunity of which he claims to be so 'deprived by defendants. Plaintiff by the Very allegations of his petition is not seeking relief on behalf of the whole people of the state ’ or in [73] which the whole .people of the state might be interested, but only as an elector who desires to vote in a particular manner 'by means of a particular ticket. We are of the opinion that the case of State ex rel. McCue v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741, cited by our associates, has no possible application to this case. In that case a voter and citizen of North Dakota brought a similar action to contest the constitutionally of the North Dakota primary law in relation to the preferential vote for the office of United States Senator. There can be but little question but what the issue in that case was a public one affecting the whole people of the state. In the case at bar the constitutionality of the primary law is not assailed by plaintiff, but the relief which he demands is based on the alleged fraudulent action of a majority of the delegates to the Huron convention in nominating-persons claimed by plaintiff not to be Republicans at the present time, and therefore asks an injunction to prevent the names of those chosen by said convention as nominees for presidential electors appearing on the regular Republican ticket. The Republican party of this state by and through its regular organization is not here asking for such relief; neither is it shown that the regular officers or committeemen or any of them of the Republican party have ever refused to1 institute such proceedings, or that any of them even desire such proceeding. No other candidates for presidential electors claiming to be Republicans are asking to be substituted in place of defendants on the official ballots, and neither is palintiff asking to have any other Republican nominees so> substituted. Therefoie we are clearly of the opinion that the relief sought in this action by virtue of the allegations contained in plaintiff's petition is not of such a public nature as to give the whole people of the state a public interest therein, and is not maintainable in the name of the people of the state. The views we have expressed render it unnecessary to consider or pass upon other questions presented by the record and argued by counsel. The demurrer of defendant may be sustained and the application for injunction denied.