State ex rel. Riley v. Weston

HON. E. K. OHEADLE, Judge of the Tenth judicial district, sitting in the place of the Chief Justice, delivered the opinion of the court. [224] At tlie hearing of this cause counsel for the respondent first objected to the admission of any testimony, upon the ground that the proceeding was prematurely brought. This objection was overruled by the court pro forma, and the taking of testimony proceeded. Subsequently, and before the final ruling of the court upon the objection, counsel for the nominees of the so-called “Walker ticket” appeared in open court, and asked that their clients, the said nominees, be permitted to appear in this proceeding, and that their rights be adjudicated. This request was granted by the court, all parties consenting, whereupon the said nominees appeared by their counsel, and participated in the examination of the witnesses of relator, and introduced witnesses to testify on their own behalf. This action of the so-called “Walker noininees” is held by the court to be, in effect, a waiver of the objection that this proceeding is prematurely brought, and a ruling tipon the-said objection is therefore reserved by the court. There is no material contradiction in the testimony. The pleadings of the respective parties, the admissions of respective counsel, and the evidence leave substantially but one question to be decided by this court, to-wit: AAras the so-called “AATalsworth convention” or was the so-called “AYalker convention” the regular convention of the Democratic party of Silver Bow county, duly organized and legally empowered to nominate candidates for such offices as it was within the powers of that convention to make under the regular Democratic party designation ? ■ It is the contention of the relator that the AYalswortli convention was the regular party convention of the Democratic party, and that its nominees should be placed upon the official ballot in the column thereon designated “Democratic,” and that the nominees of the AAralker convention should be entirely excluded therefrom. It is the contention of counsel for the AAralker nominees that both tickets should be placed upon the official ballot in separate columns, each of which should be entitled “Democratic.” The respondent, AAbeston, took the position that he did [225] not know which certificate he should receive, or the names of which nominees he should place upon the official ballot, and therefore declined to take any action in the matter until directed by this court. It is urged by counsel for the Walker nominees that, inasmuch as the state convention admitted the delegates both of the Walsworth and of the Walker convention to seats in the state convention, and gave to each delegation the right to cast one-half the vote of Silver Bow county in the state convention, the action of the state convention v?as a recognition of both factions, and entitles each convention to be considered as a regular Democratic convention of the party in Silver Bow county, and that because of this recognition and the implied regularity of both conventions the nominees of each convention are entitled to be placed upon the ticket. The state convention had the power for its own purposes to recognize either or both of the contending factions. No nominations had been made by either the Walswortk or by the Walker convention at the time that the state convention ivas held, and consequently there were no individual rights of nominees for the offices for which nominations might be made by a county convention to be affected by the action of the state convention. If the state convention had held that either the Walsworth or the Walker delegates were solely entitled to represent the Democratic party of Silver Bow county in the state convention, the question presented to this court would be a different one. However, while the state convention had the power to admit both the contesting delegations to seats in its body and to a participation in its proceedings, it could not lawfully decide in advance, or at all, that the nominees of each of the so-called conventions should be considered the regular nominees of the Democratic party of Silver Bow county, and entitled to have their names placed upon the official ballot in columns designated as “Democratic.” This court has heretofore held in State ex rel. Kennedy v. Martin, 24 Mont. 403, 62 Pac. 588, that only one ticket shall appear [226] upon a ballot under a particular party designation. This case was decided October 22, 1900. The Session.Laws of 1901 (page-117) amend the law as it existed at the time of the above decision only to the extent of removing the circle from the head of each ticket, thereby preventing a voter from voting his straight ticket by marking in the circle. The court is of the opinion that this amendment in no wise changes the rule announced in the Martin Case, above. It follows that there can be but one democratic ticket printed upon the official ballot. Thus there remains but one question for determination by this court: Was the ticket nominated by the so-called Walsworth convention nominated by a convention duly constituted and organized under the regularly constituted authority or party organization of the Democratic party of Silver Bow county? There is no question but that the Democratic county central committee of Silver Bow county had the authority to issue a call for primary elections .of delegates to a county convention. It is undisputed that this convention assembled at the time and place designated in the call of the central committee, that it proceeded regularly to organize, and that upon such organization being completed it placed in nomination the candidates composing the so-called Walsworth ticket. The sole claim of the so-called Walker nominess is that delegates alleged to have been chosen from certain precincts in Silver Bow county were excluded from participation in the convention. The evidence clearly shows, however, that after the Auditorium, which was a place owned and controlled by the city, was cleared by the mayor of Butte at the request of the central committee through its chairman, the convention was regularly called to order, and that there was opportunity for all claiming to be delegates to present their credentials to the regularly appointed committee of the convention. By the admission of counsel for the Walker nominees, the contesting delegates made no attempts to be admitted into the convention by presenting their credentials to the proper committee or otherwise, but immediately upon the clearing of the Auditorium proceeded to the courthouse, and [227] then to the Family Theater, in the city of Butte, and there proceeded to organize another convention. Hnder these circumstances it appears clearly to the court that the so-called Walsworth convention was in fact the regularly constituted and organized convention of the Democratic party of Silver Bow county, and duly empowered to nominate candidates for the offices for which it made nominations, and that the so-called Walker convention was in no sense entitled to be considered as a regular and legal convention of the Democratic party. For these reasons the peremptory writ of mandamus was ordered to be issued on the 13th day of October, 1904. Writ issued. Me. Justice Milbuen and Me. Justice Holloway concur.