Whipple v. Stevenson

Campbell, C. J.,

concurring specially.

In the conclusion reached by Mr. Justice Gabbert I con*454cur. ' He has clearly demonstrated that the. petitioner has no standing in this court. In reaching this conclusion, however, I must not be understood as adopting all bis reasoning, particularly withholding my indorsement of the statement in the • opinion to the effect that the rights of subordinate organizations or conventions of the respective state factions with respect to the use of the party name and emblem are to be, or may be, determined independent of the action of the respective state conventions. This, however, is not the proper place for a lengthy discussion of this proposition, and my views upon it will be found in the dissenting opinion in the case of Twombly v. Smith, ante, p. 425.

Upon several other, and .quite different, grounds from that given in the foregoing opinion can the decision, to my mind, as well be put. One point strongly urged in argument by counsel for the petitioner and counsel for the respondent Stevenson, who joins with him in asking for the rule, is that the decision of the pending dispute between the rival state factions of a party over the right to the use of the party name and emblem for the state ticket nominated by the state convention, will settle the same right for all the subordinate organizations of the party, such as those which have nominated tickets in the congressional, senatorial and representative districts, and the several counties and precincts of the state.

The argument is that á political party is a unit whose expression in this case is represented by a ticket nominated by the state convention of the party, the highest authority therein, and this unit is made up of the sum total of its integral parts represented by its state, congressional, senatorial, representative, county, and precinct tickets, and that the rights and limitations of the subordinate integral parts must depend upon, and be governed by, the rights of the parent body which includes them all.

Conceding this proposition to be true, and if,- for the present purpose only, the further concession be made that this court has lawful jurisdiction to entertain this controversy, *455still this is no reason why the court should exercise it; for i f the effect claimed for a decision respecting the ticket of the state convention is conclusive as to all subordinate divisions of the party in their conventions, then the decision pronounced by this court upon the question in reviewing a judgment of an inferior court will be attended with the same result as though made in a proceeding begun here. This court has not the facilities for taking testimony and trying a cause in the first instance that are possessed by the inferior courts, and even when jurisdiction clearly exists, as where a public right, affecting a sovereign state, is involved, it should not be exercised except in extraordinary cases, among which this is not to be classed.

The legislature has passed an act providing a special tribunal (and the procedure therein to be observed) for hearing controversies like that before us, and the parties should be required to conform to it. Thereby the secretary of state is made a special tribunal for determining them; and, as a matter of fact, the precise question which he asks us to decide, upon the ground that a multiplicity of suits will be avoided, he has already passed upon, and his judgment is now undergoing a review in the district court of Arapahoe county, and can be reviewed here, in ample time before the election, to protect the rights of all concerned. As well might the district court upon which is conferred jurisdiction to hear and determine any kind of controversies, come into this court and ask us to assume original jurisdiction in a particular case, so that it, as an inferior court, may have a guide for determining a number of other similar controversies which it apprehended might, in the due course of litigation, come before it for trial. The position of the petitioner here is even less meritorious than the supposed case, for, as we have said, he has already determined the very controversy, and his decision is being reviewed in the district court. Merely because a decision of this court will be controlling in all subsequent similar controversies that may come before him and the various county clerks and inferior courts, and thus relieve them from exercising an inde*456pendent judgment of their own, is no reason why we should countenance the evasion by them of a plain statutory duty which they are commanded to perform.

For these, and other, reasons that might be given, do I concur in the judgment dismissing the proceeding.