State ex rel. Garn v. Board of Election Commissioners

Dissenting Opinion.

Montgomery, J.

The manifest theory and purpose of the relator’s petition is to present to the court for settlement the conflicting claims of two lists of county candidates to the right to have their names printed in the second column of the official ballots, under the title of the Republican party and the emblem of an eagle. No suggestion appears to have been made in the court below that the nominating convention convoked by relator was not shown to have been held at the place designated in the call therefor, nor is anything disclosed in this controversy making the place of holding such convention a matter of importance. No such question is raised or discussed in the briefs of counsel upon appeal. The determination of the controversy presented and urged turns wholly upon the question as to which of the rival lists of candidates shall be recognized as the genuine Republican ticket. All other questions are subsidiary to this, and the formal defects in the petition pointed out in the majority opinion are such as could and doubtless would have been cured by amendment, upon suggestion of their existence, and not having been presented or insisted upon by counsel upon appeal, this court is warranted in considering only the alleged defects passed upon by the lower court, and treating all others as waived. It is not the imperative duty of the members of this court to *291become attorneys for appellees and to scan records for grounds upon -which to sustain the decision of the court below, which grounds as rational men they know to a moral certainty did not affect the ruling in question, but which as judges they assume might have done so. It is averred that the relator was chosen county chairman in strict conformity to the governing rules and under the supervision of the Republican state organization, and that ever since his election as such chairman he has been recognized by the Republican state and district committees as chairman of the Republican county central committee of Marshall county.

This averment was, perhaps, essential to the jurisdiction of the court, and is decisive of the question under consideration. The writer of the principal opinion attempts to determine the question by tests which are appropriate in controversies involving property rights, but which are wholly inadequate to the solution of a purely political matter. The question involved is one essentially political and not judicial in its character. It has been generally held that such questions will be relegated to the voters for settlement, and the courts will not .attempt to investigate the government, usages or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination, on the ground that they are not proper representatives of the political doctrines or party government of the party to which they profess allegiance, but such questions are to be settled primarily by the party tribunals. Stephenson v. Board, etc. (1898), 118 Mich. 396, 76 N. W. 914, 74 Am. St. 402, 42 L. R. A. 214, and cases cited. This recognition by the highest tribunals of the party involved gives regularity and validity to the acts of the relator as such chairman, from a partisan standpoint, and is controlling upon the courts. Breidenthal v. Edwards (1896), 57 Kan. 332, 46 Pac. 469, 34 L. R. A. 146; Moody v. Trimble (1900), 109 Ky. 139, 58 S. W. 504, 50 *292L. R. A. 810; Phillips v. Gallagher (1898), 73 Minn. 528, 76 N. W. 285, 42 L. R. A. 222; In re Fairchild (1897), 151 N. Y. 359, 45 N. E. 943; State, ex rel., v. Houser (1904), 122 Wis. 534, 100 N. W. 964.

Bo controversy having been disclosed over the place of holding the nominating convention, that matter is. immaterial in the determination of the question presented. If in point of fact the nominations are not certified in writing, as required by law, they are not entitled to go upon the ballots at all.

The genuine list, when properly certified, must be recognized and given its proper place upon the ballots, while the pretenders must be assigned a different column, name, and device.

It follows that the list of candidates nominated at the convention convoked by the relator on June 2, 1906, is the genuine list of Republican candidates, and as such is entitled to be placed in the second column under the party name and emblem on the official ballots, and this right having been denied them as alleged, upon the sole ground of a lack of party regularity and genuineness, the petition is sufficient -to afford the relief sought. I therefore dissent from the conclusions reached by a majority of the court, and vote for a reversal of the judgment.