Rider v. County Court of Braxton County

82 S.E. 1083, 74 W. Va. 712, 1914 W. Va. LEXIS 195

Opinions

POFFENBARGER, JuDGE :

In each of the first two proceedings, the chairman of the Executive Committee of the Republican party, of the county and, in the other, all the members of such committee are the relators; and in each case, the prayer of the petition is for the appointment of Republican registrars in the county, in conformity with the provision of Sec. 1 of Chap. 45 of the Acts of 1911, Serial Sec. 121 of the Code of 1913, requiring the county court of each county to appoint two competent persons as registrars in each precinct from the two political parties which, at the last preceding election, polled the highest number of votes in the county in which the election is to be held; it being contended that in each of the three counties in question, the Republican party was one of such parties, and it having been shown that the county courts in said counties had appointed, as registrars, members of the Democratic party and the Progressive party respectively, denying to the Republican party its alleged status.

In each of these counties, there was a full, complete and regularly nominated Democratic ticket and Republican ticket in the election held in the year of 1912, carrying candidates for president and vice-president of the United States and electors, and a full state, congressional, judicial, county and district ticket. There was placed upon, the ballot likewise a full and complete Progressive ticket made up in the following manner: For President and Vice-President and electors the candidates were different from those of the Republican party and the Democratic party, but for state, judicial, county and district officers the candidates were the same as those on the Republican ticket, so that the personnel of the Progressive ticket differed from the Republican ticket only as to the candidates for President and Yiee-President and electors. In each of the counties, the vote cast for Progressive electors was greater than that east for Republican electors, and no doubt the ballots cast showed the use of more Progressive tickets than Republican tickets in the election. In Cabell County, the votes received by the candidates whose names appeared upon both the Republican and Progressive tickets were recorded separately, the former being only about 1750 and the latter about 3050, while the Democratic vote was nearly 4900.- This method of recordation was adopted in Marion County also, and there the candidates for state, congressional, judicial, county and district officers received upon the Republican ticket, about 1650 votes and, upon the Progressive ticket, about 2250, while the Democratic vote was about 4700. In Braxton County, the record does not show any distinction between the Republican and Progressive votes cast for candidates running on both tickets, but it does show a larger vote cast for the Progressive candidates for electors than the Republican candidates for electors, as do the records of the votes in the other two counties.

. Much of the argument in support of the petitions for the writs denies the existence, in any of the three counties, of any political party known as a Progressive party, and affirms the existence of only two important political parties in the election of 1912, the Republican and Democratic. This argument, however, must yield to the plain provision of the statute, permitting the organization of new parties by petition, as analyzed and applied in Morris v. Ballot Commissioners, 71 W. Va. 180, and Stewart v. Ballott Commissioners, 71 W. Va. 246. The filing of a petition containing the signatures of the requisite number of voters creates a new party in this state or any district thereof to the extent of enabling it to have a ticket or the names of candidates upon the ballot. As the Progressive party, so organized for the election of 1912, polled more than three per cent, of the entire vote in the state and also more than three per cent, of the vote in each of the three counties to which these controversies relate, it must be considered not only a political party authorized to make nojnina-tions, but one also authorized by law to nominate candidates by conventions and primary elections.

This conclusion, however, does not cover the more vital question, whether the Progressive party, as against the Republican party, is one of the two parties polling the highest vote in the election of 1912. There is a Progressive party and a Republican party and both participated in that election. The Democratic party also participated in it and its leading character is admitted. The other two, except as to the national ticket supported exactly the same candidates and, in a large sense, jointly opposed the Democratic party. Between them, there was no test of strength except as to the national ticket. Obviously it was only a partial test. As regards state, congressional, judicial, county and district offices, there was not the slightest controversy between them. A Republican ticket was first nominated by a general primary election, except the candidates for judges of the Supreme Court, who were nominated by a convention, and the Progressives later circulated a petition, renominating or endorsing the same candidates. Whether in matter of form, it was a renomination or an endorsement, there was no substantial contest between the Republican and Progressive organizations for the election of these officers. Both supported the same men as candidates for them. Aside from the contest for the presidency and vice-presidency, there were formally two tickets but, substantially and in fact only one supported by both Progressives and Republicans.

The pleadings in these actions show, and the court judically knows, as matter of common knowledge and current history, that the Progressive movement and organization were, in their inception, a protest against the action of the Republican National Convention held at Chicago in the year 1912, em bracing in their purpose the election to the presidency of a losing candidate for the Eepublican nomination in that convention. In order to get his name on the ballot in this state, it was necessary to use a party name different from that of the Eepublican party. His name and the names of his candidates for electors could only be placed upon the ticket under some party name other than those of the Eepublican, Democratic, Prohibition and Socialist. He had formerly been a Eepublican as had also the great body of his supporters in all the counties of this state. If his name could have been gotten upon the official ballot as a Eepublican candidate, there is little doubt that it would have been placed upon it under that name rather than a new one, for it is a matter of common knowledge that he was considered, by many of his supporters, as being the rightful nominee of the Eepublican party. The Eepublican State and Congressional district conventions sent a solid Eoosevelt delegation to the Eepublican National Convention. After these delegates had been selected and befere the National convention had assembled, a state wide primary election was held for the nomination of Eepubli-can candidates for state, judicial, congressional, legislative and county candidates, and as a general rule, both the Taft and Eoosevelt republicans participated in it and nominated the ticket subsequently supported by the Eepublican arid Progressive organizations in the general election. After the Eepublican National convention had adjourned, a Progressive National convention was held in Chicago and this state was represented in it by delegates selected in some way. That convention nominated Eoosevelt and Johnson for President and Vice-President and later a Progressive state convention was held in the city of Charleston, made up of delegates selected in some irregular manner. In as much as the Progressive party could not then under our statutes nominate candidates otherwise than by petition, the returns of the last preceding election not having shown the existence of such a party, the Charleston convention amounted to little more 'than a mere conference of the supporters of the Progressive candidates for President and Vice-President. It adopted a platform of principles embodying those of the Progressive National plat form adopted at Chicago and perhaps some others. One of the measures evolved by that convention or conference was the endorsement or renomination of the Republican ticket nominated in the state convention and the state primary, but it was necessary to do that by means of petitions circulated in the various 'counties of the state.

In so much of the contest for the Presidency as was waged in this state the Progressive vote was larger than the Republican. Under our law, the Progressives could have placed in the field and put on their ticket, bearing their name and the emblem they used, only their .candidates for President and Vice-President and electors. In other words, they could have run an independent ticket under a party name and emblem. Piad they done so, it is hardly likely any claim of predomi-nancy of the Progressive party over the Republican party would have been made, in view of a larger vote for the independent candidate than that received by the regular one. This was not done, but the situation in the election of 1912 was very similar to the result of such an independent candidacy. What was done by the protesting Republicans in that election was exactly what the protesting Democrats did in the election of 1896. They placed Palmer and Buckner on a ticket denominated The National Democratic Party, or something similar to that, together with a set of candidates for electors and all the regular Democratic state and local tickets. As to everything except the Presidency and Vice-Presidency, the Democratic party united. On that issue alone it was divided. This arrangement was made for a single election and, after that election, nothing more was heard of the National Democratic party. This historic fact forcibly reflects the character of the Progressive' organization in the election of 1912. Such was its character in the county of Braxton as is indicated by the evidence of the non-existence of any substantial Progressive organization in that county now. It is further illustrated in the county of Marion by the result of a special election held in that county in the year 1913, for the election of a member of Congress to fill a vacancy; in which the Progressive candidate for congress polled only about one third of the number of votes that was cast for him on the same ticket in 1912 and less than one half of the number of votes that were cast for the Republican candidate in the special election of 1913. Neither the peculiar and special facts in the Braxton and Marion County. cases, indicating the temporary character of the progressive vote, nor anything similar thereto, was disclosed in the Cabell County case, but the conditions out of which the party in that county was born and the influences which brought it into existence were the same as those operative in Braxton and Marion Counties. They were not local but general and national rather than state, as has been already indicated. 'These special facts confirm and verify the general view of a partial, and not a real and substantial' test of strength between the two parties, and show the alleged predominancy of the progressive party was formal and apparent only.

The purpose of the statute is to give representation in the registration of the voters, to the two leading parties in the election about to be held, for it requires each of the registrars to take an oath to support the candidates of the party on whose behalf he was appointed. Its general purpose is the same as that of sec. 7. of chap. 3 of the Code requiring similar representation on the boards of election commissioners, as construed and applied in Hasson v. City of Chester, 67 W. Va. 278. Both provisions clearly contemplate permanent and substantial party organizations. They assume the maintenance of such organizations for at least two years, for they go back to the results of the last preceding election for the criterion of determination of relative party strength. Both were ordained by the legislature, when the Republican and Democratic parties had been dominant in the state and all the counties for very long periods of time and when there was no indication or prospect of the displacement of either of them by any third party. The status acquired by the two old parties having been deemed by the legislature to be of sufficient value to warrant legal recognition, intent on its part to authorize the loss of such status otherwise than by a substantial and fair test of strength can not well be supposed.

Though the statute makes the result of the last preceding election the criterion by which to ascertain what two parties are entitled to representation, it does not prescribe any rule for determination of tbe question under circumstances such, as are shown here; wherefore the court, as in other cases, must give the statute a reasonable and just application. It is easy to perceive, that, in' the case of three parties of nearly equal strength, some of the candidates of each of them may be elected, and also that, in the case of three parties, two of which are generally strong and the other weak, some of the candidates of the weaker organization may be elected and the others defeated. For such cases, the statute prescribes no rule for determining the question of dominaney. Here we have an equally anomalous situation in the result of the election of 1912. Only a single group of Progressive candidates ran against the candidates of the other two parties for the same offices. Its candidates for all the other offices and the candidates of the Republican party for those offices were the same men, and it is clearly obvious that many Republicans desiring to vote for the Progressive candidates for President and Vice-President used the Progressive ticket as a mere matter of convenience. To have used the Republican ticket for that purpose would have necessitated the transfer of the Progressive candidates for President and Vice-President and the electors on to the Republican ticket with the attendant danger of loss of votes by spoliation of the ballots. The ordinary voter saw no real or practical difference between a vote for the local republican candidates on the progressive ticket and a vote for them on the other, and there could not have been any vigorous contest between the two organizations. It would have broken up the alliance respecting the local ticket and occasioned its defeat.

Our conclusion that the Republican party is entitled to representation in the appointment of registrars, as against the Progressive party, in all of the three counties, is in conformity with the general principle underlying the decision in State Ex rel v. Wright, 158 S. W. 823, that the leading political party, in the state of Missouri, ivas the leading party in the state and not in the nation, and that the statute is prima facie confined in its operations to those within its jurisdiction. It likewise accords with the conclusion of a common pleas court of Pennsylvania as reported in 2 Brewster, 138, bolding as follows: ‘ ‘ Where a party elects all the officers but one, they are to be regarded as the party in the majority in their division.” It also coincides with the idea of substantial justice and equity, embodied in the decision of the New York court in In re Manning, 71 Hun. 276, declaring a Republican and a Democratic member of an election board in collusion against the third member, also a Democrat, were the majority of the board, and authorizing the remaining Democratic member to appoint the election officers for his party, as the minority member. In that case, as in People v. Wheeler, 28 Hun. 540, the court properly subordinated matter of form to substance. In the latter case, an appointing board endeavored to deprive one wing of the Democratic party in New York of representation in the boards of election on account of its refusal to support the nominee of the party for Governor, and the court held that the board was bound to give that element of the party representation along with the other, its refusal to support a single nominee of the party not being deemed an abandonment of the party principles or organization. In the Manning case, the court adopted the rule of interpretation observed by this court in Hasson v. City of Chester, saying “The rule is well settled that statutes should receive such construction as will carry into effect the legislature’s intention and avoid unjust and absurd conclusions;” citing Trinity Church v. United States, 143 U. S. 457; People v. McCombe, 99 N. Y. 43. Observance of that rule in the application of the statute now under consideration, to the facts herein referred to, will work out just and equitable results in Braxton and Marion Counties and any other interpretation thereof would produce injustice and absurdity. Since the influences which produced the results in those two counties were general in their nature and operative in Cabell County, it is obvious that the results in that county in 1912 afforded no substantial evidence of the loss by the Republican party of its former status as one of the two leading parties. As against an organization having acquired a clear and firm status, a new party claiming to have destroyed such status or to have acquired the position held by the former, necessarily carries the burden of establishment of its claim as an adverse and hostile party.

Upon these principles and conclusions peremptory writs were awarded in all three counties according to the prayers of the petitions therefor.

Peremptory Writ of Mandamus Awarded.