Sims v. Daniels

35 L.R.A. 146, 46 P. 952, 57 Kan. 552, 1896 Kan. LEXIS 195

Opinions

Allen, J.

Section 10 of chapter 78 of the Laws of 1893, known as the Australian Ballot Law., provides:

“The certificates of nomination, and nomination papers being so filed, and being in apparent conformity with the provisions of this act, shall be deemed to-be valid, unless objection thereto is duly made in writing. Such objections or other questions arising in relation thereto in the case of nomination of state officers- or officers to be elected by the voters of a division less than the state and greater than a county, shall be considered by the secretary of state, auditor of state and attorney general, and the decision of a majority of these officers shall be final. Such objections or questions arising in the case of nominations for officers to-be elected by the voters of a county or township, shall be considered by the county clerk, clerk of the district court and county attorney, and the decision of a majority of said officers shall be final. ... In any case where objection is made, notice shall forthwith be given to the candidates affected thereby, addressed to their place of residence as given in the nomination papers, and stating the time and place, when and where such objections will be considered.”

1. Tribunal has no row to decide which faction entitled to party name The questions in this case are as to the extent of the inquiry which the County Clerk, Clerk of the District Court and County Attorney may make under objections filed to certificates of- nomination, and the force and finality of their determination. As to the extent to which the interests of the public, the parties to this case, or the political party to which they adhere will be affected by the determination of the controversy we are not advised ; but the question involved is ,of the utmost importance to the people of the State. It relates to the freedom of expression at the ballot-box, of the will of the voters, and to the power of the special tribunal created by the statute to determine what nominations may, and what may not, be submitted through the instrumentality of the official ballot to the electors for their suffrages. The language of the statute is far from being clear or explicit. On the one hand, it is contended that where objections to nomination papers are filed the inquiry is limited to matters of form, and at most to questions as to the genuineness of the papers themselves. On the other hand it is claimed that this tribunal has ample power not only to determine all questions as to the regularity and genuineness of the certificates themselves, but also to go behind the certificates, and inquire whether a convention was, in fact, held, whether it represented the political party it claimed to represent, and whether the action of a political convention has been subsequently abrogated and superseded by the lawfully constituted party committee or authority. The question is suggested at once whether the law contemplates that political parties are to be treated as well-defined divisions of the people, having the right, not only to nominate-candidates, but to enforce disci- pline among their members, prevent factional strife, and dictate as to the use of the party name. Authorities are cited, which in some of the language used, if not in the decisions of the cases, seem to recognize this view. In the case of The State, ex rel. O’Malley, v. Lesueur, 103 Mo. 253, it was said :

“And, aside from testimony to that effect, it would seem inherently necessary in all party oganizations that there should be some governing head, some controlling power, some common arbiter, which, if an emergency" should arise therefor, can lay its hand on the heads of warring factions within the party, and compel the observance of wholesome regulations conducive alike to efficient party organization, order, fair dealing, and good government. Certainly a court of justice could not look with unpropitious eye upon all proper rules which would protect every citizen in the unt^ammeled exercise of their choice in selecting those for whom they desire that their suffrages shall ultimately be cast. The same considerations which should induce courts of justice to maintain the purity of the ballot-box, when the final vote is taken, should equally operate with them to promote honesty and condemn fraud when a preliminary vote is taken, or a nominating convention held.”

There is language of somewhat similar import in the case of In re Redmond, 25 N. Y. Supp. 381. In the case of Chapman v. Miller, 52 Ohio St. 166, the Supreme Court of Ohio held valid, and enforced, the decision of the Secretary of State as to certain nomination papers, without discussion of the broad question we are now considering. It will be observed that in the case under consideration no question is. presented as to the regularity of the nomination papers of the plaintiffs, as to the genuineness of the signatures attached thereto, nor yet as to the fact that a convention was held at the time and place stated therein which nominated the plaintiffs as its candidates. There is not even a question presented as to the fact that this convention was called and held as a Republican convention. It is admitted in the return of the County Clerk, and in the objections which were filed before the county officers, that the Republican Party of Wyandotte County was divided into two factions ; and that a convention for the nomination of county officers was held by each faction of the party, and a full list of nominations was made by each. The attack on the right of the plaintiffs to have their names appear on the official ballot,is based on what has transpired subsequent to the convention. It is not claimed that the convention which placed plaintiffs in nomination has ever reconvened and reversed its action, nor that the convention has ever taken any subsequent action in reference to the matter, nor that the plaintiffs have ever withdrawn from being candidates. But it is claimed and shown that an agreement was entered into between the rival candidates and committees, to the effect that a primary election should be held under the primary election law, and the claims of the rival factions referred back to the Republican voters of the county. It is contended by the defendant that this was done, that the decision of the voters was against the plaintiffs, and that the board of county officers provided for in section 10 had a right to take cognizance of this agreement and enforce it. On the part'of the plaintiffs it is claimed that before the primary election was held, influences were brought to bear by the State Committee against them and in favor of the other faction ; and that thereupon, and before the election, they withdrew from the arbitration, if it may be so termed, and advised their faction to take no part in the primary election. It is shown that a notice of this kind was published by the plaintiffs-. The substantial question then is whether the special tribunal had power, under the law, to enter into an investigation of these matters, to determine the rights of the opposing factions, and to place the candidates of one of them on the official ballot and exclude the other. If they have this power it certainly is one of vast importance ; for if they might exclude the plaintiffs, they might equally, on like objections, have excluded the opposing faction and have placed the names of the plaintiffs on the ballot instead. As the statute makes their decision fina], and no appeal is given to any court or tribunal, if they have full and exclusive jurisdiction of all such controversies, there would seem to be no limit whatever to their power to exclude the candidates of any convention or political party against whose nominations objections might be filed. The State Board, under this construction of the law, might decide between opposing factions in the party to which they owe their own election, or in the opposing party, and absolutely exclude from the ballot the opponent most dangerous to them. The fact that power is liable to abuse is not necessarily a valid objection to its existence. But the liability to such abuse may and ought to be taken into consideration, in a case of doubt, in determining whether or not the Legislature intended to confer it. The Court will take judicial notice of the fact that in a large percentage of elections, the officers designated as tribunals to determine these controversies are themselves candidates before the people at. the election, directly interested in the result, and, therefore, directly interested in the determination of the questions presented to them. It is to their interest to avoid factions within their own party, and to cause divisions and discord in the ranks of their.opponents. Prior to the passage of the Australian Ballot Law any faction of any party, or any citizen, or number of citizens, was at liberty to print and circulate tickets to be used at the election, containing whatever names the authors of the ticket saw fit to place thereon, subject only to punishment for the fraudulent use of party names or headings. Can it be supposed that the Legislature in passing this law intended to strengthen party machinery, and the domination of party leaders and party committees over the members of their political organizations? Can the courts recognize, as was said in the case of The State, ex rel. O’Malley, v. Lesueur, supra, a supervisory control by party committees over the individual members of the party when they are disposed to divide into factions? One of the great evils in our system, against which the better elements of all parties have cried out, is the domination of the party bosses and the undue influence of what are termed machine politicians. It seems to us that the courts, at least, should treat political parties as at all times purely voluntary associations of absolutely independent citizens, who are at perfect liberty to sever their connection with the political party to which they have adhered, at any .moment when they deem it right to do so ; that they may divide' into such groups as may please them, and that courts and tribunals created under the law are not authorized in any case to enforce discipline upon the members of a political party at the call of committees, candidates, or any one else. In the ex-exercise of his right to vote the American citizen is an absolute sovereign. He owes no allegiance, save to his country and his fellow citizens. It is his unmixed duty to cast his ballot as he deems for the best interest of himself and those who are affected by the result of the election. In performing this duty, no partisan authority has rights over him. No official, high or low, may interfere with him. And in construing laws affecting the suffrage of the citizen, that construction should always obtain which affords the citizen the greater liberty and freedom of choice.

2. Tribunal cannot enforce agreement between, factions. It is urged that frauds may be perpetrated by placing on the official ballot the names of persons as candidates of a political party who are not such in fact; and that the voters may be thereby misled and deceived into casting their ballots in a manner which fails to express their real wishes. That there is force in this suggestion must be conceded. It is possible that the Legislature may hereafter deem it wise to restrict in some manner the multiplication °f candidates on the official ballot. But the question now presented is, where rival factions in a political party each puts forward candidates, whether the board, which must act on objections within a very few days after they are filed, and which is given none of the powers usually and necessarily conferred on courts of compelling the attendance of witnesses and the production of papers and of enforcing obedience to its mandates, may finally and conclusively determine the rights of the opposing factions ; place the candidates of one on the official ballot, and exclude those of the other ; or whether the people themselves at the election have the sole and exclusive power to determine which is the false, and which the genuine? This they certainly might have done under the law as it was before the passage of the act under consideration; and we do not think it was the purpose of the Legislature to take this right away from them, or authorize any set of public officials to do so. Cases involving substantially the same question have been passed on by the courts of neighboring States. In the case of Shields v. Jacob, 88 Mich. 164, it was decided:

"When the call for a convention of a political party, results in the holding of two nominating conventions, it is not the province of the board of election commissioners to determine which convention represented the regular nominating convention of the party, but it is their duty to place upon the ballot the names of the candidates certified to them by the committee of either branch of the party represented by the two conventions ; and if the name of a party shall be certified by each of the two committees, it is the duty of the commissioners to print the names so certified without further addition or distinctive designation than such as is contained in the certificate so furnished.”

And in the case of The State v. Allen, 43 Neb. 652, it was held:

"Where two factions of a political party nominate candidates and certify such nominations to the secretary of state in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts, in case of doubt, to adopt that construction which affords the citizen the greater liberty in casting his ballot.”

And in the recent case of Phelps v. Piper, 67 N. W. Rep. (Neb.) 755, in a carefully considered opinion it was said :

"Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their own will. The voters ultimately must determine e.very such question. The voters constituting a party are, indeed, the only body which can finally determine between contending factions, or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believed to be the representatives of its political doctrines and its party government.”

In the case of The People, etc., v. District Court, etc., 18 Colo. 26, it was said in the syllabus that “ it is not the province of either executive or judicial officers to give official sanction to the mere course, regularity or genuineness of any political organization as such.” These cases were decided under statutes substantially like ours, and fully sustain the proposition that no power is vested either in the special board provided by the Australian Ballot Law or in the courts to pass on the merits of the claims of rival factions of a political party ; but that where both hold conventions and nominate candidates, both must be recognized, and given a place on the official ballot. The Supreme Court of Missouri, in the case first cited, holds, that there was a .valid agreement to arbitrate; that the award was made in accordance with that agreement, which was binding on the parties. We have very serious doubts whether the courts can take cognizance of and enforce such agreements with reference to controversies of this character. But if the position of that Court be sound, there was an express withdrawal by the plaintiffs from the submission in this case before the primaries were held, and the award made. The general rule is well established, that an agreement to arbitrate may be revoked at any time before final submission. It seems to us, however,- a matter of politics rather than of contract. In conclusion, without attempting to lay down a definite fixed rule limiting the inquiry of the county officers named on objections to a certificate of nomination, we hold that they have no power to inquire into the rights of opposing factions of a political party, nor to enforce agreements with reference to the withdrawal of one or another set of candidates after their nomination by a convention, nor to give effect to any supervisory power or control of party state committees over local party organizations ; that after the candidates have once been nominated by a convention held by a party or faction of a party and genuine certificates in due form have been filed with the proper officer, the names must be printed on the official ballot under the heading of the party which they claim to represent, unless such candidates withdraw in the manner indicated by the statute.

A premptory'writ is awarded as prayed for.

Martin, C. J., concurring.