State ex rel. Cook v. Houser

100 N.W. 964, 122 Wis. 534, 1904 Wisc. LEXIS 191

• Court: Wisconsin Supreme Court
• Decided: October 5, 1904
• Status: Published

Opinions

On October 20, 1904, the following opinion was filed:

Maesiiaill, J.

At the outset in writing this opinion it seems proper to say that the court at no time since the cause was submitted has been insensible to the intense anxiety of the people of this state for a speedy determination of the important questions involved. That anxiety fully justified, if it did not do more, giving the cause preference over all ordinary business here and it has been given that preference. Obviously in such an important matter neither the circumstance referred to nor any other could have justified haste in reaching a decision, impairing the ability of the members of the court, individually, to carefully study and consider the arguments of the eminent counsel who, in their appropriate field as officers of the court, have aided it in arriving at a correct result. Such careful consideration of the arguments of counsel required the examination of a multitude of authorities cited therein, and authorities in great number not so referred to. Time for that careful study was due to those who must in the future bear the responsibility for the result. It was due to the court which stands for justice in our commonwealth, so far as it is given to men to effect it, laboring conscious of no thought'other than to discover and to declare what is right, and to condemn what is wrong. It was due to the people at large, whose interests of a most vital character were at stake; and lastly it was due to the private parties to be directly affected by the decision. All who put the public welfare above mere private considerations or mere curiosity will fully appreciate what is thus said. Those disappointed with the final result, as well as those who are not, together with the great mass of conservatives waiting without bias to embrace as truth that which shall be judicially declared to be such, will obtain satisfaction in the reflection that by due process of law the right of the controversy which has disturbed the people in every section of the state, and reached outside thereof to a greater extent than any matter of difference which has heretofore existed originating within its boundaries for a generation, has been judicially declared as a result of all the deliberation and thorough investigation which could be devoted thereto with any reasonable probability of obtaining light upon the issues involved. It is of course to be regretted that in a matter of such public importance the end reached cannot rest upon the collective judgment of all the members of the court. That has been appreciated here to a high degree and to the care exercised to obtain, so far as possible, a definite understanding of every judicial thought interfering therewith, and to weigh it carefully in all its aspects, must be attributed much of the time that elapsed between the submission of the cause and the decision thereof. It is due to the court that all such thoughts which were found upon consideration not to justify a different conclusion than the one reached should receive attention in the opinion upon which the judgment is grounded, and it is quite proper that further attention should be paid thereto in concurring opinions adding emphasis to what may be said for the court, so that the truth judicially declared, may stand, so far as possible, as truth judicially demonstrated to voice the law so plainly as to close up every avenue for reaching a different conclusion.

With the foregoing prefatory remarks we will take up the various questions directly or incidentally involved in this litigation and necessary or proper to be determined in reaching a decision.

"Whether the canse of the plaintiff is -within the original jurisdiction of this court, using the term “jurisdiction” in its strict sense, that of power as distinguished from mere judicial rules as to when it may be exercised in equity or at all, is determinable without difficulty by the test which has been so firmly established by a long line of decisions in this court, that it is as well known in its general scope as any legal principle that could be mentioned.

The cause involves the interpretation and enforcement of a legislative enactment in which all the people of the state are vitally interested. The question at issue is publici juris in the highest degree. The chief interest therein is not only public but extends to every section of the state in substantially an equal degree. It involves the correct enforcement of the legislative plan, making political parties important state agencies in the selection of candidates for public offices, incidentally in determining the policy which shall guide such officers in the performance of their official duties, and in the selection at the ballot box from those primarily named of persons to fill such offices. The theory of such plan is that a political party, so long established as to come within its provisions, stands for some distinct policy in public affairs, which is so identified with the party name that its candidates should have the exclusive use thereof as a characterization of such policy and the relations of its candidates thereto, upon the official ballot. It contemplates that candidates for office named on the official ballot stand for principles of supposed public concern, to be indorsed or condemned by the electors according as they shall indicate their opinions in respect thereto-, by their votes for or against them as the personal representatives thereof. It contemplates that such principles are of paramount importance in determining elections; hence that' every candidate should he known upon the official ballot by his particular party association, he having but one such association, and therefore entitled to but one place on such ballot. State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482. The exclusive use of the party name by a particular organization, after it has achieved such significance as to be entitled to recognition as one specially privileged to appear on the official ballot, was evidently deemed by the legislature to be a matter of vital importance to such organization, to the candidates named by it, and to the people of the state at large. It was thought to be necessary to the integrity of the organization, and important to the people generally as an indication of the principles to prevail contingent upon the candidates bearing its stamp, so to speak, being elected. It was thought to be a matter of the highest importance to the electors, to the end that they might not be misled into indorsing principles in form to which they were opposed in fact. All that seems fairly implied by the general features of the plan. So the sovereignty of the state as to the regulation of elections, the liberty of the electors to organize for political purposes, their right to the preservation of party integrity, the same as in the case of any voluntary organization, the opportunity to render legitimate organized effort to a political end effective, and the very vital principle itself of our entire scheme of constitutional government, the security of life, liberty, and the pursuit of happiness, is involved in the correct understanding and administration of such legislative plan. The common practice where the people are privileged, or have reserved unto themselves the right, to shape governmental policies through the agency of political parties, the common judgment that strong party organizations, in which the will of the individual elements is deemed to be fairly reflected by its representatives, promote good government, is significantly embodied therein. Therefore, a controversy involving the vital principles thereof, it would seem, plainly satisfies the test of the original jurisdiction of this court. That, as it is said, “extends to all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of the people.” In re Court of Honor, 109 Wis. 625, 85 N. W. 497, and cases therein referred to. That the comprehensive language, early used as circumscribing such original jurisdiction, includes the particular matter in hand, seems plain.

If there could be any doubt but that the conclusion above suggested is right a reference to previous decisions of this court effectively removes it. In Att’y Gen. v. Blossom, 1 Wis. 317, this court declared, in effect, that its original jurisdiction affords a remedy for the unauthorized exercise of power, which only the legislature, acting within constitutional restraint, can give; that it is the duty of the state to preserve pure and unimpaired every channel and agency through which its power is exercised or administered, and rebuke in the most speedy manner consistent with individual rights any and all who assume its name or usurp its authority or seize upon its franchises; and that such power effectively lodged somewhere, is necessary to preserve the liberties of the people and to secure the rights of its citizens. In Att’y Gen. v. Railroad Cos. 35 Wis. 425, a violation by railway corporations of a law regulating the enjoyment of their franchises was held to be a subject proper to be dealt with here in the first instance. In Att’y Gen. v. Eau Claire, 37 Wis. 400, the alleged abuse of a public watercourse, title to which was in the state in trust for the whole people thereof, was held to be such a subject. In State ex rel. Att’y Gen. v. Cunningham, 81 Wis. 440, 51 N. W. 724, a controversy as to the validity of a law apportioning the state into senate and assembly districts was also said to be a like subject. In the opinion the scope of the court’s original authority was thus spoken of: “In matters publici juris it would seem to embrace every matter of great public interest.” In support of that numerous early cases were cited, showing the broad range of subjects as to which such jurisdiction had been previously exercised in matters of such interest. Among such citations are: State ex rel. Att’y Gen. v. Messmore, 14 Wis. 115, where the controversy was over the right to a high state office; State ex rel. Att’y Gen. v. O’Neill, 24 Wis. 149, involving the validity of a law applicable solely to the city of Milwaukee; Slauson v. Racine, 13 Wis. 398, involving the construction of an apportionment law; and Att’y Gen. v. W. W. R. Co. 36 Wis. 466, involving the validity of a legislative enactment authorizing the discontinuance for a railway of a route fixed by a law of Oongress, the jurisdiction being grounded, in the main, upon the one fact that the matter was a subject of great public interest; State ex rel. Bell v. Harshaw, 76 Wis. 230, 45 N. W. 308; State ex rel. Anderson v. Timme, 70 Wis. 627, 36 N. W. 325; State ex rel. Abbot v. McFetridge, 64 Wis. 130, 24 N. W. 140, and State ex rel. Anderson v. Timme, 60 Wis. 344, 18 N. W. 837, and other cases, all indicating that the actions of state officers in matters of an administrative character are subject to the direct judicial control of this court, both as to the prevention and the redress of violations of official duty. The rule in the latter class of cases in In re Court of Honor, supra, and State ex rel. New Richmond v. Davidson, 114 Wis. 563, 88 N. W. 596, 90 N. W. 1067, is restricted to cases where the primary right sought to be vindicated is public. The primary right in this instance is that of a political party by law constituted a state agency, as we have seen, for certain purposes of a most important character. In a certain sense party action, within the legislative regulation, is state action. A function of the state in the exercise of its sovereign authority to regulate elections, by the legislative plan involved is, in part, exercisable through political party machinery. So a correct administration of such plan necessarily concerns the well being of the people as a whole.

If the issues made by the pleadings and proceedings present judicial questions, it is no less clear that the case is one where this court should exercise its jurisdiction so far as necessary to determine whether the facts stated in the complaint and the admitted facts are sufficient to constitute a ground for relief in relators’ behalf, and in that event proceed-to a finality in that regard, than it is that such original jurisdiction is plain. As before indicated, the public interest in the-matter is most intense. The public rights involved are important in the highest degree. No case has arisen in recent years that more closely concerned all the people than this one. Nothing short of a decision by the highest authority in our judicial system would be at all satisfactory or adequate to meet the situation. The time afforded for such supreme authority to speak is far too short for it to do so effectively, as-regards the present emergency, unless this tribunal will open its doors as a court of first instance for the purposes thereof. True, as stated by counsel, upon the outcome of this litigation may, within reasonable probabilities, depend the policy that shall prevail in the administration of the state government for a long period of time. True, the right of the matter in controversy and its speedy vindication may, within reasonable-probabilities, be vital in the determination, not only of the-future state but the future national policy, in both of which all the people of the state are, in the-nature of things, most deeply interested. True, the result may be so far reaching-that no one would venture to mark its uttermost limits. These-considerations not only amply justify but demand of this court that it shall rest from the performance of its ordinary-duties a sufficient length of time to enable it to perform its-high function of acting directly, speedily, and efficiently to* declare the law, so far as it is in the court’s keeping to do so, in respect to the matters alleged, rather than that the great interests involved shall be permitted to suffer by delay. In re Court of Honor, 109 Wis. 625, 85 N. W. 497.

No other questions than those already discussed go, strictly speaking, to the jurisdiction of the court. The others relate to whether the issues presented for consideration be proper for judicial cognizance, in any event, and if they be, whether' the facts alleged constitute a cause of action in equity in favor of the plaintiff. Such questions, especially the latter, are-often spoken of in equitable actions as jurisdictional matters. In such circumstances, however, judicial power is not involved in doubt, but whether its exercise is permissible in view of the established practice, is in doubt. Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. The erroneous exercise of’ power is often denominated jurisdictional e^ror and is such within the broad meaning of the term. That is upon the-theory that where the court ought not to act at all, or to act in the particular way its jurisdiction is moved, though if it were to proceed it would not be guilty of usurpation, its judgment being binding until reversed by some proper proceedings, it should regard action as outside its jurisdiction. Evidently defendant’s Counsel by their motion to dismiss challenge the jurisdiction of this court within the broad meaning-of the term suggested, and the cause will be considered accordingly.

It must be conceded that by the general rule there is no-legal effective remedy to prevent the alleged threatened wrongful act or to redress it, if commission thereof were permitted-The remedy by mandamus is not available, generally speaking, in advance of some actual default in respect to a clear-official duty. State ex rel. Board of Education v. Hunter, 111 Wis. 582, 87 N. W. 485. If special circumstances may create an exception to that rule, as suggested in the case cited, whether this case would fall within such exception is sufficiently involved in doubt to warrant a court of equity in-opening its doors so far as it can afford a remedy, if the commission of a great wrong is in fact impending as alleged. It seems quite plain, since the defendant cannot, by any action on the part of the relators, be put in default in respect to the matter until a few days before the official ballot must be prepared for use at tbe coming general election, and be may, if be sees fit, wait until fourteen days prior to tbat time before certifying tbe names of tbe nominees to tbe county clerks, tbat tbe time to elapse thereafter, before tbe official ballot must be ready for use, is too brief to enable aggrieved parties to use effectively their remedy by mandamus, or any other legal remedy. It is quite as doubtful whether equity could properly furnish a remedy for tbe asserted wrong if tbe duty of tbe defendant be purely ministerial, and dependent upon tbe decision of ,a quasi-judicial tribunal, as is claimed upon tbe side of tbe defense (Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835) ; but tbat bis conduct is subject to judicial control as to all jurisdictional questions cannot well be doubted. Whether the conduct of tbe defendant be so de-pendent is one of tbe questions here presented for decision. And another is whether tbe tribunal tbat assumed jurisdiction to pass upon tbe factional dispute committed any jurisdictional error in so doing. Each of those propositions involves several others and all are of a judicial character.

So, as we have seen, this is a proper case for tbe exercise of tbe original jurisdiction of this court in any aspect the same may be viewed. Therefore tbe court has assumed such jurisdiction for these purposes: To determine whether, upon tbe facts appearing;' plaintiff has any ground for relief; to determine all of tbe minor questions necessarily involved in the one ultimately to be solved; and if the latter shall be determined in favor of tbe plaintiff, to decide upon tbe measure and form of relief tbat should go against tbe defendant, and to render tbe proper decree and to enforce it.

Tbe time has long since passed for serious controversy as to whether in this class of cases judicial questions are involved. The idea urged upon our attention by defendant’s counsel tbat they involve only political questions, which should be left for solution to tbe party organizations directly interested, bas been judicially denied over and over again. We-venture to say that there is no conflict at this time in respect to the matter, in judicial authorities dealing with legislative-plans for the use of an official ballot. As said in a very able opinion recently rendered by the supreme court of South Dakota, State ex rel. Howells v. Metcalf, 100 N. W. 923 :

“When the legislature in its wisdom sees fit to regulate nominations and the printing of ballots by statutory enactment, the duty of interpreting such enactments devolves upon the courts, and they should not attempt to escape responsibility, or avoid disagreeable consequences by assuming that no judicial questions are involved. The auditor’s duty and the candidate’s right respecting the preparation of the official-ballot, having been determined by statute, . . . the performance of such duty and the protection of such right no-longer present merely political questions, but must be dealt with as other legal duties and other legal rights.”

The law making political parties state agencies, as before-indicated, in the selection of persons for public offices, shaping the policy that shall be their guide in the performance of' their official duties, and regulating the manner in which such parties shall execute their functions, created new rights and privileges to be conserved by old or new remedies, or in part by one and in part by the other, according as the legislative-will is expressed in terms or by necessary implication. Every law conferring a new privilege or right, or providing a new and legitimate condition for the enjoyment of an old one, necessarily gives rise to new possible wrongs in respect thereto,, with a corresponding necessity for the use of remedies for prevention and redress. To the maxim there is no wrong, asid.e-from purely moral transgressions, without a judicial remedy of some sort to prevent or redress the same, there is no exception, though such remedy, especially as to violations of mere legislative .privileges, or administrative regulations, as wo-shall hereafter see, is often limited to the correction of juris-clictional errors of tribunals specially empowered to exercise original authority to determine the facts and apply the law thereto.

So it follows that the legislative' enactment specializing as to what political parties may have the use of the official ballot and the conditions to be observed to secure the enjoyment of -that privilege, impliedly renders all controversies between nival claimants to such privilege as to any particular political organization; judicial in character so far as necessary to a de-cisión upon the ultimate point involved. The precise extent -to which judicial inquiry may legitimately go, under any circumstances, need not be considered here. The cases where that has been treated in recent years are very numerous. Many of them will be found referred to in this opinion. The most recent and one of the most instructive thereof is the one to which we have referred, decided by the supreme court of South Dakota after this cause was submitted to the court. It is sufficient for this instance, that the question of whether a tribunal has been created by the legislature to determine, in "the circumstances presented to the defendant, as alleged, the matter of fact as to which of the two rival claimants is entitled to the use of a particular party name upon the official 'ballot, and if there be such tribunal the question of whether 'its jurisdiction as to the facts is exclusive, except as regards jurisdictional errors, are obviously, in view of what has been said, judicial questions. If such a tribunal has been created with exclusive jurisdiction as to the facts, within the limitation suggested, and this court for that reason refuses to invade it, it by no means follows that it does not possess jurisdiction to judicially declare which of the two sets of claimants of the privilege of appearing on the official ballot at the •coming general election as the regular nominees of the Ne-publican party is entitled to such privilege. This court, for -the reasons before stated, decides that it does possess that jurisdiction and that it might to and will exercise it.

In tbe logical consideration of tbe case we must now examine tbe statute, sec.. 35, Stats. 1898. That, admittedly, governs tbe conduct of tbe defendant respecting tbe controversy between tbe two contending factions. If tbe views thereof entertained by defendant’s counsel be correct, all questions as to whether tbe convention wbicb nominated Eobert M. La Follette and bis associates ivas composed of a majority of tbe delegates qualified to participate in tbe nomination of regular Eepublican candidates for state offices to be placed upon tbe official ballot for tbe coming general election, must be decided with reference to tbe determination thereof by tbe special legislative tribunal, except as regards jurisdictional errors committed by it, if any there be.

As we understand tbe matter, it was frankly admitted on tbe argument by tbe eminent counsel for plaintiff that tbe legislature possessed authority to create a tribunal to decide controversies arising between rival claimants to tbe right to appear upon tbe official ballot under a particular party designation, and that if such tribunal exists for tbe purposes of tbe •controversy in question, its decision, within its jurisdiction, must be deemed conclusive. 'Whether -we are right or not as to such concession, such is doubtless tbe law.

Whatever privileges are within tbe power of tbe legislature to grant, may be granted upon such conditions and subject to such regulations as it in its wisdom may see fit to impose. That is elementary. In dealing with this subject care should be exercised to distinguish between common-law rights, which are within tbe protection of constitutional restraints upon legislative authority, and mere legislative creations. A failure in that regard would be quite likely to lead one astray. Tbe right to vote and to secrecy in respect to tbe elector’s opinion thus expressed cannot be impaired, but tbe enjoyment of those rights which are within constitutional protection may have every legislative aid wbicb tbe wisdom of tbe lawmaking power may see fit to afford. Tbe power of regulation to that end. is limited only by wbat is reasonable. Any attempt to> regulate passing that barrier, is destructive of tbe right involved, not an aid to its enjoyment, and hence is not legitimate.

In respect to the genpral features of our present ballot law and legislative power in respect to such matters, the court said in State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482:

“Without wise and careful legislative regulations, supplementing the constitutional guaranty, the elective franchise-might be so abused and the means of such corruption as not only to nullify its controlling purpose, but every purpose-of popular constitutional government. That extremists may carry such regulations too far is by no means improbable, but when they do it will be met by that other safeguard, the court, without which constitutional guaranties might be easily evaded and rendered useless by the ingenuity of legislatures.

“We are unable to see anything in the present ballot law which passes beyond the bounds of reasonable regulation in-view of the end sought, — the right of all to vote in secrecy and upon the basis of political equality and purity.”

So the plan for an official ballot, and opportunity for party representation thereon, are matters of legitimate legislative-creation; hence the conditions of party representation upon such ballot are purely within legislative control. Whoever joins a political party impliedly submits to regulations in that regard, as in effect by-laws of the organization, the same as every member of any other voluntary association, upon joining the same irrevocably pledges himself to be bound by the decisions of its tribunals, save as regards jurisdictional errors. This court very recently dealt with such relations In Bartlett v. L. Bartlett & Son Co. 116 Wis. 450, 93 N. W. 473, and Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835.

Errors of judgment committed by such a tribunal however numerous or serious, even though by reason thereof justice, except as regards mere form, be denied and wrong from an original standpoint be made to bear tbe stamp of right, does-not militate at all against tbe binding effect of tbe result. All must bow to it as tbe right of tbe matter from a legal standpoint, however much from a moral aspect it may appear to be wrong. That applies to all tribunals of voluntary organizations and to all special tribunals created by law to deal with legislative rights and privileges. There are so many illustrations of approved legislation as regards the latter that it is strange that a layman, even, should marvel at the existence of such laws, and passing strange that others should. There are hundreds of such tribunals. Every board of review, every one of the numerous official boards and councils empowered to act judicially is such a one. "Who would expect to avoid the decision of a board of review, or the board of law examiners, or the board of control, or the board of regents, or the board of dental examiners, as to any matter within its jurisdiction, except for errors of a jurisdictional character ? The books are full ofsdecisions in harmony with what is here suggested. The following are examples: State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. N. C. Foster Lumber Co. v. Williams, 123 Wis. 61, 100 N. W. 1048, and State ex rel. Gray v. Common Council, 104 Wis. 622, 80 N. W. 942.

From the foregoing it is plain that whether the merits of the controversy between the two claimants of the right to a place on the official ballot as the Eepublican nominees, as to the facts, is within the special jurisdiction of a tribunal created by sec. 35, aforesaid, is of controlling importance in reaching a correct conclusion.

Those parts of sec. 35 which must be examined consist of the following two clauses:

1. “In. case of a division in any political party, and a claim by two or more factions thereof to the same party name, the officer with whom the certificates of nomination are required to be filed shall, in certifying such nominations or preparing ballots, give preference of name to the convention or caucus thereof held pursuant to the call of the regularly constituted party authorities, and if the committee representing'the other faction present no other party name, such officer may designate the same in such manner as will best distinguish the nominations thereof.”

2. “When two or more conventions or caucuses shall be held and the nominations thereof certified, each claiming to be the regular convention or caucus of the same political party, preference in designation shall be given to the nominations of the one certified by the committee which had been officially certified to be authorized to represent the party.”

The calls of the first clause are: First, a division in a political party. Second, a claim by two or more of the factions to the use of the same party name, and by certificates of nomination duly filed. The calls of the second clause are: First, two or more conventions or caucuses held for the same jDurpose. ’Second, nominations made by each such convention or caucus. Third, the due certification of all the nominations. Fourth, the claim by each such convention or caucus to be the regular convention or caucus of the same political party.

It will be observed' at the first view of the quoted section that the element significantly present in the second clause and absent in the first, is the claim of each of the state conventions “¿o be the regular convention ... of the same political party.” The allegations of the complaint satisfy the calls of the first clause as regards mere party division and the claim by each faction to the use of the same party name, but the 'distinguishing element mentioned, the claim by- each of the conventions “to be the regulan• convention of the same political party,” not seen in the first clause, is most significantly present in the case before us and is fully and unmistakably covered by these words of the second clause: “When two or more conventions . . . shall be held . . . each claiming to be the regular convention of the same political party.’' We could but marvel when tbis case was presented at the bar how the plain language of the second clause could be viewed as susceptible of being so bent out of its literal sense as to exclude the situation in hand, when all the facts thereof are so plainly covered thereby, "and the plain language of the first clause likewise be so bent as to include such situation when the significant element of double claim to convention regularity is not suggested therein. Later, when judicial differences arose in respect to the matter, the facility with which different minds can read ■ different meanings out of plain English words, was most aptly illustrated, and one’s conviction that but a single meaning can be reasonably gathered from the language under consideration would have been somewhat shaken, by an impressive attempt to answer this apparently self-evident proposition: The dominant feature of the first clause of sec. 35 is the existence of multifarious “claims to the same party name/’ the right of the matter being determinable by the certifying officer by the "call of the regular party authorities” required to appear of record with such officer by sec. 31 of the statutes; while the dominant feature of the second clause is the existence of multifarious claims to the same party name” based on like claims “to be the regular convention of the same political party/’ creating a controversy calling for evidence aliunde the record.

Looking at sec. 35 from any reasonable standpoint and the foregoing proposition seems unanswered and unanswerable. The facts of this case respond to every call of the second clause of the section. The first clause cannot cover a case of a double claim to the same thing based on the conflicting actions of two conventions, each assuming to be the regular convention of the same political party. Eirst, because no such double claim is mentioned therein, and second, because it contemplates only conflicting claims, easily answered by the certifying officer by reference to' bis own records, which is highly inconsistent with the idea that a double claim of regularity referable to a single and regular party call, as in this case, could fall under such clause. It is quite clear that the second clause does cover such double claim, first, because the words thereof in plain English so indicate; second, because the records in the office of the certifying officer and the nomination certificates would not furnish necessarily a certain guide for determining the dispute; and third, because that fact is therein recognized by the creation of a tribunal to solve the uncertainty.

The learned counsel for plaintiff, though freely confessing that at first sec. 35 impressed them as it does us, stated that by carefully scrutinizing the same they were able, or that some of them were, to discover a different meaning, which is urged with counsel’s customary ability upon this court. We have-carefully considered the reasoning indulged in to support such meaning, but must confess that it fails to impress us. Doubtless, the course of reasoning adopted by counsel is as convincing in support of their theory as any which the nature of the. case is susceptible of. We shall not follow it in all its details, but will consider the principal features thereof.

It is suggested that the test of regularity under the first clause of sec. 35 is not the source of the call, in response, to which either of the conventions was held; that there may be two conventions, each referable to the regular party authority, the nominations made by each duly certified to the proper officers, each claim the right to go upon the official ballot under the regular party designation, and all the circumstances satisfy the essentials of such clause. In that it seems not to be given due weight that, by the plain words of such clause, the certifying officer in every case thereunder must be guided by the “call of the regularly constituted party authorities,” referring, clearly, to the party authority provided for in sec. 31, which requires a record to exist in his office of the names of those entitled to exercise such authority, and further, that a double claim merely to the exclusive right to go upon the official ballot under the regular party designation is not the essential condition found in the second clause, distinguishing it from the first. It is the fact of each convention "claiming to be the regular convention of the same political party

With confidence counsel suggest, “If a convention called by one committee, and that the regular committee, splits into two conventions, each making and certifying nominations, each electing and certifying a committee to represent the party, and each claiming the right to the party designation on the ballot, are not there presented the precise conditions contemplated by the first clause?” Most assuredly not, because it ■clearly provides for a case of one convention, held pursuant to the call of the regularly constituted party authorities,, and one or more not so held.

Again counsel suggest, “It is the condition which gives the secretary of state jurisdiction” to decide a factional dispute as to the rightful claimant of a particular party designation. True, and the vital condition is one where there is no discretion to be exercised by the certifying officer in deciding as to multifarious claims to regularity referable to "the regularly constituted party authorities

Again counsel say, “The calls of the first clause are: first, a division in a political party into factions; second* the claim by each to the ‘same party namethird, tire holding by each of a convention or caucus; fourth, the making by each convention or caucus of nominations; fifth; the certification and filing of such nominations with the officer designated by law for that purpose; sixth, the election and certification by each with the nomination papers of a committee authorized to represent the party. All these conditions exist, or will exist, in this case.” Why the learned counsel'should stop there instead of naming that other condition existing here, viz.: multifarious claims to be “the regular convention of the same political 'party,” wbicb is not solvable by tbe “call of the regular party authorities ” and so cannot fall witbin tbe scope of tbe first clause but is covered by tbe second, is not readily perceived.

Tbe further point is made that tbe factional dispute in controversy in tbis case falls under sucb first clause because it was plainly tbe legislative purpose .to give each organized faction of a party, bolding a convention and certifying its nominations, as provided by law, representation upon tbe official ballot, and tbe only provision therefor is in tbe first clause and is contained in these words “and if tbe committee representing tbe other faction present no other name sucb officer may designate tbe same in sucb manner as will best distinguish tbe nominations thereof.” That tbe legislative purpose is clear, as claimed by counsel, may be conceded, but tbe idea that it is only satisfied by tbe first clause is clearly wrong. It is as definitely voiced in tbe second clause as in tbe first. There can be no mistaking tbe meaning of these words: “Preference in designation shall be given to tbe nominations of tbe one certified by tbe committee which bad been officially certified to be authorized to represent tbe party.” Tbe words “preference in designation” suggest at once and unmistakably two or more designations, one for tbe party ticket wbicb is regular, and one for each of those wbicb are irregular.

Further, our attention is called to the circumstance that tbe word “factions” nowhere occurs in tbe law, except in tbe first clause thereof, and it is suggested that as there is a factional dispute in tbe case in band, tbe situation is necessarily governed by sucb clause. That idea seems to have bad weight in creating tbe difference here. Why sucb weight, is buried in obscurity. It would seem that if any particular significance were to be given to tbe presence of tbe word “factions” in one clause and the absence of it in tbe other, it would point to a far different conclusion than tbe one contended for. Sucb word as regards political bodies, strictly speaking, suggests a division of tbe members thereof, and a separate organization of tbe parts, not a mere division of a regularly called convention into two camps, tbe body of tbe party not necessarily being divided. “A faction is a party in political society, combined or acting in union, usually applied to a minority, but may be applied to a majority.” Webster’s Dictionary. It is “a number of persons combined for a common purpose, usually a party within a party.” Standard Dictionary. It is “a party of persons having a common end in view, usually sucb a party seeking to bring about changes in any association of which they form a part.” Century Dictionary. Each of these lexieonic meanings implies more clearly a division of the members of a party, each part striving to shape the policy, in whole or in part, of the entire body, than the mere division of a convention. The significant words of the first clause are “a division in any political party” not the word “factions.” There was no division in the Eepublican party, strictly speaking, in this case. There was a division in the convention of such party. Probably within the broad meaning of the term “faction” a division of the members of a political party, or of its duly elected representatives, is factional, and a claim by each of two or more conventions “to be the regular convention of the same political party” would be impossible without a factional division of some sort. However, it cannot well be claimed that the term “division” necessarily includes the circumstances in question and restricts them to the first clause of sec. 35, nothwithstanding the added feature so plainly satisfying the second clause and inconsistent with the first. In our judgment the fact that the word “factions” is used in one place and not in the other has no particular significance. It merely refers to a conflict within a party, which must exist to satisfy the calls of either clause. The distinguishing feature between the two clauses is not in that the division is factional in one case and not in the other, but in the circumstances characterizing the double claim to the exclusive use of the same party name, the one calling for the exercise of mere ministerial functions to determine the right of the matter, and the other requiring the exercise of judicial or gwasi-judicial functions to determine the same.

We will not follow the reasoning of counsel for plaintiff further in their construction, so called, of the law in question; the most salient features thereof we have given attention to. To our minds the fundamental infirmity in such reasoning is in the assumption that there is ambiguity when there is none in fact. Of course it will not do to use rules for judicial construction to create ambiguity, or to apply such rules for the purpose of reading, so to speak, a meaning out of words other than that which the plain ordinary sense thereof points to unless the result of applying such meaning to the subject dealt with and the nature of the result is such as to suggest pretty clearly an ambiguity, which is not the case here. There is no exception to Vattel’s rule of interpretation (Law of Nations, bk. 2, § 263). By slight re-phrasing thereof, without at all sacrificing the sense, it fits the situation before us.

‘It is not allowable to interpret what has no need of interpretation. When the meaning is evident and leads to no absurd conclusions there can be no reason for refusing to admit the meaning which the words naturally represent. To go elsewhere in search of conjecture, in order to restrain or extend the act, would be an attempt to elude it. Such a method if once admitted would be exceedingly dangerous, for there would be no law, however definite and precise, which might not by interpretation be rendered useless.’ Absoluta sententia expositore non eget.

That is an old and one of the most valuable maxims of the law. It sets the mark to be observed in determining when and when not to look for the sense in which words were used by the lawmaking power by the light of judicial rules. The efforts to keep such rule constantly in view in the performance of judicial labor is indicated by frequent reference thereto in decisions. Mundt v. S. & F. du L. R. Co. 31 Wis. 451; Gilbert v. Dutruit, 91 Wis. 661, 65 N. W. 511; State ex rel. Heiden v. Ryan, 99 Wis. 123, 74 M. W. 544; Rossmiller v. State, 114 Wis. 169, 89 N. W. 839. In the first case cited Dixon, Chief Justice, speaking for the court, said:

“The office of interpretation is to firing out the sense where the words used are in some manner doubtful, and where these are plain and unambiguous the court cannot depart from tlio language of the statute. It is only where the intention of the legislature is ambiguously expressed, so as to be fairly capable of two or more meanings, that interpretation or any latitude of construction is allowable.”

So it is seen that judicial construction can never legitimately commence until certainty as to what is the sense intended is found to be so obscure that it might reasonably be said to be one thing or another, either being within the fair scope of the words used to express the purpose. With that guide in view and having in mind that other well-known rule, that the literal meaning of words is always to be presumed to be the one in which they were used in legislative enactment, unless reasonable doubt arises from an examination of the. whole act, or from some unreasonable or absurd result such meaning might lead to, we find ourselves unable to take the first step in the direction of a departure from the plain language of the act before us. The words ‘‘when two conventions . . . shall be held and the nominations thereof certified, each claiming to he the regular convention . of the same political party' are about as plain as English words could well be. So we cannot escape from the conclusion that the legislature created a tribunal to determine just such ■controversies as the one which arose by the circumstances alleged in this case, and that such tribunal for the controversy so created was the Eepublican state central committee appointed by the convention of that party in 1902, and certified to the secretary of state under sec. 31, Stats. 1898, the one alleged and admitted to have assumed jurisdiction over such controversy.

That there is no relief from the decision of such a tribunal as the one in question, so long as it acts within its jurisdiction, is too elementary to warrant arguing the matter at any great length. It is not essential that the law should so declare in order to have that effect. The necessary consequence-of creating a new right coupled with a new remedy to conserve it and to be administered in a new forum, is to make such forum and remedy exclusive. That such is the uniform, rule is sufficiently evident in the cases already referred to. Our attention is called to several similar laws, where it is expressly declared that the decision of the special tribunal shall be final, but counsel fail to cite an instance, and we venture to' say that none exists, where any court of last resort has held that such language is necessary in order that the laAv shall have that effect. In the cases cited nowhere is such effect grounded on any express declaration in that regard. All are to the effect that however wrong the decision may be from the standpoint of truth in the abstract, in the eye of the law it is the indisputable right of the matter and must be submitted to accordingly, except as to jurisdictional defects. This court has no more right to impeach such decision than the most inferior judicial or quasi-judicial body has to impeach its decree. Neither has it any authority to prevent such tribunal, from acting because it is a prejudiced body and if permitted to exercise its jurisdiction it would probably decide wrong. Wood v. Chamber of Commerce, 119 Wis, 367, 96 N. W. 835. It is as supreme within its sphere as this court or any court.

The following cases cited in the briefs of counsel amply support the foregoing: Miller v. Clark, 62 Kan. 278, 62 Pac. 664; Chapman v. Miller, 52 Ohio St. 166, 39 N. E. 24;, Randall v. State, 64 Ohio St. 66, 59 N. E. 742; People ex rel. Ward v. Roosevelt, 151 N. Y. 369, 45 N. E. 840; People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896; State ex rel. Brewer v. Abbay, 82 Miss. 559, 35 South. 153; State ex rel. Yates v. Crittenden, 164 Mo. 237, 64 S. W. 162. In State ex rel. Brewer v. Abbay, the court said:

“In. case of a primary election there is no tribunal vested with power to determine who is the party nominee, to correct the wrongs and frauds bearing upon the solution of that question, — save only the executive committee of the county.”

In a concurring opinion in State ex rel. Yates v. Crittenden this language was used as a guide in determining the right of matters respecting factional disputes similar to the one in question:

“The statute provides the test by which the right must be determined by the clerk or the court, if the court is called upon to act in the premises. It reads The action of the preceding regular convention of such party regularly called shall determine the action of the secretary of state, the county clerk, or the court in its decision.’ ”

In People ex rel. Lowry v. District Court, this language-was used:

“That the state central committed of a political party, or the state convention, as the case may be, is now the sole tribunal to determine such controversies as is here presented is to our minds clear beyond all doubt; and as a necessary consequence the courts do not have concurrent jurisdiction in the premises.”

It should be observed that the conclusion as to the exclusive jurisdiction of the special tribunal was not there based on a legislative declaration that its decision should be deemed final, but on the fact that it was the necessary result of unqualified jurisdiction being conferred thereon. Again in Miller v. Clark, supra, it is said that:

“It is a cardinal rule that when a right given is solely and exclusively of legislative creation, and does not derive existence from the common law, or from the rules prevailing in courts of equity, and jurisdiction is limited to particular tribunals and specific remedies are provided for its enforcement, the jurisdiction and remedy can be exercised and pursued only before the tribunals and in the mode the statute has provided.”

Here again the finality of the decision of the special tribunal was not made to rest necessarily on the language of the statute giving it that effect, but it was held that such was the necessary result of the creation of the new right coupled with .'the new remedy to be applied by means of the new tribunal, without any provision for review of its decision.

-, The only excuse for one’s feeling shocked at finding such .a piece of legislation as the one we are dealing with upon -the statute books and to discover that its legal effect is as indicated, is unfamiliarity with the trend of regulations that have become common since the official ballot law system was •adopted in this country. Many states have substantially such a law as sec. 35. Experience with the Australian ballot system early demonstrated that many serious disputes were liable to occur in its administration and of a nature which courts had not theretofore been called upon to deal with and which because of their political nature should, so far as practicable, be kept out of court. Authority to decide such matters, it was appreciated, should be lodged somewhere. The result of experience and legislative consideration was that here and elsewhere a tribunal was selected, which was thought to be as likely to decide justly as any, not strictly judicial, 'well knowing that its proceedings in order to meet emergen■cies as they arose would necessarily be of a somewhat summary character and its decision only be open to judicial review for errors other than those of judgment. The legislature had a right to enact such a law if it saw fit. It had the right to make the use of the official ballot by political parties subject to any condition which it deemed proper, particularly to require that, in cases of factional disputes, they should be settled as regards such privilege, by the party tribunal specially designated by law. There was no constitutional limita-; upon its power in that regard, which we are aware of, and none has been suggested. "When we observe how many tribunals there are commonly dealing with valuable rights with the same unlimited power, in their legitimate spheres, as the one in question, and that the particular class of laws of which that one is a fair type, is the result of much experience with legislative plans for an official ballot, and is gradually becoming a part of every such plan, one should hesitate before even condemning the policy thereof. It is only very recently that the state of Colorado by act of its legislature empowered the state central committee of every political party of such state to exercise the most complete and exclusive jurisdiction to settle its party disputes whether in counties, Congressional districts, or the state at large. Laws of 1901, ch. 71.

Counsel for plaintiff insist that, notwithstanding the conclusions reached, the court should disregard the special tribunal and its decision for jurisdictional error in acting -at all, in that many of its members were disqualified because they were indirectly interested in the result and greatly prejudiced in the matter. Eurther, if that were not so, counsel contend that the tribunal did not keep within its jurisdiction,, in that it disregarded the decision of the national Eepublicam convention, which was binding on it as the highest party authority. We shall give attention to both of those propositions.

The first proposition stated is ruled against the plaintiff by State ex rel. Starkweather v. Common Council, 90 Wis. 612, 64 N. W. 304; State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172; and Wood v. Chamber of Commerce, 119 Wis. 367, 96 N. W. 835. Counsel frankly confess that by the first of these cases neither interest nor bias disqualifies a member of an administrative body empowered to act judicially in re'gard to a privilege or right of legislative origin from performing duties of a judicial nature in respect thereto. Three members of the tribunal there were pecuniarily interested in a controversy as to the guilt of the mayor of charges filed against him, which, if sustained, warranted the council in depriving him of his office. One of the members, at least, was actively concerned in filing sucb charges. Another, as appears from the record in this court, acted in the capacity of prosecuting attorney before the body, while a majority of the members were said to be, from the start, highly prejudiced against the accused. The court said that all the members were competent to participate in. the trial. That doctrine was subsequently, inferentially, approved in State ex rel. Getchel v. Bradish, as counsel concedes, and they might further have well conceded, as the fact is, that it was again most distinctly approved in Wood v. Chamber of Commerce. It was there stated, generally, that prejudice on the part of a member of a quasi-judicial tribunal, in respect to a matter to be determined by it, does not go to his capacity to participate in the proceedings in regard thereto; or affect the decision of such tribunal. But counsel argue that the decision in the Getchel Case was grounded on a wrong theory, in that it went upon the idea that a vested right of property entitled to constitutional protection, the same as any common-law right, was involved, taking the case out of the rule of the Starkweather Casej that the logical ground for the de-cisión to rest upon is that the participation, as a member of such a tribunal, of a person who would be disqualified as a juflge, renders the decision reached by it a nullity. Our answer to that must be that it is too late to establish a new basis for that decision. Certainly there was no union of purpose here to hold, as was done, upon any other theory than the one we have suggested. Without such theory the decision would have been otherwise, following the rule in the Siarlciueaiher Case. It was supposed that a mere reference to that case with a suggested distinction between the two would be sufficient to indicate approval rather than' any purpose to override the former ruling. We recognize the doctrine of the Starkweather Case to be now, after the lapse of nearly ten years and the approvals thereof indicated, firmly established. The maxim stare decisis et non quieta. movers must prevail against all efforts to disturb it. Can there be any doubt but that unless those decisions are to be overruled, the proposition that the tribunal in question was without juris•diction, is untenable ? We understood on the argument that counsel for. plaintiff, with commendable frankness, admitted that it could not.

We might forego saying anything further on the subject •of whether the tribunal answering to sec. 35, for this case, was competent to act. Upon a subject where the court has repeatedly and unmistakably spoken, it is generally supposed to be sufficient upon the same subject coming again to its ■attention to refer to its previous decisions. However, there are ‘special circumstances in this case that seem to warrant doing more.

We fully concede that there are decisions elsewhere out of harmony with the rule of this court, above indicated. The following are instances: State v. Crane, 36 N. J. Law, 394; State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317; Reeson v. General Council, L. R. 43 Ch. Div. 379; Queen v. London Co. Council (1892) 1 Q. B. 190. But why refer to those and similar cases as controlling authorities in the instance before us or even suggesting doubt as to whether the special tribunal in question was disqualified from acting, in the face of the obvious fact that the learned judges — who discoursed therein so eloquently, and none too much so, upon the general subject of the importance of courts of supreme control carefully guarding the fountain of justice from contaminating influences, with all of which we most heartily agree — wrongly assumed, as is apparent, that the standard for tribunals dealing with common-law rights was applicable to purely ministerial bodies acting judicially as to mere legislative privileges? Can there be any possible doubt as to the truth of the proposition, that what belongs to the people to do with as they • deem best, those things respecting which their will is unrestrained by any constitutional limitation, they can grant upon the- condition, among others, that the enjoyment thereof shall be solely secured by such remedies and administered by such tribunal as they may see fit? If there is, then the scores of boards and councils and commissions which every day act judicially in respect to such matters, without a thought on the part of anybody conversant with the law that their decisions are subject to judicial review,. should have immediate legislative attention. Does not every board of review pass upon, or have power to do so, the valuation for purposes of taxation of the property owned by the relatives and business associates of its members ? And how about the assessor, who sits as a member of such board, though its function is to pass upon, in a judicial way, his own work? Many other illustrations quite as striking could be given, all demonstrating, that the decision in the Starkweather Case is in perfect harmony with the existing order of things, generally, and showing that the disquisitions found in some judicial literature' respecting purity of judicial methods, as to members of a tribunal such as the one in question, applying to them the test for a judge as to qualifications for the performance of his official duties, are all ■wrong. Such things sound well to the ear, as do all lofty sentiments regarding the preservation of spotless judicial integrity and shielding the courts even from danger of every opportunity for a well-grounded suspicion as to their decisions being influenced by ulterior-matters, but when illegitimately applied to a mere ministerial officer in the performance of administrative duties, merely because he is clothed with some discretion in the matter, denominated quasi-judicial authority, are liable to lead to judicial error and to promote harmful impressions among ’the people.

We face a situation calling for approval or condemnation of a rule firmly grounded in our system, fully conscious that it is out of harmony with a few authorities, as indicated. We cannot fail to appreciate such want of harmony, since in Queen v. London Co. Council, referred to in the Getchel Case, without its conflict with the Starkweather Case there clearly appearing, the very doctrine of the latter case was presented for consideration and disapproved. It was stated by Poland, Q. C., in this unmistakable language:

“It must be conceded if a similar state of facts had. occurred with regard to justices sitting in court of session the proceedings would have been invalid, but the distinction in the present case is that the county council were acting in the performance of administrative not judicial duties.”

We meet that situation both with the doctrine of stare decisis and the uniform course of approved legislation in this state.

No better illustration of the dangerous tendency above indicated can be given than hy referring to State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317, where the learned court went so far as to suggest that mere prejudice was a common-law disqualification of a judge and should likewise be of a member of a quasi-judicial tribunal. A standard authority was criticised for expressing a contrary view. We venture to say that the text referred to, 17 Am. & Eng. Ency. of Law (2d ed.) 52, to the effect that by common-law mere prejudice does not constitute disqualification of a judge, is elementary. In Peyton’s Appeal, 12 Kan. 407, the court said, “It will be admitted that at common law prejudice did not disqualify a judge.” In Conn v. Chadwick, 17 Fla. 439, it is said:

“In the time of Bracton and Eleta a judge might be refused for good cause, but at common law, as administered in England and the United States for centuries, judges and justices could not be challenged. There were disqualifying causes, such as interest, and being of kin to the party.”

In Davis’s Estate, 11 Mont. 1, 27 Pac. 342, a very full discussion on the subject will be found. It is there very conclusively demonstrated that disqualification for mere prejudice of the tribunal or judge rests wholly on statutory regulations. Williams v. Robinson, 6 Cush. 333, is referred to as containing a contrary suggestion, but it is said to be wholly without support.

But let alone every consideration above mentioned as to why the members of the tribunal in question were not disqualified and test their competency by the stem rule applied at common law to judges, and still no disqualification will be discovered. Common-law disqualification only went to real direct personal interest of some nature in the result, or kinship to some one of the parties. Case v. Hoffman, 100 Wis. 314-356, 75 N. W. 945; Turner v. Comm. 2 Met. (Ky.) 619; 2 Bacon, Abr. tit. Coubt; Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417; Moses v. Julian, 45 N. H. 52. Often it will be found said to be confined to interest alone. 17 Am. & Eng. Ency. of Law (2d ed.) 733; Russell v. Belcher, 76 Me. 501; Winchester v. Hinsdale, 12 Conn. 88 ; In re Dodge & S. Mfg. Co. 77 N. Y. 101. That interest by the weight of authority refers to some direct pecuniary interest. Hungerford v. Cushing, 2 Wis. 397; Taylor v. Williams, 26 Tex. 583 ; Foreman v. Hunter, 59 Iowa, 550, 13 N. W. 659; 17 Am. & Eng. Ency. of Law (2d ed.) 741, and cases cited. There is no claim here that any member of the special tribunal was of kin to any party to the controversy or in common-law sense interested therein. True, the determination of such controversy involved to a large degree the conduct of the members of such tribunal and the political fortunes of their friends. Time, the situation was one well calculated to strongly incline them, consciously or unconsciously, especially in case of doubt, to one side, and also incline them to discover doubts where otherwise none would be perceived, but that indicates merely prejudice. That situation was one warranting a court, upon its jurisdiction being properly invoked therefor, to scrutinize closely the conduct of the tribunal. In determining whether its decision was characterized by error so palpable as not to be attributable reasonably to error of judgment, it might be very persuasive but would not of itself constitute jurisdictional infirmity. In ño aspect of tbe case tbat we can discover was tbe attitude of tbe committee such as to violate tbe salutary rule tbat no man can be a judge in bis own case, so rigidly enforced as to courts upon common-law principles, and so generally supplemented by legislation.

Eut going further and conceding for tbe moment that tbo .proposition last discussed could in any event be resolved in favor of tbe position of counsel for tbe plaintiff, we meet at once tbe stern rule of necessity, which puts aside all tbe grounds for judicial disqualification, when otherwise there would be no tribunal whatever to administer any remedy for tbe grievance waiting for redress. The' courts, in treating tbat rule, will be found generally to have restricted it to tbe precise case in band and yet viewed it broadly enough to fully suffice therefor. Its application to this case can readly be seen since tbe committee bad sole authority to decide tbe factional dispute, and yet according to tbe allegations of tbe complaint, a large majority of its members were highly prejudiced against tbe relators. This court has recognized tbo rule of necessity, where otherwise tbe one empowered to apply his judgment to tbe matter would have been disqualified, in Jefferson Co. v. Milwaukee Co. 20 Wis. 139. The same rule justified Chancellor Kent in Stuart v. Mechancis’ & F. Bank, 19 Johns. 496, to keep bis place upon the bench though pecuniarily interested in tbe trial before him. In In re Leefe, 2 Barb. Ch. 39, Chancellor Walworth deemed himself justified by it in presiding, though one of his relatives was a party, and by express statutory provision be was disqualified. In Mooers v. White, 6 Johns. Ch. 360, Chancellor KeNt again leaned on tbat rule in presiding, though by tbe literal sense of tbe statute disqualified, as in tbe case aforesaid. In tbe Tr. Book 8 Hen. YI, 19, 2 Eoll. Abr. 93, tbe judges who presided relied upon tbe same rule in performing their duties, though all were defendants in the action. That is referred to as a very apt illustration of the extent to which the rule has been applied in Mayor v. Markwick, 11 Mod. 164. Further to the same effect are: In re Byers, 72 N. Y. 1; Thellusson v. Rendlesham, 7 H. L. Cas. 428; Comm. v. McLane, 4 Gray, 427; Ten Eick v. Simpson, 11 Paige, 177-179; People ex rel. Morris v. Edmonds, 15 Barb. 529—531. It should be noted that in the authorities, to which plaintiff’s counsel can best turn to sustain their contention on this, the rule we are discussing is fully recognized. Stockwell v. White Lake, 22 Mich. 341; State v. Crane, 36 N. J. Law, 394; and State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 317.

In addition to the foregoing on the same subject the following are peculiarly in point: People ex rel. Burby v. Common Council, 85 Hun, 601, 33 N. Y. Supp. 165; People ex rel. Doherty v. Comm’rs, 84 Hun, 64, 32 N. Y. Supp. 18; People ex rel. Pond v. Trustees, 4 App. Div. 399, 39 N. Y. Supp. 607; People ex rel. Shannon v. Magee, 55 App. Div. 195, 66 N. Y. Supp. 849; People ex rel. Jones v. Sherman, 66 App. Div. 231, 72 N. Y. Supp. 718, affirmed 171 N. Y. 684, 64 N. E. 1124; People ex rel. Miller v. Elmendorf, 51 App. Div. 173, 64 N. Y. Supp. 775. In People ex rel. Shannon v. Magee, the officer acting judicially was also in ,a sense the prosecutor as well. The principle of the decision is well stated in the syllabus thus:

“Where by statute a police commissioner is made the only tribunal authorized to try charges against a janitor of the police station, his jurisdiction is not affected by the fact that lie is prejudiced against the janitor.”

In People ex rel. Burby v. Common Council, there was a trial, so called, before the common council, quite similar to that in the Starkweather Case. The point was made that certain members of the body were disqualified to act, testing their competency by tbe rules as to judges and jurors. Tbe result is stated in tbe syllabus, thus:

“If tbe common council of a city is made by statute tbe only tribunal tbat can take certain proceedings against an officer of sucb city, tbe duty tbat devolves upon eacb member of tbe common council to take part in sucb proceedings is absolute, notwithstanding tbe fact tbat sucb member thereof inay have formed sucb opinion, or taken sucb action in tbe premises, as would disqualify himself if be were a judge or juror in an action at law.”

We note tbat it is said in State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 Pac. 311, tbat this was overruled in People ex rel. Pond v. Trustees, 39 N. Y. Supp. 607. Not so, however, in any sense, as regards tbe competency of a member of such tribunal as tbat referred to, to take part in a trial before it so far as necessary to enable it to perform its function in tbat regard. Tbe case was referred to as authority, without any qualification, in subsequent decisions cited.

From the foregoing it will be seen tbat, viewing tbe situation of tbe members of tbe committee satisfying tbe call of sec. 35, as to tbe controversy in question, tbe claim tbat they bad no jurisdiction to act because disqualified by common-law rules as to judicial officers, has no support. But we choose to rest tbe competency of tbe members of sucb committee on tbe broad doctrine of State ex rel. Starkweather v. Common Council, 90 Wis. 612, 64 N. W. 304. It was a mere administrative body, not a court in any sense, nor were its members expected to exercise tbe functions of judges, strictly speaking. Tbe matter to be dealt with was a mere legislative privilege, grantable upon any condition tbe legislature saw fit to impose. Tbe tribunal was given unqualified authority in respect thereto, so long as it proceeded within its appropriate sphere. None of tbe rules disqualifying judges or jurors have any application to sucb a situation.

Tbe proposition tbat tbe special tribunal under sec.' 35 has no’ jurisdiction, in any event, other than to endorse the decision of the national Republican convention, is urged upon our attention with an earnestness and confidence, and an array of authorities, indicating quite clearly that it is the.main reliance of the plaintiff. At this stage of the study of the case we are strongly impressed with the idea that behind the screen created by an imposing array of detail facts as to the make-up of the two conventions lies the main contention upon the side of the plaintiff, while behind a similar screen lies the main contention of the defendant. Neither expects this court to go into the minutiae of the matters evidentiary, as to which of the two conventions was composed of a majority of those responding to the call of the state central committee, and entitled to participate in the execution of the functions of such call. It seems to be agreed that such party disputes as those underlying the ultimate question of fact, as to which of the two conventions was regular, should be settled by the highest party authority, in harmony with the elementary rule that all voluntary organizations are to be governed in their internal affairs by their own tribunals. The real difference between counsel for the respective parties seems to be as to what, under the circumstances, stands for the highest party authority. On the part of the plaintiff it is contended that the national Republican convention answers to such call. On the part of the defendant it is contended that “the state central committee of the party that had been officially certified to the office of the secretary of state” necessarily answers thereto, since such in effect is the legislative mandate. We think this case, in the main, comes down to that. While counsel for plaintiff, as well as counsel for defendant, plead numerous circumstances evi-dentiary as to whether the convention which nominated the re-lators was composed of a majority of the delegates entitled to seats in one duly held pursuant to the regular party call; they have the appearance of being largely matters of inducement leading up to the claims principally, as indicated, viz.: on the side of the plaintiff, that the doors of judicial and other tribunals were closed to the consideration of such evidentiary matters by the decision of the highest party authority, the national Eepublican convention; on the side of the defendant, that such doors were so closed by the decision of the party authority made the highest by law, the state central “committee that had been officially certified to be authorized to represent the party.”

The briefs on both sides, particularly upon the side of the plaintiff, are replete with erudite judicial utterances indorsing judicial submission to the decision of political tribunals as to political party disputes, such submission as a mere matter of judicial policy, or in conformity with elementary principles as to the judicial treatment of tribunals of voluntary organizations, or by command, express or implied, of legislative power. The following illustrations of judicial wisdom, quoted by the learned counsel for the plaintiff, are quite as applicable to the side of the defendant as to that of the plaintiff, when it is appreciated that the tribunal created by sec. 35, by the will of the legislature of this state, answers fully to the call for the highest party authority.

Edwabds, J., in discoursing on the appropriate relation of courts to political controversies, in In re Fairchild, 151 N. Y. 359, 45 N. E. 943:

“It is much more proper that questions which relate to the regularity of conventions, to the nomination of candidates, and the constitution of committees should be determined by the regularly constituted party authorities, than to have every question relating to a caucus, convention, or nomination determined by the courts, and thus, in effect, compel them to make party nominations and regulate the details of party procedure instead of having them controlled by party authorities. We think that in cases where questions of procedure in conventions or the regularity of committees are in-involved, which are not regulated by law, but by party usages and customs, the officer called upon to determine such questions should follow the decision of the regularly constituted authorities of the party, and courts in reviewing the deter' mination of such officers should in no way interfere with such determination. We think an opposite rule would be in conflict with' the spirit and intent of the statute, burden the courts with a class of litigation that would be unfortunate and embarrassing, and migit produce results entirely at variance with the will of a majority of the electors of the party.”

As to the necessity of submitting to duly constituted authority. in political party matters, even though seemingly unjust, such a course being absolutely essential to party integrity, Adams, L, in In re Redmond, 25 N. Y. Supp. 381, used this language:

“When it has once passed judgment upon conflicting claims, where questions of regularity only are concerned, it seems to me that its determination should be accepted as final. Such determination may be unjust, it may'be in direct violation of the equities of the given case, and, as contended by counsel, in theory it may be right and proper to disregard such an adjudication. . . . But if such a theory were put into practice it would be subversive of party discipline and would reduce political parties to mere associations of independent and irresponsible mobs. No such rule as the one contended for obtains in any voluntary organization, but, on the contrary, the very term ‘organization’ implies a recognition of order, and an obedience to duly constituted authority. These observations lead, of necessity, to the conclusion that where ¿'person allies himself with a political party he tacitly acknowledges allegiance to ■ all the rules and regulations of that party, as enunciated or expressed by what party usage recognizes as the supreme or superior authority of the organization. ... It follows that the applicant, having received his nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority within the party in the state, and which have by that bgdy been declared unfounded, cannot be regarded as a regular nominee of his party, and is consequently not entitled to have his name printed upon the official Democratic ballot.”

Hazelrigg, T., in Cain v. Page, 42 S. W. 336, 19 Ky. Law Rep. 977, speaking of the decision of the state convention recognizing a particular party committee as regular which had assumed to act under a law similar to sec. 35 :

“The voice of that convention was the very voice of the Democratic party. The word of the convention is the law of the party, and the courts cannot look beyond this word or this law, because there is no other.”

The same justice, in Moody v. Trimble, 58 S. W. 504, 22 Ky. Law Rep. 692, as to the policy, legislative or otherwise, of leaving the settlement of party disputes to party authorities, said:

“The settlement of such questions, in the nature of things, ¡should be left to the party authority; and therefore we will not scan too closely party rules which undertake, however imperfectly, to confer authority on its various committees to manage party affairs to the best interests of the organization, nor deny such authority, even if it be conferred in terms somewhat general.”

The following cases, most of which are cited by counsel, are to a similar effect:

Prince Co. v. Linderman, 2 Pa. Dist. 4; Rose v. Bennett (R. I.) 56 Atl. 185; Ker's Nomination, 2 Pa. Dist. 14; State ex rel. Buttz v. Liudahl, 11 N. Dak. 320, 91 N. W. 950; In re Fairchild, 151 N. Y. 359, 45 N. E. 943; State ex rel. Yates v. Crittenden, 164 Mo. 237, 64 S. W. 162; State v. Martin, 24 Mont. 403, 62 Pac. 588; Miller v. Clark, 62 Kan. 278, 62 Pac. 664; State ex rel. Gilchrist v. Weston, 27 Mont. 185, 70 Pac. 519; People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896; Davis v. Hambrick, 109 Ky. 276, 58 S. W. 779 ; In re Woodworth, 16 N. Y. Supp. 147; S. C. 19 N. Y. Supp. 527; Stephenson v. Election Comm’rs, 118 Mich. 396, 76 N. W. 914; Shields v. Jacob, 88 Mich. 164, 50 N. W. 105; Phelps v. Piper, 48 Neb. 724, 67 N. W. 755; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670; State ex rel. Sturdevant v. Allen, 43 Neb. 651, 62 N. W. 35.

All of those cases have been examined with care. To review them here at length would extend the discussion of this brancli of the case to an inordinate length. We shall confine' ourselves largely to a statement of conclusions. While, generally speaking, they support the proposition very strongly that controversies such as we have here should, as to the evi-dentiary facts at least, be determined by the party tribunals,, courts going no further than to keep such tribunals within their jurisdiction and to give effect to their decision within that field, as regards the state election laws, there is a wide-difference of opinion as to what is the highest party authority, under a given state of circumstances, requiring judicial assistance to determine it. We do not find anything in any of such cases remotely, even, sustaining the proposition that the decision of the national convention of a party is superior to the decision of the state tribunal of the same party, where the latter tribunal is made the sole judge by legislative enactment, or otherwise. It must not be lost sight of that the only logical basis for the so-called doctrine of the supremacy of the highest party authorities as to party disputes, where there is no legislation on the subject, is the law relating to voluntary organizations generally. That was not appreciated by aU of the learned men who have discussed the subject judicially. There is no difference, in the absence of legislation on the subject, between the binding effect of the highest authority in a political party than in any other voluntary organization. In some jurisdictions, losing sight of that, judges discoursed eloquently to the effect that political party disputes of the sort we are dealing with involve mere political questions. That is obviously not the fact, under the official ballot law system, as we have seen, and is demonstrated in the recent casé heretofore cited. State ex rel. Howells v. Metcalf (S. Dak.) 100 N. W. 923. Others reasoned up to the conclusion that judicial tribunals are not the proper forums for the settlement of political party disputes, solely upon the ground of public policy, and held that in the absence of a remedy given by the statute for deciding between rival claimants to tbe party name, the courts should not furnish one, but should allow all to go upon the official ballot and submit their controversy to a decision by the body of the party. In every instance where, by law, a special tribunal existed, as in this case, its decision was held to be the law of the party and binding on the courts. "Where, prior to the existence of such a law, as in Colorado, the doctrine of the highest party authority prevailed upon the general principles respecting voluntary organizations, the state convention or the state central committee being deemed to be such authority, either from the-very nature of the organization itself or because of its written laws or its usages; after there was such a law it was held that the tribunal thus created answered to the call for the-highest party authority within the meaning of the previous decisions. Further, in every instance where by law it was provided in the case of rival nominations of the same political' party for the same offices, all claiming to be regular, that the-conflict should be settled by a particular tribunal mentioned, it was held that each such nominee, upon the instant of receiving his nomination, became possessed of a vested right to go upon the official ballot under the regular party designation subject to the performance of the legislative conditions' precedent thereto, one being that in case of a dispute as to such right the decision in respect thereto should be made by such tribunal.

The following expressions in decisions treating the subject will emphaize what has been said. In State v. Martin, 24 Mont. 403, 62 Pac. 599, this language was used:

“Organization and discipline are necessary to party existence. There must be some authority to which the subordinate-divisions may appeal for the settlement of disputes as to who shall represent the party and control its affairs. But in the settlement of these controversies this authority, established by rule or usage within the party, may not presume to disregard legislative enactments, with the enforcement of which the courts alone have to do, and tSke away rights which have already become fixed. . . . To bold otherwise would be to put the convention above law, and to convert tbe court into an instrumentality through which, regardless of the law, penalties could be inflicted upon recalcitrant party members and •disloyal candidates, to enforce party discipline.”

In the state of Colorado, previous to the law of 1901, the court took jurisdiction to settle party disputes as before indicated. Spencer v. Malony, 28 Colo. 38, 62 Pac. 850. Thereafter, the law having made the state central committee of a party its tribunal to settle such disputes, the court said, in People ex rel. Lowry v. District Court (Colo.) 74 Pac. 896:

“That the state central committee of a political party, or the state convention, as the case may be, is now the sole tribunal to determine such controversies as is here presented, is to our minds clear beyond question.”

Speaking of the previous case of Twombly v. Smith, 25 Colo. 425, 55 Pac. 254, where the doctrine of superior party authority was repudiated as regards an attempt to apply it to the settlement of a dispute in a district, by a decision of the •convention for territory including such district with others, the court said:

“Had such a statute been then in force here, those cases in which is upheld .the authority of the state committee of a party to settle factional disputes would have been followed.”

In State v. Martin, 24 Mont. 403, 62 Pac. 588, the court used essentially the following language, which seems directly in point here: The right of candidates duly nominated by a political party, whose certificates of nomination have been duly filed, to have their names printed upon the ballot, can be destroyed or waived only by death or resignation, or by •conviction of a felony, judicially declared insanity, or removal* from the state or county. This, and this only, can deprive a candidate of the right to be placed upon the ballot.

We indorse that. We are unable to find anything in the cited cases, rightly viewed, in conflict therewith.

In view of the foregoing, since the law of this state bas provided the conditions under which the party nominees shall go upon the official ballot, how can it be reasonably said that the decision of the national convention of a party can nullify it ? The answer seems so plain as not to warrant this extensive treatment of the matter. Nothing but the great importance of the case could be held to justify it. The moment the’ conventions performed their wort of choosing candidates, the1 rights of such candidates to have their names placed upon the-official ballot became irrevocable privileges, subject only to-the legislative condition. That such condition could be displaced by any mere party authority, either within or without the state, dignifying it as paramount to the sovereign will of the people, and so binding its courts and its special tribunal .created to decide the matter, does not seem to us. to have support in reason or authority.

It follows that the decision of the Eepublican national convention has no significance whatever as regards the duty of the defendant or the jurisdiction of the “committee that had' been officially certified to" his office within the meaning of the second clause of sec. 35, viz., the state central committee-of the Eepublican party elected at its state convention in 1902, and which acted in response to the contest in hand. No jurisdictional error was committed by such tribunal in-disregarding such decision. If it had omitted to apply its-judgment to the matter, in- deference to such decision, jurisdictional error would have been committed thereby.

Enough has been said to demonstrate that in full harmony with the law that, within jurisdictional limits, the decision of the highest tribunal of a voluntary organization as to any of its internal controversies is binding on the courts, and in full harmony with the logically resulting doctrine that political party disputes, in the absence of legislation, should be-left solely to the highest party authority, indicated by the nature of the organization itself, for settlement, or, at least,, if settlement was so made, it should be deemed binding on the court, sec. 35 and all similar laws had their origin. An -examination of the authorities shows plainly that in some jurisdictions the controlling effect of party decisions has not been recognized. In re Fairchild, 151 N. Y. 359, 45 N. E. 943. In others where it has been recognized, one of the most difficult questions for determination was, — What constitutes :the highest party authority ? The answer in one jurisdiction 'is often found to be out of harmony with that in another. The obvious purpose of such legislation as that in question was to recognize the general principle of party government 'by the party itself, but at the same time to remove all opportunity for controversy, as affecting the official ballot, respecting what shall stand as the highest party authority. The case before us suggests many possible complications that might perplex the courts, without some such regulation as that in sec. 35, respecting what shall be regarded as the controlling party authority. Without it, if one of the Congressional conventions had divided, each part electing delegates to the national convention and naming electors to go on the official ballot, and the state convention, in some appropriate way, had recognized one faction and the national convention the other, judicial interference to determine which of the two conventions represented the highest authority in the matter might have been necessary as to the official ballot law, and with no certain guide to go by. With the statute all complications in such cases are avoided.

So by the law’s mandate what stands for the highest axi-thority in the matter in hand has spoken within its jurisdiction. It is not only in effect the voice of the party itself, but is the voice of the law. It must be so regarded, as to the official ballot system, in all courts and in all places. The proper tribunal having performed its function legitimately, so far as appears, it must be presumed, here and elsewhere in the administration of the law, to have reached a right result. All concerned in. such administration must bow thereto, as duly constituted authority must be submitted to in any other field. Guided thereby, and by the plain language of sec. 35, the defendant has a plain ministerial duty to perform. That is to certify to the various county clerks thé names of the candidates decided to be the regular nominees of the Eepublican party, and the names of the relators as well, giving preference, however, as to the use of the name “Eepublican Ticket,” to the former. If the committee representing the organization which nominated the relators do not present any other party name than that which the former are entitled, to the exclusive use of, then by the clear mandate of such sec. 35 it is the duty of the defendant to designate such organization in such a manner as in his judgment will best distinguish the irregular from the regular nominees.

The foregoing enables us to rest from our labors without giving any consideration whatever to the facts in detail upon which the respective parties base their claims to having had the support, each, of a majority of the delegates entitled to participate in the convention regularly called. With the question of whether, as an original matter, the persons composing the convention which nominated the relators constituted a majority of the delegates duly qualified to participate in the convention called by the regular party authority and should have been permitted to organize as such, at the time and place named in the call, and whether they were wrongfully deprived of that right by the state central committee of such party and others participating in the convention which nominated Eob-•ert M. La Toilette and his associates, or whether the national Eepublican convention decided right or wrong,.for itself, in determining which of the sets of delegates applying for seats 'in such convention as the regular Eepublican delegates from this state, were entitled to be recognized as such, we have nothing whatever to do. We have ascertained that.the highest qiarty authority, as recognized by our laws, has spoken on the subject in hand. No jurisdictional defect in that regard has been found to exist. We must accept what it has decided to be the law.

By the Court. — Both the motion of the plaintiff and that of the defendant are'denied, and the cause is dismissed for want of sufficient facts appearing to constitute a cause of action.