ME. CHIEF JUSTICE BEAN1TLY,
after stating the case, delivered the opinion of the court.
At the hearing, counsel for the relator argued that, inasmuch as the controversy between the contending factions in the com•mittee and the party in Silver Bow county had been submitted to and determined by the state convention in favor of the Casey convention, this determination must be regarded as conclusive upon the right of the nominees on the Oasey ticket to have their names appear upon the ballot under the party designation. The contention was also made that, though the judgment of the state convention should be treated as of no import whatever, nevertheless the decided preponderance of the evidence was in favor of the conclusion that Chairmlan Casey was empowered to fill vacancies upon the committee; that his appointments were properly made; both for the purpose of increasing the number of members to one for each precinct in the county, and also for the purpose of filling places rendered vacant by death or change of residence; that the committee was unable to transact any business because of the confusion brought about by the presence of the crowd; that he and those associated with him were justified in leaving the hall to seek a place where they could dispatch the business properly before the committee; and [191]*191therefore that tbe portion of tbe committee led by bim was tbe only committee authorized to act for tbe party.
On tbe other band, counsel for tbe defendant contended that tbe judgment and determination of tbe state convention was of no significance whatever; that tbe evidence showed clearly that tbe chairman bad no authority to fill any vacancies upon tbe committee, but that such authority was vested in tbe committee itself; that, even if tbe chairman bad such authority, be bad no power to decide whether a vacancy existed by reason of a change of residence of any committeeman, or other cause; and that by reason of tbe fact that be and bis adherents left tbe court room, which bad been appointed as tbe place of meeting, they lost all right to act for tbe party in any capacity whatever. Accordingly, all evidence touching tbe final determination reached by tbe state convention, though not controverted, was objected to by the defendant as incompetent and irrelevant. Tbe evidence was admitted subject to tbe objection, tbe court not being willing to decide tbe question thus presented by the objection without further consideration. There was thus brought to our attention for decision tbe question: What force should be given to a determination by tbe highest judicatory in tbe party of tbe right of contending local factions to nominate tbe local ticket, and thus to give the candidates named by it tbe right to use tbe party designation?
It will be noted that, at tbe timle tbe controversy arose and tbe decision was made by tbe state convention, no candidates bad been nominated by either of tbe factions. That convention, therefore, did not undertake to determine, directly or indirectly, tbe right of any candidate to have bis name appear on tbe ballot ás a nominee of tbe party. Had one or both of the rival county conventions nominated candidates for tbe local offices before tbe meeting of tbe state convention, a different question would have been presented, and this court would perhaps have been required, under its former decisions, to bold tenable tbe position taken by tbe defendant,- — that the action of tbe state convention was without significance.
It was held in State ex rel. Scharnikow v. Hogan, 24 Mont. [192]*192383, 62 Pac. 583, that no action had by a state convention can render valid a nomination for the office of district judge, where the convention assuming to make it does not properly represent the electors of the district. That case turned upon the question of fact whether the delegates who sat in the district convention had been regularly chosen by the electors of the district to- make the nomination. It being made to appear that such was not the case, this fact was held determinative of the right of the candidate to have his name appear upon the ballot, although the state convention had assumed to declare that the delegates were the regularly accredited delegates from1 the counties composing the district. The decision rests upon the theory of our state government that the people in the political subdivisions of the state have the right to nominate candidates for local offices through representative conventions .composed of electors of their own choosing, or in mass meetings, held after due notice, as well as to elect officers from among candidates so nominated; and no action on the part of the state convention may dispense with a substantial observance of this fundamental principle.
Again, in the case of State ex rel. Kennedy et al. v. Martin, 24 Mont. 403, 62 Pac. 588, which grew out of the same factional fight in Deer Lodge county that gave rise to the case just cited, it was held that where a ticket had been nominated by a representative county convention, regularly called for that purpose by the local party authorities, prior -to the meeting of the state convention, the state convention, though the delegates chosen by the county convention refused to sit in the state convention, but joined in an independent movement, in which some of the local candidates also joined, had no power to authorize loyal members of th¿ party residing in the county to take charge of party affairs therein, and to nominate a ticket to be printed upon the official ballot under the party designation, to the exclusion of the-ticket already nominated. This decision rests' upon the principle that when the candidates of a party have been once regularly nominated by a representative convention of the party, and their certificates of nomination filed with the proper officer, the right of such candidates to have [193]*193tbeir names appear upon tbe official ballot becomes fixed bylaw, and is not subject to control by a state convention. Tbis conclusion was based upon tbe fact that there is no provision of law by which the place of any candidate upon the ticket may become vacant, except by death, resignation, conviction of a felony, judicially declared insanity, or removal from the county or state. When nominations have been so- made, the presumption arises that the convention was authorized to' make use of the party designation, either by virtue' of the power conferred by the state convention by its recognition during the preceding campaign of the regularity of the local administrative agencies which called it together, or by established party usages. The same conclusion was reached in State ex rel. Hatch v. Smart, 24 Mont. 413, 62 Pac. 591. In each of these cases this court felt impelled, in view of the provisions of the election laws and the constitution, to investigate the facts, and to determine therefrom whether the candidates whose rights were in issue had been nominated by representative conventions called by authority and conducted in accordance with party usages.
We agree with counsel for the defendant in their opinion that these cases were correctly decided, both upon reason and principle, and that political conventions should not be permitted to assume; the exercise of judicial functions to the exclusion of the courts in matters involving rights conferred by law. But we do not concur with them in the view that they apply to the conditions presented in the ease at bar. In this case the state convention was appealed to for recognition by the contending factions, and for the right to use the party designation.
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ME. CHIEF JUSTICE BEAN1TLY,
after stating the case, delivered the opinion of the court.
At the hearing, counsel for the relator argued that, inasmuch as the controversy between the contending factions in the com•mittee and the party in Silver Bow county had been submitted to and determined by the state convention in favor of the Casey convention, this determination must be regarded as conclusive upon the right of the nominees on the Oasey ticket to have their names appear upon the ballot under the party designation. The contention was also made that, though the judgment of the state convention should be treated as of no import whatever, nevertheless the decided preponderance of the evidence was in favor of the conclusion that Chairmlan Casey was empowered to fill vacancies upon the committee; that his appointments were properly made; both for the purpose of increasing the number of members to one for each precinct in the county, and also for the purpose of filling places rendered vacant by death or change of residence; that the committee was unable to transact any business because of the confusion brought about by the presence of the crowd; that he and those associated with him were justified in leaving the hall to seek a place where they could dispatch the business properly before the committee; and [191]*191therefore that tbe portion of tbe committee led by bim was tbe only committee authorized to act for tbe party.
On tbe other band, counsel for tbe defendant contended that tbe judgment and determination of tbe state convention was of no significance whatever; that tbe evidence showed clearly that tbe chairman bad no authority to fill any vacancies upon tbe committee, but that such authority was vested in tbe committee itself; that, even if tbe chairman bad such authority, be bad no power to decide whether a vacancy existed by reason of a change of residence of any committeeman, or other cause; and that by reason of tbe fact that be and bis adherents left tbe court room, which bad been appointed as tbe place of meeting, they lost all right to act for tbe party in any capacity whatever. Accordingly, all evidence touching tbe final determination reached by tbe state convention, though not controverted, was objected to by the defendant as incompetent and irrelevant. Tbe evidence was admitted subject to tbe objection, tbe court not being willing to decide tbe question thus presented by the objection without further consideration. There was thus brought to our attention for decision tbe question: What force should be given to a determination by tbe highest judicatory in tbe party of tbe right of contending local factions to nominate tbe local ticket, and thus to give the candidates named by it tbe right to use tbe party designation?
It will be noted that, at tbe timle tbe controversy arose and tbe decision was made by tbe state convention, no candidates bad been nominated by either of tbe factions. That convention, therefore, did not undertake to determine, directly or indirectly, tbe right of any candidate to have bis name appear on tbe ballot ás a nominee of tbe party. Had one or both of the rival county conventions nominated candidates for tbe local offices before tbe meeting of tbe state convention, a different question would have been presented, and this court would perhaps have been required, under its former decisions, to bold tenable tbe position taken by tbe defendant,- — that the action of tbe state convention was without significance.
It was held in State ex rel. Scharnikow v. Hogan, 24 Mont. [192]*192383, 62 Pac. 583, that no action had by a state convention can render valid a nomination for the office of district judge, where the convention assuming to make it does not properly represent the electors of the district. That case turned upon the question of fact whether the delegates who sat in the district convention had been regularly chosen by the electors of the district to- make the nomination. It being made to appear that such was not the case, this fact was held determinative of the right of the candidate to have his name appear upon the ballot, although the state convention had assumed to declare that the delegates were the regularly accredited delegates from1 the counties composing the district. The decision rests upon the theory of our state government that the people in the political subdivisions of the state have the right to nominate candidates for local offices through representative conventions .composed of electors of their own choosing, or in mass meetings, held after due notice, as well as to elect officers from among candidates so nominated; and no action on the part of the state convention may dispense with a substantial observance of this fundamental principle.
Again, in the case of State ex rel. Kennedy et al. v. Martin, 24 Mont. 403, 62 Pac. 588, which grew out of the same factional fight in Deer Lodge county that gave rise to the case just cited, it was held that where a ticket had been nominated by a representative county convention, regularly called for that purpose by the local party authorities, prior -to the meeting of the state convention, the state convention, though the delegates chosen by the county convention refused to sit in the state convention, but joined in an independent movement, in which some of the local candidates also joined, had no power to authorize loyal members of th¿ party residing in the county to take charge of party affairs therein, and to nominate a ticket to be printed upon the official ballot under the party designation, to the exclusion of the-ticket already nominated. This decision rests' upon the principle that when the candidates of a party have been once regularly nominated by a representative convention of the party, and their certificates of nomination filed with the proper officer, the right of such candidates to have [193]*193tbeir names appear upon tbe official ballot becomes fixed bylaw, and is not subject to control by a state convention. Tbis conclusion was based upon tbe fact that there is no provision of law by which the place of any candidate upon the ticket may become vacant, except by death, resignation, conviction of a felony, judicially declared insanity, or removal from the county or state. When nominations have been so- made, the presumption arises that the convention was authorized to' make use of the party designation, either by virtue' of the power conferred by the state convention by its recognition during the preceding campaign of the regularity of the local administrative agencies which called it together, or by established party usages. The same conclusion was reached in State ex rel. Hatch v. Smart, 24 Mont. 413, 62 Pac. 591. In each of these cases this court felt impelled, in view of the provisions of the election laws and the constitution, to investigate the facts, and to determine therefrom whether the candidates whose rights were in issue had been nominated by representative conventions called by authority and conducted in accordance with party usages.
We agree with counsel for the defendant in their opinion that these cases were correctly decided, both upon reason and principle, and that political conventions should not be permitted to assume; the exercise of judicial functions to the exclusion of the courts in matters involving rights conferred by law. But we do not concur with them in the view that they apply to the conditions presented in the ease at bar. In this case the state convention was appealed to for recognition by the contending factions, and for the right to use the party designation. This was before either had assumed to act for the party in selecting candidates under the provisions of the statute. Each was claiming the right to control the local administration of party affairs. These claims were submitted to* the ultimate party judicatory, which decided the controversy after an examination of disputed questions of fact, and presumably in accordance with party usages. The principle underlying the cases cited does not therefore apply. Furthermore, in each of those cases the necessity for party organization and discipline [194]*194as a means to secure p>arty existence was expressly recognized, as was also tbe proposition that in mere matters of party control, wherein no effort is made to declare and enforce legal rights, the determination of the party judicatory is binding upon all the members of the party, and upon the courts as well.
It was said in State ex rel. Kennedy v. Martin, supra, that the declarations of the state convention are effectual to change the administrative agencies of the party in a particular county. This power also implies exclusive authority to recognize as regular one of two contending factions in any local subdivision of the state, and to give the one authority b> control all the party affairs within its jurisdiction to the exclusion of the other, so long as the exercise of it does not interfere with legal rights.
Again, in State ex rel. Hatch v. Smart, supra, it was said: “Within its legitimate field, the democratic party of the state, in convention assembled, is paramount, and the final judicatory. Its determination of matters within the scope of its powers cannot be questioned or set aside by the courts. Such state convention represents the democratic party of the state as an entirety, and in a limited sense it speaks for the territorial subdivisions of the party. It is the judge of the election and qualification of its members; it may adopt a general policy, and nominate candidates for office, to be filled by the vote of the electors of the state, and (so long as it keeps within its legitimate sphere) do whatever may be necessary or proper to maintain the integrity and advance the interests of the party.” The designation belongs to the party, and the party, as a political body, has the exclusive right to control the use of it, not only in the state' but in the local subdivisions thereof, until, by the exercise of power on the part of the local organization, rights of private individuals are involved. It is then only that courts will undertake to interfere. It would he intolerable if, upon the occasion of every factional dispute in a county or district in the state, the courts could be called upon to determine which faction is entitled to the use of the party designation. The well-being and safety of the party organization require that it should hold and exercise this power: Nor illustration, if in [195]*195the present case this court should hold that the Lynch convention was regular, notwithstanding the determination made by the state convention, the result would be that the ticket nominated by the Lynch convention, though declared by the regularly constituted party authorities not to be the regular democratic ticket, would be placed upon the ballot under the party designation, and so from time to time, as the period for electing local officers would recur, this anomalous situation would be presented, to the utter demoralization and destruction of all party discipline. The party would be left utterly without power to preserve its own organization and integrity, and one of the most effective means for the preservation of our institutions would be wholly destroyed. The power to decide these disputes must rest somewhere, but it is far safer and much more in accord with our free institutions that it should remain Avith the judicatories of our political parties, where it of right belongs.
This view we deemed conclusive of the case. We therefore did not go into an examination of the evidence to determine Avhat authority Chairman Casey had to make appointments to fill vacancies in the membership of the committee, nor whether the claim of his faction that the committee was prevented by the confusion in the court room from proceeding to transact there the business for which the committee Avas called together Avas Avell founded.
jReference was made during the argument to the fact that the Casey delegation voted upon the question of the title to seats in the convention. It was said that this fact vitiated the judgment of the convention. It is a sufficient answer to this suggestion to say that the evidence disclosed that a clear majority of all the delegates present voted in the affirmative, without including the contesting delegation. We did not undertake to determine Avhat the result would have been had the vote of that delegation been necessary to create a majority.
Counsel for relator, in making this application, proceeded upon the assumption that this court would not by mandamus grant the whole relief to which relator was entitled, and under [196]*196tbis writ direct tke defendant to omit from the ballot altogether the ticket named by the Lynch convention. They therefore instituted another proceeding for injunction to accomplish this end. (Post, 197, 70 Pac. 1134.) Upon consideration, however, the court concluded that the preparation of the ballot involved but- a single duty, and that, as the proper performance of this duty under the statute, as construed by the decisions of this court, required him to omit the Lynch ticket from the ballot [State ex rel. Kennedy v. Martin and State ex rel. Hatch v. Smart, supra), the whole matter could he adjusted under the writ in this proceeding. This we deemed in conformity with the suggestion contained in Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, and approved in State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390, that, “where defect and excess meet in a single case, the court might meet both, in its discretion, by one of the writs, without being driven to send out both tied together with red tape for a single purpose.” Accordingly the following order was made and entered:
It is therefore considered and adjudged that a peremptory writ of mandate issue to the defendant, as clerk of Silver Bow county, directing him forthwith to' print upon the official ballot to be used at the election to be held on November 4, 1902, the ticket containing the names of the relator and his associates, and known in this proceeding as the ticket nominated by the Casey convention, in the column entitled “Democratic,” and that he do' not print tbereon the ticket nominated by the convention called by the so-called Lynch committee, and known in this proceeding as the Lynch convention. It is further ordered that the defendant pay all the costs of this proceeding. Let judgment be entered and the writ issue forthwith.
Writ granted.
[197]*197(No. 1,875.)
ON Application bob Wbit of Injunction.
(Submitted October 28, 1902.
Decided October 29, 1902.)
ME. CHIEF JUSTICE BBANTLY
delivered the opinion of the court.
Application for a writ- of injunction to restrain the defendant, as clerk of Silver Bow county, from causing to be printed upon the official ballot under the designation “Democratic” a certain ticket which, it was alleged, was not the regular party ticket. An order to show cause was issued and made returnable on October 23. A demurrer and a motion to strike out portions of the petition being overruled pro forma, the defendant filed his answer controverting such allegations of the petition as he deemed material. A decision of the questions, raised by the demurrer and motion was reserved. Thereupon the cause was heard and submitted with the application for mandamus (ante p. 185), upon the evidence adduced at the hearing thereon. The conclusion reached in that cause having rendered it unnecessary to examine and decide any of the questions presented herein, this cause was dismissed at the cost of the relator.
Dismissed.