People ex rel. Roy v. Republican State Central Committee
| Decision Date | 07 April 1924 |
| Docket Number | 10921. |
| Citation | 75 Colo. 312,226 P. 656 |
| Parties | PEOPLE et rel. VICK ROY v. REPUBLICAN STATE CENTRAL COMMITTEE et al. |
| Court | Colorado Supreme Court |
Rehearing Denied May 5, 1924.
Error to District Court, City and County of Denver; Julian H Moore, Judge.
Petition by the People, on the relation of Joseph J. Vick Roy, against the Republican State Central Committee of Colorado and George H. Shaw. From judgment sustaining demurrer, plaintiff brings error.
Reversed.
Per Teller, C.J., and Whitford and Sheafor, JJ.
N. Walter Dixon, William H. Dickson, and William R. Eaton, all of Denver, for plaintiff in error.
Paul W Lee, of Ft. Collins, and C. C. Dorsey and Hodges, Wilson & Rogers, all of Denver, for defendants in error.
The relator brought mandamus to compel the respondents to recognize him as a member of the state central committee. The court sustained a demurrer to the petition and discharged the alternative writ. He brings error.
The question argued in the briefs and at the bar is whether the district court has jurisdiction to order relator's recognition. It would seem that upon this record it has such power.
The act of 1910, in section 25 (C. L. § 7556), provides:
'Whenever it shall appear * * * to any judge * * * that any wrongful act has been performed * * * by any person charged with a duty under this act, or that any neglect of duty has occurred * * * such judge shall * * * require * * * the * * * person * * * charged with the * * * wrongful act * * * to * * * correct' it or show cause why not.
It is evident that the wrongful act or neglect here mentioned must be one relating to the duty with which the person is charged and that the court has power to compel any person to correct any violation of any duty with which he is charged under the act.
If then, the state committee has violated a duty with which it is charged under the act, the court has power to direct it to correct the wrong.
By section 21 of the act (C. L. § 7552):
'The chairman and vice chairman of the several party county committees shall constitute the state central committee of each such party. * * *'
It is a duty, then, of the state committee to recognize the county chairman as one of its members and that duty is charged upon it by the act. The record before us admits, by demurrer, that the relator is county chairman. On the record, then, the court has jurisdiction to require and must require his recognition as a member of the state committee. If the answer should deny that the relator is chairman, perhaps other questions would arise.
Judgment reversed.
BURKE, J., not participating.
I agree with the conclusion stated in the opinion of Mr. Justice DENISON that the court is given jurisdiction of this case by section 25 of the Election Law of 1910.
I am further of the opinion that the court had jurisdiction regardless of that section. The relator claims that he is, by virtue of an election held under the primary election law of 1910, and by subsequent proceedings thereunder, a member of the state central committee of his party, and that said committee declines to recognize his membership. He seeks by mandamus to compel the committee to restore him to the position from which he has been unlawfully excluded. He claims a statutory right, and I can see no reason why he may not invoke the aid of the courts to protect that right.
A similar question was before the New York Court of Appeals in 1900, and is reported under the title of People ex rel. Coffey v. Democratic Committee, 164 N.Y. 335, 58 N.E. 124, 51 L.R.A. 674. A very able opinion in that case, by the then Chief Justice Parker, vindicated the rights of the relator above stated, clearly and, as I think, beyond question. It is there pointed out that the primary election law was intended to and did take from political bosses the right to control in the nominating of candidates for office; that it had surrounded the primary election with all the safeguards provided for general elections; and that the persons who are chosen by the voters to represent them, in matters preliminary to nominations, are entitled to hold the position for which they have been so chosen during the term prescribed by law. It is there very aptly said:
'The scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.'
Referring to the claim that a general committee of a political party ought to have the right to remove a member from office, the court said that the Legislature appeared to have----
It was therefore held that the relator was entitled to a writ of mandamus to compel the central committee to restore him to the privileges of membership.
Our law of 1910 gives practically the same protection and indorsement to the primary election law as does the law of New York, to which the court had reference. It puts primary elections upon the same plane as elections to office; provides voting booths, election clerks, and judges and certificates of election, all at the expense of the taxpayers. To say that a man chosen to a position named in the statute may be ousted from that position by a political committee, without a reason other than political, and have no remedy in court, is to say that the law, passed at the demand of the people to remedy that very abuse, is without effect. It is a charge that the Legislature authorized the expenditure of public money without expectation of any substantial benefit therefrom.
A similar question was before the Supreme Court of Missouri in State ex rel. Guion v. Miles et al., 210 Mo. 127, 109 S.W. 595. There the relator sought, by mandamus, to compel the Democratic central committee of St. Louis to restore him to membership on that committee. He had been elected a member of the committee by direct vote at the primary election, but had been expelled from the committee for an alleged failure to comply with one of its rules as to meetings. His right to the writ was first challenged, and the court held that mandamus was the proper remedy. The court quoted with approval the New York case, and held that the right of legislative bodies to determine the qualifications of their members afforded no support to the action of the committee; the right exercised by legislative bodies being constitutional. The court points out that if the general committee, provided for by the primary act, has power to make rules by which a member may be expelled, it may be said that the Legislature has enacted a meaningless provision when it provided that committeemen should be selected by the people at the primary election in their respective wards. Evidently this is so, because if a committee may deprive one of its members of his right to sit and act with them, it may also deprive other members, and so become in effect a voluntary body, such as existed before the primary law was passed.
I am clearly of the opinion that the law of 1910 repealed so much of the law of 1901 (section 7811, C. L. 1921) as recognizes the right of a voluntary state central committee to determine controversies arising from claims to positions created or recognized by the later law in the section now appearing as section 7552, C. L. 1921. The law of 1910 covers the whole subject fully, and provides for the exercise of all the authority by the elected committee which the act of 1901 conferred upon the voluntary committee. A considerable portion of that section covers the same subject which is covered by the election law, including the manner in which the central committee is constituted.
The provisions here relied upon by the relator are plain, unambiguous, and comprehensive. His right, therefore, to a hearing by the court, cannot be denied upon any doubtful question of the effect of a prior statute, which is at least apparently repealed.
I am authorized to state that Judge WHITFORD and Judge SHEAFOR concur in these views.
This is a mandamus proceeding by the relator, Vick Roy, to compel the Republican state central committee of Colorado to recognize him as a member of that body by virtue of his chairmanship of the Republican county central committee of Denver, the holding of which, under the primary election statute, he says makes him a member of the state committee. The alternative writ, like the petition, does allege that relator is county chairman duly elected, and recognized as such, by the county committee. There are other allegations therein which, though perhaps not well pleaded, may tend to show at least an attempt by the state committee to remove relator as county chairman and that there is a rival claimant. Counsel of both parties below and here, as well as the district court at the trial there, apparently have proceeded on the theory that the alternative writ sets forth a real controversy in the Republican party of this state and between its state committee and the Denver county chairman, and the district court dismissed the proceeding for lack of jurisdiction to settle such party disputes. This court, however, is not bound by the construction of the litigants or trial courts as to what questions of fact and law are for its...
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