State ex rel. Buttz v. Liudahl
| Decision Date | 25 October 1902 |
| Docket Number | 6731 |
| Citation | 91 N.W. 950,11 N.D. 320 |
| Court | North Dakota Supreme Court |
Application by the state, on the relation of C. W. Buttz, for writ of mandamus to A. A. Liudahl, county auditor of Benson county, N.D. Writ denied.
Application for a peremptory writ of mandamus denied.
O. D Comstock, Alfred Dresser, G. T. Christianson, and C. W. Buttz (Morrill & Engerud, of counsel), for plaintiff.
W. H Thomas, C. L. Lindstrom, and Cochrane & Corliss, for defendant.
An alternative writ of mandamus was issued in this court, on application of the relator, commanding the defendant, the auditor of Benson county, to cause the relator's name to be printed on the official ballot of the Republican party for said county as the nominee of said party for the office of state's attorney of said county, at a convention of said party duly and regularly called and held, and also to cause to be printed on said official ballot the other nominees of said convention for the county offices of said county, or to show cause why the commands of said writ should not be obeyed. The affidavit on which such alternative writ of mandamus was based and issued states the following facts, which will sufficiently show the grounds on which it is claimed that a peremptory writ should issue, viz.: That a Republican convention was duly called by the regular central committee of said party in said county for the purpose, among others, of nominating the candidates of the Republican party of said county for all the county offices of said county to be voted for at the next general election in said county; that said county convention was duly held at the time and place stated in said call, and pursuant to said call, and was duly organized at such place by the election of a chairman and secretary; that said convention duly nominated candidates for all county offices, and among them the relator for the office of state's attorney of said county; that the chairman and secretary of said convention duly executed a certificate of the nomination of all such persons for such offices, as required by law, and filed the same in the office of said county auditor on August 2, 1902; that on the 19th day of July, 1902, there was filed in the office of the auditor of said county a certificate, in regular form, of the nomination of other persons claiming to have been duly nominated for county offices of said county by said convention; and as to such other certificate of nominations the relator states that it is false and spurious, and is not what it purports on its face to be; and in reference to such other nominees the affidavit states such other nominees were not nominated by any regular convention of the Republicans of said county, but were nominated by 35 delegates of the regular convention of said county at which relator was nominated, which said 35 delegates withdrew from said regular convention after they had participated in the organization of said convention, and withdrew on account of a decision of said convention upon the claims of 7 delegates to seats in said convention, which said decision was adverse to such 7 delegates; that said 35 delegates withdrew, and, after joining with such 7 rejected delegates, organized a convention, and nominated the persons named in the certificate filed on July 19th; that said pretended convention was not a convention of a majority of the delegates entitled to seats in the regular convention of said county, and was not in any respect the regular convention of the Republicans of said county. The alternative writ of mandamus recites the same facts stated in the affidavit, which have been substantially recited herein. The answer of the defendant alleges that the convention at which the relator's ticket was nominated was not composed of a majority of the delegates entitled to seats in the regular Republican convention of said county, but was composed of a minority only of said delegates; that the chairman of the county central committee called the delegates to order; that one Hall and one Palmer were, respectively, nominated as temporary chairman of said convention; that said chairman of said county central committee fraudulently and arbitrarily declared said Hall elected temporary chairman after a viva voce vote had been taken, when in fact he had not received a majority of the votes of said delegates, but said Palmer had received a majority of such votes; that there was a contest from the Ft. Totten precinct, and that the county central committee duly decided that the contesting delegation was entitled to seats in said convention; that a motion was made and carried before said convention, after the temporary organization, that said contesting delegation be allowed seats in said convention; that thereafter a motion was made by a person not a delegate that the other set of delegates be seated in said convention, and pending the discussion of this motion another motion was made, and declared carried, that both delegations from Ft. Totten precinct be denied seats in such convention; that said Hall corruptly, arbitrarily, and fraudulently declared such motion carried, when in fact it was not carried, but was voted for by a minority only of the delegates present at said convention, entitled to seats therein; that said Hall refused to allow a vote by ballot on said question, and refused to allow an appeal from his decision, although one was called for; that there was much confusion in said assemblage, and spectators were permitted to vote; and that thereupon 37 delegates, in conjunction with the 7 delegates, organized a convention, in order to avoid personal encounter and possible bloodshed, and, after electing one Voight chairman and one Wardrope secretary, nominated a county ticket, represented by the certificate filed in the county auditor's office on July 19th. The answer further alleges that said county convention, in accordance with the usage of the Republican party, was called for the further purpose of electing delegates to the Republican state convention to be held in Fargo on July 23, 1902, in addition to nominating candidates for county offices; that the so-called Hall convention and the regular convention presided over by Voight each nominated 22 delegates to attend said state convention; that each set of these delegates presented their credentials to the state central committee, and after a hearing on notice, as to which of these delegations should be seated in said state convention, said state central committee decided that the delegation from the Voight convention should be seated; that the said state convention appointed a committee on credentials, and said committee on credentials, after due consideration of all the facts in relation to said contest, decided in favor of seating said Voight delegation; and that thereafter the state convention duly decided in favor of seating said Voight delegation, and against seating the Hall delegation. The issues raised by the answer to the writ are supported by each of the parties to the proceeding by voluminous and numerous affidavits, which are conflicting upon what actually transpired during the preliminary organization of the convention, and which conflict upon the question as to which delegation from the Ft. Totten precinct was entitled to be seated, which conflict upon the question whether the Voight delegates were justified in withdrawing from the Hall convention and organizing another convention in another place, and which further conflict as to whether the hall convention or the Voight convention had the majority of the rightfully elected delegates to said convention.
The question to be decided by us is which of the two tickets certified to and filed with the county auditor by the officers of the Hall and Voight conventions, respectively, shall be printed upon the official ballot of Benson county. Both certificates are regular in form. The auditor is not empowered by any law to determine which of the two conventions was the regular one, in such cases as this, and is not authorized to print the nominees of both conventions on the same ballot. In this case there was but one of these conventions that could rightfully claim to represent the Republican party, and there was but one regular organization of that party in Benson county on July 19th. Both of these conventions cannot successfully maintain their claim to regularity. Both claim under the same party call for a convention, issued by the regular county central committee. Hence the provisions of chapter 48 of the Laws of 1901, authorizing the county auditor to determine, from the best available sources of information, which organization filing certificates of nomination for different candidates for the same offices in the same party has been longest in existence, does not apply, and neither party so contends. Hence it becomes a question for a decision by this court, settling in this case which of these two rival conventions resulting from a split in the regularly called convention is entitled to be called the regular convention, and, in consequence of such regularity, entitled to have its nominees for county offices printed on the official ballot. In several cases this court has decided similar issues involving the claim to regularity between rival conventions emanating from one convention and one call. State v Lavik 9 N.D. 461, 83 N.W. 914; State v. Falley, 9 N.D. 450, 83 N.W. 860; State v. Porter, 11 N.D. 309, 91 N.W. 944. Both parties in this case have submitted the controversy for decision on the merits, without objections going to the jurisdiction of the court to entertain the proceedings.
The answer alleges that the state convention of the Republican party duly...
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