State ex rel. Cook v. Houser

• Decision Date: 20 October 1904
• Citation: 122 Wis. 534,100 N.W. 964
• Parties: STATE EX REL. COOK ET AL. v. HOUSER, SECRETARY OF STATE.
• Court: Wisconsin Supreme Court

122 Wis. 534

100 N.W. 964

STATE EX REL. COOK ET AL.

v.HOUSER, SECRETARY OF STATE.

Supreme Court of Wisconsin.

Oct. 20, 1904.

Syllabus by the Court.

Those claiming seats in the Republican State Convention called to choose state nominees to go on the official ballot at the next general election and delegates to the next Republican National Convention, having organized in two bodies, each claiming to be regular and executing the purposes of the call, and such National Convention having decided the contest thus created, so far as it affected that body, and thereafter the state nominees on the side so held to be right having caused a suit to be commenced in this court in the name of the state against the Secretary of State for a mandatory injunction, claiming in the complaint that unless the court interfered such nominees would be irreparably injured by the defendant's recognizing as regular, in certifying names for the official ballot, the convention held by the national body to be irregular, and alleging facts tending to show that the other convention was composed of a majority of those entitled to execute the purposes of the aforesaid call and that the decision of the national body was conclusive as to the right of the matter, and the defendant having answered, alleging facts tending to show that the convention held by the National Convention to be irregular was composed of a majority of those entitled to execute the purposes of the call; that section 35 of the Revised Statutes of 1898, provides the sole remedy for determining such disputes; and that the tribunal therein referred to had assumed jurisdiction of the matter; and plaintiff by amendment having alleged that such tribunal was disqualified because of the prejudice and indirect interest of its members, but that nevertheless such tribunal had assumed to act in the matter and had decided contrary to the decision of the National Convention, and upon defendant's admission that such National Convention had passed upon the dispute, as alleged, plaintiff's counsel having moved the court for judgment as prayed for in the complaint, and upon the obvious fact of the existence of section 35 and the tribunal therein referred to, and the admission that it had assumed jurisdiction of the dispute, defendant's counsel moved the court to dismiss the complaint for want of jurisdiction. Held:

1. The controversy shown to exist by the statement sufficiently concerns the prerogatives of the state and affects the liberties of the people, to be within the original jurisdiction of this court.

2. Such controversy is of so grave a character, and of such public importance, as to warrant this court in exercising its original jurisdiction to determine the right of the matter, so far as the door is open for it to do so.

3. Since the question presented merely involved the duty of the Secretary of State in the performance of an act expressly enjoined by law, it is a judicial one.

4. For the present case, the time not having arrived when the Secretary of State is required to make certification of the nominations, by the general rule, there is no remedy at law by mandamus; hence the action, if maintainable at all, is properly brought in equity, if the Legislature has not furnished another and exclusive remedy.

5. The Legislature intended to provide for settlement out of court, of all questions between factions of a party concerning the right to the party name upon the official ballot, by section 35, Rev. St. Wis. 1898, in these words:

(a) “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 nomination 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.”

(b) “When two or more conventions or caucauses shall be held and the nominations thereof certified, each claiming to be the regular conventionor 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.”

6. The first clause provides for a case where only one of two or more conventions is claimed to have been held upon the call of the regular party committee, and the identity of that one is, therefore, not in doubt. The second clause provides for a case where all of the conventions are claimed to have been held pursuant to the call of such and the same committee, by creating a tribunal to decide, for the guidance of the Secretary of State, which set of nominees is regular and, therefore, entitled to the use of the party name, such tribunal possessing by familiar rules exclusive and final jurisdiction, save as hereinafter stated.

7. The first clause of section 35, Rev. St. 1898, cannot apply to this case, because the dominant feature thereof is the existence of multifarious “claims to the same party name,” determinable, as before indicated, by the certifying officer from his own records, showing the necessary source of regularity.

8. While the dominant feature of such first clause is the existence of multifarious “claims to the same party name,” one of such claims only being based on the “call of the regularly constituted party authorities,” the dominant feature of the second clause is the existence of multifarious “claims to the same party name” based on like claims to regularity of party convention, each of the claimants referring necessarily to the “call of the regularly constituted party authorities” as in the case at hand.

9. The instant controversy comes clearly within the second clause of said section 35, answering as it does every call thereof.

(a) Two conventions were held.

(b) Each of said conventions made nominations.

(c) Such nominations were duly certified.

(d) Each of said conventions claimed to be the regular convention of the Republican Party.

10. It was competent for the Legislature in authorizing an official ballot, and granting to party nominees a right to have their names placed thereon under the party designation, to subject that right, in case of a controversy between two or more sets of nominees, each claiming the same and such designation, to the decision of a party tribunal, as in said section 35.

11. The creation of a tribunal to determine such controversies, no provision being made for a judicial review of its decisions, necessarily makes its jurisdiction exclusive and its decisions unimpeachable, except for jurisdictional defects.

12. The tribunal answering to the call of said section 35, is found to exist in the Republican State Central Committee, elected at the State Convention of 1902, and duly certified to the Secretary of State under section 31 of Rev. St. Wis. 1898, therefore, the jurisdiction of this court is limited to deciding whether such committee was or is without jurisdiction, because of bias or interest of some of its members, or whether its decision is affected by jurisdictional defects.

13. Such tribunal, though required to act judicially, being an administrative rather than a judicial body, bias or interest of its members does not disqualify them nor affect its jurisdiction.

14. The decision of the National Republican Convention, as to which of the two sets of delegates from this state, claiming the right to represent the Republican Party thereof in such convention, was entitled to recognition, is not of any significance, as a guide to the Secretary of State, or the committee authorized to determine the factional dispute under said section 35, since the exclusive jurisdiction thereof, as regards the official ballot law, was conferred by the Legislature upon the latter as a special tribunal, as before indicated.

15. As soon as the nominations were made by the two conventions and duly certified, the rights of the nominees to places upon the official ballot under the designation “Republican Ticket,” became vested in them as the representatives of their respective organizations, subject to the decision of the special tribunal aforesaid, as to which of the conventions was regular, and such right could, therefore, not be in any way affected by the determination of any other tribunal.

16. Section 35 of the Revised Statutes of 1898, contemplates, in all cases mentioned therein of conflicting claims to the use on the official ballot of a particular party designation, requires that one set of the claimants shall be given preference thereto, and each of the others have a place upon the ballot under a designation sufficiently different from that accorded to the rightful claimants of the particular designation, to enable the electors to distinguish each set of irregular from the regular nominations.

17. The tribunal created by law to determine the factional dispute in question for the guidance of the Secretary of State, having assumed jurisdiction thereof and decided, free from jurisdictional infirmities, that the nominations headed by Robert M. La Follette for Governor are entitled to preference in respect to the use upon the official ballot of the name “Republican Ticket,” it is the duty of the Secretary of State to act accordingly, certifying both sets of nominations to the various county clerks, but giving to those headed by Robert M. La Follette, for Governor, preference as aforesaid.

18. The foregoing conclusion follows, logically and necessarily, from the legal aspects of the case before stated. What the real right of the matter in dispute might be found to be, were this court permitted to disregard the decision of the special tribunal, and investigate and determine the merits of the...