State ex rel. Gronvold v. Porter

• Decision Date: 18 October 1902
• Citation: 91 N.W. 944,11 N.D. 309
• Parties: STATE ex rel. GRONVOLD v. PORTER, Secretary of State (FOX et al. Interveners).
• Court: North Dakota Supreme Court

11 N.D. 309

91 N.W. 944

STATE ex rel.

GRONVOLD

v.PORTER, Secretary of State (FOX et al. Interveners).

Supreme Court of North Dakota.

Oct. 18, 1902.

Syllabus by the Court.

1. In determining which of two sets of nominees of a split political convention are entitled to have their names placed upon the official ballot as the party nominees, the inquiry of the court should be limited to ascertaining which of the conventions from which the nominating certificates emanate is the regular one, and should not extend to an examination of political methods and tactics further than is necessary to ascertain the identity of the regular party convention.

2. Where delegates who are entitled to sit in a party convention are present, but refrain from voting, they cannot, by so doing, invalidate the action taken by a majority of those who do vote. In such case, their silence is deemed to be an assent to the action taken by the majority.

3. A political convention is the judge of the qualifications of its members, and its determination of contests between claimants for seats therein is conclusive.

4. The voluntary withdrawal of delegates from a political convention which has been regularly organized does not deprive those who remain of the power to act, or destroy the identity of the convention. In such assemblages the presence of a majority of those entitled to participate is not necessary to constitute a quorum, and those not present are presumed to assent to the action taken by the majority of those who are present and vote.

5. A minority of the lawful delegates to a political convention cannot withdraw from the regular convention, and unite themselves with persons whose credentials have been rejected by the convention, and then successfully claim that they constitute the legal party convention.

6. It is held, on the facts stated in the opinion, that the convention held in the Thirty-Fourth legislative district on August 9, 1902, which nominated what is known as the “Fox Legislative Ticket,” was the regular convention of the Republican party, and that the nominees of said convention are entitled to have their names placed upon the official ballot as the nominees of that party.

Application by the state, on the relation of F. T. Gronvold, for a writ of mandamus to E. F. Porter, secretary of state. R. A. Fox and others intervene. Writ issued.

McDermont & Coger and Cochrane & Corliss, for plaintiff. Oliver D. Comstock, Atty. Gen., for defendant. Morrill & Engerud, A. M. Christianson, and L. N. Torson, for interveners.

YOUNG, J.

Upon the application and affidavit of the relator, F. T. Gronvold, an alternative writ of mandamus issued out of this court, directed to the Honorable E. F. Porter, secretary of state, commanding him to certify the name of said Gronvold to the county auditors of Pierce and McHenry counties as the nominee of the Republican party for senator for the Thirty-Fourth legislative district, which embraces said counties of Pierce and McHenry, and also to certify the names of James T. Moffet, R. J. Brock, and Benjamin Hammond as the nominees of the Republican party for representatives for said legislative district, or to show cause to this court why the command of the writ had not been complied with. The controversy arises out of a split in the Republican legislative convention, which resulted in two sets of nominees being certified to the secretary of state; both certificates being in due form, and purporting to contain the names of the nominees of the Republican party. The convention, it is conceded, was duly called to be held at the courthouse in Rugby, in Pierce county, at 3 o'clock p. m. on August 9, 1902, and it was during the progress of the convention held at that time and place that the split occurred, and the two rival conventions were held, and the nominations in question made. It is also conceded that Pierce county was entitled to be represented in said convention by seven delegates, and that McHenry county was entitled to a representation of eight delegates; further, that both of said counties held conventions for the purpose of selecting delegates; that the seven delegates selected to represent Pierce county were present at the convention, and, so far as this proceeding is concerned, no dispute exists as to their right to sit, or as to the personnel of the delegates. The fact also appears, without dispute, that seven of the delegates from McHenry county have at no time been in controversy, or the personnel of said seven delegates in dispute. The only controversy as to any of the delegates was in reference to the eighth delegate from McHenry county, and it was over this dispute that the convention divided. One faction, led by R. A. Fox, of McHenry county, who was a candidate for senator from this district, claimed that Charles D. Donnelly was the eighth delegate, whereas the relator, Gronvold, a resident of Pierce county, and also a candidate for the same position, claimed that one George E. Bowers was the eighth delegate.

The affidavit of the relator, upon which the alternative writ was issued, among other things, states that the McHenry county convention “duly elected to said legislative convention eight delegates, and that one of said eight delegates so elected was George E. Bowers”; that said delegates all assembled at Rugby for the purpose of holding the said Republican legislative convention, except the said George E. Bowers, who had theretofore given his proxy to one George H. Stevens; that the chairman and secretary of the McHenry county convention did not make out certificates showing the election of said eight delegates until the 9th day of August, 1902, which was the day the legislative convention was held, when said chairman and secretary were induced by R. A. Fox to sign credentials containing only six of the names of said eight delegates, upon the assurance of said Fox that he had the right to substitute in place of the other two delegates, if he so desired, the names of other persons as delegates in their places; that said credentials were delivered to him in that condition, and that thereafter the said Fox inserted or caused to be inserted therein as the other two delegates from McHenry county the name of one delegate who had been lawfully elected, and also the name of one Charles D. Donnelly in place of the said George E. Bowers, and that said Charles D. Donnelly was never elected by said McHenry county convention; that said Fox was a candidate for the office of state senator at the time of inserting the name of said Donnelly in place of that of George E. Bowers; that the seven delegates from Pierce county were opposed to said Fox, and in favor of affiant, Gronvold, and that the said George H. Stevens, who held the proxy of said George E. Bowers, was likewise in favor of Gronvold, and opposed to Fox; that said Fox presented said credentials to the said legislative central committee, and deceived said committee into believing that said Charles D. Donnelly had been selected as delegate from said McHenry county, instead of said Bowers; that, upon the “right of said Donnelly to be seated as a delegate in said convention being challenged by said Stevens, said committee referred the question whether said Donnelly or said Stevens was entitled to a seat in said convention to said seven other delegates from McHenry county, all of whom were favorable to said Fox for senator; that the said Fox claimed before said committee the right to substitute said Donnelly in place of the said Bowers; and that his right so to do was recognized by said seven other delegates from McHenry county.” The affidavit further states that the seven concededly lawful delegates from McHenry county united with Donnelly and nominated the following persons, to wit: For senator, Robert A. Fox; for representatives, O. A. Knudtson, Thomas H. Oksendahl, and T. Welo,-and that said Stevens and said seven delegates from Pierce county “in no manner participated in said pretended convention,” but that, when it became apparent that the seven delegates from McHenry county were determined to act with said Donnelly, they assembled at the same time and place, and in the presence of the seven lawful delegates from McHenry county, and organized a convention, and by unanimous vote of all the delegates from Pierce county, and with said Stevens, who held the proxy of George E. Bowers, nominated the following persons as the Republican candidates for senator and representatives of said Thirty-Fourth legislative district, to wit: For senator, F. T. Gronvold; for representatives, James T. Moffet, R. J. Brock, and Benjamin Hammond. The affidavit further states that certificates of nomination were made out by the respective secretaries and chairmen of both of said conventions, and filed with the secretary of state.

The secretary of state, in answer to the allegations of the alternative writ, admitted that a Republican legislative convention was duly called and held at the time and place alleged, and that two sets of certificates of nomination, both in due form, were filed in his office, but alleged that he had no knowledge as to which of said certificates contained the rightful nominees of the convention, and that he had no power or authority to determine the question, and for that reason was unable to perform his duty with respect to placing the names of the Republican nominees upon the official ballots, and therefore prayed to the end that the rights of the conflicting claimants might be determined, that R. A. Fox, T. Welo, O. A. Knudtson, and Thomas H. Oksendahl be impleaded, and required to answer the allegations of the writ and set forth any claims they might have to said nominations. In pursuance of such request the nominees of what may be termed the “Fox Convention” intervened and answered, alleging, among other things, that the delegates from McHenry county were, by a resolution duly adopted by the convention, instructed...