State ex rel. Rose v. Piper

• Decision Date: 16 December 1896
• Docket Number: 8794
• Citation: 69 N.W. 384,50 Neb. 42
• Parties: STATE OF NEBRASKA, EX REL. FRANK L. ROSE, v. JOEL A. PIPER, SECRETARY OF STATE
• Court: Nebraska Supreme Court

69 N.W. 384

50 Neb. 42

STATE OF NEBRASKA, EX REL. FRANK L. ROSE, v. JOEL A. PIPER, SECRETARY OF STATE

No. 8794

Supreme Court of Nebraska

December 16, 1896

ORIGINAL application for mandamus to compel the secretary of state to certify to the county clerks the names of certain persons as republican nominees for certain offices. Writ denied.

WRIT DENIED.

E. H Wooley, W. M. Morning, and C. S. Rainbolt, for relator.

John H Ames, contra.

NORVAL J. IRVINE and RYAN, CC. not sitting. RAGAN, C. concurring in the conclusion.

OPINION

NORVAL, J.

This was an application by the state, on the relation of Frank L. Rose, for a peremptory writ of mandamus to compel the certification by respondent, as secretary of state, to the county clerks of the names of certain persons as republican nominees for electors of president and vice president and the several state offices. A submission was taken upon the pleadings alone, consisting of the application and the answer thereto of the respondent, shortly prior to the last general election, and an oral decision was then announced, the preparation of a written opinion having been delayed until now. For a proper understanding of the questions involved it is not deemed necessary to set out the pleadings; moreover, to do so would extend this opinion beyond reasonable limits. It should be stated here that after the submission a reply to the answer was filed without leave or consent of the court being first had and obtained, and it was accordingly eliminated from the record. The answer, inter alia, raised the same objections to the jurisdiction of the court which were presented and determined in State v. Piper, 50 Neb. 25, 69 N.W. 378, and which must be overruled for the reasons stated in the opinion therein filed.

It clearly appears that at a state convention of the republican party of this state, duly and regularly held in accordance with the practices of the party in such cases, and pursuant to a call executed and published by the chairman and secretary of its state central committee in obedience to an order by said committee, which convention was composed of more than 900 delegates and representing all the organized counties in the state, a full ticket of candidates for all the state offices and presidential electors to be voted at the general election in 1896 was nominated; that a certificate of said nominations, made out in conformity with law, was executed by George W. Collins and H. M. Wells, respectively the chairman and secretary of said convention, and in due time filed in the office of the respondent, as secretary of state, and that no protest or objection to said certificate or to said nominations was ever presented or filed with him. Subsequently, and on the 7th day of October, 1896, there was filed with the respondent a certificate of nomination of other persons as candidates for the same offices, signed by F. L. Rose as chairman and R. A. Williams as secretary, purporting to be a certificate of nominations made by a convention of the republican party of the state, hereafter called the "Rose convention," held in the city of Lincoln on the 6th day of October, 1896, reciting and stating that said convention was held "pursuant to a call regularly issued for a Nebraska state republican mass convention, which state convention was composed of delegates and legal representatives duly qualified and chosen as such, and the legal representatives of the qualified electors and residents of the state of Nebraska representing the republican party in said state, which said political party, at the holding of the last election before the holding of such convention, polled more than one per cent of the entire vote cast in the state." On October 9, 1896, John P. Maule, a resident and elector of the state, filed with the respondent written objections to said last mentioned certificate of nomination and to the nominees therein named, and thereafter, upon due notice having been given to all persons interested therein, a hearing was had upon said protest before the respondent, who, upon the consideration of the evidence adduced by the respective parties, sustained said objections and declined to certify to the various county clerks of the state to be printed upon the official ballots the names of the persons mentioned in the Rose certificate. Relator being dissatisfied with this ruling and decision commenced this proceeding.

The secretary of state, at the time of his decision, made findings of fact and conclusions of law, which are set forth in full in his answer herein, and which said findings he alleges are in all respects true. The findings are as follows:

"First--There was not held in said city of Lincoln on the 6th day of October, 1896, or at any time in said year after the first day of July, any convention composed of delegates and legal representatives duly qualified and chosen as such and the legal representatives of the qualified electors and residents of the state of Nebraska representing the republican party in said state.

"Second--I find that on the 3d day of October, 1896, one F. L. Rose, a private individual residing at Lincoln, Nebraska, but not having, or claiming to have, any official relation as committeeman or otherwise with the republican party in said state, caused to be published in the Omaha World-Herald, a newspaper published at Omaha, Nebraska, and in the Evening Post, a newspaper published at Lincoln, Nebraska, a notice, of which the following is a copy:

"'LINCOLN, NEB. Oct. 3, 1896.

"'We, the republicans of the state of Nebraska, reaffirm our allegiance to the time-honored principles of our party as enunciated by John C. Fremont, Abraham Lincoln, and its illustrious framers, and exemplified by the public life and utterances of James A. Garfield, John A. Logan, James G. Blaine, and other great leaders. To the end that the great principles which called for the grand old party of freedom and liberty shall not perish forever from the face of the earth, and that chattel slavery having been abolished by our party, a more galling subserviency to the money plutocracy of foreign nations and their tory allies on American soil, aided and abetted by corporate greed, shall not forever destroy a government of the people, for the people, and by the people, we invite the co-operation of all republicans who adhere to the original principles of the party to convene in mass convention at the city of Lincoln, at 10 o'clock A. M. on Tuesday, October 6, A. D. 1896, for the purpose of placing in nomination candidates for the following offices to be voted for at the coming election to be held Tuesday, November 3, 1896:

"'One governor,

"'One lieutenant governor,

"'One secretary of state,

"'One auditor of public accounts,

"'One treasurer,

"'One attorney general,

"'One superintendent of public instruction,

"'One commissioner of public lands and buildings,

"'One supreme judge, contingent four years,

"'One supreme judge, contingent two years,

"'One regent state university,

"'Eight presidential electors,

"'And for the transaction of such other business as may properly come before the convention.

"'We hereby instruct the chairman of this conference to publish this call.

F. L. ROSE,

"'Chairman.'

"Third--I find that between the hours of 10 o'clock A. M. and 2 o'clock P. M. on the 6th day of October, 1896, there assembled in a private room on the fourth floor of the Lincoln Hotel, in Lincoln, Nebraska, a number of persons, variously estimated at from thirty-five to fifty, but not exceeding the latter number; that those persons nor any of them, were not chosen or delegated to attend said meeting or any meeting on said day by any political organization or claimed or pretended political organization whatever, or by any person or persons acting or claiming or pretending to act by or under the authority of any political party, political organization, or political committee or committeeman, and that said assemblage was wholly voluntary and self-constituted; that the persons in charge of said room and in the management of said meeting actively concealed the place of said assemblage from the knowledge of the republican voters of said state and city, and from the public generally, and allowed information thereof to be given only to such persons as were actually present thereat, and that at said meeting so held, and not elsewhere or otherwise, were the several persons, or any of them, mentioned in said purported certificate of nomination attempted or pretended to be or to have been put in nomination as candidates for any of said offices.

"Fourth--I find that during the entire time of the existence of said assemblage and for several hours prior thereto a large concourse of persons, several hundred in number, professing to be members of the republican party in said state and in sympathy with the sentiments expressed in said published notice and of the persons therein named, and all or nearly all of whom are and have been for many years actively affiliated with said republican party, were making active and diligent search and inquiry of the proprietors and managers of the theaters and public halls and of the clerks and proprietors of the several hotels in said city, and at the place of business of said Rose, for the purpose of ascertaining if possible the whereabouts of said Rose and the time and place of the holding or assembling of any meeting or convention pursuant to said notice; and that the...