State v. Moran

• Decision Date: 29 October 1900
• Citation: 63 P. 390,24 Mont. 433
• Parties: STATE ex rel. CLARKE v. MORAN, County Clerk, etc.
• Court: Montana Supreme Court

63 P. 390

24 Mont. 433

STATE ex rel. CLARKE v. MORAN, County Clerk, etc.

Supreme Court of Montana

October 29, 1900

Injunction by the state, on relation of George A. Clarke, against John Moran, county clerk and recorder. Granted.

Original application for an injunction to restrain John E. Moran clerk of Silverbow county, from printing upon the official ballot a ticket designated as the "Eight-Hour Republican Party" ticket, which named candidates for county and judicial offices, and for members of the legislative assembly, for Silverbow county. The petition states the following facts: On August 27, 1900, there assembled in the city of Butte, pursuant to a call of the regularly constituted authorities of the Republican party, a convention of the party for the purpose of naming party candidates for county and judicial offices and for members of the legislative assembly. This convention made its nominations and, through its chairman and secretary, filed the proper certificate with the county clerk. The petitioner herein was one of the nominees of this convention for the office of representative in the legislature. On the 16th of the same month a convention was called by one John Bevan and one W. H Nichols, signing themselves, respectively, as chairman and secretary, and claiming to represent the regular party organization, to assemble in Butte on August 25th for the purpose of making the party nominations. Another purpose of this convention was to select delegates to represent the party in the state convention, which was to sit at the city of Helena on September 5th. In the call of this convention apportionment of delegates was made among the various precincts, but there was an omission to designate places for holding primaries in 14 out of 48 precincts in the county. The convention assembled pursuant to the call, and organized by selecting Samuel H. Treloar and Joseph M. Pyle as chairman and secretary, adopted a platform commending the national administration and declaring in favor of its policies, and after selecting delegates to the state convention, adjourned subject to the call of the chairman and secretary. The delegates so selected sought admittance into the state convention, but were repudiated on the ground that they had been selected by a convention called without authority, and had no right to represent the party. Delegates selected by the convention of August 27th were seated in their stead. On September 26th, Samuel H. Treloar and Joseph M. Pyle, as chairman and secretary of the convention of August 25th, published in the Butte Miner, a daily newspaper, the following notice: "Notice. The Republican convention which was held on August 25th, and which was adjourned subject to the call of the chair, is hereby called to reconvene on Wednesday, 26th inst., at 12 O'clock noon, at Sutton's Family Theater, to transact such business as may come before it." At the hour fixed a portion of the delegates assembled. A full list of candidates for county and judicial offices and for the legislative assembly was named, after the adoption of the following resolution: "We adopt as our party name that of Eight-Hour Republican Party, and that it be used at the head of our ticket." A certificate was properly executed and filed with the defendant as clerk of the county, under the designation stated in the resolution. It is further alleged, in substance, that the persons composing the convention last mentioned claimed to represent the regular Republicans of Silverbow county; that their convention was called as a Republican convention; that, notwithstanding these claims, when they found that they were not recognized as such representatives by the state convention, they thereupon, under the resolution aforesaid, without further consultation of the people, and without any call or caucuses or primaries for any "Eight-Hour Republican Party" convention, assumed to nominate a ticket under that designation, when, as a matter of fact, no such party had ever had any existence in Silverbow county or the state of Montana; that such designation is not of special significance or distinctive of any principle, inasmuch as all the conventions of all parties in the state of Montana, and especially the Republican county convention of Silver Bow county, have adopted resolutions favoring an eight-hour day for labor; that the ticket thus named was intended and designed to injure the regular Republican ticket by drawing votes therefrom to the Democratic and Populist fusion ticket; and that the defendant, unless restrained from so doing, will print said ticket upon the official ballot, to the injury of petitioner and those in like situation with him. The petition was filed by consent of the attorney general. Thereupon an order to show cause was issued, returnable on October 24th. The defendant interposed a demurrer to the petition, and rested upon the questions thus raised. The grounds of the demurrer are (1) that this court has no jurisdiction of the subject-matter of the action; (2) that the state has no legal capacity to sue; and (3) that the petition does not state facts sufficient to state a cause of action.

Pigott J., dissenting.

W. H. De Witt and M. J. Cavanaugh, for relator.

N. W. McConnell and J. B. Clayberg, for respondent.

BRANTLY, C.J. (after stating the facts).

1. The argument of counsel upon the first ground of the demurrer is that this court, in injunction proceedings, sits as a court of equity, and that as such its powers are limited to the protection of civil rights only; that the rights involved herein are purely political; and that this court, therefore has no power to consider or adjudge them, whether the relator be aggrieved or not. Although this court, in the exercise of its original jurisdiction, under article 8, § 3, of the constitution, has frequently granted writs of injunction to restrain ministerial officers from violation of their duties in connection with the administration of the election laws ( State v. Rotwitt, 18 Mont. 502, 46 P. 370; Same v. Tooker, 18 Mont. 540, 46 P. 530, 34 L. R. A. 315; Same v. Johnson, 18 Mont. 548, 46 P. 533, 34 L. R. A. 313; Same v. Bailey, 18 Mont. 554, 46 P. 1116; Same v. Johnson, 18 Mont. 556, 46 P. 440; Same v. Reek, 18 Mont. 557, 46 P. 438; Same v. Fisher, 18 Mont. 560, 46 P. 1116), the first question presented by the demurrer has never been decided. The power of this court to issue any original writ was challenged in Re MacKnight, 11 Mont. 126, 27 P. 336, but it was there held that the provision in the section cited: "Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction,"--is a clear grant of original jurisdiction. The purposes for which the grant was made are not discussed, Mr. Justice Harwood contenting himself by saying: "The writs named are defined in law, and their use in the administration of justice is fixed by long usage and well-settled principles." This is well said of all the other writs, except injunction, for they are all common-law writs of well-defined and well-known functions. It is also true as applied to the writ of injunction, used, as it ordinarily is, as a judicial writ by courts of equity in aid of jurisdiction, and not as a foundation of jurisdiction. But when we examine the constitution for other provisions throwing light upon the purpose for which the power to issue this writ was conferred upon this court, and the nature of the relief to be granted by it, we find that we are entirely in the dark; for there is no other jurisdiction granted anywhere which this writ may aid, and no suggestion outside of the use of the word itself, and the associations in which it is found, to aid us in declaring and defining its uses; for in view of other provisions (Const. art. 8, § 11), giving the district courts original jurisdiction "in all cases at law and in equity," and to this court appellate jurisdiction in the same class of cases (article 8, § 3), we must conclude that, whatever may be its appropriate functions, it is not intended to be used as a judicial writ in ordinary equity proceedings for the protection or enforcement of private rights. The contrary assumption would render the jurisdiction of this court merely concurrent with that of the district courts, and its appellate jurisdiction of no practical use. Fortunately, however, pressed for time as we are in a decision of this and other important questions pending before this court, we find the nature and functions of this writ discussed and defined by the court of another state having a similar constitutional provision. In Attorney General v. Chicago & N.W. Ry. Co., 35 Wis. 425, an application was made to the supreme court for a writ of injunction to restrain the defendant railroad companies from exacting tolls for the carriage of passengers in excess of the rates provided by law. After calling attention to the fact that this nonjurisdictional writ is grouped with other jurisdictional writs, the court proceeds to discuss the anomalous character thus impliedly given it, and concludes: "And, plainly recognizing the intention of the constitution to vest in this court one jurisdiction, by several writs, to be put to several uses, for one consistent, congruous, harmonious purpose, we must look at the writ of injunction in the light of that purpose, and seek its use in the kindred uses of the other writs associated with it. Noscitur a sociis is an old and safe rule of construction, said to have originated with as great a lawyer and judge as Lord Hale, peculiarly applicable to this...