State v. Rotwitt
| Decision Date | 12 October 1896 |
| Citation | 46 P. 370,18 Mont. 502 |
| Parties | STATE ex rel. WOODY v. ROTWITT, Secretary of State. |
| Court | Montana Supreme Court |
Petition on relation of Frank H. Woody, for a writ of injunction against Louis Rotwitt, as secretary of state. Writ granted.
The petitioner applies for a writ of injunction commanding the defendant secretary of state to refrain from certifying to the county clerks of Missoula or Ravalli counties the name of George W. Reeves, Esq., as the candidate of the "Silver Republican Party" or of the "Republican Party of the State of Montana" for the office of judge of the Fourth judicial district, state of Montana. It appears by the petition that on September 3, 1896, the petitioner was duly nominated by a convention of delegates who were resident in Missoula and Ravalli counties as the Democratic candidate for the office of judge of the Fourth judicial district comprising the counties of Missoula and Ravalli; that a convention of the Republican party, consisting of delegates from the counties of Missoula and Ravalli, on the 9th day of September, 1896, duly nominated one E. E Hershey as the Republican candidate for judge of the district court. It was conceded, however, during the argument, that no certificate of Hershey's nomination was ever filed with the secretary of state, as is required by law, and that, even if it were so filed, he is not a candidate, having notified the secretary of state of his declination of any nomination as district judge. The petitioner next avers that the Silver Republican party has been a regular political organization since September 9, 1896, and has nominated officers, and published the principles it proclaims and advocates; that on September 22, 1896, the Republican party held a county convention in Missoula county to nominate county officers, the delegates to said convention being from Missoula county exclusively, but that the said county convention pretended to nominate George W. Reeves as the Republican candidate for district judge of the Fourth judicial district, and on October 3, 1896, filed with the defendant a certificate, stating, in substance, that at a convention of the Republican party, held on the said last mentioned date, of Missoula county, the said George W Reeves was by the said convention nominated for judge of said Fourth judicial district. It then appears that immediately upon the conclusion of the proceedings of the Republican county convention, a portion of the delegates to the same assembled as a Silver Republican convention, and among other proceedings of said convention so assembled the delegates nominated the said Reeves for the office of district judge and on October 3, 1896, filed a certificate with the defendant, reciting, in substance, that the said Reeves had been nominated by such convention as the candidate of the Silver Republican party. It is averred that the nominations just referred to are void, because they were not made by any convention in which the county of Ravalli was represented, or was invited to be represented, or had an opportunity to be represented. The petitioner then sets forth that on October 3, 1896, there were filed with the secretary of state four lists of names whereby certain qualified electors of Missoula county nominated George W. Reeves as candidate of the Silver Republican party for district judge of the Fourth judicial district. The petitioner alleges that these petitions are defective by reason of electors in certain instances omitting to sign their places of residence and occupations as required by law. It is next averred that on October 3, 1896, certain other petitions were filed with the secretary of state, wherein certain electors attempt to nominate the said George W. Reeves as the candidate of the "Republican Party of the State of Montana." But the petitioner alleges that these petitions are defective by the omissions in certain cases to add to the names of the electors their places of residence, etc. It is also averred that there are not enough names upon the petitions referred to to nominate the said George W. Reeves according to law.
The secretary of state, by answer, denies that Hershey was ever duly nominated, and alleges that at a regular Republican state convention, composed of electors from all the counties in the state, the delegates attending such convention from Ravalli and Missoula counties without right or authority assembled and pretended to nominate Hershey, but never filed any certificate of nomination, and that said Hershey was regularly nominated by the Republican county convention of Missoula county as county attorney for said county. The defendant denies "on information and belief that the Silver Republican party has been at all times since the 9th day of September, 1896, a regularly organized and existing political party in the said Fourth judicial district of the state of Montana"; alleges that the Missoula Republican county convention nominated said Reeves as a candidate for judge, and filed with the defendant, on October 3, 1896, a certificate in due form; admits that after the Republican county convention had adjurned sine die a part of the delegates attending such convention assembled as a Silver Republican convention, and alleges that, after assembling and duly organizing as a convention representing the Silver Republican party, they nominated said Reeves as a candidate for judge, and in due form filed a certificate of nomination with the defendant. The defendant alleges on information and belief that neither the Republican party nor the Silver Republican party in Ravalli county have ever held a convention for the purpose of nominating a candidate for the office of judge of the Fourth judicial district, but have acquiesced in the nomination of the said Reeves for said office. The answer admits the filing of the petitions referred to by the allegations of plaintiff's petition, but denies the defects alleged in the petitions. It is unnecessary to mention the particular defects in the denials more specifically, as they are not material to the decision of the case. To this answer the petitioner filed a demurrer.
T. J. Walsh, for relator.
Thomas Marshall, H. J. Haskell, and M. S. Gunm, for respondent.
HUNT J. (after stating the facts).
The attempted nomination of Mr. Hershey as Republican candidate for district judge by the delegates to the state convention on September 9, 1896, from Ravalli and Missoula counties, is not important, because, whether the method pursued was legal or not is immaterial, inasmuch as Mr. Hershey expressly declined to be a candidate by a written declination, on file with the secretary of state; so that, if the judicial district was properly represented by the assembling of the delegates to the Republican state convention from the several counties of the district in a district convention, and if such district convention properly exercised its powers by selecting a candidate, still their work as a district convention has become ineffective, both by the declination of Mr. Hershey and by the manure of any subsequent concerted action by such district convention, or by any committee delegated by such convention to substitute another candidate in place of Hershey. The fact is, therefore, that there is no Republican candidate for district judge who was nominated by any convention of delegates chosen from Ravalli and Missoula counties. So far the case is perfectly simple. But in the current of political conventions on September 22, 1896, the Republican party in and for Missoula county held a county convention to nominate candidates for county offices in Missoula county. This convention, it appears by the pleadings, was essentially a county convention for...
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