State v. Stewart
| Decision Date | 13 October 1922 |
| Docket Number | 5210. |
| Citation | 210 P. 465,64 Mont. 453 |
| Parties | STATE EX REL. MILLS v. STEWART, SECRETARY OF STATE (SOCIALIST PARTY OF MONTANA, INTERVENER). |
| Court | Montana Supreme Court |
Original application for injunction by the State of Montana, on the relation of R. M. Mills, against Charles T. Stewart, as Secretary of State, in which the Socialist Party of Montana intervened. Writ denied.
A. P Heywood, of Helena, for relator.
H. C Smith, of Helena, and Joseph H. Griffin, of Butte, for respondent.
James L. Wallace, of Missoula, for intervener.
The relator, an elector of the state, has made application to this court for a writ of injunction directed to Hon. Charles T. Stewart, as secretary of state, to restrain him from certifying for a place on the ballots to be used at the general election to be held on Novembebr 7, 1922, the names of the persons named in the certificate of nomination filed by the Socialist party of Montana, as a political organization, as candidates for certain state offices to be voted for at said election. The relator's claim of right to have the writ issue is based upon the allegations that the Socialist party is now, and for more than 10 years last past has been, a duly organized political party within the state of Montana, and during said time has participated in the primary and general elections held in the state, but that it failed at the primary nominating election held in August 1922, to designate the names of any persons to be voted for at said primary nominating election as candidates for nomination to the various state and district offices to be voted for at the general election.
The respondent and the Socialist party of Montana, the latter having appeared by pleading in intervention, take the position that the Socialist party, as a party organization has had no existence in the state of Montana for more than five years, and had no existence on August 29, 1922, the date of the state primaries; the organization thereof which existed in 1916 having been abandoned. It is alleged by them that on September 30, 1922, pursuant to a call duly made and advertised, a convention and primary meeting was held in the city of Helena for the purpose of organizing the Socialist party in the state and thereafter making nominations for public offices, at which time the electors and delegates in attendance at said convention did organize such a party and name it the Socialist party of Montana, and that after the organization of such party the electors and delegates assembled did then nominate as candidates of the Socialist party of Montana the persons whose names the relator by this action seeks to prevent appearing on the official ballots as candidates of such party at the forthcoming general election.
If the Socialist party of Montana was organized and in existence at the time of the primary nominating election in August, 1922, then under the express provision of section 639, Revised Codes 1921, it is not entitled to have the name of any person appear upon the ballots as a candidate for any state office at the general election. State ex rel. Williams v. Stewart, Secretary of State, 58 Mont. 708, 198 P. 1118. If, however, the party was not in existence as a political party organization at the time of the August primaries, and if on September 30, 1922, it was organized either as a reorganization of an old party or as an entirely new organization, and if it duly nominated candidates for state offices, then the case is governed by the decision of this court in the case of State ex rel. Richardson v. Stewart, Secretary of State, 58 Mont. 707, 198 P. 1118.
The first question for determination is whether the Socialist party did go out of existence as a political party at some time prior to the August primaries, and the burden of proof was on the relator to show the existence of such a party at that time. He endeavored to sustain this burden by showing: (1) That for the August primaries certain persons had presented petitions requesting that their names be printed on the ballots at the primary election as candidates for the Socialist nomination for certain of the state offices, but none of these filings were completed. These petitions were in the form required by the primary election law. (2) It was also proven that at the city primary election in the city of Livingston in the year 1920 a person filed as a candidate for the Socialist nomination for the office of alderman of that city, and that the same year at the primary election in the city of Butte a person filed as a candidate for the Socialist nomination for the office of mayor. (3) There was also offered in evidence the pleadings in the case of State ex rel. Williams v. Stewart, supra.
1 and 2. The fact of the filing of a nominating petition for either a municipal or state office by some person who styles himself a Socialist, and who seeks the nomination as a candidate of a Socialist party in itself does not prove the existence of a Socialist party as a political party organization within the state. This is particularly true as to a petition for nomination for a city office, for it is entirely too local in its scope to be of much evidentiary value. These nominating petitions filed for the August primaries were not completed, and the most that can be said of such petitions is that they are circumstances tending to prove: First, that the persons who signed them claimed to be members of a Socialist party--as they declared themselves to be, notwithstanding the fact that it was testified to by one of the candidates upon the trial that all of the persons but one who signed his petition were either Democrats or Republicans--and, second, that the proposed candidates sought nomination to an office as candidates of a political party which they claimed to be in existence, and which they called the "Socialist party."
3. As to the evidentiary effect of the pleadings in the case of State ex rel. Williams v. Stewart, supra: The questions of fact involved in the determination of that case were not the same as in this. That case involved the right of certain persons who claimed to be the nominees of the Socialist party, at a mass convention said to have been held in Butte, Mont., on September 26, 1920, to a place on the official ballot to be used at the general election in 1920, as candidates for the office of presidential and vice presidential electors of the Socialist party. The petition for the writ recited that, at a national convention of the Socialist party, held in May of that year in New York City, it had nominated Socialist candidates for the office of President and Vice President, respectively, for the general election in 1920. From the allegations of the petition and the admissions made in the record at the time of the hearing, the court held that, since the party was organized and in existence at the time of the primary elections so held on April 23, 1920, for presidential and vice presidential electors, it was not entitled to have the names of any persons appear upon the official ballots as candidates for these offices at the general election. The record there disclosed that at the last preceding presidential election the Socialist party did have candidates for presidential and vice presidential electors. The question of the right of any other nominee of that party to appear upon the official ballot at the general election was not before the court.
It is true that in that case the petition for the writ recited that there had been a mass convention of the Socialist party in the city of Butte on September 26, 1920, at which time these nominations of presidential and vice presidential electors were made, and it is to be presumed that it was for the purpose of proving, if possible, the existence of the Socialist party as a political party organization within the state of Montana in 1920, that the record in that case was offered in evidence in this. But the record as there made is not binding upon the parties to this suit, in the absence of evidence in the present case showing what connection or relation the relator, Williams, in that suit had with the Socialist party, if the party was in fact in existence at the time. The petition there was sworn to by Williams, but just what connection he in fact had with the Socialist party, if there was one in the state at that time, has not been made to appear in this case. If the things Williams recited in that petition were true, as the court then assumed that they were, we do not understand why relator could not have now proven them in this case. The court cannot go outside of the record in any given case for a determination of the questions presented. The foregoing is all of the testimony at all favorable to the relator's contention, and the court would have been justified in dismissing the case at the conclusion of the relator's proof because of his failure to sustain the burden the law imposed upon him.
On the part of the respondent and the intervener, there is evidence of two persons, each testifying that he had been a member of the national Socialist party for a period of twenty years or more, and that there has not been a party organization in this state for several years, and that there has not been any candidate nominated for any state office since 1916. Each of these persons was positive in his declarations, and purported to give evidence within his personal knowledge. That there was not any candidate nominated for any state office in 1920 is borne out by the fact that the Socialist party was not permitted to place upon the ballots a candidate at the general election in 1920, by the decision of this court in the Williams Case, supra. It must therefore be considered as proven in this case that the Socialist party ...
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