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the same before an officer duly authorized to take acknowledgments of deeds. * * * In case of a division in any party, and claim by two or more factions to the same party name, or title, or figure, or device, the board of election commissioners shall give the preference of name to the convention held at the time and place designated in the call of the regularly constituted party authorities, and if the other faction shall present no other party names, title, or device, the board of election commissioners shall select a name or title, and place the same before the list of candidates of said faction on the ballot, and select some suitable device to designate its candidates. If two or more conventions be called by authorities claimed to be the rightful authorities of any party, the proper board of election commissioners shall select some suitable device to distinguish one faction from the other and print the ballot accordingly. * * * Certificates and petitions of nominations of candidates for offices to be voted for by the voters of any district or division of the state exclusively shall be filed with the clerks of the circuit courts of the counties or county included in or including such district of division." Section 6222 of the same statutes provides that, “The device named and list of candidates of the Democratic Party shall be placed in the first column on the left hand of said ballot; and of the Republican Party in the second column.”
In the adoption of the Australian ballot system, under which a voter is required to register his choice upon an indistinguishable ballot, it was necessary that provision should be made by law whereby the printing and promulgating of the ballots should be taken out of the hands of political parties and individuals, and that the performance of these duties should be vested in public officers. Although constrained to do this from the necessity of the case, yet the lawmaking power, recognizing the potency of political parties as agencies of government, and being cognizant of the fact that the integrity of such an organization largely depends upon its ability to place before voters, under the party insignia, a list of candidates for office who stand for those tenets concerning government that the organization is supposed to represent, made provision for the placing of party tickets upon the ballot. As to the two larger parties, express provision was made concerning the place of each upon the ballot, it being provided that the list of candidates of the Democratic Party should be placed in the first column and that the list of Republican candidates should occupy the second column. In order, so far as possible, to avoid controversies relative to the question as to which of two or more lists of candidates should be placed upon the ballot under a particular party name and device, it was provided that in case of division in any party, accompanied by a claim of two or more factions of the party of the right to use the
name and device thereof, preference should be given to the list of candidates nominated by a convention "held at the time and place designated in the call of the regularly constituted party authorities," and it was further provided that if the other faction or factions failed to present some other party name and device the board should select a name and device to designate the candidates thereof.
Where it appears that a list is composed of the nominees of a convention, which has been held at the time and place designated in the call of the regularly constituted party authorities, it is the duty of the board, there being a regular certificate of nomination, to set out such list of names in the proper place and under the party name and title, and this duty is in the highest degree mandatory. Having ascertained the facts stated, it is the plain duty of the board to follow the requirements of the statute. As was said in State ex rel. Cook v. Houser, 122 Wis. 534, 550, 100 N. W. 964, 968: “The exclusive use of the party name by a particular organization, after it has achieved such significance as to be entitled to recognition as one specially privileged to appear on the official ballots, was evidently deemed by the Legislature to be a matter of vital importance to such organization, to the candidates named by it, and to the people of the state at large. It was thought to be necessary to the integrity of the organization, and important to the people generally as an indication of the principles to prevail contingent upon the candidates bearing its stamp, so to speak, being elected. It was thought to be a matter of the highest importance to the electors, to the end that they might not be misled into indorsing principles in form to which they were opposed in fact. “The same idea finds expression in State ex rel. Howells v. Metcalf, 18 S. D. 393, 100 N. W. 923, 67 L. R. A. 331, where it was said: “It is for the party to nominate; for the people to elect. The question is not, who shall be chosen to any particular public office? That is for the voters of all political parties to determine at the polls. It is simply, who shall represent the organization as its nominees? And certainly the determination of that question should be controlled by the action of the party itself; otherwise, party nominations are impossible."
There can be no question under the facts pleaded that the Republican county central committee of which relator is the chairman was the regularly constituted authority for the calling of a convention of the Republican Party in Marshall county. As we have seen, the manner in which the Republican Party is organized in the state is specially pleaded. Basing the claim alone upon the facts which have been specially alleged, it appears that said committee has at least a pretty well-fortified basis for the claim that it is the regularly constituted party authority in the matter of calling a Republican county convention. However, since the great parties
are agencies of government, and their organi- church, the courts will not attempt to settle zation and existence constitute facts of a pub- those questions of right and duty, arising in lic and general nature which all well-in- the organization, which are so complex that formed persons are presumed to know, we individual opinion must for each man be the are justified in affirming that we have ju- final arbiter, but, as respects rights of propdicial knowledge of the fact that there is but erty or whatever is so analogous thereto as to one party having the name of Republican be cognizable by the courts, the rule is, even Party to which any considerable portion of in the case of an adhering minority, that the citizenship of the state give adherence. it is those who adhere and submit themselves When to this element of judicial knowledge to the regular order of the general organizathere is added the special facts which are tion, and not the seceding majority, who are alleged concerning the manner in which the to be recognized as the representatives of the party is organized, we have a case in which general organization in the locality. Smith it is clear that a convention which was not v. Pedigo, 145 Ind. 361, 33 N. E. 777, 44 N. held under the sanction of the call of such
E. 363, 19 L. R. A. 433, 32 L. R. A. 838. It committee was not entitled to have its nomi
is stated by a leading author that "a candinees placed before the voters as constituting date nominated by electors is not the nominee the Republican ticket.
of a political party, but of the individual We need not seek to determine whether
electors nominating him, even though all of the decision of the state committee as to who
the electors, signing the nominating paper, be constitute the local authorities is sufficiently
members of the same political party. Such potent in any case to place a claim of regu
electors cannot, by choosing the name of a larity on the plane of legal right. What we
political party authorized to make nominado decide is that a call for a local convention
tions by convention, make such nominee the which is issued by the county central com- nominee of such party." McCrary, Elections mittee, which has been selected and organ
(4th Ed.) 8 702. ized pursuant to the call of the state central
Assuming the truth of the facts alleged by committee, and is acting pursuant to its
relator, it is clear that a convention which rules, is the "call of the regularly constituted
was held at the time and place designated party authorities.” As to the mass conven- in the call of the central committee of which tion, we have seen that it is charged that
relator is the chairman was the convention it was called by persons claiming to be offi- whose nominees should be recognized, upon cers of the Republican county central com
the filing of a proper certificate as required by mittee, but who were not such in fact, and
law, as the candidates whose names should that it was held in conflict with the rules of
go upon the ballot as constituting the Rethe state committee. Such nominations are
publican ticket of nominees for the various to be regarded as independent nominations.
offices to which they have been nominated, As we said in Fernbacher v. Roosevelt, 90
and that, upon these facts appearing, they Hun, 441, 450, 35 N. Y. Supp. 898, 902, “they should appear in the place on said ballot do not come under the head of the regular designated for the Republican ticket, and party nomination, whose convention has chos
under the name and emblem of the party. en the device under which the nominations of Thus far we have written upon the merits, that convention are to be presented to the and, without being at the pains to state the people.” The nominees of such a convention, objections which counsel for appellees urge no matter what may be the numbers or sup- to the petition and writ, we way state that, posed grievances of the persons participato having carefully considered such objections, ing in the movement, have no just claim un- we regard them as unavailing. There is a der the statute to have their names placed defect in said pleadings, however, which under the party title and emblem. The stat- must work an affirmance, although it has ute makes the test of right to party repre- not been pointed out, and that is that it sentation the fact that the convention, present- is not alleged that the certificate of nominaing the list of names, was held at the time tion of the candidates nominated by the and place designated in the call of the regu- convention held upon the call of relator larly constituted party authorities. The ques- designated the title of the party and the tion as to who constitute such authorities is figure device by which its candidates one which ordinarily can readily be deter- were to be designated upon the ballots, purmined under the rules of law. Those who suant to section 6215, Burns' Ann. St. 1901. see fit to separate themselves from the regular In the opinion of the writer, the pleadings party organization cannot claim the privileges were also defective in that they did not show which attach to it. A court is not the forum that said convention was held at the place for the determination of questions of a politi- designated in the call of said party authorcal character, but, as between a dissenting ities. But whether this proposition is valid local organization and the representatives or not, the former cannot be escaped, for it is the general body in the locality, the courts, certainly incumbent upon the relator to bring recognizing the fact that those who thus himself within the statute; that is, to show separate themselves are dissenters, deny to that the facts require that the defendants them the rights which belong to the regular should do what he demands of them. As was membership. It is with a party as with a said in Matter of Madden, 148 N. Y. 136, 140,
42 N. E. 534, 535: “The right to a column must necessarily settle as the law of the depends upon a nomination having been made case the right of the appellant to recover and certified.”
upon proof of the state of facts alleged in the As was said by Woods, J., in Martin v. complaint. To do this on the ground that the Martin, 74 Ind. 207, 210, wherein a cause was appellees, who are evidently striving in every affirmed on grounds which were not stated way to uphold the judgment, have failed to or suggested in the briefs: “The counsel make the particular point would be a perhave greatly mistaken both the practice and version of justice. As was said in Big Creek the duty of this court. The issue tendered Stone Co. v. Seward, supra, "if the court were for our decision by the appellant in every limited to the argument and reasoning of case of appeal is that 'there is manifest error counsel in its decisions of cases, to the exin the record,' in some specified particular or clusion of its own observations, many cases particulars. The appellee joins issue, and would lead us far from what we understand says there is no error. The trial is by record, to be the true object of the court." not by the argument of counsel, and the ap- Before passing on the question which it is pellant has no right to prevail, and we should evident that counsel for the parties conbe derelict in duty if we permitted him to
sidered the fundamental question in the prevail, unless the error is made manifest. case, we deliberated long upon the question No matter what error the court below may as to whether it was our duty to do this, have committed, it is not manifest in the and we have reached the conclusion that it record, unless saved in the lower court, and
is. Public considerations alone gave the presented in this court, in accordance with relator the right to wage the question which the rules of practice. These rules of practice
he seeks to present. The spectacle of a large are the law of the land, their reasonableness body of voters being led, by what in practiis justified by experience, and, unless ready
cal effect is a false pretense to give their to abrogate, we have no right to disregard,
suffrages to candidates who are without the them. We never go beyond the brief of
sanction of the party they claim to represent the appellant to search the record in quest
is abhorrent. The question is publici juris in of errors which have not been pointed out
the highest degree. It was said by the in the brief; but the appellee, without filing
Supreme Court of Wisconsin, where a quesany brief at all, is entitled to the benefit of
tion of representation on the state ballot was everything in the record which may prevent
presented: "The public. rights involved are a reversal of the judgment upon the errors
important in the highest degree. No case assigned; and, because the counsel on both
has arisen in recent years that more closely sides may discuss some question with very
concerns all the people than this one. Notbgreat learning and ability, as was done in
ing short of a decision by the highest authorthis case, we are not therefore permitted
ity in our judicial system would be at all to shut our eyes against the fact, which we
satisfactory or adequate to meet the situacannot otherwise help seeing, that the ques
tion." State ex rel. v. Houser, 122 Wis. 534,
554, 100 N. W. 964. Recognizing the public tion is not in the record. The silence of the
interests which are bound up in the quesappellee on any point is not equal to an agree
tion, that the election is at hand, and assumment to waive the point. The burden is
ing that appellees, in view of their oath of on the appellant to show the error which he
office and the penalties prescribed for a willhas assigned.” In Powell's App. Proc. p.
ful violation of the election laws, will regard 126, it is said: "Hence it is to be seen that the appellate court, in reviewing the record
it as incumbent upon them to follow the de
termination of the state's highest judicial upon the question of error, will examine the
tribunal, we have conceived that we have not whole record, and if, in so doing, they find in
gone further than we are warranted in passing other parts of the record what will justify
upon the merits, and that, in view of the or neutralize the error assigned and pointed
manner in which an affirmance has been out, the court will not reverse the judgment.” See to the same effect, Jones v. Castor, 96
brought about, we are not open to the criti
cism of incorporating obiter into our decision Ind. 307; Wilson v. State, 156 Ind. 631, 59
in deciding such question. Appellees may N. E. 380, 60 N. E. 1086; Irvin v. Rushville,
claim an affirmance on a ground which they etc., Tel. Co., 161 Ind. 524, 69 N. E. 258. As
have not suggested, but having joined with was said in Travelers' Ins. Co. v. Prairie
their adversary in invoking our judgment School Tp., 151 Ind. 36, 49 N. E. 1, 51 N. E.
on the main point, they are in no position to 100: "We may not ignore what we do see
complain that the court, in view of the that will prevent a reversal of the judgment."
public character of the controversy, has not In Elliott's App. Pro. $ 186, the author said:
been silent on the essential question in“The courts have again and again adjudged
volved. It is the order of the court that this that appeals are heard upon the record and
opinion be certified to the court below forthby the record determined." See, also, Big
with, Creek Stone Co. v. Seward, 144 Ind. 205, 42 N. E. 464, 43 N. E. 5; Scott v. City of
Judgment affirmed. Laporte, 162 Ind. 34, 51, 68 N. E. 278, 69 N. All concur, except MONTGOMERY, J., E. 675. To reverse a case because of the who votes for a reversal, and files a separata sustaining of a demurrer to the complaint ' opinion.
MONTGOMERY, J. (dissenting). The mani. marily by the party tribunals. Stephenson v. fest theory and purpose of the relator's peti- Board (Mich.) 76 N. W. 914, 42 L. R. A. tion is to present to the court for settlement 214, 74 Am. St. Rep. 402, and cases cited. the conflicting claims of two lists of county This recognition by the highest tribunals of candidates to the right to have their names the party involved gives regularity and validprinted in the second column of the official ity to the acts of the relator as such chairballots under the title of the Republican Par- man, from a partisan standpoint, and is ty and the emblem of an an eagle. No sugges. controlling upon the courts. Breidenthal v. tion appears to have been made in the court Edwards, 57 Kan. 332, 46 Pac. 469, 34 L.
, below that the nominating convention conven- R. A. 146; Moody V. Trimble, 109 Ky. 139, ed by relator was not shown to have been held 58 S. W. 504, 50 L. R. A. 810; Phillips v. at the place designated in the call therefor, Gallagher, 73 Minn. 528, 76 N. W. 285, 42 nor is anything disclosed in this controversy, L. R. A. 222; Fairchild v. Ward, 151 N. Y. making the place of holding such conven- 359, 45 N. E. 943; State v. Houser, 122 Wis. tion a matter of importance. No such ques- 534, 100 N. W. 964. No controversy having tion is raised or discussed in the briefs of been disclosed over the place of holding the counsel upon appeal. The determination of .
nominating convention, that matter is imthe controversy presented and urged turns material in the determination of the question wholly upon the question as to which of the
presented. If in point of fact the nominarival lists of candidates shall be recognized tions are not certified in writing as required as the genuine Republican ticket. All other by law, they are not entitled to go upon the questions are subsidiary to this, and the ballots at all. The genuine list, when propformal defects in the petition pointed out in erly certified, must be recognized and given the majority opinion are such as could and
its proper place upon the ballots, while the doubtless would have been cured by amend- pretenders must be assigned a different colment, upon suggestion of their existence, and
umn, name, and device. It follows that not having been presented or insisted upon by the list of candidates nominated at the concounsel upon appeal, this court is warranted vention convened by the relator on June 2, in considering only the alleged defects passed 1906, is the genuine list of Republican canupon by the lower court, and treating all didates, and as such is entitled to be placed others as waived. It is not the imperative in the second column under the party name duty of the members of this court to become and emblem on the official ballots, and this attorneys for appellees and to scan records right having been denied them as alleged, for grounds upon which to sustain the deci- upon the sole ground of a lack of party regsion of the court below, which grounds as ularity and genuineness, the petition is sufrational men they know to a moral certainty ficient to afford the relief sought. did not affect the ruling in question, but which I therefore dissent from the conclusion as judges they assume might have done so. reached by a majority of the court and vote It is a verred that the relator was chosen for a reversal of the judgment. county chairman in strict conformity to the governing rules and under the supervision of the Republican state organization, and that
(167 Ind. 292) ever since his election as such chairman he AMERICAN EXPRESS CO. V. SOUTHERN has been recognized by the Republican state INDIANA EXPRESS CO. (No. 20,441.) and district committees, as chairman of the
(Supreme Court of Indiana. Nov. 1, 1906.) Republican county central committee of
1. CONSTITUTIONAL LAW DUE PROCESS OF Marsall county.
LAW-REGULATION OF EXPRESS COMPANIES. This averment was, perhaps, essential to Acts 1.901, p. 149, c. 93, Burns' Ann. St. the jurisdiction of the court, and is decisive 1901, SS 3312b and 3312e provides that express of the question under consideration. The
companies shall grant to all consignors, including writer of the principal opinion attempts to
other responsible express companies as con
signors, equal terms and accommodations in the determine the question by tests which are carriage and continuance of carriage of goods appropriate in controversies, involving prop
and prohibits them from granting to any one erty rights, but which are wholly inadequate
carrier any privileges or accommodations not
granted to all others, and provides that any to the solution of a purely political matter.
carrier failing to comply with the statute may The question involved is one essentially poli- be convicted in a prosecution brought by the tical and and not judicial in its character. state, that it shall be liable in a civil action for It has been generally held that such ques
damages and that any person injured by such
violation shall have a remedy by injunction. tions will be relegated to the voters for
II eld, that the statute is not violative of the settlement, and the courts will not attempt fourteenth amendment of the federal Constituto investigate the government, usages, or
tion on the ground that it attempts to deprive an doctrines of political parties, and to exclude
express company of its right to demand prepay.
ment of its carrier charges; that it attempts to from the official ballots the names of candi- require an express company to make an advancedates placed in nomination on the ground ment and to compel a forced loan which that they are not proper representatives of
amounts to the taking of property ; and that it the political doctrines or party government
attempts to take from an express company the
common-law right to the contract. of the party to which they profess allegiance,
[Ed. Note.-For cases in point, see vol. 10, but such questions are to be settled pri- Cent. Dig. Constitutional Law, 836.)
2. COURTS-JURISDICTION-EQUITABLE PowERS.
The Legislature had the right to enlarge the equity powers of the courts, and authorize them to grant equitable relief. 3. COMMERCE–INTERSTATE COMMERCE-REGULATION.
The statute is not an attempt to regulate interstate commerce.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, $ 83.] 4. SAME.
Conceding that a statute incidentally affects interstate commerce, it is not thereby invalid in the absence of legislation on such subject on the part of Congress.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, $ 8.] 5. APPEAL-HARMLESS ERROR-RULINGS ON DEMURRER.
The sustaining of a demurrer to a paragraph of the answer, if erroneous, is harmless where the matter is admissible under the general denial also pleaded.
[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 4091.]
Appeal from Circuit Court, Lawrence County; Jas. B. Wilson, Judge.
Suit by the Southern Indiana Express Company against the American Express Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Matson & Giles and Baker & Daniels, for appellant. F. M. Trissal, Brooks & Brooks and J. H. Shea, for appellee.
JORDAN, C. J. Appellee company, as plaintiff below, on May 31, 1901, commenced this action under an act of the Legislature, approved March 7, 1901 (Acts 1901, p. 149, c. 93; see sections 33125 and 3312e, Burns' Ann. St. 1901), to secure an injunction compelling appellant company (defendant below) to extend to the said plaintiff like facilities, terms, privileges, advantages, and usages in the receiving, transmission, and delivery of express matter within the state of Indiana which said defendant had granted to all other express companies except the plaintiff.
On May 12, 1902, plaintiff filed an amended complaint in two paragraphs. The defendant unsuccessfully demurred to each of these paragraphs on the grounds: First, that the court had no jurisdiction over the person of the defendant; second, that the plaintiff had not legal capacity to sue; and, third, that the paragraphs did not state facts sufficient to constitute a cause of action. Thereupon defendant filed its answer in
in five paragraphs, the first of which was the general denial. A demurrer for want of facts was sustained to each of the paragraphs of the answer except the first. On February 19, 1904, the cause was tried by the court on the issues joined upon the amended complaint and the answer of general denial. There was a general finding in favor of the plaintiff, and the court awarded a decree enjoining and prohibiting the defendant from refusing to extend and grant unto the plaintiff equal terms, facilities, accomodations, us
ages, privileges, and advantages in the receipt, transmission, carriage, continuance of carriage, and delivery of money and property which defendant extended and granted to other express companies other than the plaintiff, but the court excluded from the operation of said decree of injunction property worth less than the transportation charges and also perishable property. Upon the entering of this decree, the defendant filed a motion to modify. This motion is as follows:
"The defendant in the above-entitled cause moves the court to correct and modify the judgment rendered in this cause by adding to the last paragraph of the decree, and at the end of said paragraph, the following paragraphs, and each of them, to wit:
"First. And this decree shall only be applied to such packages, weighing seven pounds and less, as plaintiff in advance of tendering to the defendant shall agree with the defendant that the same shall be carried on the basis on one through rate for the entire carriage and there shall be one equal division of said rate between the plaintiff and the defendant, and if there be an odd cent in said division is shall be taken by the carrier making delivery to the consignee.
“Second. This decree shall be effective as to future interchange of traffic between the plaintiff and defendant only when and so long as the plaintiff shall bind itself to the defendant to guaranty the payment to the defendant of any and all of advanced charges paid defendant to plaintiff which the defendant is not able to collect from the consignee thereof, provided the defendant shall give notice to the plaintiff within 60 days after payment of such advanced charges that the same cannot be collected from the consignee.
“Third. This decree shall be effective as to future interchange of traffic between the plaintiff and defendant only when and so long as the plaintiff shall bind itself to the defendant to interchange traffic reciprocally with the defendant upon the accommodations which shall be the same to the defendant as the connecting carrier tendering package for continuance of carriage to destination on plaintiff's line or route as are received and had by plaintiff as the connecting carrier tendering packages for continuance of carriage to destination on defendant's line or route."
The defendant also filed its motion for a new trial, assigning the following reasons: "First, that the decision of the court is not supported by sufficient evidence; second, that the decision of the court is contrary to law." Each of these motions was overruled, to which ruling the defendant excepted. The errors assigned in this appeal, and upon which appellant relies for reversal, are the follow ing: First, the amended complaint does not state facts sufficient to constitute a cause of action; second, overruling the demurrer to the first paragraph to the amended com