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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 organization and existence constitute facts of a public and general nature which all well-informed persons are presumed to know, we are justified in affirming that we have judicial knowledge of the fact that there is but one party having the name of Republican Party to which any considerable portion of the citizenship of the state give adherence. When to this element of judicial knowledge there is added the special facts which are alleged concerning the manner in which the party is organized, we have a case in which it is clear that a convention which was not held under the sanction of the call of such committee was not entitled to have its nominees placed before the voters as constituting the Republican ticket.
We need not seek to determine whether the decision of the state committee as to who constitute the local authorities is sufficiently potent in any case to place a claim of regularity on the plane of legal right. What we do decide is that a call for a local convention which is issued by the county central committee, which has been selected and organized pursuant to the call of the state central committee, and is acting pursuant to its rules, is the "call of the regularly constituted party authorities." As to the mass convention, we have seen that it is charged that it was called by persons claiming to be officers of the Republican county central committee, but who were not such in fact, and that it was held in conflict with the rules of the state committee. Such nominations are to be regarded as independent nominations. As we said in Fernbacher v. Roosevelt, 90 Hun, 441, 450, 35 N. Y. Supp. 898, 902, "they do not come under the head of the regular party nomination, whose convention has chosen the device under which the nominations of that convention are to be presented to the people." The nominees of such a convention, no matter what may be the numbers or supposed grievances of the persons participat ing in the movement, have no just claim under the statute to have their names placed under the party title and emblem. The statute makes the test of right to party representation the fact that the convention, presenting the list of names, was held at the time and place designated in the call of the regularly constituted party authorities. The question as to who constitute such authorities is one which ordinarily can readily be determined under the rules of law. Those who see fit to separate themselves from the regular party organization cannot claim the privileges which attach to it. A court is not the forum for the determination of questions of a political character, but, as between a dissenting local organization and the representatives of the general body in the locality, the courts, recognizing the fact that those who thus separate themselves are dissenters, deny to them the rights which belong to the regular membership. It is with a party as with a
church, the courts will not attempt to settle those questions of right and duty, arising in the organization, which are so complex that individual opinion must for each man be the final arbiter, but, as respects rights of property or whatever is so analogous thereto as to be cognizable by the courts, the rule is, even in the case of an adhering minority, that it is those who adhere and submit themselves to the regular order of the general organization, and not the seceding majority, who are to be recognized as the representatives of the general organization in the locality. Smith
v. Pedigo, 145 Ind. 361, 33 N. E. 777, 44 N. E. 363, 19 L. R. A. 433, 32 L. R. A. 838. It is stated by a leading author that "a candidate nominated by electors is not the nominee of a political party, but of the individual electors nominating him, even though all of the electors, signing the nominating paper, be members of the same political party. Such electors cannot, by choosing the name of a political party authorized to make nominations by convention, make such nominee the nominee of such party." McCrary, Elections (4th Ed.) § 702.
Assuming the truth of the facts alleged by relator, it is clear that a convention which was held at the time and place designated in the call of the central committee of which relator is the chairman was the convention whose nominees should be recognized, upon the filing of a proper certificate as required by law, as the candidates whose names should go upon the ballot as constituting the Republican ticket of nominees for the various offices to which they have been nominated, and that, upon these facts appearing, they should appear in the place on said ballot designated for the Republican ticket, and under the name and emblem of the party.
Thus far we have written upon the merits, and, without being at the pains to state the objections which counsel for appellees urge to the petition and writ, we may state that, having carefully considered such objections, we regard them as unavailing. There is a defect in said pleadings, however, which must work an affirmance, although it has not been pointed out, and that is that it is not alleged that the certificate of nomination of the candidates nominated by the convention held upon the call of relator designated the title of the party and the figure or device by which its candidates were to be designated upon the ballots, pursuant to section 6215, Burns' Ann. St. 1901. In the opinion of the writer, the pleadings were also defective in that they did not show that said convention was held at the place designated in the call of said party authorities. But whether this proposition is valid or not, the former cannot be escaped, for it is certainly incumbent upon the relator to bring himself within the statute; that is, to show that the facts require that the defendants should do what he demands of them. As was said in Matter of Madden, 148 N. Y. 136, 140,
42 N. E. 534, 535: "The right to a column depends upon a nomination having been made and certified."
As was said by Woods, J., in Martin v. Martin, 74 Ind. 207, 210, wherein a cause was affirmed on grounds which were not stated or suggested in the briefs: "The counsel have greatly mistaken both the practice and the duty of this court. The issue tendered for our decision by the appellant in every case of appeal is that 'there is manifest error in the record,' in some specified particular or particulars. The appellee joins issue, and says there is no error. The trial is by record, not by the argument of counsel, and the appellant has no right to prevail, and we should be derelict in duty if we permitted him to prevail, unless the error is made manifest. No matter what error the court below may have committed, it is not manifest in the record, unless saved in the lower court, and presented in this court, in accordance with the rules of practice. These rules of practice are the law of the land, their reasonableness is justified by experience, and, unless ready to abrogate, we have no right to disregard, them. We never go beyond the brief of the appellant to search the record in quest of errors which have not been pointed out in the brief; but the appellee, without filing any brief at all, is entitled to the benefit of everything in the record which may prevent a reversal of the judgment upon the errors assigned; and, because the counsel on both sides may discuss some question with very great learning and ability, as was done in this case, we are not therefore permitted to shut our eyes against the fact, which we cannot otherwise help seeing, that the question is not in the record. The silence of the appellee on any point is not equal to an agree ment to waive the point. The burden is on the appellant to show the error which he has assigned." In Powell's App. Proc. p. 126, it is said: "Hence it is to be seen that the appellate court, in reviewing the record upon the question of error, will examine the whole record, and if, in so doing, they find in other parts of the record what will justify or neutralize the error assigned and pointed out, the court will not reverse the judgment." See to the same effect, Jones v. Castor, 96 Ind. 307; Wilson v. State, 156 Ind. 631, 59 N. E. 380, 60 N. E. 1086; Irvin v. Rushville, etc., Tel. Co., 161 Ind. 524, 69 N. E. 258. As was said in Travelers' Ins. Co. v. Prairie School Tp., 151 Ind. 36, 49 N. E. 1, 51 N. E. 100: "We may not ignore what we do see that will prevent a reversal of the judgment." In Elliott's App. Pro. § 186, the author said: "The courts have again and again adjudged that appeals are heard upon the record and by the record determined." See, also, Big Creek Stone Co. v. Seward, 144 Ind. 205, 42 N. E. 464, 43 N. E. 5; Scott v. City of Laporte, 162 Ind. 34, 51, 68 N. E. 278, 69 N. E. 675. To reverse a case because of the sustaining of a demurrer to the complaint
must necessarily settle as the law of the case the right of the appellant to recover upon proof of the state of facts alleged in the complaint. To do this on the ground that the appellees, who are evidently striving in every way to uphold the judgment, have failed to make the particular point would be a perversion of justice. As was said in Big Creek Stone Co. v. Seward, supra, "if the court were limited to the argument and reasoning of counsel in its decisions of cases, to the exclusion of its own observations, many cases would lead us far from what we understand to be the true object of the court."
Before passing on the question which it is evident that counsel for the parties considered the fundamental question in the case, we deliberated long upon the question as to whether it was our duty to do this, and we have reached the conclusion that it is. Public considerations alone gave the relator the right to wage the question which he seeks to present. The spectacle of a large body of voters being led, by what in practical effect is a false pretense to give their suffrages to candidates who are without the sanction of the party they claim to represent is abhorrent. The question is publici juris in the highest degree. It was said by the Supreme Court of Wisconsin, where a question of representation on the state ballot was presented: "The public. rights involved are important in the highest degree. No case has arisen in recent years that more closely concerns all the people than this one. Nothing short of a decision by the highest authority in our judicial system would be at all satisfactory or adequate to meet the situation." State ex rel. v. Houser, 122 Wis. 534, 554, 100 N. W. 964. Recognizing the public interests which are bound up in the question, that the election is at hand, and assuming that appellees, in view of their oath of office and the penalties prescribed for a willful violation of the election laws, will regard it as incumbent upon them to follow the determination of the state's highest judicial tribunal, we have conceived that we have not gone further than we are warranted in passing upon the merits, and that, in view of the manner in which an affirmance has been brought about, we are not open to the criticism of incorporating obiter into our decision in deciding such question. Appellees may claim an affirmance on a ground which they have not suggested, but having joined with their adversary in invoking our judgment on the main point, they are in no position to complain that the court, in view of the public character of the controversy, has not been silent on the essential question involved. It is the order of the court that this opinion be certified to the court below forthwith.
All concur, except MONTGOMERY, J., who votes for a reversal, and files a separato opinion.
MONTGOMERY, J. (dissenting). The manifest theory and purpose of the relator's petition is to present to the court for settlement the conflicting claims of two lists of county candidates to the right to have their names printed in the second column of the official ballots under the title of the Republican Party and the emblem of an an eagle. No suggestion appears to have been made in the court below that the nominating convention convened by relator was not shown to have been held at the place designated in the call therefor, nor is anything disclosed in this controversy, making the place of holding such convention a matter of importance. No such question is raised or discussed in the briefs of counsel upon appeal. The determination of the controversy presented and urged turns wholly upon the question as to which of the rival lists of candidates shall be recognized as the genuine Republican ticket. All other questions are subsidiary to this, and the formal defects in the petition pointed out in the majority opinion are such as could and doubtless would have been cured by amendment, upon suggestion of their existence, and not having been presented or insisted upon by counsel upon appeal, this court is warranted in considering only the alleged defects passed upon by the lower court, and treating all others as waived. It is not the imperative It is not the imperative duty of the members of this court to become attorneys for appellees and to scan records for grounds upon which to sustain the decision of the court below, which grounds as rational men they know to a moral certainty did not affect the ruling in question, but which as judges they assume might have done so. It is averred that the relator was chosen county chairman in strict conformity to the governing rules and under the supervision of the Republican state organization, and that ever since his election as such chairman he has been recognized by the Republican state and district committees, as chairman of the Republican county central committee of Marshall county.
This averment was, perhaps, essential to the jurisdiction of the court, and is decisive of the question under consideration. The writer of the principal opinion attempts to determine the question by tests which are appropriate in controversies, involving property rights, but which are wholly inadequate to the solution of a purely political matter. The question involved is one essentially political and and not judicial in its character. It has been generally held that such questions will be relegated to the voters for settlement, and the courts will not attempt to investigate the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination on the ground that they are not proper representatives of the political doctrines or party government of the party to which they profess allegiance, but such questions are to be settled pri
marily by the party tribunals. Stephenson v. Board (Mich.) 76 N. W. 914, 42 L. R. A. 214, 74 Am. St. Rep. 402, and cases cited. This recognition by the highest tribunals of the party involved gives regularity and validity to the acts of the relator as such chairman, from a partisan standpoint, and is controlling upon the courts. Breidenthal v. Edwards, 57 Kan. 332, 46 Pac. 469, 34 L. R. A. 146; Moody v. Trimble, 109 Ky. 139, 58 S. W. 504, 50 L. R. A. 810; Phillips v. Gallagher, 73 Minn. 528, 76 N. W. 285, 42 L. L. R. A. 222; Fairchild v. Ward, 151 N. Y. 359, 45 N. E. 943; State v. Houser, 122 Wis. 534, 100 N. W. 964. No controversy having been disclosed over the place of holding the nominating convention, that matter is immaterial in the determination of the question presented. presented. If in point of fact the nominations are not certified in writing as required by law, they are not entitled to go upon the ballots at all. The genuine list, when properly certified, must be recognized and given its proper place upon the ballots, while the pretenders must be assigned a different column, name, and device. It follows that the list of candidates nominated at the convention convened by the relator on June 2, 1906, is the genuine list of Republican candidates, and as such is entitled to be placed in in the second column under the party name and emblem on the official ballots, and this right having been denied them as alleged, upon the sole ground of a lack of party regularity and genuineness, the petition is sufficient to afford the relief sought.
I therefore dissent from the conclusion reached by a majority of the court and vote for a reversal of the judgment.
(167 Ind. 292)
AMERICAN EXPRESS CO. v. SOUTHERN INDIANA EXPRESS CO. (No. 20,441.) (Supreme Court of Indiana. Nov. 1, 1906.) 1. CONSTITUTIONAL LAW DUE PROCESS OF LAW-REGULATION OF EXPRESS COMPANIES.
Acts 1901, p. 149, c. 93, Burns' Ann. St. 1901, § 3312b and 3312e provides that express companies shall grant to all consignors, including other responsible express companies as signors, equal terms and accommodations in the carriage and continuance of carriage of goods and prohibits them from granting to any one carrier any privileges or accommodations not granted to all others, and provides that any carrier failing to comply with the statute may be convicted in a prosecution brought by the state, that it shall be liable in a civil action for damages and that any person injured by such violation shall have a remedy by injunction. Held, that the statute is not violative of the fourteenth amendment of the federal Constitution on the ground that it attempts to deprive an express company of its right to demand prepayment of its carrier charges; that it attempts to require an express company to make an advancement and to compel a forced loan which amounts to the taking of property; and that it attempts to take from an express company the common-law right to the contract.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 836.1
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, § 4094.]
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 3312b 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 following: 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