State ex rel. Gray v. Olsen

¶1Plaintiff makes application -for injunction restraining defendant Sarpuel C. Polley, as Secretary of State, from certifying to the various county auditors the nominations for presidential electors selected by the Republican state convention held at Huron July 2d, under the provisions of the primary law. The "electors .so nominated are also defendant^. Plaintiff as a Republican voter' and elector, by his petition, claims the right to such injunction on the ground that such presidential eelctors selected at said Huron convention were not and are not Republicans-, and that their selection and the placing of their names upon the official ballots in the regular Republican column results in a fraud upon-plaintiff and .-all other Republican voters of this state who desire to vote for President Taft by means of the regular Republican ticket. Defendants have demurred, and also moved to -quash plaintiff's petition on the ground- that the same does not state facts sufficient to warrant the injunction relief demanded by plaintiff. "

¶2[1] It is the -contention, among- others, of -defendants that as no other Republican, or Taft, electors have been nominated whose names might in any manner appear on the regular Republican ticket in !the Republican column, plaintiff would be in no different or better position if the injunction were granted than he is now, in so far as his said- political right to vote for President Taft on the regular ticket is concerned. - We are of the opinion that this contention of defendants is -well taken. Plaintiff is- not a candidate .himself for presidential elector, or for any other office affected by the action of the 'Huron convention. The specific right which plaintiff claims will be violated and invaded i-s that of voting, or the opportunity of voting, for President Taft by means of the regular Republican ticket on the official ba-llots to be -used at die November election. The only effect of the injunction, if granted, would be to prevent the names, of these electors appearing in the Republican column in the Republican ticket on the official ballots, and would *71accomplish nothing further than to leave a vacancy in the Republican ticket on the official ballots as to- Republican nominees for presidential electors, and would in no manner -protect or operate to enforce or secure to plaintiff, or any other Republican so situated, the right or opportunity to vote f-or President Taft by means of the regular Republican ticket on the official ballots.

¶3[2] It seems' to be generally held that the applicant for an injunction has the burden of showing that he would in some manner be injured or deprived of some lawful right without -the aid of such injunction, and that by the granting of such injunction he would obtain tire deired relief. Section 197, Code Civ. Pr. It is another general rule or principle of law that courts should never be required to perform idle or useless acts.

¶4[3] The granting of the injunction, as prayed for by plaintiff, under the circumstances of this case, and in view of the present situation- existing in this state, with reference to the nominaton for Republican presidential electors, of which this court will take judicial notice, would- he air empty and idle aot in so far as it would affect the right or opportunity of plaintiff, or any other Republican so situated, to vote for President Taft by means of tire regular Republican ticket on the official ballots. On this ground we are therefore of the opinion that -the showing made by plaintiff is not sufficient to empower the court to grant the prayed for injunction.

¶5[4] Another contention of plaintiff is that chapter 201, Session Raws of 1911, commonly known as the “Richards Primary Law,’’ is now in full force and effect as a law of this state. We are of the opinion that this contention is not tenable. W-e are of the opinion that this statute was never passed as- or for the purpose of becoming a law, but only for the purpose of being submitted to a vote of the people under the- initiative and referendum, as conclusively appears from the title of the act itself. It is contended that, because this act contains an emergency -clause, it was not -therefore submitta-ble -to a vote of the people under the referendum. If this act had-, in the first instance, been passed as a law intended to take -effect immediately' u-p-on- its passage- and approval, and a referendum petition ther-eon seeking to submit said law to a vote of the people had been duly filed, then this contention- of plaintiff would 'have been applicable, but, not having been so passed, the *72emergency clause thereof is nothing more than.' ineffectual 'sur-plusage.

¶6[5] Some of our associates contend that the injunction prayed for by plaintiff should be granted on the ground that this is an ex rel. action maintainable by the Attorney General of the state on behalf of the people of the state, and' that it is the people of the state who are injured by the names of the defendants, nominees for presidential electors, appearing on the official ballots in the Republican column, and, on account of the allegations contained in plaintiff’s petition, that the Attorney General has refused to institute this action in the name of the people of the state plaintiff’s demand for injunction should be granted. Neither plaintiff nor his counsel have presented or argued any such contention or question, nevertheless, .we are of the opinion that this contention is also untenable. Whether this action be maintainable by the Attorney General on behalf of the state, or by private individuals as the members of a political party, does not relieve the party plaintiff, whoever it may be, from making out a good and proper case or cause for injunction under the rules of equity applicable to the granting of such relief. Again, we cannot concur in the view that this is a.cause properly maintainable by the Attorney General on behalf of the people of this state. We are of the opinion that neither a political party nor any considerable number of the members thereof constitute the people of-this state for the purpose of seeking relief by injunction such as demanded in the petition in this case. Plaintiff in his petition, in substance, states that he is a Republican voter and elector of this state who desires to vote for President Taft, and that this action is -brought by himself as such voter and elector and also on behalf of all other Republican voters so situated, and that he is injured and defrauded of his said right to- so vote by reason o-f -the presence of the names of .defendants, electors, appearing on the regular Republican ticket. Conceding that plaintiff has legal capacity to sue and maintain this action as a party plaintiff for himself and other Republican voters similar situated, still he must show that he and all others so- -similarly situated, would be beuefitted -by the grantin g'of said injunction by- riving him the right or opportunity of which he claims to be so 'deprived by defendants. Plaintiff by the Very allegations of his petition is not seeking relief on behalf of the whole people of the state ’ or in *73which the whole .people of the state might be interested, but only as an elector who desires to vote in a particular manner 'by means of a particular ticket. We are of the opinion that the case of State ex rel. McCue v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741, cited by our associates, has no possible application to this case. In that case a voter and citizen of North Dakota brought a similar action to contest the constitutionally of the North Dakota primary law in relation to the preferential vote for the office of United States Senator. There can be but little question but what the issue in that case was a public one affecting the whole people of the state. In the case at bar the constitutionality of the primary law is not assailed by plaintiff, but the relief which he demands is based on the alleged fraudulent action of a majority of the delegates to the Huron convention in nominating-persons claimed by plaintiff not to be Republicans at the present time, and therefore asks an injunction to prevent the names of those chosen by said convention as nominees for presidential electors appearing on the regular Republican ticket. The Republican party of this state by and through its regular organization is not here asking for such relief; neither is it shown that the regular officers or committeemen or any of them of the Republican party have ever refused to1 institute such proceedings, or that any of them even desire such proceeding. No other candidates for presidential electors claiming to be Republicans are asking to be substituted in place of defendants on the official ballots, and neither is palintiff asking to have any other Republican nominees so> substituted. Therefoie we are clearly of the opinion that the relief sought in this action by virtue of the allegations contained in plaintiff's petition is not of such a public nature as to give the whole people of the state a public interest therein, and is not maintainable in the name of the people of the state.

¶7The views we have expressed render it unnecessary to consider or pass upon other questions presented by the record and argued by counsel.

¶8The demurrer of defendant may be sustained and the application for injunction denied.

¶9(dissenting). It is stated in the complaint that this proceeding is instituted by “the plaintiff” on his own behalf and also on behalf of all other citizens of the United States and of *74this state, who are members of the Republican party and similarly situated: that the “.plaintiff” is an elector of this state qualified and entitled to vote for presidential electors at the coming general election in this state: that the Atorney General was requesed o institute the proceeding; and that he has refused so to do. In my opinion an eelctor, upon the refusal of the Attorney General to prosecute, ma ymaintain a proceedin ginvolving questions pertaining to the sovereignty of the state, its franchises and prerogatives, and the liberties of its people, in this court, in the name of the state. In such a proceeding, the state, not the elector, is the plaintiff, and the 'latter’s- interest, other than- -as an elector, is- immaterial. In other w-orcfe, in such -a case, whether on the relation of 'the Attorney General or an elector, the Attorney General having' declined to act, it i-s wholly immaterial what effect, if any, the result of the proceeding may have upon the relator. State v. Blaisdell, 18 N. D. 55, 118 N. W. 141, 24 L. R. A. (N. S.) 465, 138 Am. St. Rep. 741; Everitt v. Board, 1 S. D. 365, 47 N. W. 296. The distinction between an action or proceeding instituted in the name of the -state on the relation- of the Attorney General or in the name o-f the state on the relation of an elector, the Attorney General having refused to act, -and an a-ction instituted by an individual to enforce or protect a right peculiar to- himself and others, similarly situated, was not considered in State ex rel. Cranmer v. Thorson, 9 S. D. 152, 68 N. W. 202, 33 L. R. A. 582. There was no allegation in the co-m-plaint in that case regarding the refusal of the Attorney General to prosecute the proceeding. In the title of that case, Cranmer, not the state, should have been named as “plaintiff.” But, no objection appearing to- have been raised, the proceeding was regarded- as the suit of a private person governed by the rules applicable to ordinary actions in equity. Therefore, that case is not an ¡authority which ¡should govern the -ca-se at bar, if the -complaint discloses a state of facts involving questions pertaining to the sovereignty of the state, its franchises, and prerogatives and the -liberties of its -people. - In my opinion the complaint, liberally -construed, with -a view o-f -substantial justice, as it should be discloses such a state of facts, notwithstanding the superfluous declaration- that the suit is brought -on behalf of the relator, erroneously designated- as “plaintiff” and others similarly -situated. Therefore, with profound respect for the judgment of my learned *75Associates, I dissent from the conclusion that the demurrers to the complaint should be sustained on the ground that the relief -sought-would he of no benefit to the relator.

¶10In view of the conclusions reached by a majority of the court regarding the interest of the relator, no useful purpose- would be served by an extended discussion of other phases of the case. I-t is sufficient to state that, in my opinion, this court is authorized by the onstitution and statutes of this state and its former decisions to determine in this proceeding whether the names of the defendants, other than the Secretary of State, should appear as candidates for presidential electors in the Republican column on the official ballot which every elector of the state will be required to use if he votes* at the coming- general election; that whether such names shall so appear is a legal .question affecting- -the legal rights of every elector of this state, regardless of party -affiliation; that, upon- the facts as they stand admitted for the purposes of defendant’s demurrers and “motion to quash/’ such names should not so appear on such ballot; -and that the Secretary of State should be restrained -from- so certifying the- same. These views necessarily lead to the conclusion that the demurrers and “motion to quash" should be overruled, without -reference to* the Richards ■proposed primary law, which, in my opinion, did not go into- effect by operation of the emergency clause contained in the measure as submitted by the Legislature.

¶11(dissenting). I fully concur in the dissenting opinion of toy Associate, Judge Haney; but, in view of -the importance of the case, I deem it proper to- add thereto some further reasons, why this -court should retain- jurisdiction of the case, and grant the injunction therein prayed for restraining and' enjoining the Secretary of State from placing the candidates for presidential electors on the ticket under the head of the Republican ticket. . The law of this state provides that an elector may, if he desires to vote the entire ticket of his party, make a cross in the circle at the head of the ticket of his party, and thereby vote for all candidates whose names appear on such ticket. In -case, therefore, the candidates for 'presidential electors selected by the convention at Huron on July 2d ¡are in favor of a president -and vice president in opposition to the nominees -of the regular Republican convention held in Chicago in June, 1912, -a cross in the circle at the head of *76the ticket of the Republican party would constitute a vote on the part of the elector for the entire ticket, and necessarily be a vote in favor of electors in opposition to the regular nomination by the national Republican convention. Hjence, every Republican elector, in order to avoid voting for the candidates for Republican elec-dors in opposition to the -candidates -of -the national Republican -convention, will be -compelled to- omit the .-cross in the -circle at the head of the party ticket, and make a cros-s in -the circle at the left of the name of each candidate for whom he desires to vote. He will, therefore, be denied a very important right, -and be compelled to perform much additional labor in preparing his ballot on the day of election.

¶12Again, the insertion of the names- of the -candidates for presidential electors proposed under -the- head of the Republican party will necessarily result in- obtaining the votes of -a 'l-arge number of Republican electors who are favorable to the candidates selected by the Republican national convention, but who by inadvertence or mistake will as they usually -do make a -cross in the circle at the head of their party ticket, and thereby appear to vote for the candidates nominated by “the -progressive” party at its Chicago- convention held in August, 1912, which would in- effect result in perpetrating -a fraud upon such electors.

¶13Again, the candidates sought to be placed upon the ticket under the head of the name of the Republican party for presidential electors having -declared-, as it i-s alleged in the complaint, that they will not vote .for the -candidates selected by the Republican national convention -at Chicago, have no right to a place upon the party ticket under the name of the Republican party from the mere fact that they claim to have been seleoted as Republicans- at the primary election. It may be true that the delegates to- that convention were selected at the primary election in June as delegates to the state convention as -members of the Republican party; but it appears from the -complaint that after their said -election as delegates to the -state -convention -they seceded from- the national Republican party and joined what is dominated the “Progressive party,” which subsequently in Augus-t of the present year nominated- -candidates for president -and vice president of the United States in opposition to the candidates of the national Republican convention in June, and they had no right, therefore, to continue to act -as members of the *77Republican party in the Huron convention of July 2d, and the ticket so selected by them for presidential electors should.have no place on the ticket under the head of the Republican party ticket.

¶14As an illustration of the position of those delegates favorable to the new progressive party, let us suppose that a majority of the 'delegates to the state convention as Republicans had prior to the convention in Huron of July 2d, concluded to support the Socialist party, whose presidential nominee is Mr. Debs, and had in that convention selected candidates for presidential electors favorable to the election of the candidates for president and vice president of the Socialist party; would it be contended by any one that the socialist ticket thus selected should be placed as a Republican party ticket on the ballot? I.think there could scarcely be found a person in the state who would approve of such a proceeding. Again, suppose as an illustration that a majority of the delegates selected at the primary in June as Republicans had after their election and tille holding of the national Republican convention, ’ being dissatisfied with the nominees of that convention, decided that they would support the Democratic ticket, and had, therefore, selected the candidates for presidential electors favorable to the election of the candidates of the democratic party at their national convention, would any one claim that such candidates- should go -upon the Republican party ticket on the ballot? We apprehend that there would be no difference of opinion among the people of the state as to the propriety of excluding such candidates from being-placed upon the Republican party ticket. As I view this situation, there is no distinction between' the cases I have supposed and the case before its under the complaint which for the purposes of the demurrer must be regarded as true. In my opinion, therefore, it is the duty of this court to enjoin the Secretary of State from presenting the names of the candidates selected at the Huron convention to be placed upon the Republican party ticket.

¶15It is claimed by the defendants, and seems to be the view -of the majority of the court, that in view of the fact that the re-lator and the other members of the Republican party in the state co-ul-d not -if those candidates were. excluded from their party ticket vote for the candidates nominated by the national Republican convention for president and vice president, therefore the relator and the other members of the Republican party of the state would not be *78prejudiced by placing the names cl the candidates selected by the Huron -convention for 'presidential electors- upon the Republican, party ticket. But I think I have shown that this contention is untenable, and that the Republican party as such has a right to the protection of the court ag'ainst there being placed upon their ticket candidates -representing a party to which the Republican ■party is opposed.

¶16In expressing these views I do not wish to be understood as indicating my own private opinions as to the merits or demerits of the nominees of the respective conventions held in June and August of the present year, as I am considering the case as presented by the relator, which, as before stated, for the purposes of the demurer must be taken as true. The relator and those similarly situated would have, perhaps, been in a little more favorable position in this court had the Republican delegates withdrawn from the convention and organized another convention and selected their candidates for presidential electors when it became evident that a majorit)?- of the members of the convention had concluded to support the candidates of a party in opposition to the national Republican convention, and selected a list of electors favorable to the election of the nominees of the Republican national convention held -in June, but the fact that they inadvertently omitted to withdraw from the convention and to select such a list of candidates does not in my opinion- affect the right of the relator and the members of the Republican party of the state to have excluded from their ticket the names of the candidates tha were selected by the Huron convention.

¶17I have not deemed it necessary to cite any authorities in sustain the view I have herein expressed as the -decisions -upon election cases are so numerous and based upon so many different statutes that it is difficult to extract therefrom any general rule applicable to this subject. The law of this state, however, under the Australian ballot system and the primary system- enacted by the Legislature, has placed the -primary election and conventions held thereunder as well as the general election under the laws ’of the state, and in my opinion it is the duty of this court to- protect the various -political parties in the righs thus conferred upon them by the -statute law, and to enforce the observance of those laws upon all parties, and to p-ro-t-ect the rights .-of the individual elec*79tors in <th.e exercise of their elective privileges, and to protect 'the rights of parties in .the exercise of the duties devolved upon them by the legislative enactments, and to prevent any one of the political parties in this state from adopting any mehod that may prevent the individual voter from exercising any rights granted him by the Constitution of this state and the laws enacted thereunder.

¶18Whether or not the candidate's for presidential electors selected by the Huron convention may now be placed upon the ballot as candidates of the “Progressive party” by petition or otherwise is not now before ms, and therefore upon that subject I express no opinion.

¶19In conclusion my judgment is that this court should issue an injuction enjoining and restraining the Secretary of State from certifying to the county auditors the names of the proposed presidential electors selected at the Huron convention upon the Republican party ticket.