Phillips v. Gallagher

START, O. J.

The petitioner, Alonzo Phillips, instituted this proceeding against the respondents, Matthew Gallagher and William E. Gooding, as the chairman and secretary, respectively, of a Democratic convention for the county of Hennepin, to compel them to issue to him a certificate of nomination as the party candidate for sheriff. The petition alleged that the petitioner was duly nominated by such convention. The respondents and the intervenor, Martin Whit-comb, denied this allegation, and alleged that Whitcomb and not Phillips was duly nominated as such party candidate.

A referee was appointed to take and report the evidence. The facts, which are admitted, or are sustained by the weight of evidence, as reported by the referee, stating them in the order as they appeared to the convention, are these:

The convention was duly called, and met July 12, 1898. It was duly organized, with Matthew Gallagher as chairman, and William E. Gooding as secretary. There were 486 delegates entitled to vote therein, and each precinct or district was entitled to its full vote, to be cast by the delegates therefrom present when the ballot was taken. Nominations were to be made by ballot, and Messrs. Rea, Foote and Pratt were made tellers. A ballot for a candidate for sheriff was taken, which, up to the time it was declared closed, was regular in all respects. Only two persons were voted for, — Alonzo Phillips and Edward J. Conroy. The tellers, as preliminary to the counting of the ballots, opened and sorted them, so that each teller, when the sorting was completed, had before him on the table a pile of Phillips ballots and a pile of Conroy ballots. Then each teller counted the Phillips ballots before him, and put them in his hat, and placed it on the floor by his side. The Conroy ballots were then counted, and left on the table. The result of the count was 239 votes for each contestant. The Conroy ballots were then recounted, giving him 240 votes.

In the meantime, and for 25 minutes or more, the Phillips ballots remained on the floor in the hats. The evidence is radically conflicting as to whether there was any opportunity for tampering with the ballots while the hats were on the floor. A recount of the Phillips ballots was then made, and in doing so Mr. Foote counted the ballots that were previously counted by Mr. Pratt, and placed on the floor in his hat. The original count of the ballots in this hat was 73. The recount was 84, — an increase of 11 votes. A recount of the ballots from one of the other hats reduced the original count of 97 to 96 votes, making a net increase of 10. At the conclusion of the last count the apparent result of the ballot was 249 votes for Phillips, and 240 for Conroy; total 489, or 3 votes more than the convention was entitled to cast. The tellers agreed that one of their number (Mr. Foote) might report to the convention that the ballot was invalid, and that another one should be taken. He accordingly reported that the ballot was foul, there being more ballots than there were delegates. No other report was made by the tellers, who then separated, leaving the ballots on the table.

After the tellers so reported, there was great confusion in the convention. Many of the delegates demanded a report of the number of votes received by each of the candidates, which was refused. Several of the delegates then knew informally how the ballot stood. The next orderly proceeding of the convention was a point of order by a delegate to the effect that the tellers having reported the ballot foul, and having made no other report, the convention must proceed to take another ballot. The point was sustained by the chairman, and no appeal from his decision was taken. A motion was subsequently made, put and declared carried by the chairman, to the effect that the convention proceed to ballot for a candidate for sheriff. A division was called for by a delegate, which was ordered, but, for some reason not disclosed, it was not carried into effect; and, without further action as to the nomination of a candidate for sheriff, the convention adjourned to the next day, July 13.

On the afternoon of the second day of the convention, it was learned for the first time that the 3 excess ballots were cast by mistake of a delegate from the Fourth precinct of the Ninth ward, who cast 3 ballots for 3 of his delegation, whom he supposed to be absent but who were in fact present, in line behind him, and each of whom voted on his own behalf, whereby 9 votes were cast by the precinct, when it was entitled to only 6. This explanation as to the excess ballots was called to the attention of the secretary and several other delegates before any action was taken in the premises by the convention at its session on the second day. A motion at such session was made, put and declared carried, to the effect that the ballot taken the day previous, and all proceedings therein, except the point of order made and the ruling of the chairman thereupon, be declared informal and irregular, and that the convention proceed to another ballpt. Thereupon Mr. Conroy was declared the nominee of the convention, but he declined. The intervenor, Martin Whitcomb, was then on motion declared the nominee of the convention for the office of sheriff. The convention adjourned to and convened on July 20, at which session it passed a resolution declaring the intervenor to be the only person nominated by the convention for the office of sheriff, and expressly recognized him as the party nominee, to whom it desired the certificate of nomination to issue, and then adjourned without day.

The evidence discloses for the first time a possible explanation of the apparent increase in the number of Phillips votes in Mr. Pratt’s hat. Teller Foote testified that among these ballots was a single one, across the face of which was written the vote of 12 delegates, and he so counted it. On the other hand Teller Pratt testified, in substance, that there was no such ballot among those placed in his hat, but 73 single ballots only; that there was a single ballot for Conroy, on the face of which was written the total vote the precinct was entitled to cast, which he showed to his associates, and the full number of votes indicated was counted for Conroy. If Mr. Pratt is mistaken, and Mr. Foote correct, it is not improbable that the former counted the omnibus ballot as one vote only. If this be so, then the apparent increase of the Phillips votes in the hat is explained, and all inferences of fraud are rebutted.

It is not necessary to a decision of this case to decide which one of the tellers is mistaken; for we assume, for the purpose of this case, — but without so deciding, — that Mr. Phillips received on the first ballot an honest and clear majority of the 486 votes the delegates were authorized to cast.

But the subsequent action of the convention and its officers, whereby the ballot was declared irregular, and a new ballot ordered, must be judged, not by the facts as they have been subsequently ascertained by a judicial trial, but in the light of the facts as they appeared to be at the time the action was taken. So judging the proceedings of the convention and the action of its officers, it must be held that they acted in the premises without fraud or oppression. The then unexplained, questionable character of the first ballot reasonably justified the tellers in concluding that the ballot was not an honest one, and in so reporting to the convention.

We have then for our decision this question: A ballot is taken by a political party convention for the purpose of selecting a nominee for the office of sheriff. The petitioner in fact receives a majority of the votes, but without declaring him the nominee, and on the report of the tellers, the convention, without a.ny fraud or oppression in the premises, declares the ballot irregular, and that another ballot be taken. A third party is then declared by the convention to be its nominee. Is the petitioner legally entitled to the peremptory order of this court directing the officers of the convention to issue to him a certificate of nomination?

The statute (G. S. 1894, § 48) provides that, whenever it shall appear by affidavit presented to any judge of the supreme or district courts that the president or secretary of any convention has failed to make or file any certificate of nomination, such judge shall, by order, direct the person charged with such neglect to perform such duty, or show cause why he should not do so. The proceedings authorized by this statute are summary, and intended to furnish party nominees for office a speedy and adequate remedy for the neglect or refusal of. the officers of the convention to issue the necessary certificate of nomination. But, to entitle a party to this remedy, it must clearly appear that he is the party nominee, and legally entitled to have his name placed upon the official ballot as such.

Counsel for the petitioner claim that the rules of law applicable to an election contest must be followed in determining whether the petitioner is in fact and law the party nominee. It is true, as claimed, that, in election contests proper, the vital question is how many votes were cast for or against a candidate, and that the party actually receiving a majority of the votes is entitled to the office, notwithstanding any act or omission of the election officers.

But such rules have only a limited application to a political convention, which has control over its own proceedings and officers, in the absence of any statutory regulations, and may proceed according to party usages and customs. The questions which such a convention deals with are essentially political, and it would be a menace to the right of the members of a political party to select their own party nominees* and to the respect which should be entertained for judicial tribunals, for the courts to' review and reverse the proceedings of a political convention, in the absence of fraud or oppression on its part or of its officers.

The delegates in a nominating convention meet for the purpose of selecting and agreeing upon candidates for office, to be supported by the party. The discharge of this duty involves the exercise of judgment and discretion on the part of the members of the convention, and a majority of them have, in the absence of fraud or oppression, the right to control the action of the convention, and to correct or reverse any action taken by it. Such a convention is a deliberative body, and unless it acts arbitrarily, oppressively or fraudulently, its final determination as to candidates, or any other question of which it has jurisdiction, will be followed by the courts. See State v. Kiichli, 53 Minn. 147, 54 N. W. 1069; Manston v. McIntosh, 58 Minn. 525, 60 N. W. 672; In re Fairchild, 151 N. Y. 359, 45 N. E. 943. Any other rule would be intolerable, and permit the courts to impose upon a party a nominee contrary to the wishes of its members, as finally expressed by their representatives in convention. It follows that the mere fact, if it be one, that the petitioner in this case received a majority of the votes on the first ballot, did not necessarily make him the party nominee; for it was entirely competent for the convention to declare the ballot informal or irregular, and take another. To deny the convention this right would deprive it of the right to deliberate, and correct or reverse its proceedings.

It is urged by counsel that, if a convention may declare a ballot irregular, a defeated candidate for nomination need only wait for an opportunity when a sufficient number of his opponents a.re absent for any cause, and then call the matter up and put it to a second vote. If the convention once fully acts as to a particular nomination, and treats the subject as finally closed, by passing to other business without reservation, and the partisans of the defeated candidate afterwards secure a reversal of the action of the convention in the manner suggested, such conduct would be fraudulent and oppressive; and the courts would not be bound to follow the decision, and would correct the injustice. Such was the case of People v. Board, 10 Misc. 98, 31 N. Y. Supp. 112, cited by the petitioner in support of his proposition that the convention had no power to declare the ballot irregular. That was a case where a convention, three days after making a nomination, reassembled and nominated another candidate; and the court (the party which the convention represented having taken no action in the premises) recognized the nomination first made as the legal one. In the case at bar the action of the convention as to the ballot in question was taken while the subject of the nomination of a candidate for sheriff was still pending, and before any final conclusion had been reached.

It is true, as claimed, that the tellers were not authorized to declare the ballot foul, but should have reported the facts, unless there was some party usage to the contrary; yet the fact remains that after hearing the report the convention acquiesced in the chairman’s ruling that another ballot was in order, and voted that the ballot was irregular, and that another one be taken, which was done, resulting in the nomination, not of the petitioner, but the intervenor. Such action of the convention was taken without fraud or oppression, and the court will not reverse it.

It is therefore ordered that this proceeding be, and it is hereby, dismissed, and the restraining order vacated.