
    The People ex rel. Hodges v. McGaffey, Secretary of State.
    1. Election Law—Rival Conventions—Jurisdiction.
    When two sets of nominations in due form have been filed with the secretary of state by rival conventions, each claiming to represent the same political party, he has no power to decide between them, but it is his duty to certify both tickets to the county clerks to the end that both may be printed on the oficial ballot. This court has original jurisdiction to compel the performance of that duty by mandamus.
    2. Original Jurisdiction.
    This court never exercises its original jurisdiction unless the necessity for so doing is urgent.
    
      Original Application for Writ of Mandamus.
    
    Mr. Geeeley Whiteoed, Mr. A. B. Seaman, Mr. B. W. Malone and Mr. J. L. Hodges, for relator.
    Mr. Milton Smith, Mr. A. M. Stevenson and Mr. John R. Smith, for respondent.
   Pee Cijeiam.

This is a contest waged under the Australian ballot law, between two organizations, viz., the republican party and the silver republican party. As in the preceding case of The People v. Johnson, ante, p. 150, this controversy arose before the secretary of state with reference to his duties as to certifying the official ballots for the approaching election. The parties in this cause have selected different emblems. The silver republican party first held its convention and selected its candidates, and filed its list of nominations with the secretar}'' of state. To the certifying of this list a protest was filed by the present relator, James L. Hodges. This protest was overruled by the secretary-of state, and there this matter was allowed to rest. Later, and on the 30th day of September, 1896, the organization known as the “republican party ” assembled in the city of Colorado Springs, and put in nomination a full set of candidates, and selected for its emblem the device theretofore used in this state by the republican party, to wit, the eagle. To this latter set of nominations Mr. Richard Broad, Jr., chairman of the silver republican organization, filed a protest.

Upon a hearing this latter protest was sustained by the secretary of state, he holding that the set of nominations made at the Colorado Springs convention was not entitled to a place upon the official ballots. The petitioner, claiming that the secretary of state had no jurisdiction to decide the controversy, instituted this original proceeding for the purpose of compelling that officer to certify the list of nominations by the Colorado Springs convention to the various county clerks, in order that the same may be printed upon the official ballots; the claim advanced being that this is a plain duty enjoined by law, about which the secretary of state has no discretion.

Upon the filing of the petition the court ordered the alternative writ of mandamus to issue. Upon the return day the secretary of state appeared and filed his answer, whereupon the petitioner filed a motion for judgment upon the pleadings. The pleadings are very voluminous, and although nearly every allegation of the petition is denied by the answer, it is admitted by the pleadings that there were two conventions, called by rival factions of the republican party, each faction having a state central committee, and a full complement of officers, and each claiming recognition, one as the republican party, and the other as the successor of the republican party. In other words, it sufficiently appears that the rivals are de facto parties. The question presented is upon the jurisdiction of the secretary of state to pass upon the claims of these rival parties, and in refusing to certify one list of nominations.

■ The case made is almost identical with that of The People v. District Court, 18 Colo. 26. In that case two sets of nominations were made, and different devices or emblems selected by conventions representing different factions of the same political party, each certificate being in apparent conformity with the law. Protests having been filed, it was held that the secretary of state, under the law as it then existed, had no power to decide between the two, but that it was his duty to certify both tickets to the county clerks, to the end that both should be printed upon the official ballots. The doctrine of that case is approved in State v. Allen, 43 Neb. 651; Phelps v. Piper, 67 N. W. Rep. 755; Shields v. Jacob, 88 Mich. 164, and in the case of People v. Johnson, decided at this term, ante, p. 150.

We do not understand that the doctrine announced in 18 Colo, is controverted in this case, but authority for respondent’s action is claimed by reason of an amendment to the Australian ballot law passed since that decision was announced. Session Laws, 1894, pp. 64, 65. This amendment will be found in full in People v. Johnson, supra. An examination will show that it in no way enlarges the duties or extends the powers of the secretary of state, or purports to do so. In these circumstances, the opinion in 18 Colo, must control, and the duty of the secretary of state to certify both sets of nominations is clear.

It is claimed, however, first, that this court has no jurisdiction by mandamus, because the amendment of 1894 gives the relator a plain, speedy and adequate remedy at law; second, that this being an appellate court, it should, in the exercise ■of a wise discretion, refuse to take original jurisdiction of this controversy.

While it is settled that the remedy by mandamus is not ’ available where there is a plain, speedy and adequate remedy at law, it is equally as well established that such legal remedy must be adequate, and we are satisfied from an examination of the act of 1894 that the remedy therein provided is not adequate to afford relief in the present emergency. The statute relied upon to defeat this proceeding does not purport to make the judgment of the district court final, and for this reason the remedy is inadequate, as only twenty days now remain between this and the day of election, during which period these tickets must be certified to each county clerk in the state, and by that officer recertified to the printers and printed upon the official ballots. In some instances, the county seats of these counties are remote from and not connected with the state capitol by rail, while in only a few counties are the printing facilities adequate. The time is so short that the remedy provided by statute is not available in this case.

It is well understood that this court, in common with all other appellate tribunals, will refuse to take original jurisdiction of any case unless the necessity for so doing is urgent. This rule arises from the necessity of giving appellate business the preference; otherwise, the time given to original proceedings would be to the exclusion of the primary business of an appellate court, viz. to review the decisions of inferior tribunals. All courts are reluctant to take jurisdiction of political controversies, such as the one before us, par- ■ ticularly during a heated campaign; but, notwithstanding this reluctance, where the urgency is great, they will do so in order that a miscarriage of justice may be prevented.

The importance of the question at issue in this proceeding cannot well be overestimated. One of the great political parties, now struggling for control of the national as well as of the state government, will, if the decision of the secretary of state prevails, be deprived of the opportunity of placing its ticket before the people of the state of Colorado, for their suffrage at the approaching election, and the people will, to that extent, be disfranchised. Petitioners are contending for a right to have a ticket on the official ballot, not to keep one off; a right to place before the voters another ticket, and not to deprive any other party of its name, emblem or any other right. The court cannot refuse to entertain jurisdiction of such a controversy, although we are not unmindful of the force of the objection urged by counsel that the precedent will furnish some excuse for like applications in the future in other controversies growing out of the election law. We trust, however, that the court will be able to protect itself, and its appellate business, from the flood of original litigation which counsel predicts. Every application must be determined upon the circumstances peculiar to it. A question of national importance, like the one before us, will not often he presented, and it is hardly probable that other parties will be compelled to resort to this court in order that the provisions of any statute, as interpreted by the highest judicial tribunal of the state, shall be given effect by a ministerial officer.

Under the decision in 18 Colo., it is the plain duty of the secretary of state to certify to the various county clerks the ticket known as the “McKinley Republican Ticket.” Let the peremptory writ issue.

Peremptory writ ordered.  