But the case of Connolly v. Union Sewer Pipe Co. 24 is a great hurdle in the path of their approval by the Supreme Court. In that case, the Court emphatically declared unconstitutional an Illinois anti-trust law 25 which exempted farmers from its operation, and denied the validity of any classification which would exempt farmers from the operation of general laws designed to regulate trade.20

Unfortunately, the Connolly case is strongly entrenched in the federal courts. Within the last four years, two district courts 27 have declared the Lever Act 28 unconstitutional on its authority, and the Supreme Court again approved it in 1921 in the important case of Truax v. Corrigan 29-a case which, in its insistence upon the preservation of abstract individual rights,30 holds out doubtful hope of a more liberal

24 184 U. S. 540 (1901).

66

25 1893 ILL. LAWS, 182. In § 1 the act declared it illegal for any two or more persons, Fifth to make . . . any contract. . . by which they agree to pool, combine or unite any interest they may have in connection with the sale or transportation of any article or commodity that its price might in any manner be affected." But 89 of the act provided that "The provisions of this act shall not apply to agricultural products or live stock while in the hands of the producer or raiser."

26 The Court said, at pp. 562, 563: "A state may in its wisdom classify property for the purposes of taxation, and the exercise of its discretion is not to be questioned in a court of the United States, so long as the classification does not invade rights secured by the Constitution of the United States. But different considerations control when the state, by legislation, seeks to regulate the enjoyment of rights and the pursuit of callings connected with domestic trade. In prescribing regulations for the conduct of trade, it cannot divide those engaged in trade into classes and make criminals of one class if they do certain forbidden things, while allowing another and favored class" to do them. See also p. 564. 27 United States v. Armstrong, 265 Fed. 683 (D. Ind., 1920); United States v. Yount, 267 Fed. 861 (W. D. Pa., 1920). The Act was upheld in C. A. Weed & Co. v. Lockwood, 266 Fed. 785 (2nd Circ., 1920) as making a reasonable classification in view of the war-time emergency. But Hough, J., in his concurring opinion, makes it clear that the Act would be "constitutionally obnoxious because it is a gross piece of class legislation, incapable of distinction from that condemned in [the Connolly case]. But the statute is begotten by war, and is constitutionally excused (ie., justified) by the war power.

28 41 STAT. AT L. 297. The Act was directed at profiteering and the hoarding of food stuffs and necessaries during war time, but expressly exempted farmers. 29 257 U. S. 312 (1921). See Taft, C. J., at p. 335: "It is not clear that any defendant could escape punishment under it [a general law excepting a particular class] on the ground that the statute violated the equality clause of the Fourteenth Amendment? That is the necessary effect of [the Connolly case] where an anti-trust act was held invalid under this same clause because it contained the excepting provision that it should not apply to agricultural products or live stock while in the hands of the producer or raiser.' That was a stronger case than this because there the whole statute was one dealing with economic policy and was a declaration of mala prohibita that had theretofore been lawful, from which it was strongly argued that the exception was justified in the interest of agriculture, and was a proper exception by permissible classification."

30 See Taft, C. J., at p. 338: "Classification like the one with which we are here dealing [i.e., a statute dealing particularly with disputes between employers and employees, and denying injunctive relief except in unusual cases] is said to be the development of the philosophical thought of the world and is opening the door to legalized experiment. When fundamental rights are thus attempted to be taken away, however, we may well subject such experiment to attentive judgment. The Constitution was intended, its very purpose was, to prevent experimentation with the fundamental rights of the individual." See the able dissent

attitude on the part of the Court upon social questions. An attempt has been made to "distinguish" the Connolly case on the ground that the Illinois statute there concerned gave farmers' organizations more sweeping exemption than do the modern laws.31 It is true that under modern legislation coöperative associations are subject to strict supervision by the state, and their method of organization is strictly prescribed. But there seems little substance in the distinction sought to be drawn. Rather will the Connolly case have to be attacked frankly upon its merits, 32 and be challenged on its applicability under notorious modern economic conditions. If the Wisconsin case should go up to the Supreme Court, it is hard to see, despite the apparent hesitancy of the Court to accord economic and social changes their full weight in constitutional decisions, how the Connolly case can escape reversal, either frankly, or by "distinction."

4

3

JUDICIAL INTERFERENCE WITH POLITICAL PARTIES. - Until 1880,1 political parties conducted their affairs unhampered by any judicial or legislative interference.2 Legislators, themselves the product of an unregulated convention system, were not eager to modify it. The courts refused jurisdiction of intra-party disputes, either by calling them exclusively political matters, or by assimilating political parties to fraternal societies as voluntary organizations, the internal conduct of which the courts might not review. Even when questionable pracof Mr. Justice Brandeis, at p. 354. See Roscoe Pound, "The Need of a Sociological Jurisprudence," 19 GREEN BAG, 607, and "The Scope and Purpose of Sociological Jurisprudence," 24 HARV. L. REV. 591, 25 ibid., 140, 489. See a brilliant criticism of the case in 28 W. Va. L. Q. 144. See also 22 COL. L. REV. 252; 31 YALE L. J. 408.

31 See J. D. Miller, "Farmers' Co-operative Associations as Legal Combinations," 7 CORN. L. Q. 293, 299.

32 The decision seems to reveal no point at which the Court took due consideration of the conditions under which the law in question was passed, or the ends it was intended to promote. The coöperative marketing organizations or other farmers' organizations were not represented; the record indicates the introduction of no evidence in support of their exception; and in the brief of counsel in support of the act there is but a scant page and a half devoted to the most abstract discussion of the ground for the classification of farmers' associations. See, by contrast, the convincing dissenting opinion of Mr. Justice McKenna. 1 See MEYER, NOMINATING SYSTEMS, 90.

2 McKane v. Adams, 123 N. Y. 609, 25 N. E. 1057 (1890); Davis v. Hambrick, 22 Ky. L. Rep. 815, 58 S. W. 779 (1900).

3 Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, Pound, Cas. Equitable Relief against Defamation, 69 (1894); Kearns v. Howley, 188 Pa. St. 116, 41 Atl. 273 (1898); Potter v. Duel, 149 Mich. 393, 112 N. W. 1071 (1907). Cases are numerous to the effect that the decision of the party tribunal is binding on the courts. In re Fairchild, 151 N. Y. 359, 45 N. E. 943 (1897); State v. Liudahl, II N. Dak. 320, 91 N. W. 950 (1902); Att'y Gen'l v. Barry, 74 N. H. 353, 68 Atl. 192 (1907). Yet courts which follow this reasoning likewise hold that the determination of the question as to which of two bodies is the regular party is a proper sphere for judicial action. Addle v. Davenport, 7 Ida. 282, 62 Pac. 681 (1900). Other courts with more consistency but with less termine which of two groups constitutes the regular party. Neb. 42, 69, N. W. 384 (1896). See 26 HARV. L. REV. 351. on this point emphasize the absence of statutory provisions. Miss. 876, 44 So. 769 (1907).

reason refuse to dePhelps v. Piper, 50 Most of the decisions State v. Brown, 90

4 See Twombly v. Smith, 25 Colo. 425, 427, 55 Pac. 254, 256 (1898). But

6

tices and complex methods of party machines forced legislatures to adopt an early type of primary regulation with penalty provisions for misconduct, the courts still refused to protect the rights of nominees and claimants to party positions, on the ground that under such statutes the parties still retained their status as voluntary organizations. But a change has come with the political reform of primary election laws. Under most of these statutes, the party committee is elected at the primaries, and its duties are prescribed by the statute. It is obvious that the state has thereby made the direct primary an integral part of the election system, and that under such a statute nominees and elected committeemen have a somewhat different status.10 Accordingly, in the leading case of People v. Democratic State Committee,11 the New York Court of Appeals held that the primary election law conferred upon the court the power to disregard the action of the Democratic Central Committee in removing a duly elected member.12 And in a recent case,1 ,13 the Supreme Court of Colorado has

this argument ignored the fact that political parties are engaged in a quasigovernmental function. See MERRIAM, PRIMARIES, 116.

5 See BRYCE, AMERICAN COMMONWEALTH, 4 ed., 110.

6 Phillips v. Gallagher, 73 Minn. 528, 76 N. W. 285 (1898); State v. Moore, 23 Wash. 276, 62 Pac. 769 (1900); State v. Weston, 27 Mont. 185, 70 Pac. 519 (1902).

1 In re Fairchild, 151 N. Y. 359, 45 N. E. 943 (1897); Moody v. Trimble, 109 Ky. 139, 58 S. W. 534 (1900). But an allegation of fraud will give the courts jurisdiction. Allen v. Burrows, 69 Kan. 812, 77 Pac. 555 (1904). See State v. Kanahwha, 78 W. Va. 168, 88 S. E. 662 (1916).

8 See 1909 N. Y. LAWS, C. 22, § 40; 1901 Mo. Acтs, c. 21, § 161. See State v. Miles, 210 Mo. 127, 109 S. W. 595 (1908). And see State v. Hall, 37 N. Dak. 259, 260, 163 N. W. 1055, 1056 (1917).

9 State v. Metcalf, 18 S. Dak. 393, 100 N. W. 923 (1904); People v. Board of Election Commissioners, 221' Ill. 9, 77 N. E. 321 (1906). It is often said that a primary election is not within the term "election" as used in the state constitution. State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840 (1902); Charles v. Flanary, 192 Ky. 511, 233 S. W. 904 (1921); McClain v. Fish, 159 Ark. 199, 251 S. W. 686 (1923). Contra, State v. Hirsch, 125 Ind. 207, 24 N. E. 1062 (1890); Spier v. Baker, 120 Cal. 370, 52 Pac. 659 (1898); State v. Cole, 156 N. C. 618, 72 S. E. 221 (1911). The constitutional provision against the expenditure of public money for private purposes is not violated by a statute providing for the payment by the state of the expenses of a primary election. State v. Mihel, 121 La. 374, 46 So. 430 (1908).

10 State v. Goff, 129 Wis. 688, 109 N. W. 628 (1900); Walling v. Lansdon, 15 Ida. 282, 97 Pac. 396 (1908). Cf. Mason v. Byrley, 26 Ky. L. Rep. 487, 84 S. W. 767 (1905); Brown v. Cole, 54 Misc. 278, 104 N. Y. Supp. 109 (1907). See KENTUCKY CODE CIV. PRAC., § 477.

11 164 N. Y. 335, 58 N. E. 124 (1900).

12 A much narrower construction was placed upon the New York election law by a court of intermediate appeal. In re Ganley, 90 Misc. 445, 154 N. Y. Supp. 773 (1915). There it was decided that if the elected members of a party committee themselves chose a chairman, their action in removing him could not be disturbed by the courts. Accord, State v. Reichman, 239 Mo. 81, 142 S. W. 304 (1912). This result would seem to be right unless the statute provided for the method of choice and the duties of committee officers. Cf. State v. Waples, 108 Tex. 167, 188 S. W. 1037 (1916). Under the old convention rule, it often happened that the candidate who received the most votes would not be the party's nominee because of some committee ruling. Phillips v. Gallagher, 73 Minn. 528, 76 N. W. 285 (1898); State v. Moore, 23 Wash. 276, 62 Pac. 769 (1900).

13 People v. Republican Central Committee, 226 Pac. 656 (Colo., 1924). In Colorado, prior to 1894, it was held that the courts had no power in party dis

issued a mandamus to the Republican Central Committee of the state, compelling it to recognize as a member of that committee the petitioner, who had been duly elected a committee member and was later "removed" by the governing board of the party.

Many courts find the new basis for intervention by holding that nominees and committeemen elected under direct primary laws are public officials,14 the fact that the statute provides for no salary being no objection to this theory.15 Others find a jurisdiction to interfere in party disputes, as such, impliedly given the courts in the direct primary law, construed in the light of the evident purpose of the legislature.16 It seems admitted that there is no constitutional objection to a statute specifically providing that courts may interfere in such disputes;1 the objection that political parties are thus deprived of their inherent right of self-preservation seems as untenable 18 in

putes even to determine which faction represented the regular party. People v. District Court, 18 Colo. 26, 31 Pac. 339 (1892). In 1894, the election law was amended so as to give the courts jurisdiction over factional disputes. People v. District Court, 23 Colo. 150, 46 Pac. 681 (1896). In 1901, the statute was amended so as to take from the courts this power of review. See 1921 COLO. LAWS, § 7811. In 1910, the court was given jurisdiction to compel by mandamus the performance of duties charged under the act. See 1921 COLO. LAWS, § 7556. The majority, four judges, rest the decision in the present case on the ground that this last statute confers the necessary jurisdiction to enforce the committee's duty under the primary law to recognize duly elected members. Three of the four, however, find an independent alternative jurisdiction implied in the primary law itself apart from special statute. The two dissenting judges deny that either the special statute or the primary law confer jurisdiction.

14 State v. Goff, 129 Wis. 668, 109 N. W. 628 (1906); Foxwell v. Beck, 117 Ind. 1, 82 Atl. 557 (1912); State v. Hamilton, 240 S. W. 445 (Mo., 1922); In re Hines, 141 App. Div. 569, 126 N. Y. Supp. 386 (1910). But see Neary v. Voorhis, 207 App. Div. 419, 202 N. Y. Supp. 236 (1924). Under the convention system, it was probably correct to say that a nominee or a member of a party committee was not a public officer. Att'y Gen'l v. Droham, 169 Mass. 534, 48 N. E. 279 (1897). In Att'y Gen'l v. Barry, 74 N. H. 353, 68 Atl. 192 (1907), a committeeman was held not to be a public officer because the Caucus Act (1907 N. H. LAWS, c. 93) did not provide for the make-up of the local executive committee of the party nor how the members should be elected or appointed. But see People v. Brady, 302 Ill. 576, 135 N. E. 87 (1922).

15 See State v. Stanley, 66 N. C. 59, 63 1872). But see People v. Brady, supra.

16 State v. Swanger, 212 Mo. 472, III S. W. 7 (1908); State v. Haskell, 72 Fla. 176, 72 So. 651 (1916); Boos v. McClendon, 130 La. 813, 58 So. 582 (1912); Gilmore v. Waples, 108 Tex. 167, 188 S. W. 1037 (1916); People v. Livingston, 106 Misc. 188, 174 N. Y. Supp. 261 (1919). In Hyde v. Logan, 113 S. C. 64, 101 S. E. 41 (1919), the court construed the words of the Act (29 S. C. STAT. AT L. 163) "the state Committee shall also review. and its action shall be final" to mean final as far as the party is concerned, but not binding upon the courts. 17 See 1915 W. Va. Laws, c. 26, § 3. In some states, the decision of the party tribunal is expressly made final. Democratic Committee v. Dougherty, 134 Ky. 402, 120 S. W. 343 (1909). See 1909 KY. STAT., § 1563. See Chester County Nominations, 213 Pa. St. 64, 62 Atl. 258 (1005). A special tribunal may be the final board of appeal. Allen v. Burrows, 69 Kan. 812, 77 Pac. 555 (1904). See 1898 WIS. STAT., § 35. Cf. State v. Houser, 122 Wis. 534, 552, 100 N. W. 964, 966 (1904); Roussell v. Dornier, 129 La. 930, 57 So. 272 (1911).

18 People v. Democratic State Committee, 164 N. Y. 335, 58 N. E. 124 (1900); State v. Moore, 87 Minn. 308, 92 N. W. 4 (1902); Hopper v. Stack, 69 N. J. L. 596, 56 Atl. 1 (1903).

this connection as when it was directed against the constitutionality of the primary election law itself. There would seem to be no greater obstacle to statutes granting such power by necessary implication. And the primary election statutes seem by the strongest implication to have made this hitherto "political " is question judicial,20 and to have swept away the whole body of law that protected the party system from external control.

21

The real basis for the long-established rule that neither a court of law nor a court of equity could decide party matters, was the fact that the question first arose during a period when party control and organization were deemed so entirely the subjects of voluntary agreement as to be outside the pale of any regulation, even that by the legislature. The abstract principle lasted after the reason had passed. The practical effect of the courts' refusal to interfere today would be the nullification of the whole system of direct primary reform. If a committeeman elected by party members at the primary may be removed by the Central Committee, with the courts powerless to interfere, then the old order is still unchanged and "the leaders can construct the organization from the top downwards." 22 The danger that parties will be at the mercy of elected committeemen who may change their political faiths, is fanciful and unimportant by comparison.

Where courts will interfere, quo warranto and mandamus 23 are proper proceedings at law. If the public-official view be adopted, equity will refuse to take jurisdiction because of the firmly established rule that title to office is not the subject of equity's consideration.24 Nor have the traditional limits of equity proceedings included a remedy for so-called political wrongs.25 In England, under the Judicature Act, this historical objection to equity's assumption of jurisdiction

19 In re McConaughety, 106 Minn. 392, 119 N. W. 408 (1909). Cf. State v. Braine, 87 Kan. 975, 125 Pac. 343 (1912).

20 Brown v. Cole, 54 Misc. 278, 104 N. Y. Supp. 109 (1907); D'Alembete v. State, 56 Fla. 162, 47 So. 489 (1910); Gilmore v. Waples, 108 Tex. 167, 188 S. W. 1037 (1916). See Walling v. Lansdon, 15 Ida. 282, 286, 97 Pac. 396, 401 (1908).

21 Re House Bill No. 203, 9 Colo. 631, 21 Pac. 474 (1886). See 6 COLO. L. REV. 270.

22 See Parker, C. J., in People v. Democratic State Committee, 164 N. Y. 335, 338, 58 N. E. 124, 126 (1900).

23 Even if we do not call nominees public officers, the action of mandamus can be broadened to include their status in its scope. State v. Miles, 210 Mo. 127, 109 S. W. 595 (1908). See State v. Goff, 129 Wis. 668, 109 N. W. 628 (1906).

24 People v. Albany and Susquehanna Ry., 57 N. Y. 166 (1874); Moir v. Provident Savings Society, 127 App. Div. 591, 112 N. Y. Supp. 57 (1908). Cf. Beck v. Keidan, 215 Mich. 13, 183 N. W. 742 (1921). See 20 MICH. L. REV. 238. 25 Giles v. Harris, 189 U. S. 475 (1902). As a reason for this rule the courts usually restate the result, viz., equity protects only rights of property. Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683 (1894); Howell v. Bee Publishing Co., 100 Neb. 39, 158 N. W. 358 (1915). See 30 HARV. L. REV. 175. In the Colorado Tool Case, 35 Colo. 225, 86 Pac. 224 (1905), the court_enjoined an election for fraud. See the criticism of this decision, Edward P. Costigan, "The Colorado Tool Case," 64 CENT. L. J. 411. The case is defended by Henry J. Hershey, 1906 COLO. BAR ASSN. REP., 113. See 20 HARV. L. REV. 157.