tends the privilege, in favor of non-residents, at least, to all civil process; and in Miner v. Markham, 28 Fed. Rep. 387, Judge Dyer pronounced that view for this court, in an opinion which reviews the cases, and states satisfactory grounds for the ruling. See, also, Hurst's Case, 4 Dall. 387, Fed. Cas. No. 6,924; Parker v. Hotchkiss, supra; Bridges v. Sheldon, 7 Fed. Rep. 36, 44. The opportunity for serving the subpœna upon the petitioner in the case at bar came only through his call to attend this court upon an important hearing affecting the interest of his clients. If the service is valid, it could compel his attendance here at a time which would seriously interfere with the further attention which he owes to these clients in other courts along the line of the Northern Pacific Railroad. To so hold would violate the principles which aim to protect all having business before the courts. It is unnecessary to place the decision upon the ground that service was made within the constructive presence of the court, as per Blight v. Fisher, Pet. C. C. 41, Fed. Cas. No. 1,542, but the fact is sufficient that it was made before there was reasonable time for the return or departure of the petitioner. THE LEGAL EFFECT OF A PROMISE TO PAY A SPECIFIC KIND OF MONEY. Since people are not disposed to enter into engagements which confer a doubtful advantage on the one side, and impose an indeterminate burden on the other, any cause which has a tendency to produce variations in the real value, considered as the representative of wealth, of the medium of payment for money contracts, has also a tendency to render difficult the making of such contracts, and hence to obstruct the normal and necessary processes of commercial and industrial life. Where the law invests distinct kinds of money with the attribute of satisfying debts, and these several species of money are believed, for any reason, to be subject in unequal degrees to variations of real value, there is always a tendency on the part of persons making money contracts to stipulate for payment in that kind of money which is believed to be most stable in value. As contracts for payment of specific kinds of money are now very common, it is a matter of practical importance to determine the legal effect of such contracts. It may be premised that a promise to deliver a definite weight and quality of the precious metals does not differ in legal incidents from a promise to deliver a definite weight and quality of any other commodity. Upon default, the injured party is entitled to a general money judgment for such a sum as is equivalent to the market value of the stipulated weight and quality of the metal in question at the time and place of de. livery. Hence, where the yearly rent reserved in a lease was "four ounces, two pennyweights, and twelve grains of pure gold," equivalent when the lease was made to $80 per annum, and at the time the rent fell due to $90 per annum, judgment will be entered for the latter sum.1 Where there is a promise to deliver specific coins, capable of identification, as distinguished from specific kinds of coins, and it appears that the coins mentioned in the contract possess a peculiar and unique value to the promisee, equity will intervene to compel the delivery of the identical coins agreed to be delivered.2 An obligation to pay a specified sum of money designated simply in terms of monetary units of the United States can be enforced only by a general money judgment, which can be satisfied by payment in any variety of money declared by law to be a legal tender for private debts. A contract to pay a sum of money stated in the denominations of a foreign currency, if sued upon in the United States, entitles the plaintiff to a judgment in terms of United States money.* The sum stated in foreign money will be reduced to its equivalent, computed on the basis of the real par of exchange, in that variety of legal tender United States money which is most depreciated in value, since it can be assumed that the debtor will satisfy the judgment in such money, and the creditor cannot, without the debtor's consent, compel him to pay in any other.5 Where a contract contains a promise to pay a specified number of dollars, it may be inferred from the circumstances attending the execution of the contract that the parties meant by the word "dollars" a particular kind of dollars, as, 1 Dewing v. Sears, 11 Wall. 379. 2 Duke of Somerset v. Cookson, 3 P. Wms. 389; McGowin v. Remington, 12 Pa. St. 56. 3 Knox v. Lee, 12 Wall. 457; Legal Tender Cases, 110 U. S. 421; Woodruff v. Mississippi, 162 U. S. 293; Swain v. Smith, 65 N. C. 211; Verges v. Decker, 38 Mo. 459; George v. Concord, 45 N. H. 434; Murray v. Harrison, 47 Barb. (N. Y.) 484. 4 Butler v. Horwitz, 7 Wall. 258; Christ Church Hospital v. Tuechal, 54 Pa. St. 71; Harrington v. McMorris, 5 Taunt. 228; Ehrensperger v. Anderson, 3 Exch. 148. 5 Sears v. Dewing, 14 Allen, 413; The Vaughan & Telegraph, 14 Wall. 258; Gibson v. Grover, 63 N. C. 10. It for example, "Confederate dollars." cannot, however, be inferred that the word "dollars," employed in a bond, means "gold dollars,' simply because a different interpretation would give the obligee a palpably inadequate consideration for property sold." Where the contract requires the payment of a specific kind of money, several distinctions arise which it is necessary to keep in mind in order to determine the rights and obligations of the parties. If the contract is for payment of a particular kind of money which is a legal tender, as, for example, a specified sum in "gold coin," many States hold that such contracts can be discharged by payment of any legal tender money of the same nominal amount.8 And it has been held in Missouri that where the contract provides for payment "in the current gold coin of the United States in full tale or count, without regard to any legal tender that may be established or declared by any law of congress," that nevertheless, the tender of United States treasury notes is a good tender." On the other hand it is decided in other States that a promise to pay in a particular kind of legal tender money, will entitle the promisee to a judgment payable in the money specified in the contract, and that such judgment can be satisfied only by payment in that specific kind of money.10 The conflict of doctrine prevailing in the State courts as to the legal effect of promises to pay in specific kinds of money has been rendered unimportant by the intervention of the federal courts. The Supreme Court of the United States has decided, that where a party sets up in a State court that he is en 6 The Confederate Note Case, 19 Wall. 548; The Wilmington R. R. C. v. King, 91 U. S. 3; Rives v. Duke, 105 U. S. 132; Effinger v. Kenney, 115 U. S. 566. 7 Maryland v. Railway Company, 22 Wall. 105. 8 Henderson v. McPike, 35 Mo. 255; Appel v. Woltman, 38 Mo. 194; Riley v. Sharp, 1 Bush (Ky.), 348; Laughlin v. Harvey, 52 Pa. St. 9; Brown v. Welch, 26 Ind. 116; Buchegger v. Schultz, 13 Mich. 420; Mervine v. Sailer, 5 Phila. 422; Bank v. Burton, 27 Ind. 426; Frothingham v. Morse, 45 N. H. 545; Wilson v. Morgan, 30 How. Pr. (N. Y.) 386; Gallions v. Pierre, 18 La. Ann. 10. 9 Appel v. Woltman, 38 Mo. 194. 10 Carpenter v. Atherton, 25 Cal. 569; Wells, Fargo & Co. v. Van Sickle, 6 Nev. 50; Chesapeake Bank v. Swain, 29 Md. 483; Independent Ins. Co. v. Thomas, 104 Mass. 192; Kellogg v. Sweeney, 46 N. Y. 291; Hittson v. Davenport, Colo. 169; Myers v. Kauffman, 37 Ga. 600; Chrysler v. Renois, 43 N. Y. 209; McGoon v. Shirk, 54 Ill. 408; Webb v. Moore, 4 T. B. Mon. 483. titled to have the bond in suit satisfied in "gold and silver coin, lawful money of the United States," and the State court of last resort denies him such right, and adjudges that the bond is solvable in United States notes, that such judgment is a denial of a right, privilege, and immunity claimed under the constitution and statutes of the United States, and that such party is entitled to an appeal to the Supreme Court of the United States, under the 25th section of the judiciary act of 1789, as amended in 1867. This doctrine has been several times reaffirmed, and is now well established." 12 Under these decisions we must look to the federal courts for the controlling rule with respect to the obligations and rights arising from contracts to pay particular kinds of money. The federal rule is, that a promise to pay a particular kind of legal tender money will entitle the promisee to exact payment in that specific kind of money. 13 An obligation to pay a stated sum in "gold coin" will require a judgment payable in gold dollars of the coinage of the United States. One payable "in specie" requires a judgment payable in "gold or silver dollars. 15', When, however, the agreement was for "gold or its equivalent" it was held solvable in any kind of money which is a legal tender.16 While a contract to pay a particular kind of legal tender money can, under these decisions, be enforced by a judgment for the agreed kind, we have still to consider the effect of contracts to pay in specific currency which is not a legal tender. The difficulty in resolving this case grows out of the technical rule, that a money judgment must be payable, either generally in lawful (i. e., legal tender) money of the United States, or specifically, in a particular kind of legal tender money.17 A judgment for something not lawful money would be in the nature of a decree for specific performance and 11 Bronson v. Rodes, 7 Wall. 229. 12 Trebilcock v. Wilson, 12 Wall. 687; Butler v. Horwitz, 7 Wall. 258; Bronson v. Kimpton, 8 Wall. 444; Woodruff v. Miss., 162 U. S. 293. 13 Bronson v. Rodes, 7 Wall. 229; Trebilcock v. Wilson, 12 Wall. 687; Cheang Kee v. United States, 3 Wall. 320; Butler v. Horwitz, 7 Wall. 258. 14 Bronson v. Rodes, 7 Wall. 229. 15 Trebilcock v. Wilson, 12 Wall. 687. 16 Jones v. Smith, 48 Barb. 552; Atkinson v. Lanier, 69 Ga. 460; Reese v. Stearns, 29 Cal. 273. 17 Black on Judgments, Secs. 151, 152, and cases cited. not a money judgment. Rigid logic would seem to require that the particular currency designated in the contract be treated as a commodity, and reduced, on the basis of exchange value, to terms of legal tender money. But this cannot be confidently asserted to be the law, as the tribunal of final resort upon the question, the Supreme Court of the United States, has not as yet decided it. It has been adjudged by a State court that a promise to pay a stated sum "in current bank notes of the city of Cincinnati" entitles the promisee, upon default, to a general money judgment for the same nominal sum with interest.18 The foregoing doctrines as established. by the courts are now menaced by a considerable body of public opinion which demands that congress enact "such legislation as will prevent for the future the demonetization of any kind of legal tender money by private contract," which declaration appears to mean, that congress prohibit by law the making of contracts payable in specific kinds of money. If such federal legislation is enacted it will become a matter of practical importance to determine whether congress has power under the constitution to limit the right of private contract in that respect. This, of course, is too grave a constitutional question to admit of discussion within the limits of the present article, but is referred to simply as a contingency having some relation to the questions herein considered. WALTER D. COLES. St. Louis, Mo. 18 Morris v. Edwards, 1 Ohio, 80. ELECTIONS AND VOTERS - RIVAL CONVENTIONS OF ONE POLITICAL PARTY-SECRETARY OF STATE- DUTIES AS TO CANDIDATES NOMINATED. PHELPS v. PIPER. Supreme Court of Nebraska, June 2, 1896. 1. The secretary of State will not decide which of two rival conventions of the same political organization is the regular one. 2. Where such rival conventions nominate candidates and certify such nominations in due form, the secretary of State must certify such nominations to the several county clerks, and not assume to inquire into the regularity of the respective conventions. 3. The question as to which faction is the true rep. resentative of the party organization is rather polit ical than judicial. RAGAN, C. This action concerns the duty of the secretary of State in certifying nominations for State offices under the provisions of Sess. Laws 1891, ch. 24, commonly known as the "Australian Ballot Law." It was presented shortly before the last general election, and its exigencies required an immediate decision, which was then rendered. Subsequently the parties withdrew the record for the purpose of making certain formal amendments to the pleadings, so that the preparation of an opinion has been necessarily delayed. Notwithstanding the manner in which the parties have entitled the case, it is essentially an application for a writ of mandamus. Only when so viewed can it present a case within the original jurisdiction of this court. It has been so treated by the court, and we shall refer, therefore, to Phelps as the relator and to the secretary of State as the respondent. The relator alleges that he is an elector of the State of Nebraska, and the nominee of the Democratic party for the office of judge of the supreme court, to be voted for at the general election to be held on the 5th day of November, 1895, and that he brings this action in his own behalf, in behalf of the Democratic party, and in behalf of all the electors of the said party; that under the rules and according to the usages of the Democratic party of the State of Nebraska a committee called the "Democratic State Central Committee" duly authorized by the Democratic party of said State, did call a convention of the Democratic party of said State to meet in Omaha on the 26th day of September, 1894, composed of 556 delegates, duly elected by the Democratic party of the State; that said convention was duly organized by the election of W. D. Oldham as chairman and Dan B. Honin as secretary; that among the duties which, under the rules and customs of said party, devolved upon said convention, was that of electing a new State central committee; that said convention, under the rules and customs governing said party, did select a State central committee to serve for the term of two years, and selected a chairman thereof to serve for a like period; that under the rules and customs governing said party said committee so elected was charged with the duty of representing and acting for the Democratic party of the State at all times during said two years except when a duly-authorized convention was in session; that said committee is the only body under the rules and customs of the party having authority to call a convention, and the only body which has authority, when the convention is not in session, to act for the party in any way; that said committee, in accordance with the rules and usages of the party, called a convention to meet in Omaha on the 22d day of August, 1895, for the purpose of nominating a candidate for the office of judge of the supreme court and for the purpose of nominating two candidates for the office of regents of the university; that said convention, consisting of duly-authorized representatives of the party, did meet in Omaha on the 22d day of August, 1895, and did, according to the laws and usages of the Democratic party, nominate the relator as the candidate of the party for the office of judge of the supreme court, and nominated Alfred T. Blackburn and Robert Kittle as the candidates of the party for regents of the university; that said nominations were duly certified to and filed with the secretary of State on the 5th day of September, 1895, and that no objection to said certificate was filed within the three days provided by law; that said convention was the only body having authority to nominate for the Democratic party such candidates; that on the 5th day of September, 1895, a body assembled in Lincoln, "which claimed to represent the Democratic party, but which acted without any authority from said party, or without any right whatever to speak for said party under the rules and usages governing said party in said State of Nebraska," and nominated T. J. Mahoney as candidate for judge of the supreme court, and John H. Ames and W. S. Ashby as candidates for regents of the university; that R. S. Bibb was chairman of said convention and H. B. Hubner was secretary thereof; that said Bibb as chairman, and Hubner as secretary, did, on the 17th day of September, 1895, file in the office of the secretary of State a certificate in which they falsely and fraudulently stated that said Bibb was the chairman of the convention representing the Democratic party, and that said Hubner was secretary thereof, and that a convention representing said party did nominate said Mahoney, Ames and Ashby, as aforesaid. The relator further states that each of the said allegations in said certificate is entirely false, and made for the purpose of deceiving the voters of the State; that, unless restrained, the respondent will certify to the clerk of each county the names of Mahoney, Ames and Ashby as candidates of the Democratic party for said respective offices to be placed upon the official ballot to be voted at the next general election; "that said convention which met in Lincoln on the 5th day of September, 1895, selected a State central committee of thirty-three members; that said committee afterwards met and duly organized by the election of Euclid Martin as chairman thereof and J. B. Sheean as secretary thereof, and that said committee claims to be the Democratic State central committee of Nebraska. Plaintiff further says that the candidates and supporters of the ticket headed by Charles J. Phelps and the candidates and supporters of the ticket headed by Timothy J. Mahoney all agree that there is but one Democratic party in Nebraska, but disagree as to which of the said tickets represents said Democratic party; the plaintiff and his supporters contending that the said ticket headed by said Charles J. Phelps represents the Democratic party of the said State, and defendant and his supporters contending that the said ticket headed by Timothy J. Mahoney represents the said Democratic party." The prayer is, in brief, for an order commanding respondent to omit from his certificate to the clerk of each county the description of Mahoney as a candidate of the Democratic party for judge of the supreme court, and Ames and Ashby as candidates of said party for regents of the university; and for an order commanding the respondent to make his certificate without employing the word "Democrat" or "Democratic" in describing the political party or principles of said Mahoney, Ames and Ashby. The respondent, by his answer, challenges the jurisdiction of the court, and admits that plaintiff is the nominee of a convention claiming to represent the Democratic party. He then alleges at considerable length, in substance, that the Democratic party is a national organization of persons entertaining the same general political views; and that the different State organizations are merely branches of the national organization, for purposes of convenience, and for the purpose of maintaining the political doctrines of the national party; that membership in the party is dependent on allegiance to the political doctrines of the national party; that according to the rules and usages of the party the national convention, which meets once in four years, is the only body having authority to declare the party's doctrines, and that no State organization which does not accept the doctrine so declared by the national convention is or can be the Democratic party of the State; that when any State or other political division is without an organization professing allegiance to and teaching the doctrines of the Democratic party as declared at its last national convention, any body of voters who approve the political doctrines of the party have the right to organize committees and conventions for the maintenance thereof, and committees and conventions so organized are, according to the rules and usages, the Democratic party of such State: that a convention claiming to be the Democratic convention of the State assembled in Omaha, September 26, 1894, but said convention was dominated by another organization known as the "Free Silver League," and under such domination said convention expressly refused to approve or sanction the political doctrines of the Democratic party, but affirmed antagonistic doctrines, and repudiated the doctrines of the party as declared by the last national convention; and that thereupon the Democratic State central committee selected in 1892 called together a convention of voters approving the doctrines of the Democratic party, and that said convention nominated candidates to be voted for at the general election held in 1894, and selected a State central committee; that on June 27, 1895, said committee called a convention of all voters who approved the doctrines of the Democratic party, to be held in the city of Lincoln on the 5th day of September, 1895; that pursuant to said call the several counties selected delegates, who assembled in convention in Lincoln on the day named, and nominated Mahoney, Ames and Ashby for judge of the supreme court and regents of the university; that said convention and committee has been recognized by the national Democratic party as the only Democratic convention and committee of Nebraska. The answer then pleads that the officers of said convention in due form certified such nomination to the secretary of State, and that no objections to such certificate were filed within the time provided by law. It has been necessary to set forth at considerable length the pleadings in order to disclose the real question presented for decision. It will be perceived that both the petition and answer disclose that in 1895 two conventions assembled, each by virtue of a call issuing from a body claiming to be the Democratic State central committee, and each convention claiming to represent the Democratic party of the State. Nominations were made by each convention for the State offices to be filled at the ensuing election, and these nominations were by the officers of each convention duly certified to the secretary of State. No objections were filed to either certificate within the time provided by law, and the secretary of State was therefore about to certify, to the several county clerks, the candidates named on each certificate as those of the Democratic party. The relator, by this proceeding, seeks to prevent the certification of the candidates of the Lincoln convention as Democratic candidates. If the action of the secretary of State can be controlled by the court in this manner, it must be because it is his duty in such a case to determine, as between two bodies or factions, each claiming to represent a political party entitled to have its candidates' names placed upon the ballots, which of such bodies or factions, according to the rules and customs of such party, rightfully represents it; and, further, that when the secretary fails to so adjudicate such question the court shall determine it, and issue its mandate to the secretary of State accordingly. To our minds, neither proposition is tenable. Indeed, we think that the case of State v. Allen, 43 Neb. 651, 62 N. W. Rep、 35, is conclusive on the first question at least. It was there held that it is not the province of the secretary of State to determine which of two rival State conventions of the same party is entitled to recognition as the regular convention; and, further, that where two factions of a political party nominate candidates, and certify such nominations to the secretary of State in due form of law, the latter will not inquire into the regularity of the convention held by either faction, but will certify to the several county clerks the names of the candidates nominated by each, such practice being in harmony with the rule which requires courts in case of doubt to adopt that construction which affords the citizen the greater liberty in casting his ballot. In the case cited candidates, representing the same faction as that represented by the candidates which we will here for brevity designate the "Mahoney Ticket," applied for a mandamus to compel the secretary of State to cer tify their names as the candidates of the Democratic party, the secretary having refused to do so. The court denied the writ, holding as we have already stated, and, further, that, the record not disclosing that the relators had been nominated by any convention whatever, the secretary of State could not be required to certify the nominations, because it is his duty to determine in the case of a certificate filed with him whether such candidates were in fact nominated by a convention or assemblage of voters or delegates claiming to represent the party; that is, he should satisfy himself of the genuineness of the certificate. But he has no authority, where a convention in good faith claiming to represent the party has in fact certified its nominations to him in due form, to refuse to recertify the same to the county clerks. We entertain no doubt of the correctness of the principles announced in that case, and it follows that the court by a writ of mandamus cannot compel the secretary of State to perform an act which he has no legal authority to perform. If it was the duty of the secretary to certify both sets of nominations, and if he had no power to determine, between the rival factions, which faction represented the Democratic party, then it seems perfectly clear that the court can neither require him to make such decision, nor can the court itself determine which faction rightfully represents the party, and upon such determination require the secretary to omit from his certificates one set of candidates, which State v. Allen declares it is his duty to include in the certificate. The legislature has not provided any means for determining such controversies. Political parties are voluntary associations for political purposes. They establish their own rules. They are governed by their own usages. Voters may form them, reorganize them, and dissolve them at their will. The voters ultimately must determine every such question. The voters constituting a party are, indeed, the only body who can finally determine between contending factions or contending organizations. The question is one essentially political, and not judicial, in its character. It would be alike dangerous to the freedom of elections, the liberty of voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, or doctrines of political parties, and to exclude from the official ballots the names of candidates placed in nomination by an organization which a portion, or perhaps a large majority, of the voters professing allegiance to the particular party believe to be the representatives of its political doctrines and its party government. We doubt even whether the legislature has power to confer upon the courts any such authority. It is certain, however, that the legislature has not undertaken to confer it. We shall not enlarge upon the views we have expressed. If authority were needed in their support, we think the underlying principles suggested are those which governed |