McHenry v. State

44 So. 831 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

In the case of Native Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss., 171; s.c., 42 South., 665, we held that the chancery court had no jurisdiction to entertain a bill for an injunction the obvious “ purpose of which was to have the chancery court convert itself into a canvassing board for the purpose of canvassing the vote in an election and deciding whether a county should be divided into two districts or not, and declaring the result, and decreeing that the election had not been carried.” 'And we stressed the point in the opinion in that ease that these matters were all political in their nature, and that the duty of canvassing the vote had been committed, exclusively, to the board of election commissioners, and the duty of declaring the result to the board of supervisors, whose duty it was to act from the face of the report as made to them by the commissioners, and that the very necessity of the case (it being essential that the result should be speedily known) required that there should be no appeal from the action of the board of election commissioners or of the board of supervisors. This decision, it -would seem, ought to have been enough to have put a definite and final end to this litigation touching the question whether the voters of Harrison county had decided or not in favor of two districts in that county. But we are here very needlessly troubled with another branch of the same litigation. The board of supervisors of Harrison county, instead of doing as its plain duty required it to do, meeting and declaring the result of the election, in accordance with the report of the election commissioners, and proceeding to organize the new district for the county, has refused, it would seem, thus far, to do any part of its duty in the premises. The sole object of the bill in the case of Native Lumber Co. v. Board of Supervisors, supra, was to have the chancery court investigate the question whether the election had been carried, determining, in that investigation, the truth of various charges of gross fraud, etc., and decreeing that, because of these frauds, the election had not been carried. ' Practically that identical purpose is* the one sought to be obtained by this mandamus proceeding in the circuit court. In other words, what we decided in,the case of the Native Lumber Co., supra, could not be done by the chancery court, it is here attempted to have the circuit court do, in the exercise of its jurisdiction in a mandamus proceeding, notwithstanding, as pointed out above, we had declared that this whole matter of canvassing the returns and declaring the result was purely political, and committed of necessity, since confidence must be ultimately reposed somewhere, to the board of election commissioners and the board of supervisors, each to do in that matter what we have above indicated.

This litigation was- initiated by an application for a mandamus commanding the board of supervisors of Harrison county to meet and declare the result of the election and organize the new district. The declaration of the result of the election was a purely ministerial duty on the part of the board of supervisors. They had no discretion left to them in the matter. The board did not act as a court exercising judicial functions. It simply met to declare the result of the election, as certified to by the report of the election commissioners. It had nothing to do except to look to the face of that report ^nd make the declaration of the result in accordance therewith. Mandamus is an extraordinary writ. It is not to be resorted to where the purpose sought to be accomplished by it can otherwise reasonably be accomplished. It moves along a very narrow groove of jurisdiction at best, and this particular mandamus suit here moves in perhaps as narrow a groove as any suit in mandamus could possibly move within. The whole scope of the writ in this case was, as stated, to command the board of supervisors to meet and declare the result of the election in accordance with the report of the election commissioners — a purely ministerial act requiring the exercise of no element of discretion. No testimony of any imaginable kind was needed in order to discharge promptly this ministerial duty, except the report of the election commissioners itself. There were no witnesses called. The board had nothing in the world to try. Their duty was instant obedience to the direction of the statute to meet and declare the result as stated. The statute committed to the election commissioners, and to that body exclusively, the canvassing of the returns of the election, and it committed just as exclusively to the board of supervisors the simple ministerial duty of declaring the result in accordance with the report of the election commissioners. Time was of the very essence of the situation. The people needed to know, and to know promptly, how the election had gone. It never was the contemplation of the lawmakers that this sort of proceeding should get into the courts in the shape of a contest, and there drag its weary length along, it might be, through two or three years of litigation. The very nature of the case, the necessity of the situation, imperatively required that confidence and trust should be reposed in the integrity and honesty of the election commissioners in their discharge of their duties touching the canvassing of the election returns and the ascertaining of the result. A representative government must repose confidence in cases of this sort, and confidence without appeal, in some bodies of officials; and those bodies of officials, in this case, are the board of election commissioners as to its duties, and the board of supervisors as to its ministerial duty of declaring the result. In the case of State ex rel. v. Board of Supervisors of Coahoma County, 3 South., 143, s.c., post 582, a case which we hereby direct the state reporter to publish in the next volume of the Reports of this court (the case is reported next following this one) it was expressly held that, in a suit by mandamus, it was “ not allowable to inquire into the qualifications of electors or the legality of the election as affected by matters not apparent on the face of the returns.” Mandamus is not intended, at least not mandamus limited within the narrow groove of the mandamus in this particular case, to try issues, upon testimony at large, in the broad sense, at least, in which issues are so to be tried in ordinary suits. Having here, therefore, a mandamus in which no testimony of any kind whatever was receivable, except the report of the election commissioners itself, we are brought to inquire what power the court below had to make the particular order which it is complained was disobeyed in this case.

A mandamus having been applied for by a large number of citizens of the county, taxpayers thereof, against the board of supervisors, to compel the performance of its purely ministerial duty, as above indicated, of declaring the result, the board of supervisors, without answering the petition for the mandamus, made the following motion in the case: “ Come the defendants, by attorneys, and move the court for an order directing the clerk to issue a subpoena duces tecum to G. H. McHenry, commanding him to appear on the 27th day of May, 1907, and to file with the clerk the ballot boxes, tally sheets, and tickets comprising the returns of the special election held on September 24, 1906, in order that they may be inspected by defendant’s counsel in order to enable them to plead.” Acting upon this motion, the court ordered that “ said subpoena duces tecum issue instanter, returnable May 27, 1907.” This motion was not a motion for a subpoena duces tecum, nor did the order of the court direct anything except the issuance of “ said ” subpoena duces tecum; that is, one as prayed for, if one had been prayed for. McHenry was not directed to appear and testify. He was directed merely to carry the ballot boxes, tally sheets, etc., to the clerk of the circuit court, and leave them with the clerk of the circuit court, without any limit as to time, for the purpose of permitting the counsel for defendant to examine, at their leisure and without any restrictions of time whatever, the said ballot boxes, tally sheets, tickets, etc., in order, as stated, that after inspecting them they might be enabled to plead. It is perfectly obvious that the only possible object of inspecting these ballot boxes, etc., was to discover evidence upon which it might be shown to the circuit court, in the mandamus suit, that there had been fraud in the election, so as thereby to have the court refrain from commanding the declaration of the result in accordance with the statute. But no such effort was allowable in this mandamus proceeding. It was utterly foreign to the purpose of this particular mandamus suit to inquire, by testimony or by inspection of the ballots, into frauds and irregularities in the election. That matter had been disposed of finally by the election commissioners. It was not the business of the chancery court by injunction, nor of 'the circuit court by mandamus, to make any inquiry into that matter, under this particular statute. Here, then, is an order which is not, in its nature, a subpoena duces tecum, and merely calling it a subpoena duces tecum cannot make it so. In substance and effect it was an order the object of which was to procure testimony for the purpose just stated, when no such testimony would have been receivable in the trial of the mandamus proceeding, nor could it, in any possible view, have been competent, and when, too, it was not an order commanding McHenry to appear and testify, bringing with him to the court the ballot boxes, etc., but an order directing him to deposit indefinitely with the clerk of the circuit court these ballot boxes, etc., for the inspection of the counsel for the defendant, that they, having inspected them, might plead. It is too plain for further comment that this order was not an order for the issuance of a subpoena duces tecum. We are compelled to hold that it was an order which the court had no power, in the trial of this particular mandamus suit, moving within its limited, narrow groove, to make. The circuit court undoubtedly has jurisdiction generally to try a mandamus proceeding; but a mandamus suit must be tried according to* its inherent nature, as an extraordinary remedy, ever limited in its scope, and moving, as stated, generally within a very limited groove, and in this case within a very specially limited groove — the board having nothing to do but the purely ministerial duty of meeting and declaring the result.

It is a misconception to suppose that only in a case where the court has no jurisdiction over the particular suit can one safely disobey the order of a court. A court may have jurisdiction, in a general sense, of the particular suit, as regards both its subject-matter and the parties to it, and yet the court may make, in the trial of that particular case, an order which, regard being had to the nature of the suit, the court has no power whatever to make. Such an order is an absolute nullity, not a mere irregularity; and both where general jurisdiction at all to entertain the particular cause is wanting, and also where, such general jurisdiction existing, the court, in the progress of the trial of the particular cause, makes an order 'wholly void, there is wanting utterly the predicate for any contempt process for disobedience to such order. This is essentially what is held in the case of Ex parte Wimberly, 57 Miss., 437, though in that particular case the court dealt with the instance of a court acting without jurisdiction at all in the cause, rather than the case of a court with general jurisdiction of a cause transcending entirely its power in the trial of that cause to make a particular order. In the case of Hovey v. Elliott, 145 N. Y., 126; 39 N. E., 841; 39 L. R. A., 449, this distinction is made very plain, both in the opinion and in the notes to the case. It is pointed out in the notes that the reason why one is not guilty of contempt in disobeying the order of the court, passing on an unconstitutional statute, is not that the court did not have jurisdiction to decide whether the act was constitutional or unconstitutional, but because an order, made in pursuance of an unconstitutional statute, is a mere nullity, a thing beyond the power of the court to make. The court, of course, has the jurisdiction, generally, both of the subject-matter and of the parties in every such case, and the right — which is what jurisdiction means •— to hear and determine the constitutionality of the statute; but if, in so exercising this jurisdiction, if in so hearing and determining that question, it decides the act to be constitutional when it is unconstitutional, and makes an order in pursuance of such decision which one disobeys, he is not guilty of contempt, not because the court did not have jurisdiction to decide the question rightly or wrongly, but because the order is absolutely beyond the power of the court to make.

The court of appeals of New York, in the case of Hovey v. Elliott, cite with approval the following, which we also approve, from 12 Am. & Eng. Ency. of Law, 1470: “It is an axiom of the law that judgments entered without any jurisdiction are void, and will be so held in a collateral proceeding; and there is a strong and growing tendency in all the courts to hold that, although a court had jurisdiction over both the person and the subject-matter, but did not have the jurisdiction to enter the particular judgment entered in the case, such judgment is void, and may be collaterally impeached.” Perhaps the word “ power ” should be used in place of “ jurisdiction ” in the last clause of this sentence, to prevent confusion of thought. That court also cites with approval the following language of Justice Field in Windsor v. McVeigh, 93 U. S., 274; 23 L. Ed., 914: “ The doctrine, invoked by counsel, that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction. They are limited to particular classes of action, such as civil or criminal, or to particular modes of administering relief, such as legal or equitable. . . . Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is limited in its modes of .procedure and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for libel, or personal tort, the court cannot order in the ease a specific performance of a contract. If the action be for the possession of real property* the court is powerless to admit in the case the probate of a will. v Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous. They would be absolutely void, because the court in rendering them would transcend the limits of its authority in those cases.” That court also cites with approval the following language from Mr. Justice Miller in Ex parte Lange, 18 Wall., 163; 21 L. Ed., 872: “ It is no answer to this to say that the court had jurisdiction of the person of the prisoner and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, should render a judgment that he be hung, it would simply be void. Why void? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death or confiscation of property, it would, for the same reason, be void; or if, on an indictment for treason, the court should render a judgment of attaint, whereby the heirs of the criminal could not inherit his property, which should, by the judgment of the court be confiscated to the state, it would be void as to the attainder, because in excess of the authority of the court and forbidden by the Constitution. Ex parte Fisk, 113 U. S., 713-718; 5 Sup. Ct., 524; 28 L. Ed., 1117-1119; Re Bonner, 151 U. S., 242; 14 Sup. Ct., 323; 38 L. Ed., 149; Re Mills, 135 U. S., 263-270; 10 Sup. Ct., 762; 34 L. Ed., 107-110; Ex parte Terry, 128 U. S., 289-304; 9 Sup. Ct., 77; 32 L. Ed., 405-408; Ex parte Reed, 100 U. S., 13-23; 25 L. Ed., 538, 539; Re Frederich, 149 U. S., 70-76; 13 Sup. Ct., 793; 37 L. Ed., 653-656; Bigelow v. Forrest, 9 Wall., 339; 19 L. Ed., 696. See, also, note entitled ‘Want of Authority under Jurisdiction Conferred,’ in Morrill v. Morrill, 11 L. R. A., 157; 20 Or., 96.”

We do not think it possible to improve upon the clearness and accuracy of these two statements by Mr. Justice Eield and Mr. Justice Miller. In Ex parte Rowland, 104 U. S., 604; 26 L. Ed., 861, the supreme court of the United States held that, where the command of the writ of mandamus, in whole or in part, was beyond the power of the court, the writ, or so much of it as was in excess of such power, was void, and that the court had no right, in law, to punish one for disobedience to such order. Of course, as stated in the Wimberly case, if the order is merely an “ improvident ” order, the party who disobeys it acts at his peril, and is guilty of contempt, and should be properly punished for such contempt; but, where the order is one that is not merely irregular or improvident, the court having power to make some order of the kind in the suit, but is an order which the court has no power at all to make in any case in the particular suit, then just as clearly as in the case of absolute want of jurisdiction to hear the ease at all may one safely disobey such an order. We are informed, by the pleading and at the bar, that the learned judge below did mot himself take the position that he had any power in this mandamus proceeding to try the question as to whether the election had been carried or not, but stated that he would do no such thing. He seems to have fallen into the misconception which led to the order by reason of the fact that counsel for the defendant deemed it necessary to their proper answer to the petition that they should for some reason inspect the ballots, etc., to enable them to plead. It is not at all an uncommon thing that a learned court should fall into error, where counsel as able as those representing the defendant in this case were themselves in error in the matter. The learned counsel honestly believing they had the right to the order, succeeded in convincing the court that an inspection of the ballots, etc., was necessary, not to try the contested election case, but to enable them to plead properly to the petition for the mandamus. We have shown this was a wholly erroneous view.

There -is another view of this case leading to the same result. It appears that McHenry, the president of the election commissioners, after the commissioners had concluded their duties of canvassing the election returns and ascertaining the result, took the ballot boxes to his home, and there put them in a strong steel trunk, locking the trunk securely. Afterwards he went to Europe in January, 1907, and whilst he was gone, according to the undisputed testimony in this case, the trunk was broken open and the ballot boxes were never seen or heard of thereafter. Each one of the election commissioners, except McHenry, swears positively that he never saw nor heard of the ballot boxes after they were delivered to McHenry the day after the election. Mr. Barber, their counsel, swears to the same thing with equal positiveness, and McHenry himself swears that he never saw nor heard of them after he left for Europe, and that he knows nothing about who broke into the trunk, who got the ballot boxes, or what disposition was made of them. There is not one scintilla of evidence in the record showing, or tending to show, any connivance on the part of any one of the election commissioners, or of their counsel, with the parties who broke into the trunk and stole these ballot boxes. No fraud is brought home to any one of the election commissioners, or to their counsel, in connection with this outrageous theft of the ballot boxes, etc., by the parties breaking into this steel trunk. No one of them is shown to have had anything to do, near or remote, with this theft. Not being shown by the testimony, therefore, to have had anything whatever to. do with the destruction of the ballot boxes, and not knowing, according to the testimony of all, about where the ballot boxes, etc., are, or what has become of them, it was plainly a matter of impossibility for any one of them to have obeyed the command to carry the ballot boxes to the clerk of the circuit court and deposit them with him. It may have been bad judgment, it may have been an improper course of procedure, on the part of McHenry, to have taken these ballot boxes to his home and put them in a trunk there. That certainly was no proper repository for the ballot boxes of the county of Harrison; but to show simply that, and no more, in the face of the positive sworn denials in this case in connection with their subsequent loss or destruction, is not to show enough, in our judgment, to make any of these parties responsible for that subsequent destruction of tbe ballot boxes. True, the ballot boxes could not have been taken from the trunk and destroyed unless they had been in the trunk. That is merely to say that their being there was a condition without which they could not have been destroyed; but it is very far from saying that these parties are responsible, in any proper or just sense, for such outrageous theft of the ballot boxes and the subsequent destruction thereof. In 9 Ency. of Law & Proc., at page 13, it is said: “ Where it appears that it is, or was, impossible to comply with the order without fault on the part of the one charged, there is no contempt.” We think it is perfectly clear, from the considerations which we have presented, that the order in this particular mandamus proceeding was one which the court had no power whatever to make, that it was consequently an absolute nullity, and that the parties were not guilty of contempt in disobeying such order, nor their counsel in advising its disobedience, and that, in addition to this, they could not have been so guilty of contempt for the further reason that the destruction of the ballot boxes made it impossible for them to have complied with the order, and there is an utter failure in the testimony to connect any of the appellants with such destruction of the ballot boxes, etc. We repeat that, iñ this opinion, we deal solely with the case made under this statute.

The judgment of the court below is consequently reversed, and the contempt proceedings dismissed.