State ex rel. Jacob v. Brown

44 So. 769 | Miss. | 1907

Lead Opinion

Mayes, J.,

delivered the opinion of the court.

In the case of Ramey v. Woodward (recently decided by this court), Ante, 777, 44 South., 769, it was held that there was no provision in the law for the courts to entertain contests between rival candidates in primary elections for the purpose of determining which shall be declared the nominee of the party. Though the form of the proceeding instituted here is that of mandamus, its real purpose and effect, if sustained, is to procure the court to entertain a contest between rival candidates in a primary election for the office of sheriff, to determine which shall be declared the nominee of the party. We have heretofore held that the courts were without power under the law to entertain these contests in whatever form they may arise. This power is confided to the executive committee of the party, and there is no appeal from their decision save to the people themselves.

The essential featurs of this case are not different from the case of Brewer v. Abbay, in 82 Miss., 559, 35 South., 153. The petition here shows that the executive committee has acted and declared a person other than petitioner the nominee of the party, but it is alleged, as a ground for invoking the aid of the court, “that it did not receive, count, and canvass the returns from Love precinct, but, on the contrary, did receive, count, and canvass only spurious and pretended returns, not made or certified by the managers and clerks, but substituted and imposed upon the committee; that, on its attention being called to it, it declined to investigate or hear evidence of this fact, but proceeded unlawfully to change the result, really receiving a mere sham for returns; that this reception and canvass of the returns was a condition precedent of the declaration of the result and an announcement of the name of the nominee; that, notwithstanding that, they failed to receive and canvass the returns from Love precinct, but the said committee did add fifty-seven votes not shown by the return to the votes of E. D. Lauderdale, in the manner before described, thereby increasing the number counted for him to five more votes than they counted for said J. W. Barbee, whereupon they illegally and improperly declared E. D. Lauderdale nominee for said office of sheriff, and announced his name as the nominee of the party therefor.” The ground upon which is based this petition, as shown by the petition itself, is not that the executive committee had refused to act; but the complaint is that they have acted and counted illegal votes, and tbe purpose of this petition is to procure tbe court, by mandamus, to reassemble the committee for tbe purpose of a recount and an elimination from the count of the votes claimed to be fraudulent. The executive committee, the constituted authority of the party, is the sole arbiter of this question. If tbe facts alleged in this petition are true, deplorable as it is, the party must be allowed to correct these evils in so far as the party is concerned, and the criminal laws can be appealed to to punish the wrongdoers; but there is no power in the courts to correct it by means of its civil process, in so far as to command a reassembling of the committee for the purpose of having a recount of the votes. The very prayer of this petition is “that the court issue a writ of mandamus directing said Democratic executive committee to reassemble, and disregard and throw out the alleged false and spurious returns and ballots from Love precinct, and disregard same, and to canvass, count, and declare the result, independent of and without such false returns and ballots, and announce the name of the nominee in accordance with the returns and ballots, or, in the event that the true returns can be ascertained and the true ballots known, after throwing out the false and spurious returns and ballots to receive, count, and canvass the true returns from Love precinct, in said county, and declare the result, and announce the nominee in accordance therewith.” It will thus be seen that this writ is appealed to for the purpose of procuring the court to have ■ the executive committee reassemble, after having once' assembled and declared the nominee, and throw out certain votes claimed to be illegal, and to again, after having acted once, declare another nominee for the party. The courts are without power to do this.

We do not decide whether the executive committee had the power to reassemble and make a new count, after having once canvassed the returns, declared the nominee, and adjourned, as it is not necessary to a decision of this case; but certain it is that, if they possess this power to reassemble, it is one of dis-eretion vested in them, and is not subject to control by any court. The only distinction presented between the facts of this case and the Brewer case is that in this case the petition alleges that the petitioner did not know of the facts at the time, nor had he an opportunity of knowing. This might be a strong reason to be addressed to the executive committee as a reason why they should, in their discretion, reassemble and recount the votes; but there is no such differentiation in the facts of this case from the facts of the Brewer' case as would vest the court with power to act. It is true, in the Brewer case, it is shown that the petitioner therein knew all the facts at the time of the meeting of the executive committee, and offered no objection or evidence before the committee to prove them; but the case does not turn upon the question of whether or not, knowing all the facts, he failed to object, and therefore was estopped from afterwards contesting them, but it holds that the petition, as is the case here, was for the purpose of having the executive committee reconvene and recount the votes, which the court held was beyond the power of the court. The court further says: “In the case of a primary election, there is no tribunal vested with the power to determine who is to be the party nominee, to correct the wrongs and frauds bearing upon the solution of that question, save only the executive committee of the county.” We repeat here this excerpt from that opinion as being the law of this case.

Affirmed.

---

Concurrence Opinion

Whiteieud, C. J.,

• delivered the following specially concurring opinion:

I wish to add just one other view which, as it seems to me, greatly strengthens our conclusion as announced in the opinion in chief. That view is that the opposite construction practically nullifies the primary election law. If the courts have jurisdiction to hear a mandamus to compel the county executive committee to reconvéne and recanvass the returns, in the case, not only of election cases, but of a simple primary nomination, then it must result that an appeal could lie to this court, and on' reversal there could be another trial below, and a second appeal to this court, and so on. Only three weeks are allowed between the two primary elections, and when the other particulars, as to within what short time this canvass is to be made and the result declared by the executive committee, are considered, it must be perfectly obvious that the day for electing the officer will long have passed before there shall have been, on the opposite view, a mere declaration of who the nominee is. The scheme of the legislature in this matter seems to have been to repose confidence somewhere as to the honesty and purity of nominating primaries, and to repose that confidence in the executive committees of the counties, districts, and state. It was assumed that responsibility to the party would be enough to secure common honesty and common fairness on the part of the various election officers, and of the executive committees of the counties, districts, and state. A violation, on the part of any of these officers, of any of the provisions of the primary election law, subjects them to punishment as provided by that law; but there is no provision in the primary election law, since the repeal by the legislature of 1906, of sec. 14, ch. 66, p. 110, of the Laws 1902, for an appeal to the courts to correct any of the evils upon the nominating primaries.