Summary
In Hickman v. Switzer, 186 Miss. 720, 191 So. 486 (1939), this Court examined the legal sufficiency of a petition for judicial review.
Summary of this case from Harpole v. KcdecOpinion
No. 33970.
October 23, 1939.
1. ELECTIONS.
In order for it to appear that executive committee of a political party has wrongfully denied relief sought in primary election contest, it must appear either from petition for judicial review or exhibits thereto that, if matters complained of should be decided in contestant's favor, result would be that he, and not contestee, would be the nominee for office in question, and without such allegation petition presents no cause of action (Laws 1935, Ex. Sess., chap. 19, sec. 15).
2. ELECTIONS.
Where petition for judicial review of executive committee's action in primary election contest simply complained of dismissal of protest by executive committee of political party and copy of protest simply challenged vote of one voting precinct without setting forth what the effect of sustaining the challenge would be, petition for judicial review was insufficient (Laws 1935, Ex. Sess., chap. 19, sec. 15).
APPEAL from the special court of Stone county; HON.W.J. PACK, J.
T.J. Wills, of Hattiesburg, for appellant.
The action of the court in dismissing the petition for the want of jurisdiction was error. It was error for the court to have refused to require the clerk to mark the filing on the petition as of the same date that the certificate of the attorneys certifying that an independent investigation of the facts and law had been made, and that they verily believed that the protest should be sustained.
It is the contention of appellant that by section 1 of the Corrupt Practice Act, in which it says that the provisions shall receive an ordinary and reasonable construction in order to accomplish its purpose, rather than a strict and illiberal construction when properly construed would permit the lodging of the petition and the sworn copy of the contest with the clerk, and thereafter the certificate of the attorneys and that if the certificate of the attorneys is filed with the papers, at the time of judicial review, that the court has jurisdiction to try the cause.
The contest sets forth that Dr. Switzer paid money to voters for their vote. Section 5890 of the Code of 1930 provides that it shall be unlawful for any person to offer money or anything of value to any one for his vote. The contest set forth that Dr. Switzer paid money to voters for their vote. Under the law that made him ineligible to be voted for as a candidate or to hold the office if he were elected thereto.
Wisconsin ex rel. La Follette v. Kohler, 228 N.W. 895, 69 A.L.R. 348.
It is contended that by section 21 of the Corrupt Practice Act that it is provided that no person shall be declared to be the nominee of his party unless and until he has received a majority of the votes cast for such office, and that where a contestee has not received a majority of the votes cast that he cannot be declared the nominee. This section has reference to the First Primary and provides for how the names of those to be voted for in a Second Primary shall be ascertained. It has no reference to and cannot be interpreted to mean that if a great number of illegal votes are cast and by counting those votes a person does not receive a majority of all the votes cast, that he can be declared the nominee. Where a man received a majority of the legal votes cast he is entitled to the nomination. By section 20 of the Corrupt Practice Act it is provided that a person who shall violate the provisions of the Corrupt Practice Act shall forfeit his nomination or if elected shall be void.
The Executive Committee is the mouthpiece of the party. It speaks for the party. Its duty is to give to the party a nominee to be voted for at the November election. The Corrupt Practice Act has now placed the duty upon the courts to see that the Executive Committee functions and performs its duty and to correct any errors that it makes. It becomes the duty of the court, when the Executive Committee has not given to the party a candidate eligible to hold office, to enter the order that the Committee should have entered and when the court does this it gives to the party, as its nominee, that candidate eligible to hold the office, who has received the greater number of legal votes cast for an eligible candidate.
H.H. Parker, of Poplarville, and U.B. Parker, of Wiggins, for appellee.
Appellee takes the position that before anyone in any proceeding can maintain any action, whether it be election contest, or any other kind of action, has first to show his right to maintain the action or proceeding. The court will observe that nowhere in this proceeding is it shown that the contestant received a vote, much less received a majority of the votes cast. Nowhere is it alleged that his request to throw out all of the ballots cast at the McHenry Precinct should be granted, or that by so doing the result of the election would have been changed. So far as this court knows from the allegations of the contest the contestee would still have the majority of the votes.
Section 6258, Miss. Code of 1930; Omar v. West, 188 So. 917; May v. Young, 164 Miss. 35, 143 So. 703.
Certain it is that any person, whether a voter, or resident of the district, before he could contest an election he must first show some right in himself, and the only right the law says that he can show is that he was not only a candidate but that he received a majority of the votes cast. This contestant does not so show this fact, he does not even hint at such and therefore this entire proceeding is without foundation.
The whole purpose of an election, and the whole purpose of a contest of an election is to determine the untrammeled will of the electorate and contestant does not even allege that it was the will of the voters of the district, to-wit, District No. 3, that he should be elected as member of the Board of Supervisors of Stone County.
Hayes v. Abney, 188 So. 533.
The petition shows to have been filed on the 9th. The testimony of John N. Dale, Circuit Clerk, is that it was filed on the 9th. The certificate of the two attorneys was filed on the 13th, it so shows.
Sections 328 and 479, Miss. Code of 1930; Meridian National Bank v. Hoyt, 74 Miss. 221, 21 So. 12; Stewart v. Pettit, 94 Miss. 769, 48 So. 5; Austin v. Patrick, 176 So. 721, 179 Miss. 727; Mississippi Corrupt Practices Act of 1935, Section 15.
There is no dispute whatever that the certificate of the two attorneys was not attached to the petition when it was filed on September 9, 1939, and there is no dispute that this certificate was filed on September 13th. We take it that it is unnecessary to cite any law other than this act. No court can acquire jurisdiction of any such petition without this certificate.
It is apparent that the law itself, under which the contestant is proceeding, expressly required no delay whatever, and therefore his filing of his petition for judicial review in the Circuit Court on September 13th, would have been an unauthorized delay under the very terms of the Corrupt Practices Act.
The Mississippi Corrupt Practices Act, 1935, Section 15, Chapter 19.
We submit that the Legislature in the use of the word "forthwith," in connection with the filing of contesttant's petition for judicial review was inserted in said law, or used therein adisedly; that it was intended by the Legislature that no such delay as was here permitted should be permitted.
Webster's Dictionary, page 675; Standard Dictionary, Twentieth Century Edition, Pages 714 897; Webster's Universal Dictionary,.
The word or term immediately or forthwith as used in this statute when considered in connection with the subject matter, at hand, that of an election contest, the word forthwith cannot be stretched, or construed as to even mean within a reasonable time, but at once, or immediately.
Fairley v. Albritton, 121 Miss. 714, 83 So. 810; Gee v. Tucker, 127 Miss. 866, 90 So. 712; Jackson County v. Galloway and Bannabell, 132 Miss. 208, 96 So. 106; 18 Am. Jur., Ch. 368, Sec. 290.
The Corrupt Practices Act especially provides not that the contestant might, or should attach to his petition, or permit the petition to bear the certificate of two attorneys, but the Legislature with imperative words, says, that his petition shall not be filed unless it bears the certificate of two attorneys, etc.
18 Am. Jur., Ch. 361, Sec. 375; Choctaw Culvert Co. v. McCool, 172 Miss. 1, 158 So. 769; Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 879.
A box can be thrown out only on the findings of the Democratic Executive Committee, that there has been failure in material particulars to comply with the requirements of Sections 4 and 5 of the Mississippi Corrupt Practices Act of 1935, and the failure in such matters goes to such an extent that the will of the voters at such box cannot be determined, or arrived at.
The court will observe from this record that no complaint was raised by the contestant at the polls, no challenge of any voter is charged, no request of the Executive Committee at the time that the returns were canvassed to have any hearing on any challenged vote, or any determination as to improper conduct on the part of the managers. So far as this record goes the first question ever raised for the throwing out of the box was by the contest filed on the 17th, which was permitted to be allowed to lie dormant until after the Second Primary and until August 30th.
In the case of Hays v. Abney, supra, the court held that only for a total departure from the fundamental provisions of the Corrupt Practices Act by those who hold the election (then dealing with the manager signing the list in the booklet provided for the voter to sign themselves) will it be voided. The petition does not even show that those charged to have entered the booth and assisted voters did anything to influence said voters, or how many voters could have been so affected, or for whom said votes were cast.
This is an appeal from an order dismissing a petition for judicial review of a contested election case under Chapter 19, Laws of Ex. Session 1935. The petition for judicial review was not accompanied when filed by the certificate of two attorneys, that the petitioner's complaint was well founded as required by Section 15 of the Statute, but such a certificate was filed three days thereafter and several days before the cause came on to be heard. On objection thereto, the petition was dismissed on the ground that the clerk of the court was without authority to receive it unaccompanied by the required certificate. It will not be necessary for us to pass on the correctness of this ruling, for, as pointed out by counsel for appellee, the record presents no question for adjudication by the special tribunal created by the Statute to hear and determine the case.
Section 15 of the Statute requires a petition for a judicial review to set forth "with particularity wherein the executive committee . . . has wrongfully denied the relief prayed . . . for." In order for it to appear that the executive committee has wrongfully denied the relief sought, it must appear either from the petition or exhibits thereto that if the matters complained of should be decided in the complainant's favor, the result would be that he and not the contestee would be the nominee for the office in question. Without an allegation to that effect, the petition resents no cause of action.
The petition for the judicial review simply complains of the dismissal of the petitioner's protest by the executive committee. The copy of the protest before the committee simply challenges the vote of one voting precinct without setting forth what the effect of sustaining the challenge and discarding the vote of the precinct would be — whether it would change the result arrived at by the executive committee or not.
Unless discarding the challenged votes would result in the complainant being declared the party nominee, no wrong was done him by the executive committee in dismissing his protest. That such would be the result of discarding the challenged votes should have appeared from the protest, without which it presented no ground for relief — no wrong to be righted. In this connection, see Shaw v. Burnham, (Miss.), 191 So. 484, this day decided.
Affirmed.