Summary
In Pearson, this Court deemed "forthwith" a petition filed thirteen days, nine working days, after the committee decision.
Summary of this case from Moore v. ParkerOpinion
No. 33949.
November 13, 1939.
1. ELECTIONS.
The statute providing that petition for judicial review of order of executive committee of political party declaring party nominee must bear certificate of two practicing attorneys, is mandatory (Laws 1935, Ex. Sess., chap. 19, sec. 15).
2. ELECTIONS.
The statute providing that petition for judicial review of order of executive committee of political party declaring party nominee must bear certificate of two practicing attorneys, requires that the attorneys be disinterested and unbiased and free of connection with the case (Laws 1935, Ex. Sess., chap. 19, sec. 15).
3. ELECTIONS.
The special statutory tribunal was without jurisdiction to judicially review order of executive committee of political party declaring party nominee, and Supreme Court was without jurisdiction to entertain appeal from decision of tribunal, where one of the attorneys signing certificate was not disinterested, but was an attorney in the case throughout the proceedings (Laws 1935, Ex. Sess., chap. 19, sec. 15).
APPEAL from the Special Court of Jones county; HON. L.C. CORBAN, J.
Welch Cooper, and F. Holt Montgomery, all of Laurel, for motion.
No point was made in the lower court on the failure of the certificate to be executed by two independent attorneys. The point is being made here for the first time.
We submit that the existence of this certificate is essential to the jurisdiction of the special tribunal and since it is lacking the lower court was without jurisdiction and consequently this court is without jurisdiction and the cause will be dismissed because of the lack of jurisdiction.
Section 15, Chapter 19, Laws of Extraordinary Session of 1935; Hickman v. Switzer, case No. 33970, not yet reported.
The statute here involved prescribes that the petition "shall not be filed unless it bear the certificate of two practicing attorneys. . . ."
In view of this requirement and the decisions of this court we have urged that the certificate is essential to the jurisdiction of the lower tribunal and hence to this court. By way of analogy we call to the court's attention the certificate required under Sections 64 and 65 of the Code of 1930 which is to be attached to the record on appeal to the circuit court from a justice court.
This court has consistently held that a failure to attach the certificate deprived the circuit court of jurisdiction and since it had no jurisdiction this court had none.
McPhail v. Blann, 47 So. 666; Xydias v. Pellman, 121 Miss. 400, 83 So. 620.
Shannon Schauber, of Laurel, for appellant.
The appellant, W.A. Pearson, as contestant, protested before the Democratic Committee of Jones county the nomination of Bunk Jordan, candidate for supervisor of Beat 3 of that county. The Executive Committee declared the contestee the nominee. Thereupon the contestant filed his petition, with certificate attached, with the Circuit Clerk, seeking a hearing before the special tribunal provided in such cases by chapter 19, Laws of the Extra Session 1935. The certificate of two attorneys, required by section 15 of said act, was signed by A.B. Schauber and Charles C. Evans, as attorneys. Schauber undoubtedly was an attorney in the case throughout the proceedings, and is of counsel in the appeal to this Court.
Upon the filing with the Clerk of the Circuit Court of the petition for a hearing, the special tribunal was organized, and upon a hearing dismissed Pearson's cause, declaring Jordan the nominee. From the judgment of that tribunal the contestant, Pearson, has appealed to this Court.
The certificate of Schauber, given under section 15 of the act, was equivalent to no certificate at all, and does not comply with the requirement of that section, the material part of which reads as follows: "But such petition for a judicial review shall not be filed unless it bear the certificate of two practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based and that after such investigation they verily believe that the said protest and petition should be sustained and that the relief therein prayed should be granted, . . ."
In the case of Enoch Pittman v. Forbes, Miss., 191 So. 490, 491, decided by Division A., on October 23, 1939, this Court held that the certificate should be signed by unbiased lawyers; and that "Such a purpose eliminates attorneys who represent a contestant at the time their investigation of the matter is made, or at the time his petition for a judicial review is filed." In that case the Court had before it the question of the certificate, and the point had been made in the lower court.
In the case at bar the motion on behalf of the appellee, the contestee, is to dismiss the appeal, because there was no certificate which complied with the statute filed with the petition. The statute is mandatory that such petition shall not be filed unless on the certificate of two practicing attorneys, etc.
Section 15 (b) further provides: "Upon the filing of the petition [provided for in section 15] certified as aforesaid, and bond, the circuit clerk shall immediately," etc. These provisions show that the Clerk of the Circuit Court is not authorized to initiate proceedings to resent the complaint to a special tribunal, without the statutory certificate of two disinterested practicing attorneys.
It follows, therefore, that the special tribunal was without jurisdiction to hear and determine the cause; and that this Court is therefore without jurisdiction to hear it on appeal. The statute is mandatory, using as emphatic language as could be employed, under the circumstances.
We deem it highly important that this provision of section 15 should be complied with, not only for the reason assigned by this Court in the case of Pittman v. Forbes, supra; but for the further reason that expense is entailed, the presiding judge of another district is called upon to lay down his duties and attend upon the trial; and the county is required to pay certain expenses. The right of a contestee to an office to some extent is tainted by the proceeding; and it is important that this independent investigation should be made by disinterested attorneys, having no connection with the case. The certificate of the two disinterested attorneys is just as important as the petition itself, and is jurisdictional.
Without considering the merits of the controversy, the motion here is sustained, and the appeal is dismissed.
Appeal dismissed.