Opinion
No. 33718.
May 22, 1939. Suggestion of Error Overruled June 12, 1939.
1. ELECTIONS.
The provisions of the Code chapter on registration and elections should be read into and treated as a part of the chapter on primary municipal elections, so far as applicable (Code 1930, secs. 6250, 6301).
2. ELECTIONS.
The tie vote for office of marshal in second primary election conducted by town of Lambert should have been settled by lot and not by third primary election (Code 1930, secs. 2369 et seq., 5905, 5909, 6250, 6258, 6301).
3. ELECTIONS.
Where second primary election for marshal of the town of Lambert resulted in a tie vote, candidate, who presented to election commissioners a petition in writing signed by 88 qualified electors of the town asking that his name be printed on official ballot as candidate for office of marshal, was entitled to have his name printed on the official ballot as a candidate for the office in the general election, notwithstanding his participation in the primaries (Code 1930, secs. 2369 et seq., 5905, 5909, 6250, 6258, 6301).
4. ELECTIONS.
Where first and second primary elections for marshal of the town of Lambert resulted in a tie vote, election of candidate at third primary conducted by executive committee was void (Code 1930, secs. 2369 et seq., 5905, 5909, 6250, 6258, 6301).
5. QUO WARRANTO.
One who did not claim that he was elected to the office of marshal of the town of Lambert, but merely alleged as ground of contest that opponent was not, could not in private suit oust from office opponent who had been declared elected by the governing authorities, notwithstanding election of opponent was void, but remedy was by quo warranto, as question was public and not private and proceeding was required to be on behalf of the public (Code 1930, secs. 3053 et seq., 6258).
6. QUO WARRANTO.
An election contest by incumbent of the office of marshal of the town of Lambert against one who had been declared elected by the governing authorities could not be treated as a quo warranto proceeding, because not in the name of the state (Code 1930, sec. 3053 et seq.).
APPEAL from the circuit court of Quitman county; HON. WM. A. ALCORN, Judge.
Gore Strong, of Marks, for appellant.
Did the circuit court of Quitman County, Mississippi, have jurisdiction to determine the issues involved in this litigation in an election contest proceeding? This question must be answered in the affirmative.
Sublett v. Bedwell, 47 Miss. 266; Ex parte Wimberly, 57 Miss. 437; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; Loposser v. State ex rel. Gause, 110 Miss. 240, 70 So. 345; Warren v. State ex rel. Barnes, 163 Miss. 817, 141 So. 901; Section 3053, Code of 1930; 20 C.J. 213, sec. 271; Mitchell v. Finley, 161 Miss. 527, 137 So. 330.
Where two candidates receive the same number of votes, there is no choice or choosing, and consequently, no election.
20 C.J. 208, sec. 268; State ex rel. King v. Soloman, 82 Neb. 200, 17 Ann. Cas. 573.
Chapter 149, Code 1930, makes no provision for the holding of a third primary.
Section 5909, Code 1930, precludes the placing of a name of any candidate on the official ballot at a general election, nominated otherwise than as provided by the primary election laws, Chapter 149, Code of 1930.
Section 5905, Code 1930, makes primary election laws, Chapter 149, Code 1930, applicable to municipal primaries.
The provisions of law governing general elections, govern the holding of primary elections, unless otherwise provided by the primary election chapter 149 of the 1930 Code. Section 5864, Code 1930.
No method of breaking a tie vote as the result of a second primary is provided for by the primary election chapter in the 1930 Code. Therefore, the nominee of the Democratic party at the election in question should have been determined by lot, as provided by Section 6250 of the 1930 Code, instead of by the holding of a third primary.
Clearly the name of West should not have been printed on the official ballot used in the general election in question, by virtue of the prohibitory provisions of Section 5909, 1930 Code, he not having been nominated as provided by Chapter 149, 1930 Code, and the applicable statutes governing the holding and determination of the results of elections generally.
Hunt v. Mann, 136 Miss. 590, 101 So. 369; Ex parte Smith, 118 So. 306; 20 C.J. 146-7, sec. 171.
Was Omar precluded from becoming a candidate by petition for the office in question at the general election by reason of having participated in the first and second primaries, and refusing to participate in the so-called third primary? This question must be answered in the negative.
Ruhr v. Cowan, 146 Miss. 870, 112 So. 386; Board of Commissioners of Leon County v. State ex rel. Moore, 118 So. 313.
Clearly Omar was entitled to hold over until a successor has been legally elected and duly qualified.
Sec. 136, Constitution of the State of Mississippi; Sec. 2597, Code 1930.
The Circuit Court had jurisdiction and the right to issue the restraining order.
Sec. 742, Code 1930.
Sections 6258-59, governing the contest of elections, provide that the proceedings shall be conducted in the manner governing quo warranto proceedings; Section 3060, Code 1930, therefore, authorized the entry of the restraining order if the trial court, in its discretion, saw fit to do so.
Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; 50 C.J. 681, sec. 55, note 69; 46 C.J. 971, sec. 116; Roane, District Attorney, ex rel. Tunstall v. Matthews, 75 Miss. 94, 21 So. 665; Hutson v. Miller, 148 Miss. 783, 114 So. 820.
The appellant's main points are, first, that the holding of the third primary was not authorized by the primary chapter of the 1930 Code; that he was not bound by the results thereof, and was not thereby precluded from becoming a candidate by petition. Appellant Omar further contends that the placing of appellee West's name on the official ballot used in the general election in question, as the nominee of the Democratic party, was precluded by the plain terms of Section 5909, of the 1930 Code, and that by virtue of said Section 5909, appellee West is not entitled to the office even though ostensibly elected thereto. It will be noted by the court that counsel for the appellee has very little, if anything, to say as regards Section 5909 of the 1930 Code. Indeed, there is nothing he can say to aid appellee West in this controversy. That section, we think, was put in the code for the express purpose of preventing party committees from using unauthorized schemes or methods of nominating candidates. We think it is clear, and that no one will dispute, that it was the intent of the Legislature to provide for uniform means and methods for nominating candidates by party primaries; that the entire set-up and machinery for such primaries is contained in the primary chapter, 149, of the 1930 Code. The Legislature not only failed to provide for any discretionary methods of nomination candidates, but we think Section 5909 was added to this chapter of the Code, and to this legislation, for the express purpose of precluding discretionary and unusual schemes for the nominating of party candidates before the holding of the general elections. If this section of the Code means what it says, it, to our mind, settles this controversy in favor of the appellant; for certainly it cannot be argued that appellee West was nominated in a manner provided for by law. Appellant Omar further contends that the arbitrary refusal of the general election commissioners to place his name on the official ballot to be used in the general election in question, was such an irregularity as was condemned by this court in one of the cases cited in the brief of the appellee, to wit, that of State ex rel. Sowell v. Greer, 158 Miss. 315, 130 So. 482.
We submit that this record shows beyond all doubt that the voters of Lambert, Mississippi, were not afforded an opportunity to freely and fairly express their will and choose their marshal for that town. We hardly see how this court can escape that conclusion.
W.W. Venable, of Clarksdale, for appellee.
Appellant cannot question the validity of the third party primary.
It is settled law that the elections of political parties are non jural in character and the courts will not adjudicate on questions or contests arising therein, but such questions are to be settled by party authorities in such manner as they may choose if there be no statute regulating the matter.
State ex rel. Barbee v. Brown, 90 Miss. 876; Ramey v. Woodward, 90 Miss. 777.
Even though party elections are provided for and regulated by statute, if there be no specific statutory grant of jurisdiction to the courts to hear and determine election contests or questions, they will not assume jurisdiction so to do.
Howard v. Sheldon, 151 Miss. 284; State ex rel. Brewer v. Abbey, 82 Miss. 559; Ramey v. Woodward, 90 Miss. 777; State ex rel. Barbee v. Brown, 90 Miss. 876; Barnes v. McLeod, 165 Miss. 454.
Where a statute grants jurisdiction to the courts to view the action of party authorities, it is held to be the exclusive method for so doing.
Warren v. State ex rel. Barnes, 163 Miss. 817; Ex parte Wimberly, 57 Miss. 447; Bridges v. Clay County, 57 Miss. 252; Young v. May, 164 Miss. 35.
A statutory remedy is exclusive where the remedy is granted by the statute and no other remedies are saved.
G. S.I.R.R. Co. v. Oil Fertilizer Co., 172 Miss. 630.
Where a statute grants a right and by the same enactment provides a remedy, it is exclusive.
Hargrave v. Baskin, 50 Miss. 194.
Section 15, Chapter 19, Laws of 1938, known as the Corrupt Practice Act, provides the only and exclusive method of appeal from the action of party authorities, namely, to a special court before a judge for another district.
It follows that since appellant did not appeal from the action of the Democratic Party authorities either as to their decision in calling the third primary or in declaring appellee the nominee of the Democratic Party, their actions and judgments are final.
The third primary must be held to be legal and not open to attack.
While Section 6391 of the Code, the code chapter on registrations and elections, applies to all general and primary municipal elections, it is provided that this rule extends only as far as practical. While by Section 6250, Code of 1930, it is provided that in the event of a tie vote in a general election for county officers, it shall be settled by lot, the provision is not applicable to municipal elections.
The statute was not intended to apply to municipal elections. At the time this statute was passed, roads were poor, bridges were often bad, and in case of flood or bad weather, in an election covering so wide an area as a county, it would frequently afford no test in determining who was actually the popular choice, since so many voters would be kept away from the poles. An election at best would afford but a decision by chance. In this situation settling the tie vote frankly by lot would be no greater appeal to chance than if an election were held, with the added advantage of much expense saved.
Certainly chance ought not to be resorted to when the will of the people can be ascertained with a reasonable degree of certainty by an election where all who desire, can and will participate and thus express an actual and certain choice.
The statute is not applicable because by its specific terms it is confined to county officers, naming them. It specifically says "county officers."
Even if the third primary should be held to be contrary to the statutory method of deciding a tie vote, it would not vitiate the election.
Where there has been a fair attempt to comply with the requirements of law and no fraud has been practiced, elections should be given validity.
State v. Greer, 158 Miss. 315; Hunt v. Mann, 136 Miss. 590; State ex rel. v. Jones, 177 Miss. 598; Shines v. Hamilton, 87 Miss. 384.
The election commissioners rightly refused to place the name of appellant on the ballot in the general election.
Ruhr v. Cowan, 146 Miss. 870.
Our contention here is that the primary election statutes themselves forbad appellant's name to be placed on the ballot in the general election, he having participated in the Democratic primaries even though he did not participate in the third one.
Since party political action is final until set aside by some method provided by law, State ex rel. Barbee v. Brown, 90 Miss. 876, it follows that he is not relieved from allegiance because of some error of party authorities, real or supposed. His remedy is to have erroneous action corrected or set aside by appeal under Section 15, Chapter 19, Laws of 1938.
It is a firmly established general rule that objections to irregularities in the nomination of a candidate should be taken prior to election.
Territory ex rel. Willis v. Kanealii, 17 How. 243, 7 Ann. Cas. 837; State ex rel. v. Hall, 49 N.D. 11, 186 N.W. 284; State ex rel. Dithmar v. Burnell, 131 Wis. 198, 110 N.W. 177.
Voters finding the name of a candidate on a ticket may safely rely on the presumption that those in charge have done their duty.
Adair v. McElrath, 167 Ga. 294, 145 S.E. 841; Stackpole v. Hallahan, 16 Mont. 40, 28 L.R.A. 502.
We think it must be held, in the interest of orderly government, that the entry of one into a party primary and a submission of one's candidacy to party action is irrevocable, regardless of what party authorities do thereafter. If aggrieved, the law gives the remedy for redress with the party without the sacrifice of party allegiance.
Ruhr v. Cowan, 146 Miss. 870.
Title to office cannot be litigated in a statutory election contest where it depends on an issue other than that of who received the greatest number of legal votes.
May v. Young, 164 Miss. 35; Weisinger v. McGehee, 160 Miss. 424; Town of Sumner v. Henderson, 116 Miss. 64.
Appellee was entitled to be inducted into office and the court below was in error in the first instance in issuing the preliminary restraining order and in further error in continuing it to this time.
Yates v. Summers, 177 Miss. 252; Stevens v. Carter, 270 Or. 553, 31 L.R.A. 342; De Shazo v. Davis, 157 Va. 517, 81 A.L.R. 614.
It is earnestly requested that whatever else the court may pass upon on this appeal, that it pass upon the right of appellee at once to enter upon and hold the office. Appellant should not be permitted to exhaust the term of appellee by holding himself in and appellee out of office by litigation and restraining orders. If we be correct, appellee should be permitted at once to enter into office and then appellant may bring quo warranto against him, if he so desires.
May v. Young, 164 Miss. 35; Weisinger v. McGehee, 160 Miss. 424; Yates v. Summers, 177 Miss. 252.
Appellant, Omar, contested the election of appellee, West, to the office of marshal of the town of Lambert. The contest was under authority of Section 6258 of the Code of 1930 (Chapter on Registration and Elections). The cause was tried by the circuit judge on the pleadings and agreed facts, resulting in a judgment in West's favor. From that judgment, Omar prosecutes this appeal. Pending the appeal, West was enjoined from taking office until the final determination of the cause.
The grounds of contest were: (1) The action of the democratic executive committee of the town (both Omar and West being members of that party) in ordering a third primary election to determine which should be the nominee of the party, no nomination having been made in a first or second primary, there being a tie vote between Omar and West in the second primary, which Omar contended should have been settled by lot, as provided by Section 6250 of the Chapter on Registration and Elections, the third primary being without authority of law and void; (2) the action of the election commissioners of the town in refusing to print Omar's name on the official ballot as a candidate for the office in the general election, although he had complied in all respects with the statutes authorizing that to be done.
The facts are: Omar was the incumbent and had been for some time. His term was expiring on the first Monday in January, 1939. The town of Lambert is a Code Chapter municipality (Chapter 50, Code of 1930). Its officers therefore hold for two years.
Both parties were citizens and qualified electors of the town. Stone, Crothers, and Lamar were the election commissioners of the town. A democratic primary election was held for the nomination of candidates for the various offices of the town, including that of marshal. The time was September 20, 1938. The names of Omar and West, by proper procedure, were placed on the ballots as party candidates for nomination to the office of marshal. No nomination was made for that office in the first primary. They received the highest number of votes, and in a second primary ordered by the executive committee held on September 27, 1938, their names were printed on the official ballots as party candidates for nomination for the office. The result of the second primary was a tie vote between them. Therefore, there was no nomination. The party executive committee, without entering a formal order to that effect, held a third primary election for the purpose of settling the tie between the two candidates. Omar protested against that action, insisting that the tie be settled by lot. His protest and contention, although not reduced to writing and presented to the executive committee, was publicly and repeatedly made. He announced that he would not participate in the third primary and would not consent for his name to be printed on the ballots as a candidate. He published, posted, and circulated notices to that effect. In addition, he stated that he would be a candidate for the office in the general election to be held in December following. The result of the third primary was that West was declared the party nominee. More than fifteen days before the general election, which was held on December 13, 1938, Omar presented to the election commissioners of the town a petition in writing signed by eighty-eight qualified electors of the town, asking that his name be printed on the official ballots as a candidate for the office of marshal.
At a regular meeting of the election commissioners, held more than fifteen days before the general election, the prayer of Omar's petition was granted and an order was made requiring his name to be printed on the official ballots. Immediately after that action the mayor and board of aldermen held a meeting and entered an order removing the then election commissioners from office and appointing in their stead three others. More than fifteen days before the general election, Omar's petition, signed by the eighty-eight qualified electors, was presented to the new board of election commissioners. That board adjudged that the petition contained the names of more than fifty qualified electors of the town; that neither Omar nor any of the signers of the petition had participated in the third primary, but had participated in the first and second primaries, but refused Omar's request that his name go on the official ballots. From that order, Omar appealed to the circuit court. That court, on December 3, 1938, ten days before the holding of the general election, entered an order reversing the decision of the election commissioners and requiring them to place the name of Omar on the official ballots to be used in the general election.
West made application to the Supreme Court for an appeal from that order with supersedeas. It was denied by the circuit judge. The same application was then made to one of the judges of the supreme court, and by him granted. This occurred on December 12th, the day before the election. The election was held on December 13th, as provided by law (quoting from the agreed facts), "except that as to the office of marshal of said town plaintiff's name was omitted from the official ballot to be used at said general election and only the name of defendant, West, appeared on said official ballot as the candidate for the office of marshal of said town." In that election West received fifty-six legal votes. Thereupon a certificate of election was duly issued to him and and certified to the secretary of state. Less than one-third of the total registered qualified electors participated in the election. When the trial took place, West had not received a commission from the Secretary of State. On the application of Omar, West was enjoined from entering upon the discharge of the duties of the office until the final determination of this cause. From that order, West prosecutes a cross appeal. The appeal to the Supreme Court from the judgment of the circuit judge requiring Omar's name to be printed on the official ballots, which was superseded by an order of one of the Supreme Court Judges, was after the election dismissed because the questions involved had become moot.
Section 6301 of the Chapter on Registration and Elections provides that that chapter "shall apply as far as practicable to all general or primary municipal elections." Section 5905 of the Chapter on Primary Elections provides that that chapter so far as applicable shall govern municipal primary elections. Section 6250 of the Chapter on Registration and Elections provides, among other things, that where there is a tie vote the election shall be decided by lot drawn by the commissioners with the aid of two or more electors, freeholders of the county. Section 5909 of the Chapter on Primary Elections provides, among other things, that the name of any candidate shall not be placed on the official ballot in a general or special election as a party nominee, who is not nominated as provided in that chapter, and the election of any such person, who shall be nominated otherwise than therein provided, shall be void, and he shall not be entitled to hold the office to which he has been elected.
It appears manifest that the provisions of the chapter on registration and elections above referred to should be read into and treated as a part of the chapter on primary elections so far as applicable. That done, it follows that the tie vote in the second primary election should have been settled by lot and not by a third primary election. There is no authority of law for a third primary election for any purpose whatever. And furthermore, Omar was entitled by the petition he presented to have his name printed on the official ballot as a candidate for the office in the general election. His participation in the first and second primaries did not bar him from that course. He was not deserting his party. His party had ceased to function legally — had failed to make a nomination as provided by law. It went part of the way provided by law for the nomination of a candidate and stopped. Its action amounted to nothing. It follows that under Section 5909 of the Chapter on Primary Elections that West's election was void.
It does not follow, however, that Omar was entitled to contest his election Omar does not claim that he was elected to the office. His ground of contest is that West was not. Section 6258 of the Chapter on Registration and Elections provides, among other things, that the issue in the trial of an election contest shall be, which of the contestants received the greatest number of legal votes. Can a person, who makes no claim to have been elected to a certain office in a private suit, oust from that office one declared to have been elected by the governing authorities? We are of opinion that question must be answered in the negative. The only remedy is quo warranto, as provided by Chapter 59 of the Code of 1930. The question is a public and not a private one. Therefore, the proceeding must be on behalf of the public. May v. Young, 164 Miss. 35, 143 So. 703, lays down the governing principles. It expressly holds that quo warranto is the remedy. West, to sustain his contention, relies largely on Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338. We are unable to see any substantial conflict between that case and the May v. Young case. One of the grounds of contest in that case was, which of the candidates received the greater number of legal votes. We hold that although West's election was void, Omar is without remedy except by quo warranto. And further, that this action cannot be treated as a quo warranto proceeding because it is not in the name of the state which is required by the first section of the chapter on quo warranto (section 3053).
The result is the injunction issued is dissolved and the judgment affirmed.
Affirmed.