Opinion
No. 33950.
October 23, 1939.
1. ELECTIONS.
The purpose of statutory provision requiring petition for judicial review of order of executive committee of political party declaring party nominee to bear certificate of two practicing attorneys that they have made independent investigation and believe that petition should be sustained is to prevent persons declared party nominees from being harassed with trivial applications for judicial review and contemplates, since the word "independent" connotes a certificate by lawyers who are without bias or prejudice (Laws 1935, Ex. Sess., chap. 19, sec. 15).
2. ELECTIONS.
Under statute requiring petition for judicial review of order of executive committee of political party declaring a party nominee to bear certificate of two practicing attorneys that they have made independent investigation and believe that petition should be sustained, certificate signed by attorneys representing petitioner was insufficient since the "independent" requirment eliminates attorneys who represent a contestant (Laws 1935, Ex. Sess., chap. 19, sec. 15).
APPEAL from special court, of Marion county; HON.W.J. PACK, J.
G. Wood Magee and Shirley Magee, both of Monticello, for appellant.
The petition in this cause, as we think, charges gross violations of the Corrupt Practices Act, Chapter 19, Laws of Mississippi, 1935, Extraordinary Session. If the allegations of the petition are true, it goes without saying that the election was void and should be held void by the court. However, the only question involved in this appeal is whether or not that part of Section 15, Chapter 19, Laws of Mississippi, 1935, Extraordinary Session, relative to the certificate required was complied with.
This provision of the statute is 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 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 said protest and petition should be sustained and that the relief therein prayed for should be granted."
The special trial judge in passing upon the demurrer to the petition held that the case of Pittman v. State, 155 Miss. 745, was applicable to the issue raised by the demurrer and sustained the demurrer and dismissed the petition.
In our judgment there is a wide difference in a certificate required to be signed by attorneys to a bill of exceptions, as in the Pittman case, supra, and the certificate required by and under the provisions of the Corrupt Practices Act.
The certificate required by the Corrupt Practices Act is made and required to be filed before the trial is commenced and contemporaneously with the filing of the petition before any of the incidents of the trial occur. It is merely a certificate by two attorneys that they have made an independent investigation, etc. If the ruling of the Special Judge is correct, then the attorneys who made the investigation independently and signed the certificate could not afterwards appear as counsel for the contestant. Lawyers, as a rule, do not investigate a case unless they are paid to do so, and if the word "independent" is given the meaning the trial judge gave it, then the contestant would have to employ at least two lawyers to make "independent investigations," and then employ another to try his contest, — and we seriously doubt, if the trial judge's holding is correct, that an investigation by two employed attorneys would be held to be "independent," even though they went no further with the matter.
In this case, we submit that the court should and will look to the purpose which the Legislature intended to accomplish by the passage of the Corrupt Practices Act and will not permit an unreasonable construction of the statute to defeat its purpose. An unreasonable construction should never be placed upon a statute, nor should a useless provision in a statute ever be allowed to destroy its wholesomeness. The provision in the statute requiring a certificate of any kind, or by any one, is wholly useless, because the trial tribunal is not required to be governed by the certificate, nor, so far as we can see, even influenced by it in the least. The trial tribunal is merely to hear, examine into, and pass upon the facts presented and say whether or not the Corrupt Practices Act has been violated.
In fact, the certificate required by the statute is not worth the paper it is written on, unless it can be said that the trial tribunal needs the moral support of at least two practicing attorneys to brace him in the discharge of his duties while out of his judicial district. But, of course, this is no good reason for the provision in the statute, and we venture to assert that no one can really assign a good reason for the provision.
Rawls Hathorn, of Columbia, for appellee.
The only question for decision in this appeal is whether or not the certificate required by Section 15 of the Corrupt Practices Act may be made by the two attorneys for the contestant and who initiated the original contest for him before the Executive Committee, and which attorneys appeared for him in the hearing before the Committee and conducted the trial of the contest before said Committee and who represented him in the hearing in the lower court and who now represent him in this court.
It was the unanimous opinion of the trial judge and the Election Commissioners of the county, amongst whom is one of the leading attorneys of the state, that the certificate could not be made by attorneys interested in the result of the judicial review granted by the statute only upon there being filed with the petition for review "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 for should be granted."
The lower tribunal held that the filing of the certificate was and is jurisdictional and since the certificate filed did not comply with the statute the lower tribunal was without jurisdiction to hear the petition for review.
We submit that the word "independent" used in the statute has no doubtful meaning, and it is certain that the Legislature used it advisedly.
The court will observe that this "independent investigation into the matters of fact and of law" is not made until after the hearing before the County Executive Committee. One very controlling reason why the independent investigation is made after the hearing before the Committee is that the investigating attorney may have knowledge of the facts not only as alleged by the contestant in his contest as filed before the Committee, but of far more importance, the facts as actually proven by the contestant before the Committee, and then such certifying attorney can and will apply the facts as proven on the hearing before the Committee to the law as found in the statute books and with the facts so applied to the law say or certify that in his judgment the petition and contest should be sustained.
Pittman v. State, 155 Miss. 745, 124 So. 761.
It would certainly be a farce to say that this controversy could be settled and the acts of the Committee be condemned by the attorneys who represented the complaining party; by the attorneys who advised him in the outset that there was merit in his contest; who argued before the Executive Committee that the relief prayed for should be granted.
It seems clear to us that the purpose and intention of the Legislature was to prevent appeals from the decision and finding of the Executive Committee, except in those cases where two attorneys entirely disconnected with the controversy, either pro or con, would, after investigation and after trial before the Committee, certify that there was, in their opinion, merit in the petition for review.
We have examined the Mississippi authorities and the only case that we find, which in our judgment is not only persuasive but conclusive, is the case of Pittman v. State, supra.
We call to the attention of the court the case of Neal v. Black (Penn.), 34 L.R.A. 707. The court in defining "independent advice" said, "But it is claimed that Neal did not have proper counsel and advice and that the deed should be revoked, if for no other reason because Neal acted `without any independent advice'. Some of the cases say that this of itself is sufficient ground for setting aside a voluntary deed. What is independent advice? We think an examination of the cases will show that the word is used as a synonym of `impartial'. One of the definitions of the word is, `not subject to bias or influence'".
Post v. Hagan (N.J.) 124 A.S.R. 997; Stack v. Rees, 69 L.R.A. 393.
The appellant filed a petition with the Clerk of the Circuit Court of Marion County for a judicial review of an order of the Democratic Executive Committee declaring Forbes the party nominee for the office of Supervisor of District 4 of that county. The attorneys who filed the petition for the appellant, filed also therewith a certificate signed by them that "we verily believe that the said protest and petition should be sustained, and that the relief therein prayed for should be granted". On a proper objection thereto, this petition was dismissed by the judge appointed to try the case on the ground that the certificate filed therewith did not comply with the requirement therefor of Section 15, Chapter 19, Laws Ex. Sess. 1935. That section provides "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, . . ."
The purposes of this provision of the statute is to prevent persons declared party nominees from being harassed with trivial applications for a judicial review thereof, and contemplates, as the word "independent" connotes, a certificate by lawyers who are without bias or prejudice. 31 C.J. 473. 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.
Affirmed.