Opinion
No. 32062.
December 9, 1935.
1. ACTION.
Courts will not adjudicate moot questions nor render judgments which are unenforceable.
2. APPEAL AND ERROR.
Where court could enter no judgment in proceeding to restrain election commissioners from ordering printing and distribution of official ballots for general election which could be enforced, because time for holding general election was provided by Constitution, appeal in such proceeding was dismissed as involving a moot question (Const., section 102).
APPEAL from the circuit court of Harrison county; HON.W.A. WHITE, Judge.
Bidwell Adam and Mize, Thompson Mize, all of Gulfport, for appellee.
The law is well settled in this state, as well as in practically every state in the union, that the court will not consider a question that is moot. The act that the petition seeks to have done could not possibly be done by any order this court could possibly make in this case.
Pafhausen v. State ex rel. Loposer, 47 So. 879; State ex rel. Knox v. Board of Supervisors of Pearl River County, 115 So. 343; McDaniel v. Hurt, 92 Miss. 197, 41 So. 381; McInnis v. Pace, 78 Miss. 550, 29 So. 835; Young v. Olsen, 115 N.W. 1020; Edwards v. Welch, 116 P. 791; Barbee v. Howard, 66 S.E. 1002; Meyer v. Farmers' State Bank, 103 N.E. 97; State ex rel. Romain v. Board of Supervisors of Election, 21 So. 731; Gautier v. Berthelot, 75 So. 811; Hollander v. Bailey, 87 So. 234; Tyler v. Peacock, 124 So. 463; Wetherell et al. v. Thursby, 129 So. 345; State ex rel. Howie v. Brantley, 94 So. 793.
There is no order that this court could possibly make that could grant the appellants the relief they are seeking. The only relief they are seeking is to have the name of Herman Sellier placed upon the official ballot to be used in the general election held on November 5, 1935. That date has passed, and it is now utterly impossible to grant the relief they seek, and if there was ever a moot question presented to any court by a petition, certainly this petition presents that moot question.
J.F. Galloway, of Gulfport, for appellants.
The court is here called to decide whether the election commissioners and the lower court exceeded their jurisdiction in declining to place the name of Sellier on the ticket, where his petition had been signed by sixty-eight qualified voters, resident citizens of the district in question, and filed with the election commission more than fifteen days before the general election.
Primary laws, chapter 149, Code of 1930, are mere party regulations, by-laws of the parties who may care to adopt or use them, but have not the force of laws recognizable or enforceable by the courts of this state, since 1906.
Counsel for appellees advanced the proposition that the question now pending before the court is moot. Because it has so happened that before we could get this case for a hearing in this court, an election had taken place in Harrison county, at which election the name of E.J. Adams, Sr., was placed upon the official ballot, thus leaving out of consideration that Sellier also had a right to have his name on that same official ballot, also to be submitted to the electorate, but this was denied him by the wrongful act of the board of election commissioners.
If Sellier had a right to have his name on the official ballot at the election held on November 5, 1935, and that right has been wrongfully denied him, by the act of the election commissioners, then there was no election in district No. 3 of Harrison county, Mississippi, on that date for a member of the board of supervisors.
The so-called election for that office was a mere moot election.
Where a request is made of a public officer to perform an act under a statute, and he refuses its performance because of a doubt on the subject, and because he wishes the question to be quickly and finally settled by a decision of a court, a proceeding brought by the state to compel such action on his part, is not fictitious.
3 Words Phrases (2 Ed.), page 442.
It is the mandatory duty, under sections 6263 and 6267, Code of 1930, of said officers to so conduct a special election, to fill that vacancy.
Counsel for appellee cites cases on moot questions, however, none of these decisions in any way approach the conclusion, which counsel for appellee have attempted to draw therefrom.
The term of office involved in the present case does not begin until the first Monday in January, 1936, about forty-five days hence, and will continue for four years thereafter.
The present incumbent of the office is entitled to hold the same until a legally elected officer presents himself to take charge.
In the Howie v. Brantly case the term of office had already expired. It is there held by the court: "A petition and motion to re-instate a cause involving the right to hold an office will be overruled when the term of office, claimed by the petitioner, has already expired." The term having expired, clearly all rights to either of the parties to hold office during such term would be lost without the necessity of citing authority. But that is not the case presented by this appeal; the term of the office has not begun, and no election has legally been held.
This is a motion to dismiss an appeal from an order of the circuit judge of the coast district refusing to grant appellants a writ of prohibition restraining appellees from putting into effect their order directing the printing and distribution of the official ballots to be used in the general election to be held on November 5, 1935, for the election of a member of the board of supervisors for the third district of the county. The petition for the writ was filed with the circuit clerk on the 26th day of October, 1935, and on the next day presented to the circuit judge and the writ refused.
The petition alleged, in substance, that appellees were the election commissioners of Harrison county; that appellant Herman Sellier was a qualified elector of the county and was the owner of real estate of the value of three hundred dollars, unencumbered, situated in the third supervisor's district; that he had been requested to become a candidate for the office of a member of the board of supervisors for the third district at the election to be held on November 5, 1935; that a petition had been presented to appellees on the 21st day of October, 1935, signed by sixty-eight qualified electors of the district, requesting that the official ballot contain his name as a candidate; that appellees met and considered the petition, and found, among other things, that appellant Sellier did not participate in the Democratic primary election held for the nomination of candidates for the office, but that sixty-four of the signers of the petition had participated therein, and for that reason appellees had decided that he was not entitled to have his name on the official ballot. The petition alleged further that the names of those nominated in the Democratic primary as candidates for the different public offices to be submitted to the electorate at the general election on November 5th had been turned over to the official printer, and the ballots were to be printed on October 29th, and the name of appellant Sellier would not be placed on the ballot; that appellants were without remedy by mandamus, appeal, certiorari, or any other proceeding, except by writ of prohibition; that the remedy of mandamus could not be used for the reason that appellees, as the election commissioners, had acted finally, and that "the attorney-general had declined to permit the use of his name therein;" that no other public officer properly qualified therefor would permit the use of his name, and therefore appellants were precluded from a vacation hearing; that the next term of the circuit court of the county would be held on the first Monday in December next, and by that time it would be too late — the election would have been already held. The petition to appellees was made an exhibit to the petition for writ of prohibition.
We pass the question whether the refusal of the circuit judge to issue the writ is an appealable order, as well as other questions raised, and go to appellees' contention that the questions involved are moot. There is no principle of law better established than that courts will not adjudicate moot questions; that they will only decide real controversies, not imaginary ones; and that no judgment will be rendered which is unenforceable and therefore useless. Pafhausen v. State, 94 Miss. 103, 47 So. 897; State ex rel. Knox v. Board of Supervisors of Pearl River County (Miss.), 115 So. 343; Yates v. Beasley, 133 Miss. 301, 97 So. 676.
It is at once apparent that it would be utterly impossible for this court to enter any judgment which could be enforced. The questions are dead questions. The court will not do a vain thing. Section 102 of the Constitution provides that all general elections for state and county offices shall be held every four years on the first Tuesday after the first Monday in November until altered by law. The courts, of course, are powerless to order a general election to be held at any other time.
Motion sustained.