Barnes v. McLeod

• Citation: 165 Miss. 437,140 So. 740
• Decision Date: 11 April 1932
• Docket Number: 29800
• Court: United States State Supreme Court of Mississippi
• Parties: BARNES v. MCLEOD et al

140 So. 740

165 Miss. 437

BARNES v. MCLEOD et al

No. 29800

Supreme Court of Mississippi

April 11, 1932

Division B

1 EQUITY.

Chancery courts have only such jurisdiction as is expressly conferred by Constitution (Const. 1890, sections 156, 159-161).

2 INJUNCTION.

Suit to enjoin county election commissioners from placing Democratic nominee for county office on official ballots for general election because of fraud in primary election held not within jurisdiction of chancery court (Code 1930, section 6176 et seq.; Const. 1890, sections 156, 159-161).

3 PROHIBITION.

Office of writ of "prohibition" is to prevent inferior court or other tribunal from assuming jurisdiction with which it is not legally vested.

4 COURTS. Court of chancery, in suit wherein injunctive relief was sole relief sought, could not transfer cause to circuit court (Const. 1890, section 162).

Constitution 1890, section 162, provides, in substance, that all causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.

HON. T. PRICE DALE, Chancellor.

APPEAL from chancery court of Covington county, HON. T. PRICE DALE, Chancellor.

Suit by Willis J. Barnes against Mrs. Homer McLeod and others, County Election Commissioners of Covington county. From a decree sustaining a demurrer to the bill and dissolving a temporary injunctive, the complainant appeals. Affirmed.

Affirmed.

T. J. Willis, of Hattiesburg, for appellant.

Where a primary election is held and the executive committee meets the following day and declares the result of the election and determines the party nominee, the action of the committee in so doing is final unless, within the twenty days provided by law, a contest is filed charging fraud. When this contest is filed it vacates and sets aside and annuls the action of the committee in declaring the party nominee the day following the primary election.

Sec. 5896, Code of 1930.

This court has held that the action of the executive committee is final and that the court has no jurisdiction to determine a contest arising out of such primary election.

Ramsey v. Woodward, 90 Miss. 777, 44 So. 769; State v. Brown, 90 Miss. 876, 44. So. 769.

Neither can the court compel an executive committee, by mandamus, to canvass and correct the returns of a precinct.

State v. Brown, 90 Miss. 876; Section 5909, Code of 1930.

Barnes participated in the Democratic primary election. He was not eligible to a nomination by petition.

The election commissioners would have refused to place his name on the ticket. A mandamus to have his name placed on the ticket would not lie.

Ruhr v. Cowan, 146 Miss. 870, 112 So. 386; McKenzie v. Boykin, 111 Miss. 256, 71 So. 382.

Courts of equity have no jurisdiction to determine the rights of contestants in an election. The reason that courts of equity will not intervene to determine a contested election is because where the parties are voted for in the election held the courts of law offer a full and complete remedy by appeal in the election matters, or by quo warranto to determine the title to the public office.

Section 162 of the State Constitution.

This court held that the section is mandatory and the chancery court is not authorized to dismiss a suit where the circuit court has exclusive jurisdiction but must transfer it.

Murphy v. Meridian, 103 Miss. 110, 60 So. 48; Boyett v. Boyett, 152 Miss. 201, 119 So. 299.

A law court had no jurisdiction to grant relief to the appellant in this cause. Mandamus would not lie to compel the placing of Barnes' name on the ticket as the party nominee.

Ruhr v. Cowan, 146 Miss. 870.

Injunction is the proper remedy to restrain the printing of the names of the candidates on the ticket who are not entitled to have their names placed hereon.

State v. Moran, 24 Mont. 433; State v. Reek, 18 Mont. 557; State v. Rotwick, 18 Mont. 502; State v. Tooker, 18 Mont. 540, 18 L.R.A. 315; State v. Johnson, 18 Mont. 548; State v. Bailey, 18 Mont. 554; State v. Fisher, 18 Mont. 560; State v. Cunningham, 81 Wis. 504; Gilmore v. Maples, 188 S.W. 1037.

Meagher v. Howell, 186 S.W. 373; Neal v. Young, 75 S. W, 1082.

We submit to the court that in this proceeding that a court of equity had jurisdiction to restrain the election commissioners from inflicting an irreparable wrong to the appellant. By irreparable wrong we mean to say a wrong that the law courts offer no full, adequate and complete remedy in the premises. Having jurisdiction the injunction was properly granted.

We still adhere to and believe that the principles of equity above stated, should prevail and that appellant in this case should be successful in the injunction suit upon the principles upon which the case was filed and as thus far proceeded. However, we are not unmindful of the fact that the opinion of counsel is not and cannot be the law of the land except when it finds expression in the decision of this court. Acting upon the theory that the court had disagreed in a measure at least with our idea of law, we present this brief on the points called for as we would present it had the court already announced that injunction relief would not lie.

The writ of prohibition is a common-law writ of very ancient origin.

22 R. C. L., page 4, paragraph 3.

If the writ of injunction will not lie, then certainly, according to all the authorities, prohibition would be the proper remedy and would lie and would be the proper action in which to obtain the relief sought.

Section 2358, Code of 1930.

It will be seen that the proceedings laid down in the Code for mandamus will apply to petition for the writ of prohibition.

Section 2349, Code of 1930, Section 2350, Section 2351, Code of 1930, chapter 48 of Code of 1930.

It was the duty of the defendant on challenging the jurisdiction of the chancery court to make a motion to transfer to the circuit court.

Boyett v. Boyett, 152 Miss. 211; Sec. 163 of the Constitution; 765 and 766 of the Code of 1930; Section 767 of the Code of 1930.

It has been argued before this court and decided by it so many times that the manner and the method and who is the nominee of a party, is entirely left with the officers of the party organization, and we do not deem it necessary here to make an argument. The law governs and controls the executive committee of the party in the manner in which they shall nominate their candidates but the court has held and still holds that it is entirely a party matter as to the choice of the candidates.

The cause has never come up but in the judgment of the writer of this brief, if a doubt arises in the mind of the election commissioner as to who is the party nominee for any office, the duty would be to notify the chairman of the executive committee and have the executive committee meet and determine the question for the election commissioners. In the absence of such action on the part of the executive committee, then the candidates have open to them such recourse as this court may in this case point out which would be by injunction or prohibition.

Stevens & Heidelberg, of Hattiesburg, and E. L. Dent, of Collins, for appellees.

Regardless of whether the election commissioners, in determining whose name shall be placed upon the official ballot are acting in a ministerial, quasi-judicial or judicial capacity, it being a purely political question, a court of chancery is wholly without jurisdiction. Our further position is that the election commissioners act in a judicial or quasi-judicial capacity, and this being true, neither a court of chancery nor any other court can control or direct them in the determination of the question of whose name shall be placed upon the official ticket, and that if the courts have any jurisdiction at all, it is only by means of appeals to the circuit court.

Ex Parte Wimberly, 57 Miss. 437; Ex Parte Lehman, 60 Miss. 967; Gibbs v. McIntosh, 78 Miss. 648; Pearson v. Wilson, 57 Miss. 848.

Under our system of jurisprudence, the chancery court has only such jurisdiction as was conferred upon it by the constitution. All other jurisdiction, in matters civil and criminal not vested by the constitution in some other court is vested in the circuit court.

Section 156 of the Constitution; Secs. 159, 160 and 161 of the Constitution.

It is not the policy of this state to have elections and other political matters of government reserved to the legislative discretion interfered with by the judges and officers of the judicial department of the government, and it will only be done in a case where the legislature has not the power to authorize the holding of an election under the constitution, or where, having the power, they have exercised it in a way which is in plain violation of the constitution of the state, but in both instances it must appear from the act itself that it is unconstitutional.

Conner et al. v. Gray, 88 Miss. 489, 41 So. 186; Gibbs v. McIntosh et al., 78 Miss. 648, 29 So. 465; Power, Secretary of State, v. Ratcliff, 112 Miss. 88, 72 So. 864; courts of equity are only conversant with matters of property and the maintenance of civil right, and will not interfere to enforce or protect purely political rights. McAlester v. Milwee, 31 Okla. 620, 122 P. 173, 40 L.R.A. (N.S.) 576; Power, Secretary of State, v. Robertson, 130 Miss. 188, 93 So. 769; Griffith's Chancery Practice, section 435, page 457; Town of Sumner et al. v. Henderson et al., 116 Miss. 64, 76 So. 829; Native Lumber Company et al. v. Board of Supervisors of Harrison County et al., 89 Miss. 171, 42 So. 665; McHenry v. State, 44 So. 831; State of Mississippi ex rel., Barbee v. Brown et al., 90 Miss. 876, 44 So. 769; Brewer v. Abbay, 82 Miss. 559.

In the...