Hoskins v. Howard, 38478

• Decision Date: 26 May 1952
• Docket Number: No. 38478,38478
• Parties: HOSKINS et al. v. HOWARD et al.
• Court: Mississippi Supreme Court

Page 263

59 So.2d 263

214 Miss. 481

HOSKINS et al. v. HOWARD et al.

No. 38478.

Supreme Court of Mississippi.

May 26, 1952.

On Motion of Appellees June 9, 1952.

Nelson Taylor, Greenwood, Bernard W. Chill, Jackson, Julia Griffin, Jackson, Lester Wills, Meridian, J. A. White, Durant, for appellants.

W. E. Gore, Jackson, Lucien M. Gex, Bay St. Louis, T. N. Gore, Ney M. Gore, Jr., Marks, for appellees.

HALL, Justice.

Appellants on the one hand and appellees on the other constitute two warring groups, each of which claims the right to be registered under the name of the Republican party in this State. Chapter 458, Laws of 1950, provides that the chairman or secretary of the state executive committee of each political party chosen as provided in Section 3107, Code of 1942, as amended by Chapter 308, Laws of 1948, shall register the name of the political party it represents with the Secretary of State within thirty days after the effective date of the act and that thereafter no political party shall use or register any name or part thereof which has already been registered with the Secretary of State by any other political party.

In 1928 appellants perfected an organization which they named the Independent Republican Party of Mississippi. Appellees prior to that time and since have constituted an organization which they named Republican Party of Mississippi. Each group has regularly held precinct, county and state conventions in accordance with the provisions of Section 5866, Code of 1930, which has been brought forward as Section 3107, Code of 1942, and amended by Chapter 308, Laws of 1948. As a matter of history both groups have from time to time selected candidates for many of the public offices of the State and invariably the group represented by appellants has overwhelmingly polled a greater number of votes than the group represented by appellees. Notwithstanding this, the delegates to the Republican National Convention selected by the appellees have been recognized by that convention as representing the party in Mississippi.

After approval of Chapter 458, Laws of 1950, J. A. White, as the Secretary of the State Executive Committee composed of appellants, filed with the Secretary of State an application for registration of his group under the name of Mississippi Republican Party. A few days later this application was amended and thereupon the party was registered by the Secretary of State. Subsequent thereto C. T. Butler, as Secretary of the State Executive Committee composed of appellees, filed with the Secretary of State an application for registration of his group under the name of Republican Party of Mississippi and this application was denied by the Secretary of State for the reason that he is prohibited by said Chapter 458, Laws of 1950, from registering a second group using the word 'Republican.'

Appellees then brought suit in the circuit court of Hinds County seeking a writ of mandamus to compel the Secretary of State to cancel the registration of appellants and to register them as the Republican Party of Mississippi. The pleadings were subsequently amended so as to pray for a writ of certiorari commanding the Secretary of State to bring up the records of his office and for an adjudication by the trial court that because of error apparent upon the face of the record appellants were not entitled to registration. The writ was granted, the records brought up, and upon a hearing the trial court held that appellants were not entitled to registration and were improperly registered by the Secretary of State for the reason that they had changed their name from Independent Republican Party to Mississippi Republican Party. The registration by appellants was accordingly cancelled and the appellees were ordered registered as the Republican Party of Mississippi. From that order this appeal is prosecuted.

The records show affirmatively that the organization represented by appellants has been duly organized by precinct meetings, county conventions and state conventions. This does not seem to be seriously questioned by appellees. The learned trial court, however, found error of law upon the face of the record for the reason that the organization represented by appellants changed its name after the happening of the events required to be performed in 1948, and upon this sole ground entered the order from which this appeal is prosecuted. The record shows affirmatively, and it is not questioned, that the appellants in state convention, duly held in accordance with the law of this State, adopted a resolution providing that from and after the presidential election of November 2, 1948, the name of Independent Republican Party of Mississippi be changed to Mississippi Republican Party as the successor to said Independent Republican Party of Mississippi. This resolution did not in any manner change the organization or the membership or the officers and representatives of the group. It changed the name and nothing else, and in so doing it did not appropriate the word 'Republican' for it had already been using that word for more than twenty years. For that period of time confusion had existed in this State in the use of the word 'Republican' for the two rival groups had been using it continuously. Similar confusion had arisen in more recent years as to which of two rival groups were entitled to use the word 'Democratic' in the designation of their respective organizations and it was apparently for the purpose of bringing order out of chaos that the Legislature adopted the aforesaid Chapter 458, Laws of 1950.

We are of the opinion that the mere change in name of the appellants from Independent Republican Party of Mississippi to that of Mississippi Republican Party without any change whatsoever in the organization is not such a change as would justify a rejection of their application for registration and that the lower court erred in its holding. The 1950 statute provides that when one party registers with the Secretary of State, thereafter no political party shall use or register any name or part thereof which has already been registered. If appellants had not adopted a resolution making the aforesaid change in its name and had registered under their former name of Independent Republican Party the appellees would not have been entitled to register as the Republican Party of Mississippi. The change in name by appellants was effected by a resolution duly adopted by its state convention nearly two years before pasage of the 1950 act, and such change could not by any stretch of the imagination have been declared for the purpose of coming under the act. The appellants were the first to register under the 1950 act and the fact that they changed the party name in the particulars stated does not bar them from such registration. The Secretary of State under this act has 'the power to hear evidence and decide facts. He proceeds upon inquiry and determines facts and in our judgment is an inferior tribunal having quasi-judicial powers.' Power v. Robertson, 130 Miss. 188, 223, 93 So. 769, 772. The records brought up under certiorari fully support his action in registering the party represented by appellants as the Mississippi Republican Party. We are of the opinion that the mere change in name by this organization which has used the name 'Republican' for more than twenty years and which under the change continues to use that designation is not sufficient to justify the action of the lower court in ordering its registration cancelled and in ordering the organization represented by appellees to be registered as the Republican Party of Mississippi.

In connection with a consideration of the matters presented by this appeal we think that some significance should be given to Section 7 of the 1950 act. By that section it is provided that 'The ballot shall contain the names of each candidate for each office and such names shall be listed under the name of the political party such candidate represents', etc. So far as has come to our attention, the first time Mississippi ever had a law requiring the names of candidates to be listed under the name of the political party represented by them was Chapter 312, Laws of 1948, and that statute applied only to candidates for presidential elector. Prior to the passage of the present act the names of all candidates for public office were listed on the official ballot without any designation as to the political party represented by them. Not only illiterate people but even well educated people who desired to vote a straight party ticket were often in doubt as to which of the candidates were selected by the party of their choice. Many, if not most, of the states have long since enacted laws providing that candidates shall be listed on the official ballot under the name of the party which selected them. The enactment of such laws is clearly within the power of the Legislature. As was said by the Supreme Court of Wisconsin nearly fifty years ago in the case of State ex rel. Cook v. Houser, Secretary of State, 122 Wis. 534, 100 N.W. 964, 972, 'So the plan for an official ballot, and opportunity for party representation thereon, are matters of legitimate legislative creation; hence the conditions of party representation upon such ballot are purely within legislative control.' In this same case it was further said, 'The right to have the names of party nominees put on the official ballot under the party name is a right not existing at common law, but created by the statute.' 100 N.W. 984.

The 1950 law does not prevent the organization of new parties for in the last paragraph of Section 1 thereof it is expressly provided that registration may be made by any political party hereafter organized. Moreover, it does not prevent any person from becoming a candidate for office for our law still remains in effect that candidates may be selected by political parties and in addition thereto candidates may...