Howard v. Sheldon

• Decision Date: 14 May 1928
• Docket Number: 27217
• Citation: Howard v. Sheldon, 151 Miss. 284, 117 So. 839 (Miss. 1928)
• Court: Mississippi Supreme Court
• Parties: HOWARD et al. v. SHELDON et al. [*]

117 So. 839

151 Miss. 284

HOWARD et al. v. SHELDON et al. ^[*]

No. 27217

Supreme Court of Mississippi

May 14, 1928

Division A

Suggestion of Error Overruled Aug. 1, 1928.

APPEAL from chancery court of Forrest county, HON. T. P. DALE Chancellor.

Suit by George L. Sheldon and others against Perry W. Howard and others. From decrees overruling defendants' demurrer and a motion to dissolve a temporary injunction, defendants appeal. Decrees reversed, injunction dissolved, and cause remanded.

Decree reversed, injunction dissolved, and cause remanded.

J Morgan Stevens and J. H. Howie, for appellants.

The bill shows upon its face that this is a contest between rival factions of a political party, in reference to the holding of party conventions preparatory to the nomination of parties as presidential electors, as members of the state, execution committee, etc. It is well settled that equity has no jurisdiction of political questions of this nature. This is put beyond question by the following authorities: Ramey v. Woodward, 90 Miss. 777, 44 So 769; State v. Brown, 90 Miss. 876, 44 So. 769; Power, Sec. of State, v. Ratliff, 112 Miss. 88, 72 So. 864; Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829; Donald v. Stauffer, 140 Miss. 752, 106 So. 357; McKee v. Hogan, 145 Miss. 747, 110 So. 775. See Thompson v. Mahoney, 136 Ill.App. 403; McAlester v. Milwee, 31 Okla. 620, 122 P. 173, 40 L. R. A. (N. S.) 576; State ex rel. Cranmer v. Thorston, 9 S.D. 149, 68 N.W. 202, 33 L. R. A. 582; Duggan v. City of Emporia, 84 Kan. 429, 114 P. 235, Ann. Cas. 1912A 719; Harrison v. City of New Orleans, 33 La. Ann. 222, 39 Am. Rep. 272; Fletcher v. Tuttle, 151 Ill. 41, 37 N.E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220; Shomaker v. Des Moines, 3 L. R. A. (N. S.) 382; Peyton v. Vardaman, 103 Miss. 164; State ex rel. Smith v. Kanawha County, 20 A. L. R. 1030; Mead v. Stirling, 62 Conn. 586, 23 L. R. A. 227; Bonifaci v. Thompson, 252 F. 878; Nohl v. Board of Education, 199 P. 373, 16 A. L. R. 1085; Ex parte Sawyer, 124 U.S. 201, 31 L.Ed. 402; State of Mississippi v. Johnson, 4 Wall. 475, 71 U.S. 437, 18 L.Ed. 437; State v. Frazier, 114 Tenn. 520, 86 S.W. 320; State v. Dunbar, 48 Ore. 111; 85 P. 338; Anthony v. Burrow, 129 F. 790; In re Miller, 5 Mackey (D. C.) 512; Schieffelin v. Komfort, 212 N.Y. 531, L. R. A. 1915D 485; Copeland v. Olsmith, 33 Okl. 107, 124 P. 33; Frantz v. Autry, 18 Okl. 607, 91 P. 209; Taylor v. Kercheval, 82 F. 499; Guebelle v. Epley, 1 Colo.App. 204, 28 P. 91; Bates v. Taylor, 87 Tenn. 330, 3 L. R. A. 319; Gibbs v. Green, 54 Miss. 612; Patterson v. Barlow, 60 Pa. St. 75; People v. Barrett, 203 Ill. 103, 96 Am. St. Rep.--; Morgan v. Nunn, 84 F. 554; Weaver v. Toney, 107 Ky. 435, 54 S.W. 737; Walls v. Brundidge, 109 Ark. 258, Ann. Cas. 1915C 980; Arnold v. Henry, 155 Mo. 54, 78 Am. St. Rep. 559; Winnett v. Adams, 71 Neb. 824, 99 N.W. 684; White v. Berry, 171 U.S. 376, 43 L.Ed. 203; Giles v. Harris, 189 U.S. 475, 47 L.Ed. 909.

Counsel for complainants rely upon Nixon v. Herndon, 273 U.S. --, 71 L.Ed. 759. This case is easily differentiated on the following grounds: 1st. A state statute of Texas enacted in May, 1923, expressly providing among other things, "In no event shall a negro be eligible to participate in the democratic party primary election held in the state of Texas." And this state statute was attacked as unconstitutional under the Fourteenth and Fifteenth Amendments to the Constitution of the United States. There is no contention in the case at bar that any law is unconstitutional and as a matter of fact the complainants themselves are violating the very spirit and the principles involved in the Nixon case. 2nd. The suit in the Nixon case was a suit for damages in a law court and did not involve equity jurisdiction. There was no effort to seek injunctive relief or to stop the holding of any conventions or any election. The case does not touch the case at bar top, side or bottom. Mr. Justice HOLMES, who wrote the opinion in the Nixon case also wrote the opinion in the Alabama case, above, expressly holding that equity has no jurisdiction. It is perfectly manifest from the foregoing authorities that the injunction sued out in this case is without authority of law, that equity has no jurisdiction, that the preliminary order is void, and that the injunction should be dissolved and the bill dismissed.

A full and complete answer was filed denying the material allegations of the bill and in addition thereto special grounds of demurrer to the bill were assigned as a part of the answer. This practice is expressly authorized by section 12 of the reformed chancery practice act, to-wit, chapter 151, Laws of 1924. See 32 C. J. 394, sec. 66; Pomeroy, par. 1685. p. 3939; 32 C. J. 399; Portwood v. Feld, 72 Miss. 542; Freeman v. Lee County, 66 Miss. 1; Davis v. Davis, 65 Miss. 498; Sinking Fund Commissioners v. Patrick, S. & M., ch. 110; Moore v. Caldwell, Freem. Ch. 222, and 5 Pomeroy's Eq. Jur., sec. 333.

Our court has expressly ruled that the acts of de facto officers are valid and that equity will not intervene by injunctive relief to restrain any de facto officer and that the sole remedy is quo warranto. We say, therefore, that, even though the chairman or any member of the state committee had not been properly selected as such, the title to his position, whether we call it an office or not, cannot be questioned by injunction. The complainants had a remedy under any conceivable case. If the state committee was not properly constituted and was not in fact the regularly constituted and lawful executive committee of the party, its action would be a nullity and if there was another duly constituted state committee the proper committee could act and the rights of the complainants thereby be protected. But it is interesting to observe that neither the original bill of complaint nor anything in the proof challenges the fundamental fact that the call here enjoined was by, and the suit here filed was against, the only Republican State Committee having power to act. The defendants are sued as the regular committeemen, respectively, state and county. There is no allegation that a majority of the state committee are disqualified. There is no allegation that a majority of any county committee were disqualified. There is an allegation that Perry W. Howard, chairman of the state committee, is disqualified by virtue of his position as assistant attorney-general of the United States. But, even if Perry W. Howard, is for any reason disqualified, he is nevertheless the active state chairman and the National Committeeman from Mississippi of and for the Republican Party and therefore as a de facto chairman his acts are valid and cannot be challenged by injunction. In the second place, there is no allegation in the bill that there is any other chairman other than Perry W. Howard.

Furthermore, we submit that although the committees are disqualified as such for any reason, the validity of their acts should be questioned after and not before the conventions are held. To illustrate, if a beat convention is not held according to law, the delegates selected at such beat convention could be challenged at the county convention, and if in turn a county convention is unlawful, delegates from the county convention to the state could be challenged at the state convention, any of the complainants, therefore, had this remedy open to them. If the state convention is incompetent to act, or, if being competent, acts in an unlawful, manner, their acts could subsequently be questioned by challenging the parties they select, whether as new committeemen or as presidential electors. Whether this suit was filed, of course, no conventions had been held and no parties are designated to go on the ballot at the next general election as presidential electors, and, therefore, complainants are in the attitude of howling before they are hit and in assuming, that the law is going to be violated before the people take any action whatsoever. The sworn answer denies that Perry W. Howard holds an office of profit or honor; denies that he is assistant attorney-general, but does admit that he is a special assistant to the attorney-general designated to handle cases assigned to him. His status therefore is not that of a public officer but a special counsel employed by the Federal Government under the direction and control of the attorney-general and subject to dismissal at any time.

There is no law which forbids an officer of the United States Government from acting as a party committeeman in Mississippi; and as a matter of common knowledge and party precedent the Democratic Party usually sends the two United States Senators and the Governor as delegates at large from the state of Mississippi to the National Democratic Convention because of their prominence in the party and their position to lead the party aright on national policies.

The position of a committeeman of a party is not an officer. It is a mere party position. A committeeman of the Republican Party, is not answerable to the whole people of the state and certainly in a solid democracy the chairman of the Republican State Committee in Mississippi does not represent the people of Mississippi generally and is not an officer by virtue of being chairman of a political party committee.

The bill of complaint is styled: "In the chancery court of the Tenth chancery district of the state of Mississippi." There are many counties in the Tenth chancery court district. Some of the defendants live in each of the counties of said district. If the court had jurisdiction of the subject-matter, then under the theory of the complainants this bill could have been filed in any one of said counties. There is no such thing as "the chancery c...