McHenry v. State

• Decision Date: 18 November 1907
• Docket Number: 12956
• Citation: 44 So. 831,91 Miss. 562
• Court: Mississippi Supreme Court
• Parties: GEORGE A. MCHENRY ET AL. v. STATE OF MISSISSIPPI

44 So. 831

91 Miss. 562

GEORGE A. MCHENRY ET AL. v. STATE OF MISSISSIPPI

No. 12956

Supreme Court of Mississippi

November 18, 1907

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

The appellants, G. A. McHenry and E. M. Barber, having been adjudge guilty of contempt of court and sentenced to pay a fine and to be imprisoned in the county jail, appealed to the supreme court.

An election was held under ch. 167, p. 185, Laws 1906, providing for the submission to the voters of a designated part of Harrison county the question of a division of the county into two court districts. The election commissioners met and canvassed the returns of the election, and claimed that they had certified the returns to the board of supervisors. The board of supervisors failed to take any steps touching the subject-matter, and certain citizens of the county petitioned the circuit court for a writ of mandamus to compel the board of supervisors to meet and act upon the alleged report of the commissioners of election and consummate the establishment of the second court district of the county. The board of supervisors, without answering the petition, made a motion for an order of court directing the issuance of a subpoena duces tecum commanding McHenry, chairman of the election commission, to appear and deposit with the clerk of the court the ballot boxes, tally sheets and tickets comprising the returns of the special election in order that the board of supervisors might inspect the same and thereby be enabled to plead. The court sustained the motion, over the objection of counsel for the petitioners, and ordered McHenry to produce the ballots and other data constituting the returns of the election. McHenry sought the advice of an attorney, Barber who advised that the court was without authority to issue the order, and thereupon McHenry declined to produce the ballot boxes and returns. In response to an order directed from the circuit court to show cause why they should not be held in contempt of court, Barber answered that the court had no authority, under the facts alleged in the pleadings to force the appellant, McHenry, to produce the returns for the purpose of enabling the board of supervisors to plead in the mandamus suit. McHenry, answering separately, set up the same defense as Barber, and in addition alleged that the boxes and their contents had in his absence been stolen from his house where he had deposited them in a steel trunk for safety, and that it was impossible for him to produce the same. McHenry also testified to this effect on the hearing of the motion of the board to require him to produce the ballot boxes. The court adjudged McHenry guilty of contempt for refusing to comply with the order of the court, and adjudged Barber, the attorney, guilty of contempt for directing a witness to disobey the order of the court, and imposed a fine of $ 100 and a jail sentence on each; from which they appealed.

Judgment reversed and dismissed.

Alexander & Alexander, and George B. Power, for appellants.

This court held, in Native Lumber Co. v. Harrison County Board of Supervisors, 89 Miss. 171; 42 So. 665, that the duty of canvassing the votes in a county political election such as is here involved was committed exclusively to the board of election commissioners, and that the duty of declaring the result of the election was committed to the board of supervisors, and that there could be no appeal from the action of the board of election commissioners or of the board of supervisors. Yet, in spite of such decision, this appeal is necessary because the Harrison county board of supervisors has refused to do what was requisite upon it under the above decision.

In the case cited, Native Lumber Co. v. Harrison County Board of Supervisors, supra, this court held further that a court of chancery had no jurisdiction to entertain a bill for an injunction the purpose of which was to have the chancery court convert itself into a canvassing board to canvass the votes in a county political election and to decide whether a county should be divided into two districts. Yet, now after such decision, an attempt is made to have a court take upon itself such prerogative, the difference being that now the circuit court instead of the chancery court is looked to for such end, and mandamus is sought to be employed. But mandamus is an extraordinary remedy, and it is never within the province of a court in a mandamus case to control the discretion of a person or body. It may make such person or body act, but it cannot direct how one shall act in a discretionary matter. Ex parte Rowland, 104 U.S. 604; Woodbury v. McClurg, 78 Miss. 831.

In an action of mandamus the court cannot inquire into the qualification of electors or the legality of an election as affected by matters not apparent on the face of the returns. State ex rel. v. Board of Supervisors of Coahoma Co., 3 So. 143.

The board of supervisors' action upon the report of the board of commissioners is purely ministerial. It is not constituted a court for the purpose of trying whether the election was properly held, or to try issues of fraud. If the board of supervisors had such right, it would be a court, and mandamus would not lie at all against it, but merely a writ of prohibition in a proper case.

The purpose of the writ of mandamus was to compel the production and examination of the ballot boxes and contents. It should not, however, require any argument to show that any order to this effect was beyond the powers of the circuit court in this action or in any kind of action.

There could be no contempt of court in the refusal to comply with the order of the court, when the order was illegal and invalid. 9 Cyc., 8. It has been held by the United States supreme court that where a court was without power to compel a party to an action to submit to an examination before trial the party could not be punished as for a contempt for refusing to submit to the examination. Ex parte Fisk, 113 U.S. 713. And in Ex parte Ayres, 123 U.S. 443, that court released one who had been imprisoned for contempt in refusing to comply with an order which the court had no authority to make. See also Ex parte Terry, 128 U.S. 305; Hovey v Elliott, 145 N.Y. 143; 39 L. R. A., 463; State v Milligan, 3 Wash. St., 152; Ex parte Wimberly, 57 Miss. 437.

How McHenry can be held for contempt is not apparent, inasmuch as he is shown to be free of fraud, and inasmuch as it was impossible for him to comply with the order. 9 Ency. Law & Proc., 13. And if McHenry cannot be held for contempt, then of course Barber, his attorney, could not be held liable for contempt in advising him as he did.

E. M. Barber, on the same side.

The circuit court had no more power to issue a subpoena duces tecum for the production of the ballot boxes, tally sheets and tickets used in the special election than the chancery court had; and this court has held, in Native Lumber Company v. Harrison County Board of Supervisors, 89 Miss. 171; 42 So. 665, that the chancery court had no jurisdiction whatever.

The Legislature had the power to put in operation a second court district in Harrison county, and could delegate such power to the people of the district for the purpose of voting thereon, and this the Legislature did, setting in motion the machinery to bring about a vote on the question and to establish a tribunal to which the question should be referred for official decision. This tribunal consisted of the three election commissioners, appointed by the governor under Laws 1906, ch. 167. And their action was final. 73 Ga. 377; 34 Mich. 211; 101 Mich. 273; 67 Tex. 130; 68 Miss. 728; and 70 Miss. 733.

There could be no better case than Ex parte Wimberly, 57 Miss. 437, to guide an attorney in giving advice to the three election commissioners. With that case, and the others above cited, before me when advising the election commissioners, I felt then, and feel now, that my advice to the commissioners to the effect that the returns of the election were valueless after the commissioners had canvassed the returns and made their report, was correct.

While the circuit court had jurisdiction to try a mandamus, it had no power to order subpoena duces tecum to bring into court any document or other thing which could not be used as competent or relevant evidence on the trial of the case then before the court. My view was borne out by the circuit judge himself who stated in the order authorizing a subpoena duces tecum for the production of the ballot boxes and tally sheets and tickets, that it was done because the attorneys for the defense stated it to be necessary for them to inspect the ballot boxes, tally sheets and tickets so that they might the more intelligently plead in the case. It is thus apparent that the circuit court granted the order for the subpoena duces tecum for the purpose of assisting counsel for the defense to file such pleading as they might see fit, and not for the purpose of using the ballot boxes and tally sheets and tickets as evidence.

It is also to be noticed that there had not been any issue joined between the petitioners and the respondents in the mandamus proceedings before the order for subpoena duces tecum to any of the commissioners was issued.

I can see no difference in result between a mandatory injunction to produce ballot boxes, tally sheets and tickets and file them with the chancery court; and a subpoena duces tecum from the circuit court directing that the ballot boxes, tally sheets and tickets should be filed with the circuit court for inspection of counsel. And, as I have been supported by the chancery court and by this court as to the authority of the chancery court, in the case of Native Lumber Co. v. Board of...