Omar v. West

• Decision Date: 22 May 1939
• Docket Number: 33718
• Citation: 188 So. 917,186 Miss. 136
• Court: Mississippi Supreme Court
• Parties: OMAR v. WEST

188 So. 917

186 Miss. 136

OMAR v. WEST

No. 33718

Supreme Court of Mississippi, Division B

May 22, 1939

Suggestion Of Error Overruled June 12, 1939.

APPEAL from the circuit court of Quitman county HON. WM. A. ALCORN Judge.

Election contest by M. M. Omar against Homer S. West. From judgment for defendant, plaintiff appeals. From order enjoining defendant from taking office until final determination of the cause, defendant cross-appeals. Injunction dissolved judgment affirmed.

Affirmed.

Gore &amp Strong, of Marks, for appellant.

Did the circuit court of Quitman County, Mississippi, have jurisdiction to determine the issues involved in this litigation in an election contest proceeding? This question must be answered in the affirmative.

Sublett v. Bedwell, 47 Miss. 266; Ex parte Wimberly, 57 Miss. 437; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; Loposser v. State ex rel. Gause, 110 Miss. 240, 70 So. 345; Warren v. State ex rel. Barnes, 163 Miss. 817, 141 So. 901; Section 3053, Code of 1930; 20 C. J. 213, sec. 271; Mitchell v. Finley, 161 Miss. 527, 137 So. 330.

Where two candidates receive the same number of votes, there is no choice or choosing, and consequently, no election.

20 C. J. 208, sec. 268; State ex rel. King v. Soloman, 82 Neb. 200, 17 Ann. Cas. 573.

Chapter 149, Code 1930, makes no provision for the holding of a third primary.

Section 5909, Code 1930, precludes the placing of a name of any candidate on the official ballot at a general election, nominated otherwise than as provided by the primary election laws, Chapter 149, Code of 1930.

Section 5905, Code 1930, makes primary election laws, Chapter 149, Code 1930, applicable to municipal primaries.

The provisions of law governing general elections, govern the holding of primary elections, unless otherwise provided by the primary election chapter 149 of the 1930 Code. Section 5864, Code 1930.

No method of breaking a tie vote as the result of a second primary is provided for by the primary election chapter in the 1930 Code. Therefore, the nominee of the Democratic party at the election in question should have been determined by lot, as provided by Section 6250 of the 1930 Code, instead of by the holding of a third primary.

Clearly the name of West should not have been printed on the official ballot used in the general election in question, by virtue of the prohibitory provisions of Section 5909, 1930 Code, he not having been nominated as provided by Chapter 149, 1930 Code, and the applicable statutes governing the holding and determination of the results of elections generally.

Hunt v. Mann, 136 Miss. 590, 101 So. 369; Ex parte Smith, 118 So. 306; 20 C. J. 146-7, sec. 171.

Was Omar precluded from becoming a candidate by petition for the office in question at the general election by reason of having participated in the first and second primaries, and refusing to participate in the so-called third primary? This question must be answered in the negative.

Ruhr v. Cowan, 146 Miss. 870, 112 So. 386; Board of Commissioners of Leon County v. State ex rel. Moore, 118 So. 313.

Clearly Omar was entitled to hold over until a successor has been legally elected and duly qualified.

Sec. 136, Constitution of the State of Mississippi; Sec. 2597, Code 1930.

The Circuit Court had jurisdiction and the right to issue the restraining order.

Sec. 742, Code 1930.

Sections 6258-59, governing the contest of elections, provide that the proceedings shall be conducted in the manner governing quo warranto proceedings; Section 3060, Code 1930, therefore, authorized the entry of the restraining order if the trial court, in its discretion, saw fit to do so.

Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; 50 C. J. 681, sec. 55, note 69; 46 C. J. 971, sec. 116; Roane, District Attorney, ex rel. Tunstall v. Matthews, 75 Miss. 94, 21 So. 665; Hutson v. Miller, 148 Miss. 783, 114 So. 820.

The appellant's main points are, first, that the holding of the third primary was not authorized by the primary chapter of the 1930 Code; that he was not bound by the results thereof, and was not thereby precluded from becoming a candidate by petition. Appellant Omar further contends that the placing of appellee West's name on the official ballot used in the general election in question, as the nominee of the Democratic party, was precluded by the plain terms of Section 5909, of the 1930 Code, and that by virtue of said Section 5909, appellee West is not entitled to the office even though ostensibly elected thereto. It will be noted by the court that counsel for the appellee has very little, if anything, to say as regards Section 5909 of the 1930 Code. Indeed, there is nothing he can say to aid appellee West in this controversy. That section, we think, was put in the code for the express purpose of preventing party committees from using unauthorized schemes or methods of nominating candidates. We think it is clear, and that no one will dispute, that it was the intent of the Legislature to provide for uniform means and methods for nominating candidates by party primaries; that the entire set-up and machinery for such primaries is contained in the primary chapter, 149, of the 1930 Code. The Legislature not only failed to provide for any discretionary methods of nomination candidates, but we think Section 5909 was added to this chapter of the Code, and to this legislation, for the express purpose of precluding discretionary and unusual schemes for the nominating of party candidates before the holding of the general elections. If this section of the Code means what it says, it, to our mind, settles this controversy in favor of the appellant; for certainly it cannot be argued that appellee West was nominated in a manner provided for by law. Appellant Omar further contends that the arbitrary refusal of the general election commissioners to place his name on the official ballot to be used in the general election in question, was such an irregularity as was condemned by this court in one of the cases cited in the brief of the appellee, to wit, that of State ex rel. Sowell v. Greer, 158 Miss. 315, 130 So. 482.

We submit that this record shows beyond all doubt that the voters of Lambert, Mississippi, were not afforded an opportunity to freely and fairly express their will and choose their marshal for that town. We hardly see how this court can escape that conclusion.

W. W. Venable, of Clarksdale, for appellee.

Appellant cannot question the validity of the third party primary.

It is settled law that the elections of political parties are non jural in character and the courts will not adjudicate on questions or contests arising therein, but such questions are to be settled by party authorities in such manner as they may choose if there be no statute regulating the matter.

State ex rel. Barbee v. Brown, 90 Miss. 876; Ramey v. Woodward, 90 Miss. 777.

Even though party elections are provided for and regulated by statute, if there be no specific statutory grant of jurisdiction to the courts to hear and determine election contests or questions, they will not assume jurisdiction so to do.

Howard v. Sheldon, 151 Miss. 284; State ex rel. Brewer v. Abbey, 82 Miss. 559; Ramey v. Woodward, 90 Miss. 777; State ex rel. Barbee v. Brown, 90 Miss. 876; Barnes v. McLeod, 165 Miss. 454.

Where a statute grants jurisdiction to the courts to view the action of party authorities, it is held to be the exclusive method for so doing.

Warren v. State ex rel. Barnes, 163 Miss. 817; Ex parte Wimberly, 57 Miss. 447; Bridges v. Clay County, 57 Miss. 252; Young v. May, 164 Miss. 35.

A statutory remedy is exclusive where the remedy is granted by the statute and no other remedies are saved.

G. & S. I. R. R. Co. v. Oil & Fertilizer Co., 172 Miss. 630.

Where a statute grants a right and by the same enactment provides a remedy, it is exclusive.

Hargrave v. Baskin, 50 Miss. 194.

Section 15, Chapter 19, Laws of 1938, known as the Corrupt Practice Act, provides the only and exclusive method of appeal from the action of party authorities, namely, to a special court before a judge for another district.

It follows that since appellant did not appeal from the action of the Democratic Party authorities either as to their decision in calling the third primary or in declaring appellee the nominee of the Democratic Party, their actions and judgments are final.

The third primary must be held to be legal and not open to attack.

While Section 6391 of the Code, the code chapter on registrations and elections, applies to all general and primary municipal elections, it is provided that this rule extends only as far as practical. While by Section 6250, Code of 1930, it is provided that in the event of a tie vote in a general election for county officers, it shall be settled by lot, the provision is not applicable to municipal elections.

The statute was not intended to apply to municipal elections. At the time this statute was passed, roads were poor, bridges were often bad, and in case of flood or bad weather, in an election covering so wide an area as a county, it would frequently afford no test in determining who was actually the popular choice, since so many voters would be kept away from the poles. An election at best would afford but a decision by chance. In this situation settling the tie vote frankly by lot would be no greater appeal to chance than if an election were held, with the added advantage of much expense saved.

Certainly chance ought not to be resorted to when the will of the people can be ascertained with a reasonable degree of certainty by an election where all who desire, can and will participate and thus express an actual and certain choice.

The statute is...