State ex rel. Barbee v. Brown

• Decision Date: 28 October 1907
• Citation: 90 Miss. 876,44 So. 769
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI EX REL. JACOB W. BARBEE v. JAMES N. BROWN ET AL

44 So. 769

90 Miss. 876

STATE OF MISSISSIPPI EX REL. JACOB W. BARBEE v. JAMES N. BROWN ET AL

Supreme Court of Mississippi

October 28, 1907

March 1907

FROM the circuit court of De Soto county, HON. SAMUEL C. COOK Judge.

The state, suing on the relation of Barbee, appellant, was plaintiff in the court below; Brown and others, appellees were defendants there. The suit was for a mandamus, and from a judgment sustaining a demurrer to the petition and dismissing the suit the plaintiff appealed to the supreme court.

The relator, Barbee, and one Lauderdale, were rival candidates in the Democratic primary election for the nomination for sheriff. The county Democratic executive committee canvassed the returns and declared Lauderdale the party nominee. The relator filed his petition in the circuit court, making as parties defendant Brown and the other members of the executive committee. The petition set out certain irregularities and frauds alleged to have been practiced at Love precinct, and prayed that the committee reassemble, and hear evidence, and investigate the true results of the ballots cast at Love precinct, and declare the result.

Affirmed.

Julian C. Wilson and R. L. Dabney, for appellant.

The remedy here sought is a mandamus to require the legally established authorities of a political party to do what was requisite upon them in law. That mandamus should lie is evident. Code 1906, § 3231, provides that "the writ of mandamus shall be issued by the circuit court, commanding any inferior tribunal, corporation board, officer, or person to do or not to do an act, the performance or omission of which the law specially enjoins, as a duty resulting from an office, trust or station, where there is not a plain adequate and speedy remedy in the ordinary course of law."

Is the character of a political executive committee, working under our statute law, such that mandamus is applicable in any event? Formerly the Democratic executive committee was the supreme tribunal of the Democratic party in Mississippi, determining when and how and by whom nominations should be made; and it met when it chose to meet. The legislature of 1902 stripped from it the selection of the method and time, as well as the determination of participants in party elections; practically the only power left being the ministerial one now provided, and the judicial function of settling all controversies. Laws 1902, secs. 14, 110. Under this state of affairs the case of Brewer v. Abbay, 82 Miss. 559, was decided by this court. A change was made by the Code of 1906, the legislature showing a manifest intent to give no more functions to the executive committee than to the county election commission. It had ceased to be a legislative body by the passage of the Laws of 1902; and, as a result of the adoption of the Code of 1906, it ceased to be a judicial or quasi-judicial body, and its members became merely ministerial officers, having slightly more than the duties of county election commissioners. This is apparent from a consideration of Code 1906, § 3705, prescribing the duties of the executive committee; and Code 1906, § 4178, prescribing the duties of the county election commissioners.

From the foregoing it is apparent that it is the duty of the executive committee to comply with the law that limited it, and continued it in force; that is to say, its duty is to receive and canvass returns, declare the result of the vote, and announce the name of the party nominee. The committee has no right to canvass anything but the returns. Oglesby v. Sigman, 58 Miss. 510. The returns mentioned in the statute merely consist of the papers announcing the result in the different precincts and certified to by the different precinct officers.

As the executive committee received and canvassed a set of returns from Love precinct, which were not properly certified to, and did so after challenge by friends of the relator, Barbee, the committee exceeded its authority. It should have declared the result of the primary election solely from the returns which were regularly sent in; but it failed to do so. We submit, that as the committee failed to perform its duty, it should be compelled to do so; and that mandamus will lie to compel it so to do.

Even if the functions of the executive committee be claimed to be quasi-judicial under the statute, we submit, that it had notice to put it on inquiry before counting the returns from Love precinct; and its action was arbitrary, and an abuse of discretion. The rule seems to be clear that a mandamus will never issue to control a discretion, but will issue when there is a fixed duty which should be performed. When an officer or tribunal arbitrarily, or from a mistake as to procedure or power, refuses to go into the merits of controversy about which such officer or tribunal has no discretion, mandamus will issue to require an investigation of the merits. High's Extraordinary Legal Remedies, sec. 151; Sullivan v. Railroad Co., 85 Miss. 660; Ex parte Bradstreet, 7 Peters, 634, 30 L.Ed. 577; Ex parte Parker, 120 U.S. 737, 30 L.Ed. 818; State v. Taylor, 104 S.W. 242.

Although the executive committee must determine for itself what are the returns, its acts are ministerial, and it must get the right returns. McWhorter v. Donald, 39 Miss. 79; Chears v. Chears, 81 Miss. 662; Chalmers v. Myers, 60 Miss. 766.

We submit, that the authorities are overwhelming to support the issuance of the writ of mandamus in a case such as this. 15 Cyc., 382; 10 Am. & Eng. Ency. of Law, 2 ed., 808; State v. Garesch, 65 Mo. 480; McCreary on Elections, 412; State v. McFadden, 46 Neb. 668; People v. Canvassers (N. Y.), 29 N.E. 327, 14 L. R. A., 624; People v. Canvassers (N. Y.), 29 N.E. 14 L. R. A., 643; Smith v. Lawrence (S. D.), 2 S. D., 185, 49 N.W. 8; Morris v. Glover (Ga.), 49 S.E. 786; State v. Board, 38 Kan. 436, 17 P. 304.

In conclusion, we submit, that the duty of the executive committee is a trust for the benefit of the electors at large, and mandamus should lie, as there is no remedy by injunction. Ex parte Wimberly, 57 Miss. 437; Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465.

Calvin Perkins, for appellee.

A primary election, under the chapter of the Code on that subject, consists of two parts, two elections, "the first primary" and "the second primary." The first primary may or may not be final as to a nomination; its finality depending on whether or not any candidate shall receive thereat a majority of the popular vote. But the second primary is final in all cases.

It must have occurred to the legislature in making provision for the two primaries, that in the practical application of the primary election law many instances would arise where the first primary would be a finality, because of the large percentage of instances in which the first primary would be final, and because, also, of its forming the foundation for the second primary, the lawmakers must reasonably have regarded the first primary as of equal importance with the second. If the legislature intended that the circuit courts should, by reason of a petition for mandamus, exercise supervisory control over the second primary, it must have intended that there should be like supervision as to the first primary.

If the legislature never intended that any tribunal, judicial or otherwise, save only the governing bodies of the respective political parties, the respective executive committees, should be vested with jurisdiction to determine the result of the first primary, it thereupon follows that the legislature so intended as to the second primary and if the legislature had intended that the courts should be open to hear the complaints of those candidates dissatisfied with the result of the first primary as declared by the executive committee, would it not have provided for a "contest," or would it not at least have fixed such an interval of time between the dates of the two primaries as would have been reasonably sufficient to institute, conduct and complete a trial in court?

The language of Code 1906, § 3700, is, "the second primary shall be held three weeks after the first primary"; neither more nor less than three weeks. There is no other provision on the subject. If the legislature intended court supervision in the premises, and intended to let the interval between the primaries remain at three weeks, would it not then have at least cut off the right of appeal and the right to new trials, and have made the decision of the circuit court a finality without new trials or appeals?

Let us suppose, as the appellant contends, that the legislature intended to confer upon the courts the power by mandamus to supervise and control the constituted authorities of political parties for determining the candidates for party offices, the law being as it is unchanged with regard to trials of issues of law and trials of issues of fact, new trials, appeals, reversals and other trials. Let us then see how such things could be managed in the court during the interval between the first and second primary. In the case of county offices, at least one day of that time would be consumed by the committee in "canvassing the returns and declaring the result," another day by the claimant in preparing his complaint, and then the other claimant, or whomsoever might be made defendant, would have to receive five days' notice, thus leaving less than two weeks of the limited three weeks' time for the determination of the various issues of law and of fact, and appeals, reversals and other trials. And there might be issues of fact with regard to every precinct in the county.

Prior to the enactment of the statute relating to primary elections the question presented by this controversy would have been a political one,...