Walls v. Brundidge

• Decision Date: 11 July 1913
• Citation: 160 S.W. 230,109 Ark. 250
• Parties: WALLS v. BRUNDIDGE
• Court: Arkansas Supreme Court

160 S.W. 230

109 Ark. 250

WALLS v. BRUNDIDGE

Supreme Court of Arkansas

July 11, 1913

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

STATEMENT BY THE COURT.

There being a vacancy in the office of Governor of the State of Arkansas, and a special election having been called to fill same by Acting Governor J. M. Futrell, as required by the Constitution, fixing the date thereof as July 23, 1913, the Democratic party, through its central committee, called a primary election for making the nomination of a candidate for the office, fixing the date of such election June 21, 1913. It also fixed June 30 thereafter as the date upon which the central committee should meet for canvassing the returns of the election and certification of the nominee. The appellee gave notice that he would contest the election before the central committee at its meeting to canvass the returns and the nomination of his opponent, Judge Hays, under the provisions of Act 371 of the Acts of 1911.

Fearing that the committee might not hear the contest, he also procured a mandatory injunction from the Pulaski Chancery Court, directing the said committee to proceed and hear his contest upon its meeting to ascertain and announce the result of the primary election and certify the nominee, which injunction was read to the committee upon its meeting upon the said 30th day of June.

At the meeting of the committee after three days' hearing of the contest, it determined from the evidence before it and from such investigation as it had had opportunity to make, within the time limited for the hearing thereof and thereafter certifying the nominee to the Secretary of State within the time prescribed by law, that there was no proof to sustain the allegations of fraud made by the contestant and that the returns showed that Judge Hays had received 861 votes more than his opponent, the appellee, and declared him the nominee of the party and certified his nomination to the Secretary of State on July 2, 1913.

Thereupon appellee filed a supplemental complaint in the chancery court, alleging that the committee had violated the preliminary injunction, had not granted him a hearing of the contest, had not heard the same as required by law, "but had only conducted a feigned and pretended hearing, had made no investigation of the fraud alleged to have been perpetrated in the contest filed, had refused to allow appellee a reasonable time in which to produce his evidence and arbitrarily and oppressively violated appellee's rights and fraudulently certified the name of George W. Hays contestee, before said committee to Earle Hodges, the Secretary of State, as the Democratic nominee." That said Secretary of State, unless restrained from so doing will certify the name of said contestee, George W. Hays, to the various county election commissioners as the Democratic nominee for Governor, and "that if same be done contestee will be deprived of all rights under the law as contestant of said election, and that said certification if allowed to proceed will operate and amount to an absolute denial to him of the right to proceed with his contest as allowed by law, and the decretal order of the court, and will result in rendering absolutely nugatory and of no effect whatever, said decretal order of the court, and that it is his intention to further prosecute the said contest before the proper tribunal to a final determination in the forum as provided by law. Prays that Earle Hodges, Secretary of State, be made a party, and that a restraining order issue preventing his certifying to the county boards of election commissioners the name of George W. Hays as the nominee, and that upon a final hearing that the restraining order be made permanent."

The appellants answered, admitting that the Democratic State Central Committee is a body especially created by statute for the purpose of hearing contests and certifying nominees of the party; that it met on June 30, 1913, in accordance with its rules adopted prior thereto; that it heard and considered all the evidence presented by the contestant, allowing him all the time possible in which to present his contest, and permit the committee to ascertain and determine the result of the election and certify the name of the nominee to the Secretary of State twenty days before the date fixed for the election, July 23, 1913, as required by law. That after hearing all the evidence and argument of counsel, and acting as they believed, in compliance with the injunction and in full compliance with their duty under the law, found that the allegations of fraud were not sustained, were without foundation and dismissed his petition for want of proof. That it further found that George W. Hays had received a majority of all the votes cast in the primary election and was entitled to a certificate as nominee of the Democratic party and directed its chairman and secretary to certify his name to the Secretary of State as such Democratic nominee for the office of Governor. It also alleged that the law requires the Secretary of State to certify out the said nomination to the boards of election commissioners of the counties eighteen days before the election, and prayed that the temporary injunction be dissolved and a perpetual injunction be denied.

The chancellor granted the relief prayed for and enjoined the Secretary of State from certifying out the nomination made and returned to him by the said Democratic Central Committee, and from the decree this appeal comes.

Decree reversed, injunction dissolved and complaint dismissed.

Gaughan & Sifford and Coleman & Gantt, for appellants.

In the absence of a statute giving them jurisdiction, the courts have no power to interfere with the judgments of committees and tribunals of established political parties in matters involving party government, discipline or the nomination of candidates. 15 Cyc. 330-332; 67 N.W. 755, 757; 76 N.W. 914; 112 N.W. 1071.

A court of equity has no power to try contested elections or title to office, and such court has never exercised that power except in cases where it has been conferred by express enactment or by necessary implication therefrom. 15 Cyc. 397; 78 Ill. 237; 151 Ill. 41, 25 L.R.A. 143; 69 F. 852, 30 L.R.A. 90; 189 U.S. 475, 47 L.Ed. 909. The Constitution of the State empowers the Legislature to create chancery courts and vest them with jurisdiction in matters of equity, and the Legislature can give to such courts jurisdiction only in matters of equity. Election contests for nominations are not matters of equity, and have never been so considered. 80 Ark. 145; 15 Cyc. 331; 5 Pomeroy Eq. Jur. 324, 331-4; 123 N.Y. 609; 25 N.E. 1057. "No principle of the law of injunction is better settled than that injunction does not lie to determine questions of appointment to public office and the title thereto, as they are of a purely legal nature and cognizable only in courts of law." 5 L.R.A. (W. Va.) 334; 3 L.R.A. (W. Va.) 954; 17 O. St. 201; 6 Am. & Eng. Enc. of L. 392; 69 Ark. 606, 611; 122 S.W. 979; 43 Ark. 63; 84 Ark. 540; 38 P. 468; 90 P. 1034; 99 N.W. 681; 70 P. 519, 523.

C. D. James, T. J. Gaughan, W. F. Coleman and J. H. Carmichael, for appellants.

1. Act 371 of the Acts of the Legislature of 1911, which attempts to provide for the manner of holding a primary election in the State of Arkansas, is unconstitutional and void. 80 Ark. 145. When the Constitution has spoken on any particular subject, and has included one thing of a kind, it excludes all others, under the principle "expressio unius est exclusio alterius." Id. 145, 150; Broom's Legal Maxims 480, 489; 9 Cyc. 584; 19 Cyc. 23, 27; 1 Ark. 283; Id. 513; 20 Ark. 410; 27 Ark. 479; 43 Ark. 676; 35 Ark. 457; 49 Ark. 231; 60 Ark. 95; 51 Ark. 534; 3 Words and Phrases 2330, "Election;" Bouvier; Anderson.

2. The chancery court was clearly without power to hear and determine this controversy for the reason above stated, and for the further reason that, if the act is held to be constitutional, it has provided a tribunal for the hearing of such controversy whose decision is final and from which there is no appeal to the courts. If this tribunal is a court, it is of concurrent jurisdiction with the chancery court, and obtained jurisdiction first.

If the State Central Committee is an inferior tribunal to the courts, then the circuit court, and not the chancery court, has jurisdiction, because, in this State, all jurisdiction not specifically vested in some other court, is vested in the circuit court. See Kirby's Dig., § 1315. This controversy falls squarely within the doctrine announced by the court in the bridge district cases. 96 Ark. 424; 106 Ark. 151.

Hal L. Norwood and J. M. Stayton, for appellee.

1. The act is constitutional. In none of the States where are found the opinions relied on by appellants is there a law such as ours. 74 P. 896; 62 A. 249; 89 N.W. 1126; 56 A. (N. J.) 1; 51 N. E. (O.) 150; 66 P. 714; 92 N.W. 4.

2. Under the allegations set forth in the original complaint, there was jurisdiction in the chancery court to issue a mandatory injunction to compel the State Central Committee of the party to hear the contest filed by the appellee. 87 S.W. 786; Id. 805; 89 S.W. 1; 75 S.W. 1082; 120 S.W. 343; 84 S.W. 767; 100 N.W. 925; 121 S.W. 468; 31 S.W. 290; 97 P. 396; 71 S.W. 892; 86 S.W. 697.

The holding in Hester v. Bourland, 80 Ark. 145, was merely that the Legislature had no power to vest in a court of chancery jurisdiction to hear election contests, whereas, that is not the object of this suit, but the aid of the chancery court is sought only to compel the granting to appellee of a right which is conferred upon him by statute.

3. It appearing by the supplemental complaint filed that the State...