Wood v. State ex rel. Gillespie

• Decision Date: 05 July 1932
• Docket Number: 30207
• Citation: 142 So. 747,169 Miss. 790
• Court: Mississippi Supreme Court
• Parties: WOOD, SECRETARY OF STATE, v. STATE ex rel. GILLESPIE, DISTRICT ATTORNEY

142 So. 747

169 Miss. 790

WOOD, SECRETARY OF STATE, v. STATE ex rel. GILLESPIE, DISTRICT ATTORNEY

No. 30207

Supreme Court of Mississippi

July 5, 1932

APPEAL from circuit court of Hinds county, First District.

1 MANDAMUS.

Writ of mandamus will not issue unless there has been actual default in performance of duty (Code 1930, sec. 2348).

2 EVIDENCE.

Supreme Court judicially knows that on August 23, 1932, primary election will be held for election of congressmen, Supreme Court judges, highway commissioners, and that second primary if necessary, will be held September 13, 1932 (Code 1930 sec. 5870).

3. EVIDENCE. Supreme Court judicially knows that general election at which congressmen are to be elected will be held Tuesday, November 7, 1932, and that prior to antecedent fifteen days it cannot be legally known by secretary of state as to names to be printed on ballots (Code 1930, sec. 6231).

Code 1930, section 6231, provides that ballot to be used in general November election shall contain names of all candidates put in nomination not less than fifteen days previous to day of election by primary election of any political party.

4. ELECTIONS.

Secretary of state cannot make up ballot without approval of governor (Code 1930, sec. 6234).

5. MANDAMUS.

Governor cannot be compelled by mandamus to perform any act (Code 1930, sec. 2348).

6. MANDAMUS.

Mandamus will not lie when act is only done in case another party approves thereof (Code 1930, sec. 2348).

7. MANDAMUS.

Cause of action must exist at date of filing of petition for mandamus (Code 1930, section 2348).

8. EVIDENCE.

In mandamus proceeding to prohibit secretary of state from making up ballot, it could not be presumed that governor or secretary of state would violate law (Code 1930, sec. 6234).

9. MANDAMUS.

Demand for performance of act cannot be made before time has expired wherein officer is allowed to do the act (Code 1930. sec. 2348).

10. MANDAMUS.

Writ of mandamus is never granted to take effect prospectively (Code 1930, sec. 2348).

11. MANDAMUS.

Mandamus will not lie until default is made in performance of duty constituting gravamen of complaint (Code 1930, sec. 2348).

12. MANDAMUS.

Mandamus would not issue, four months in advance of time for performance of duty, to compel secretary of state to disregard, in preparation of sample ballot, designations of candidates for congress by districts on ground redistricting act was void (Code 1930, sec. 2348).

13. MANDAMUS.

Writ of mandamus will not issue if, in ultimate effect, it will be nugatory or incomplete.

14. MANDAMUS.

Courts have no jurisdiction to direct how party authorities shall act in administration of party machinery under primary election statutes (Code 1930, secs. 5870, 5900).

15. ELECTIONS.

Federal statutes have nothing to do with party primaries and party nominations within state (2 U.S.C. A., sec. 3).

16. MANDAMUS.

Mandamus is discretionary writ (Code 1930, sec. 2348).

17. MANDAMUS.

Writ of mandamus will not be issued whenever public interest will be adversely affected, especially where only public political rights of those for whom petition is filed are asserted (Code 1930, sec. 2348).

18. MANDAMUS.

Writ of mandamus is issued upon principles which are equitable as to all concerned (Code 1930, sec. 2348).

19. MANDAMUS.

Secretary of state would not be compelled by mandamus in preparation of sample ballots to disregard designations of candidates for Congress by districts on ground redistricting act was void, where issuance of writ would operate to detriment of general public (Code 1930, sec. 2348).

COOK, J., and SMITH, C. J., dissenting.

HON. W. H. POTTER, Judge.

HON. W. H. POTTER, Judge.

Petition for writ of mandamus by state, on the relation of Hugh Gillespie, district attorney, against Walker Wood, secretary of state. The mandate was issued, and respondent appeals. Reversed, and petition dismissed.

Reversed, and petition dismissed.

Greek L. Rice, Attorney-General (by W. H. Watkins, Special Assistant Attorney-General), for appellant.

Hugh V. Wall, of Brookhaven, J. H. Price, of Magnolia, J. O. S. Sanders, and Chalmers Potter, both of Jackson, W. S. Henley, of Hazlehurst, R. L. Jones, of Brookhaven, and P. C. Canizaro, of Vicksburg, for appellee.

Ethridge J., Anderson, J., specially concurring. Cook, J., dissenting.

OPINION

Per Curiam:

A petition for a writ of mandamus was filed by the district attorney, attacking the validity of the congressional redistricting act of the Legislature of 1932, under House Bill No. 197. The basis of the attack is that the third and seventh congressional districts as laid out in said act do not conform to the provisions of section 3, chapter 5, Act of Congress 1911, 37 Stat. 14 (2 U.S.C. A., sec. 3), which requires or directs that the several districts shall be composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants. The prayer of the petition is that appellant, as secretary of state, shall be compelled by a mandate of the court to disregard, in his preparation of the sample ballots to be used in the November, 1932, election, any designations of candidates for congress by districts, and should be ordered to prepare said ballots for said candidates only as candidates from the state at large. Appellant demurred to the petition, the demurrer was overruled, and the mandate was issued as prayed in the petition.

We have therefore fully before us everything that was before the trial court, and, as these are questions of law only, we must reverse the judgment and dismiss the petition on three grounds, which we will now state.

The first ground is upon the established rule that a writ of mandamus will not issue unless and until there has been actual default in the performance of some duty required of the defendant. There is no allegation in the petition in this case that there has been a demand on the secretary of state to perform any duty required of him; neither is there such a showing in the petition as to put the case within the rule that where a public duty to do or not to do a certain thing is enjoined by law upon a public official, and the matter is of public interest, the refusal or failure to act in the premises on the part of the official is of itself a demand and refusal, that by his own failure to perform the duty the demand has been made and refusal presumed. The fact is that this court judicially knows that on the 23rd day of August, 1932, a primary election is to be held in this state for the election of Congressmen, Supreme Court judges, and highway commissioners, and that in event a second primary is necessary the further election is fixed by law to be held on September 13, 1932. See section 5870 of the Code of 1930. These two elections must be held before the secretary of state is required to perform any act for which mandamus is sought in this case.

Section 6231, Code of 1930, provides that the ballot to be used in the general November election shall contain the names of all candidates put in nomination not less than fifteen days previous to the day of the election by the primary election of any political party. Likewise it is provided that the name of any qualified elector who has been requested to be a candidate by written petition, signed by a requisite number of electors not less than fifteen days before the election, shall be printed on the ballot. At that time, and when the names of the candidates by either of the methods have been made known to him, it is the duty of the secretary of state, with the approval of the governor, to furnish the ticket commissioners of each county with a sample ballot. We judicially know that the general election of this year in which congressmen and the other officers named are to be elected will be held on Tuesday, November 7th, and that prior to the antecedent fifteen days it cannot be legally known by any official connected with the election or the secretary of state as to the names that shall be printed on the sample ballot. It then is evident that the secretary of state is not required to perform any duty with reference to the elections complained of in this petition for mandamus until within fifteen days of the 7th day of November next.

In virtue of section 6234, Code of 1930, the secretary of state is not empowered to furnish sample ballots unless and until the governor of the state has approved the same. The duty sought to be imposed upon the secretary of state is not to be performed until some day subsequent to the 21st day of October, 1932. The relator in this case filed his petition for writ of mandamus in the circuit court on the 21st day of June, 1932, and this case has already been submitted in this court practically four months in advance of the time when the secretary of state is called upon or required by law to perform any duty with reference to the general November election. Certain it is then that an election must be had by the political parties, and the result thereof certified, and the opportunity given a candidate who desires to run upon petition of electors. The governor must approve the ballot before the secretary of state is called upon to discharge any duty relative to the matter here in controversy.

Section 2348, Code of 1930, is authority for the writ of mandamus in this state, and provides that the writ "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," etc. The gist of the mandamus in this case is to prohibit the secretary of...