Opinion
No. 34033.
February 12, 1940. Suggestion of Error Overruled March 11, 1940.
1. ELECTIONS.
Where executive committee took action on October 4, 1939, on primary election contest and petition for judicial review was not filed until November 1, and special tribunal for the trial of the contest rendered judgment on November 13, after the general election, the petition for judicial review was not filed "forthwith" as required by statute (Laws 1935, Ex. Sess., chap. 19, sec. 15).
2. ELECTIONS.
The statutory requirement that petition for judicial review on executive committee's denial of primary election contest shall be filed "forthwith" is one in pursuance of purpose that proceedings preliminary to and during course of judicial review shall be conducted with such diligence as will enable the trial court to have full and orderly hearing and to conclude it in such time that, if practicably possible, a new primary, if ordered, may be held before day of general election in November of same year (Laws 1935, Ex. Sess., chap. 19, sec. 15).
3. ELECTIONS.
Under statute requiring petition for judicial review of executive committee's denial of primary election contest to be filed "forthwith" after action of the executive committee, a misconception by the contestant of the proper procedure would not excuse a delay of 26 days (Laws 1935, Ex. Sess., chap. 19, sec. 15).
APPEAL from the special court of Calhoun county; HON. T.P. GUYTON, Judge.
W.J. Evans, of Calhoun City, and C.A. Bratton, of Oxford, for appellant.
On the very threshold of this appeal we are confronted with the question: What is the meaning of the word "forthwith" as used in Section 15 of the Act, which is Chapter 19, Laws of Mississippi, Extraordinary Session, 1935?
In the case of Jackson County v. Galloway and Bonabel, 97 So. 107, 132 Miss. 211, the court had before it for construction an order of the Board of Supervisors of Jackson County, Mississippi, directing that certain contractors "forthwith" file their bond as such contractor in a manner provided by law. The court said: "The authorities generally hold that a contractual requirement that an act shall be performed forthwith is to be construed in reference to the nature of the act to be performed, and that it usually means within a reasonable length of time under all the facts and circumstances of the case."
26 C.J. 997.
In the case of Anderson v. Goff, 72 Cal. 65, 1 Am. St. Rep. 34: "`Forthwith' like the term `immediately' is not in law to be necessarily construed as a time immediately succeeding without an interval, but an effectual and lawful time, allowing all the adjuncts and accomplishments necessary to give an act full legal effects to be performed.
Gunn v. Lauder, 10 N.D. 389, 87 N.W. 999; Heskell v. Eagle Indemnity Co., 108 Conn. 652, 144 A. 298; Comans v. Tapley, 101 Miss. 222; Brown v. Alexander, 79 So. 843; 21 C.J. 237, 247.
The construction generally given by the courts to the words, "forthwith" and "immediately," whether occurring in contracts or statutes, is that the act referred to should be performed within such convenient time as is reasonably requisite, and what is a reasonable time is to be determined by the facts of the particular case in hand.
Meyers v. Dunn, 104 S.W. 353, 126 Ky. 548, 13 L.R.A. (N.S.) 881.
The facts in this case show that the appellant has exercised every diligence known to get the matter before the court. It is true that in his first petition which was referred to Chancellor Finley, his paid attorneys signed the petition instead of outside attorneys. Shall he now be penalized for the construction that his attorneys placed upon the meaning of the language used in Section 15 of the Corrupt Practices Act? The court has spoken twice in its construction of the language "but such petition for a judicial review shall not be filed unless it bear the certificate of two practicing attorneys that they and each of them have fully made an independent investigation into the matters of fact and of law upon which the protest and petition are based."
It will be observed from the statement of facts that within three days after the dismissal of the first petition the second was filed. Of course, these two attorneys had to make a full and independent investigation into the matters of fact and of law upon which the protest and petition was based.
The learned chancellor in the court below held that the facts stated in Exhibit "C" to the bill of complaint did not on its face show that the contestant had been injured or that the result, if investigated, would lead to a conclusion beneficial to the contestant, and therefore, presents nothing for this court to review." We respectfully submit that the lower court misunderstood and misinterpreted the petition and contention of the appellant.
It was, and is now, our contention that this case is controlled by the decision rendered in Hayes v. Abney, 188 So. 533. It is our contention that had the votes been thrown out on account of their illegality, there would not have been a tie vote. We could not say for whom the votes were cast. It was specifically held in Hayes v. Abney, supra, that no one had a right to ask a voter and compel him to answer for whom he voted.
It was our contention then, and our contention now, that the only thing which the executive committee could do under the peculiar facts and circumstances of the case, or the special tribunal, or this court would be to hold election null and void, and call a new election as is authorized by the statutes.
The Corrupt Practices Act specifically provides that those between the years of twenty-one and sixty must pay and present to the electioner his poll tax receipts for the two preceding years unless "he is blind, deaf and dumb, or maimed by the loss of one limb."
The question then arises: Is this a mandatory part of the act? We insist that if any of the act is mandatory, this is.
Guice v. McGehee, 155 Miss. 858, 125 So. 433.
The lower court further held that the day of the general election having passed and the contestee having his name on the ballot at that election, this contestant had no remedy. We think the court was in error in this holding. We believe that this condition is fully taken care of under Subsection (f) of Section 15 of the act.
W.O. Lawrence and Patterson Patterson, all of Calhoun City, and Wm. H. Inzer, of Pontotoc, for appellee.
It occurs to us, and we respectfully urge that it is inconceivable that the appellant in this case can be heard to contend that he was diligent in getting his complaint before a court of competent jurisdiction to be heard when the record discloses that he was from August 29th to November 13th, 1939, in getting his claim properly before the court for adjudication.
It may be urged logically by splendid counsel for appellant that some of the time lost was through no fault of his client but it cannot be logically urged that there was any occasion in a supervisor's race in a district composed of only four voting precincts where almost every voter in the district is a neighbor of his fellow-voter, that it was necessary to let seven days elapse before asking that the ballot boxes be opened and examined, thereby permitting eleven days to elapse before the ballot boxes could be lawfully examined and by these delays permit fourteen days after the primary election complained of to elapse before giving notice to the county executive committee that a hearing before it was desired.
The whole scheme of the Corrupt Practices Act contemplates speedy action by one who wishes to contest the actions of election officers in order to avoid the very condition that is presented in this case, hence one contemplating a contest must act "forthwith."
If the delay of the appellant is getting his complaint properly before the proper tribunal for adjudication had not changed the condition and attitude of the contestee, appellee herein and other interested parties, then no harm could be done by the unnecessary delay, but in the instant case the unreasonable delay shown by the record in this case puts the appellee to the greatest disadvantage, should this court hold, or should the learned court below have held, that appellant was entitled to another election to decide his complaint.
Comans v. Tapley, 101 Miss. 22.
The learned chancellor below, we respectfully urge, properly concluded and held that appellant's repeated delays in getting his complaint before the proper tribunals estopped him of his rights, if any he had in the beginning, and as is generally held, and as held in the case cited by appellant, 21 C.J. 237, such matters rest in the sound discretion of the chancellor and his conclusions are not ordinarily disturbed on appeal.
But if appellee is in error as to his contentions relative to appellant's delay in getting his claims before the proper tribunals for hearing "forthwith" and with due diligence, still the appellant utterly failed to get his complaint properly before the Executive Committee of Calhoun County and before the special tribunal presided over by the learned chancellor who heard this case in the court below. In construing the very question presented to this court in the instant case, "Does appellant's petition state a good cause of action under the Corrupt Practices Act?", this court recently in the case of Shaw v. Burnham, the court speaking through Justice Griffith said: "It is contemplated by the statutes, Section 5896, Code of 1930, and Section 15, Chapter 19, Laws 1935, that when a person desires to contest the nomination of another person and has the purpose to follow up his contest by a petition for a judicial review, his contest or petition or complaint before the Executive Committee shall be reasonably specific in its charges and not in mere general language."
The contestants simply asked that all votes cast in the election be thrown out and another election called, without alleging or attempting to show that if another election were or should be called that the result thereof would be different. Therefore, the learned chancellor below properly held there was nothing presented to the Executive Committee or to the special tribunal to be adjudicated.
Hickman v. Switzer (Miss.), 191 So. 486.
The question is whether appellant or appellee was the Democratic Party nominee for the office of supervisor of the third district of Calhoun County, at the primary election held on August 29, 1939, which was a second primary. Appellee was declared by the Democratic Executive Committee of the county to be the nominee, Therefore, his name alone went on the ticket in the general election, and he was declared elected to the office.
The construction of the Corrupt Practices Act, Chapter 19 of the Laws of 1935, Ex. Sess., particularly a certain provision of Section 15 of that Act, is involved. That provision requires that the petition for review be filed "forthwith" after the action of the executive committee. In the present case, the executive committee took action on October 4th, and the petition for review as not filed until November 1st — twenty-six days thereafter. The special tribunal for the trial of the contest rendered judgment on November 13th, after the general election. Twenty-six days, in our opinion, was stretching "forthwith" too far. In the recent case of Harris v. Stewart (Miss.), 193 So. 339, not yet reported [in State Reports], although not decisive of the exact question upon which this case turns, there is a discussion of the applicable principle. The Court said, among other things:
"An examination of the provisions of the Act under consideration will disclose the purpose that the proceedings preliminary to and during the course of a judicial review of a primary election contest shall be conducted with such diligence, expedition, and dispatch as will enable the trial court to have a full and orderly hearing and to conclude it in such time that, if practicably possible, a new primary, if ordered, may be held before the day of the general election in November of the same year. The requirement that the petition shall be filed `forthwith' is one in pursuance of the aforesaid object; and if the hearing is actually had on such a petition and as a result thereof, a new primary has been ordered and held before the general election, as was done here, the statute has been satisfied in the particular case although the petition was filed as late as October 25, 1939, and when the general election was to be held November 7, 1939.
"While it actually turned out in the present case that the petition was filed in time, we wish it to be understood that we are dealing with the facts of a particular case, the one here before us, and that we are not committing outselves to the holding that in any and every case the filing of such a petition so late as October 25th after a primary on August 29th, or thereabout, will be held to be within the requirement of a filing `forthwith.'"
A misconception by appellant, if there was such, of the proper procedure, was no excuse for the delay.
Affirmed.