Opinion
No. 27217.
May 14, 1928. Suggestion of Error Overruled August 1, 1928.
ELECTIONS. Injunction will not lie to restrain or regulate holding of primary elections and conventions by political parties ( Hemingway's Code 1927, sections 7494-7538).
Court cannot enjoin holding of conventions and elections at which delegates to county conventions are to be elected on ground that state executive committee violated primary elections law (Hemingway's Code 1927, sections 7494-7538), since courts cannot interfere with or regulate holding of primary elections or conventions by political parties.
APPEAL from chancery court of Forrest county; HON. T.P. DALE, Chancellor.
J. Morgan Stevens and J.H. Howie, for appellants.
The bill shows upon its face that this is a contest between rival factions of a political party, in reference to the holding of party conventions preparatory to the nomination of parties as presidential electors, as members of the state execution committee, etc. It is well settled that equity has no jurisdiction of political questions of this nature. This is put beyond question by the following authorities: Ramey v. Woodward, 90 Miss. 777, 44 So. 769; State v. Brown, 90 Miss. 876, 44 So. 769; Power, Sec. of State, v. Ratliff, 112 Miss. 88, 72 So. 864; Town of Sumner v. Henderson, 116 Miss. 64, 76 So. 829; Donald v. Stauffer, 140 Miss. 752, 106 So. 357; McKee v. Hogan, 145 Miss. 747, 110 So. 775. See Thompson v. Mahoney, 136 Ill. App. 403; McAlester v. Milwee, 31 Okla. 620, 122 P. 173, 40 L.R.A. (N.S.) 576; State ex rel. Cranmer v. Thorston, 9 S.D. 149, 68 N.W. 202, 33 L.R.A. 582; Duggan v. City of Emporia, 84 Kan. 429, 114 P. 235, Ann. Cas. 1912A 719; Harrison v. City of New Orleans, 33 La. Ann. 222, 39 Am. Rep. 272; Fletcher v. Tuttle, 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220; Shomaker v. Des Moines, 3 L.R.A. (N.S.) 382; Peyton v. Vardaman, 103 Miss. 164; State ex rel. Smith v. Kanawha County, 20 A.L.R. 1030; Mead v. Stirling, 62 Conn. 586, 23 L.R.A. 227; Bonifaci v. Thompson, 252 Fed. 878; Nohl v. Board of Education, 199 P. 373, 16 A.L.R. 1085; Ex parte Sawyer, 124 U.S. 201, 31 L.Ed. 402; State of Mississippi v. Johnson, 4 Wall. 475, 71 U.S. 437, 18 L.Ed. 437; State v. Frazier, 114 Tenn. 520, 86 S.W. 320; State v. Dunbar, 48 Or. 111, 85 P. 338; Anthony v. Burrow, 129 Fed. 790; In re Miller, 5 Mackey (D.C.) 512; Schieffelin v. Komfort, 212 N.Y. 531, L.R.A. 1915D 485; Copeland v. Olsmith, 33 Okla. 107, 124 P. 33; Frantz v. Autry, 18 Okla. 607, 91 P. 209; Taylor v. Kercheval, 82 Fed. 499; Guebelle v. Epley, 1 Colo. App. 204, 28 P. 91; Bates v. Taylor, 87 Tenn. 330, 3 L.R.A. 319; Gibbs v. Green, 54 Miss. 612; Patterson v. Barlow, 60 Pa. St. 75; People v. Barrett, 203 Ill. 103, 96 Am. St. Rep. ___; Morgan v. Nunn, 84 Fed. 554; Weaver v. Toney, 107 Ky. 435, 54 S.W. 737; Walls v. Brundidge, 109 Ark. 258, Ann. Cas. 1915C 980; Arnold v. Henry, 155 Mo. 54, 78 Am. St. Rep. 559; Winnett v. Adams, 71 Neb. 824, 99 N.W. 684; White v. Berry, 171 U.S. 376, 43 L.Ed. 203; Giles v. Harris, 189 U.S. 475, 47 L.Ed. 909.
Counsel for complainants rely upon Nixon v. Herndon, 273 U.S. ___, 71 L.Ed. 759. This case is easily differentiated on the following grounds: 1st. A state statute of Texas enacted in May, 1923, expressly providing among other things, "In no event shall a negro be eligible to participate in the democratic party primary election held in the state of Texas." And this state statute was attacked as unconstitutional under the Fourteenth and Fifteenth Amendments to the Constitution of the United States. There is no contention in the case at bar that any law is unconstitutional and as a matter of fact the complainants themselves are violating the very spirit and the principles involved in the Nixon case. 2nd. The suit in the Nixon case was a suit for damages in a law court and did not involve equity jurisdiction. There was no effort to seek injunctive relief or to stop the holding of any conventions or any election. The case does not touch the case at bar top, side or bottom. Mr. Justice HOLMES, who wrote the opinion in the Nixon case also wrote the opinion in the Alabama case, above, expressly holding that equity has no jurisdiction. It is perfectly manifest from the foregoing authorities that the injunction sued out in this case is without authority of law, that equity has no jurisdiction, that the preliminary order is void, and that the injunction should be dissolved and the bill dismissed.
A full and complete answer was filed denying the material allegations of the bill and in addition thereto special grounds of demurrer to the bill were assigned as a part of the answer. This practice is expressly authorized by section 12 of the reformed chancery practice act, to-wit, chapter 151, Laws of 1924. See 32 C.J. 394, sec. 66; Pomeroy, par. 1685, p. 3939; 32 C.J. 399; Portwood v. Feld, 72 Miss. 542; Freeman v. Lee County, 66 Miss. 1; Davis v. Davis, 65 Miss. 498; Sinking Fund Commissioners v. Patrick, S. M., ch. 110; Moore v. Caldwell, Freem. Ch. 222, and 5 Pomeroy's Eq. Jur., sec. 333.
Our court has expressly ruled that the acts of de facto officers are valid and that equity will not intervene by injunctive relief to restrain any de facto officer and that the sole remedy is quo warranto. We say, therefore, that, even though the chairman or any member of the state committee had not been properly selected as such, the title to his position, whether we call it an office or not, cannot be questioned by injunction. The complainants had a remedy under any conceivable case. If the state committee was not properly constituted and was not in fact the regularly constituted and lawful executive committee of the party, its action would be a nullity and if there was another duly constituted state committee the proper committee could act and the rights of the complainants thereby be protected. But it is interesting to observe that neither the original bill of complaint nor anything in the proof challenges the fundamental fact that the call here enjoined was by, and the suit here filed was against, the only Republican State Committee having power to act. The defendants are sued as the regular committeemen, respectively, state and county. There is no allegation that a majority of the state committee are disqualified. There is no allegation that a majority of any county committee were disqualified. There is an allegation that Perry W. Howard, chairman of the state committee, is disqualified by virtue of his position as assistant attorney-general of the United States. But, even if Perry W. Howard, is for any reason disqualified, he is nevertheless the active state chairman and the National Committeeman from Mississippi of and for the Republican Party and therefore as a de facto chairman his acts are valid and cannot be challenged by injunction. In the second place, there is no allegation in the bill that there is any other chairman other than Perry W. Howard.
Furthermore, we submit that although the committees are disqualified as such for any reason, the validity of their acts should be questioned after and not before the conventions are held. To illustrate, if a beat convention is not held according to law, the delegates selected at such beat convention could be challenged at the county convention, and if in turn a county convention is unlawful, delegates from the county convention to the state could be challenged at the state convention, any of the complainants, therefore, had this remedy open to them. If the state convention is incompetent to act, or, if being competent, acts in an unlawful manner, their acts could subsequently be questioned by challenging the parties they select, whether as new committeemen or as presidential electors. Whether this suit was filed, of course, no conventions had been held and no parties are designated to go on the ballot at the next general election as presidential electors, and, therefore, complainants are in the attitude of howling before they are hit and in assuming, that the law is going to be violated before the people take any action whatsoever. The sworn answer denies that Perry W. Howard holds an office of profit or honor; denies that he is assistant attorney-general, but does admit that he is a special assistant to the attorney-general designated to handle cases assigned to him. His status therefore is not that of a public officer but a special counsel employed by the Federal Government under the direction and control of the attorney-general and subject to dismissal at any time.
There is no law which forbids an officer of the United States Government from acting as a party committeeman in Mississippi; and as a matter of common knowledge and party precedent the Democratic Party usually sends the two United States Senators and the Governor as delegates at large from the state of Mississippi to the National Democratic Convention because of their prominence in the party and their position to lead the party aright on national policies.
The position of a committeeman of a party is not an officer. It is a mere party position. A committeeman of the Republican Party, is not answerable to the whole people of the state and certainly in a solid democracy the chairman of the Republican State Committee in Mississippi does not represent the people of Mississippi generally and is not an officer by virtue of being chairman of a political party committee.
The bill of complaint is styled: "In the chancery court of the Tenth chancery district of the state of Mississippi." There are many counties in the Tenth chancery court district. Some of the defendants live in each of the counties of said district. If the court had jurisdiction of the subject-matter, then under the theory of the complainants this bill could have been filed in any one of said counties. There is no such thing as "the chancery court of the Tenth chancery district." There is a chancery court for each county, and while many counties may have the same presiding chancellor, there is no such thing under the Constitution or laws of Mississippi as the "chancery court of the Tenth chancery district." By express provisions of section 337, Code of 1917, "the address of bills and petitions may be `to the chancery court of the county of . . .'" It is our contention that every bill in the chancery court should designate the county, and, of course, all process must be returnable before a definite court of some designated county.
This cause is fraught with many dangers to political parties and the public welfare. If ten so-called Republicans can enjoin the entire Republican Party, then by the same token ten Democrats, whether white or black, could enjoin the Democratic Party, and if the injunction, as in the case at bar, be sued out just a few days before the conventions are scheduled and that without notice to anyone, the results would be prostrating to the entire party. The evils are manifest and many. See 32 C.J. 412; Davis v. Hart, 66 Miss. 642. It is settled that an injunction on bill and answer will be dissolved unless at the hearing the complainants present a valid and sufficient bill showing jurisdiction of the subject-matter and of the parties, and furthermore sustain their bill of competent proof.
The complainants have not made out a case. In the first place, the proof shows that they do not come into equity with clean hands. Only three of the complainants testified, to-wit, Rice, Blewett and Sheldon. Each of these complainants admitted that they had heretofore voted in Democratic primaries in Mississippi and complainants Rice and Blewett admitted that they voted so late as in the Democratic primaries of 1927. See sec. 6409, Code of 1917.
We know of no law or right entitling a party to participate in the primaries of two parties at one and the same time; and the law fixes two years' minimum time within which a person must be in sympathy with the policies and in accord with the party before he has a right to vote in the primaries of such party. If an elector wants to change parties he must be put on probation for at least two years according to the statutes.
We have shown that this whole proceeding is an effort by a very few so-called Republicans, who might well be denominated the "outs," to restrain the lawfully constituted committee of the regularly organized Republican Party of Mississippi from holding party conventions, and, therefore, this is purely a political contest between the "outs" and the "ins." We cannot imagine a more dangerous precedent than one which would authorize a chancery court of any county in Mississippi to prostrate a political part in the holding of party conventions.
D.E. and C.W. Sullivan and T.J. Wills, for appellee.
This suit is not a contest between rival factions of the Republican Party. This suit is an injunction to prevent the defendants, as the authorized representatives of the Republican Party, from acting in violation of the statutes of the state so as to deprive the complainants of their constitutional and statutory rights of participation in the choice of representatives of the party, and the fixing of the policies under which the Republican electorate of the state of Mississippi are to be controlled. It is well settled, under the Constitution and laws of the state of Mississippi, that our present government is a government by parties. Our law provides for the selection of executive committees and other representative individuals, who shall control and determine the action of the party, in conformity with the laws of the state.
The Constitution and laws of the state of Mississippi in promulgating a government by parties and entrusting the control and management of the parties to executive committees have definitely defined the manner and method by which such control shall be exercised. There are many things that are left, by statute, to the discretion of the party leaders. For instance, the determination of the date of the holding of primaries, either for the election of party candidates or the selection of convention delegates to the respective county and state conventions. The law also reposes in these committees, representing the party, the discretion of receiving the returns and tabulating the vote and declaring the party nominee, the discretion of determining who are qualified, under the law, and who are disqualified to participate in the primary elections. The law does not repose in the party committees a discretion as to all of the things that are to be done. Certain actions to be performed by the party committees are fixed and made mandatory by law. For instance the holding of the primary for the nomination of party candidates for state and county office is fixed by statute for August of the year in which the election is to take place. The laws for selecting presidential electors, with very little changes, will be found in Hutchinson's Code, pages 158 and 167. It will be found in the Code of 1871, in the Code of 1880, and in sections 3699 to 3706 inclusive of the Code of 1892. The same law with few modifications will be found in sections 8099 to 8103 inclusive, Hemingway's 1927 Code.
All of the authorities are to the effect that the doors of the court are not open to contending factions of a political party to hear and determine their differences; that such disputes must be settled within the party councils. All of the authorities are equally unanimous that wherever there is a positive law directing the action of party leadership and party management that the courts will, in proper action, control the party management so as to prevent violations of the law that infringe upon the rights of citizens. Walling v. Lausdon, 15 Idaho 282, 97 P. 396.
There are several cases from other states cited and quoted from in the above case. Counsel for appellant, we again assert, have not followed the theory of the case presented by the complainants herein. The cases relied on in appellants' brief are not in point.
Equity has jurisdiction. Irreparable injury would be wrought if the defendants, as the officers of the Republican Party, were permitted to hold their conventions at places other than the usual voting place, without naming the number of delegates to be elected, and under such conditions and circumstances as to exclude a part of the Republican electorate from participation therein. The legislature has enacted a law that is mandatory on how these conventions shall be held. The legislature can do no more; it is powerless to enforce the law after it is enacted. To the courts have been committed the especial prerogative of enforcing the law. There is no other time, after these conventions have been held, that the courts can be resorted to and redress had. There is no other method of protecting the rights of the citizens of the state, affiliated with the Republican Party, than by restraining the officers in charge of the party control from violating the law.
Argued orally by J. Morgan Stevens, and J.H. Howie, for appellants, and T.J. Wills, for appellee.
This is an appeal to settle the principles of the case, from a decree overruling a demurrer to an original bill and declining to dissolve a temporary injunction granted thereon. The appellees, who were complainants in the court below, are members of the Republican Party in the state of Mississippi, and the appellants, who were defendants in the court below, are members of the various executive committees, state, district, county, etc., of the Republican Party in Mississippi.
The primary elections law (chapter 111, Code of 1906; chapter 167, Hemingway's 1927 Code) regulates the calling and holding of all state and county conventions by political parties, for the purpose of electing executive committeemen, presidential electors, and delegates to the national party conventions. The county conventions are composed of persons elected thereto in each county supervisor's district, and the state conventions are composed of delegates appointed thereto by the county convention.
The appellees here, who are members of the Mississippi Republican State Executive Committee, fixed the day for the holding of the state and county conventions and for the election of delegates to the county conventions, so that the state convention might meet early enough to elect delegates to the national convention which meets at Kansas City on June 12, 1928. Thereupon the appellees exhibited an original bill in the court below, setting forth that the state executive committee had violated the primary elections law in several particulars in providing for the county and state conventions, and praying for an injunction against the holding of the conventions and the elections at which the delegates to the county conventions were to be elected. A demurrer to this bill and also a motion to dissolve a temporary injunction granted thereon were both overruled.
No jurisdiction has been expressly conferred by any statute upon the courts of this state to interfere with, or regulate, the holding of primary elections and conventions by political parties, and, in Ramey v. Woodward, 90 Miss. 777, 44 So. 769, and State v. Brown et al., 90 Miss. 876, 44 So. 769, this court held that the courts should not assume such jurisdiction. The reason therefor, as was clearly pointed out by Judge WHITFIELD, in his concurring opinion in State v. Brown, supra, is that the time which must necessarily be consumed by the courts in attempting to settle controversies relative to the holding of primary elections and conventions is such as would destroy, in most cases, the very purpose which the legislature sought to accomplish by the enactment of the primary elections law. The time intervening between the calling and holding of primary elections or conventions is always necessarily short, and would, in most instances, elapse, as it has in the case at bar, before the courts could decide a controversy relative thereto. Such would always be the case should successive appeals to this court be taken.
Counsel for both the appellants and the appellees say, for reasons not necessary to be set forth, that the case presented by this record is not a moot one, and we have decided it without inquiring into that question.
The decrees rendered by the court below, overruling the demurrer to the bill and declining to dissolve the injunction granted thereon, will be reversed, the injunction will be dissolved, and the cause remanded.
Reversed and remanded.