Opinion
February 14, 1949.
1. Appeal — moot questions.
The Supreme Court will not adjudicate moot questions and will not render a judgment which would be wholly unenforceable and therefore useless.
2. Appeal — election of presidential electors — candidates after election has passed.
An appeal from an adverse decision upon a petition by candidates for presidential electors to have their names placed on the official ballot will be dismissed as moot when the general election had already been held when the case came on to be considered by the Court.
3. Appeal — advisory opinions.
The Supreme Court has no constitutional authority to issue an advisory opinion, and therefore will not give such an opinion.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
James T. Kendall, Assistant Attorney General, W.E. Gore, and John G. Burkett, for motion.
The court will take judicial notice, of course, that the election for Presidential Electors was held as required by law on November 2, 1948, and that all issues involved in said election have been fully decided. From the tabulation of the votes cast the court will further take judicial notice that the votes cast in Mississippi for the contending groups of candidates here involved, either separately or in combination, would in no wise affect the results of said election.
Inasmuch as the election which is here involved has been held as required by law and the results decided, it is apparent that the questions involved on this appeal have become moot and that, therefore, no useful purpose will be served by the entertaining of this appeal or a decision of the issues which are here involved. The time has now passed for the performance of the duty allegedly imposed upon the appellee in appellants' petition and, therefore, the court can enter no effective judgment herein.
It is submitted, therefore, that this appeal should be dismissed under the rule laid down in the cases of Sellier v. Board of Election Commissioners of Harrison County, 174 Miss. 360, 164 So. 767; Rawlings v. Claggett, 171 Miss. 845, 165 So. 620; Moran v. Murphy, 187 Miss. 633, 193 So. 29, and in numerous other cases holding that an appeal presenting only moot questions will be dismissed.
J.A. White, contra.
While the court will take judicial notice that the election for Presidential electors as required by law on November 2, 1948, has been held, the court will also take judicial notice that an election for Presidential Electors is required by law on the first Tuesday after the first Monday in November, 1952, and on said day each four years thereafter, and that paragraph 2, section I, Article II of the Constitution of the United States of America and House Bill No. 867, Laws of Mississippi of 1948, are the prevailing provisions controlling said future elections, and these matters affect the public interest and are matters vital to every citizen of Mississippi and the citizens of the United States as well, and the Secretary of State, whether it be the present incumbent or another, will have the same and identical duties in respect to future elections as did the named appellee in respect to the last one, a decision of the merits of the mandamus proceeding will determine the constitutional question of whether said election ballot used on November 2, 1948, which did, in fact, contain the names of the appellants and the appellees both pledged to support the nominees of the National Republican Party for President and Vice-President of the United States, namely Thomas E. Dewey and Earl Warren, and will serve as a precedent and guide in the conduct of future elections to be held under the same prevailing laws. While the decision on mandamus, as the results of the election of November 2, 1948, from other states would not effect the results of the election itself in Mississippi or the United States as a whole, it most certainly cannot be argued that a determination of who are entitled to be candidates for Presidential Elector in accordance with the laws of Mississippi and the Constitution of the United States is an abstract or moot question, and the decision in reference thereto, would serve no useful purpose. We submit, on the contrary, a constitutional question never becomes a moot or abstract question, and a judicial determination thereof is always beneficial. See 132 A.L.R. 1189.
Furthermore, section 248, Constitution of the State of Mississippi, provides: "Suitable remedies by appeal or otherwise shall be provided by law, to correct illegal or improper registration and to secure the elective franchise to those who may be illegally or improperly denied the same." As charged in the original petition for the injury done the appellants, their sole and only remedy for redress of these wrongs is by petition for Writ of Mandamus as no other remedy was provided for review of the Secretary of State's action pursuant to H.B. No. 867, aforesaid, and appellants insist that such a remedy is guaranteed to them by the aforequoted section 248 of the Mississippi Constitution, and respectfully submit that they are now entitled to have determined whether their personal and political rights have been taken from them, and whether they have been illegally and improperly denied the elective franchise.
In that the appellants have been deprived of liberty without due process of law in violation of the constitutions of the United States and the State of Mississippi, and denied a remedy for redress of this injury by the protection extended to the Secretary of State by section 3834, Code of 1942, a real question in interest still prevails between the appellants and the named appellee as to the correctness of his action, and now that the damage to appellants has in fact inured, the appellants are entitled to a reversal of the judgment of the lower court, and to assert by way of amendment to the original petition a new and separate count seeking to recover of and against the named appellee such damage as they have sustained by his deprivation of their liberty.
An issue exists between the appellants and the appellees other than the named appellee by reason of the intervention petition to be determined whether those appellees are a political party in accordance with the laws of Mississippi. The petition for intervention asserts that appellees other than named appellee are a political party in accordance with the laws of Mississippi, and this fact is denied by the appellants. Proof was taken on the issue joined and appellees undertook but failed to prove their compliance with H.B. No. 386, Laws of 1948, and as political parties are governed by statute in Mississippi, it is proper for the court to determine whether the statute has been violated. See Note 16, 18 Am. Jur. 273.
A dismissal of this appeal as sought by the named appellee, when the other appellees have been allowed to intervene after issue joined on their right to do so, and without a reversal of the judgment of the court below on this issue, would be a grave injustice to the appellants and would permit the said appellees to have obtained judicial approval of their open defiance of the laws of the State of Mississippi.
We respectfully submit, therefore, that the motion of the appellee, Secretary of State, to dismiss this appeal should be overruled, as the decision of this case affects the public interest, will serve as a guide for public officials and all citizens of the State in future presidential elections, and that a real controversy still exists between the appellants and the named appellee as to whether appellants have been deprived of liberty without due process of law, and a further real issue still exists between the appellants and the other appellees as to whether appellees are a political party in accordance with the laws of the State of Mississippi.
Appellee has filed a motion to dismiss the appeal. It comes from the Circuit Court of the First Judicial District of Hinds County, and was perfected by appellants from a judgment adverse to them. The motion charges that all "questions involved therein have become moot and that no useful purpose will be accomplished by entertaining said appeal."
The action was brought in the trial court by a group of citizens representing themselves to be "the duly nominated candidates for Presidential Elector by the Republic State Convention of Mississippi to be balloted on in the General Election to be held in the State of Mississippi on November 2, 1948 for the purpose of choosing Presidential Electors, . . .". They alleged in their petition for a writ of mandamus that they were "the first group of candidates for Presidential Elector of the Republican Party of Mississippi to be certified to the Secretary of State, . . . the Petitioners are pursuant to House Bill No. 867, Now Chapter 312, Laws 1948, entitled to be the only group of candidates for Presidential Elector to be placed on the Ballot for the General Election to be held in Mississippi on November 2, 1948 pledged to the nominees of the National Republican Party, namely Thomas E. Dewey and Earl Warren." They then charged that appellee intended to, and was, "going to place in addition to the names of Petitioners another and an additional group of candidates for Presidential Elector Pledged to the nominees of the National Republican Party for President and Vice-President of the United States, namely Thomas E. Dewey and Earl Warren, respectively, . . .". A writ of mandamus was sought commanding appellee, "to place only the names of the Petitioners on the official ballot for the November 2, 1948 General Election as pledged to support the nominees of the National Republican Party, namely Thomas E. Dewey and Earl Warren, and that the names of no other candidates and group of candidates so pledged shall appear on said ballot."
A rival faction of the Republican Party in Mississippi asked, and were permitted, to intervene, — claiming themselves to be the Republican Party in Mississippi, — in order to contest the demand of appellants. They charged that the litigation vitally involved their political rights.
Appellee, the Secretary of State, and the intervenors, separately demurred to the petition of appellants. It is not necessary for decision on this motion that the grounds of the demurrers be set forth. The Court sustained the demurrers and appellants declining to plead further, their petition was dismissed.
Appellants seem to argue that the appeal should not be dismissed as moot, because an advisory opinion from us would clarify the law, and serve as a guide in the future; and throw light on conjectured possibility of a suit for damages; and because a public question is involved.
(Hn 1) We have repeatedly declared that we would not adjudicate moot questions. We cite a few of the many cases so holding. Moran v. Murphy et al., 187 Miss. 633, 193 So. 29; Sellier et al. v. Board of Election Commissioners of Harrison County, 174 Miss. 360, 164 So. 767; Whidden v. Broadus, 108 Miss. 664, 67 So. 155; Rawlings et al. v. Claggett et al., Election Commissioners, 174 Miss. 845, 165 So. 620.
In the Sellier case, supra, we said [ 174 Miss. 360, 164 So. 768]: "There is no principle of law better established than that courts will not adjudicate moot questions; that they will only decide real controversies, not imaginary ones; and that no judgment will be rendered which is unenforceable and therefore useless."
(Hn 2) November 2, 1948, has passed, and the election tickets prepared, distributed, and voted in the election are changeless things of the past, and are now functus officio. Both Republican groups appeared on the ballot, and no decision of ours can now erase one or the other from the ballot, or affect or alter the result. Nor can we undo the voting of the Republican groups in Mississippi on November 2, 1948, by any adjudication by us at this time. A reversal and remand would be entirely useless as to matters already discharged.
Therefore, the case at bar is not within the case of Sartin, Circuit Clerk v. Barlow, District Attorney, ex rel. Smith, 196 Miss. 159, 16 So.2d 372, 377, governing an exception to the rule that courts will not adjudicate moot questions. The issues are different, the facts are different, and the principles involved there find no correct analogy here. The Court's judgment there seemed to be enforceable. Here, it could not be, even if favorably to appellants. That opinion of the Court concluded with these words: "That date having passed, we affirm the judgment with the modification that the examination shall be allowed upon the statutory notice at any time within twelve days from and after the filing of the mandate of this court in the court below." In the dissenting opinion, it was contended that "The clear implication of the decision just rendered is that the appellee Smith may continue his contest of the election of his opponent, . . .". In the case at bar, we cannot so order. The matter of the names on the tickets in this particular election are, as pointed out, supra, forever a closed incident, and it is so irrevocably a past event that no power can now alter the finality of the completed action of official function. To attempt to challenge the immutability of the past here would be to rival Don Quixote in his tilting at the windmills. And, we quote this pertinent passage from the Rubaiyat:
"The moving finger writes; and having writ, Moves on; nor all your piety nor wit Shall lure it back to cancel half a line, Nor all your tears wash out a word of it."
So, that while in no way receding from our announcement in the Sartin case, we, however, hold it is not in point in the instant case.
(Hn 3) As to the appellants' defense against this motion, that we should issue an advisory opinion, we have several times declared our lack of authority to do so. We have specifically said in Re Opinion of the Justices, 148 Miss. 427, 114 So. 887, 888, dealing with advisory opinions between departments of the State government: "Moreover, and aside from this prohibition, the giving by judges of opinions on questions that may thereafter be submitted for decision to the courts of which they are members is highly improper unless they are constitutionally authorized so to do." We are not authorized by the Constitution to do so herein. The Supreme Court of the United States in the case of Federal Radio Commission v. Nelson Brothers Bond Mortgage Company, supra ( 289 U.S. 266, 53 S.Ct. [627], 632, [77 L.Ed. 1166, 89 A.L.R. 406]), speaking of its powers said: `It cannot give decisions which are merely advisory, or can it exercise functions which are essentially legislative or administrative.'" California Company v. State Oil Gas Board et al., 200 Miss. 824, 27 So.2d 542, 28 So.2d 120, 121.
We, therefore, decide nothing hereby, except that the motion to dismiss the appeal should be, and is, sustained, and the appeal dismissed.
Appeal dismissed.