A. H. D'Alemberte, George W. Ward, J. R. Wells, J. M. Miller, Milton Pledger, Tom Shuler and C. D Clark, Plaintiffs in Error, v. State ex rel. D. H. Mays, Defendant in Error, 56 Fla. 162

Hocker, J., (after stating the facts). The assignments of error not specifically abandoned here are in substance the following: 1. The court erred in overruling the motion by D’Alemberte and other movants named to quash the original alternative writ of mandamus herein. 2. The court erred in overruling the motion to quash the- original alternative writ. 4 and 5. The court erred in sustaining the demurrer of relator to the return to the alternative writ filed by Tom Shuler, and to the additional return by Tom Shuler. 7. The court erred in sustaining the demurrer filed by relator to the return by J. M. Miller. 9.

The court erred in sustaining the demurrer filed by relator to the return by respondents D’Alemberte, Ward, Wells, Pledger and Clark. 12. The court erred in overruling the motion filed by D’Alemberte and other movants to quash the amended alternative writ of mandamus. 13. The court erred in awarding the peremptory writ .of mandamus. 14. The court erred in designating in his order awarding the peremptory writ Tallahassee as the place of performance of the acts required to be done by the peremptory writ.

Before entering upon the discussion of these assignments, it is necessary to refer to the statutes of this State relating to primary elections. By

section 255 General Statutes of 1906, the State Executive or Standing Committee of any political party in this State, or any Congressional District, or County, is authorized to decide to, hold primary elections, and to give notice of such elections.

Section 256 Id. provides that such notice shall state the d'ay of such election, the hours within which it is to be held, the names of the inspectors appointed to hold such election and receive the votes cast, and make report and return thereof, and the time when such return and report shall be made to the committee directing such meeting to be held.

Section 257 provides for registration for such primary elections.

Section 258 provides that no person can vote or take

part in the proceedings of any primary election who is not by the.laws of this State a lawful elector, who has not paid his poll tax legally due not less than ten days before such primary election is held and authorized to vote in any legal election in the ward or precinct for which such primary election is held. 'Section 259 provides that the Executive or Standing Committee calling such primary election may declare the terms and conditions on which legal electors offering to vcite at such election, shall be regarded and taken as proper members of the party at whose instance, or in whose interest such primary election has been called, or may be held, &c.

Section 260 provides that “Any recognized member of the party in whose interest such election is held may challenge the right of any person offering to vote at such election, and the inspectors authorized to hold and holding such 'election shall determine on the evidence then furnished whether the person so offering is entitled to vote at such election, and shall receive or reject such votes so offered as the evidence for or against the right of the persons so offering to vote shall reasonably war-' rant.

Section 261 provides that “The inspectors holding such primary election under the provisions of this

Article may of their own motion, or in any case of the challenge of any person offering to vote, if they deem there is any doubt of the propriety, under the provisions of this Chapter, of the vote so offered require of the person so offering to vote -his oath to the fact which authorized the vote, and if the person so offering to vote declines to make oath so demanded his vote shall be rejected.”

Section 262 provides for votes by ballot at primary elections.

Section 263 provides that “The report to the committee so directing such primary • elections by the officers holding the same shall be in writing, with which the original ballots shall be returned, and the poll list of the voters made at the time of the voting, and the reasons on which any challenged vote was received or rejected.

Said committee shall carefully examine the returns and reports so made, and thereupon decide who have been chosen by the majority vote cast in the primary election for delegates to the convention, and from what ward or precinct, if the meeting were for the appointment of delegates to such convention, or what person or persons by a majority vote have been elected as candidates of the party, as the case may be, for the office- or offices to be filled at the approaching election.”

Section 264 provides for a second primary election where no person shall have received a majority of all votes cast for the several candidates.

Section 265 provides that the inspectors who held a primary election shall before assuming the duties make oath that they will honestly, faithfully and to the best of their ability do and perform the duties of their respective offices; and any wilful violation of said oath, or of any other oath taken under the provisions of this

Article shall be held to be perjury, and punished as perjury.

Section 268 provides for assessing the candidates for raising money to pay the expenses of a primary election.

Section 270 provides that -except as provided all elections under this

Article (primary) shall be regulated by the election law of the State as nearly as the same can be done.

Chapter 5613, Laws of 1907, deals with primary elections.

Section 2 of said act provides that the Congressional Executive Committee of a political party shall consist o-f one member from each county in the District who shall be elected for two years, etc.

Section 4 of said act provides that the County Executive Committees shall be not more than one member from each precinct in the county who shall be elected, etc. It also provides that before any person shall enter upon the duties of Executive Committeeman — County, State or Congressional — -he shall subscribe an oath or affirmation that he will perform the duties of committeeman in accordance with the duties of the primary law and act impartially as to candidates in the enforcement of the same. said oath to be filed with the Clerk of the Circuit Court.

Section 5 of said act provides that Executive Committees shall not recognize the proxy of any member unless such proxy is held and represented in person by a resident of the same county or precinct where the committeeman giving it resides.

Section 7 provides that the decisions and rulings of County and Senatorial Committees for a county office and members of the House and Senate shall be final.

Section 8 of said act is as follows: “That if any candidate for United States Senator, or any candidate for any State or Congressional office is dissatisfied with the rulings or decision of the County or Congressional Committee affecting his candidacy in said county, said candidate shall file within twenty days after the result is declared with the State or Congressional Executive or Standing Committee, as the case may be, his protest as to the result of the election in such county; whereupon the chairman of the State or Congressional Executive or Standing Committee shall, after filing such protest, cause notice of such protest to be given to the County Executive or Standing Committee wherein the irregularities are alleged to' exist, whereupon it shall be the duty of such County Committee to immediately forward a certified copy of all such evidence submitted t > and considered by them and their rulings and decisions thereon to the State or Congressional Committee, as the case may be, and such committee shall review the findings and decisions of the County Committee and its decision thereqn shall, be final.” The first and probably the most important question presented here is the jurisdiction and authority of the courts to entertain mandamus proceedings in a case like the present.

It is strenuously insisted 'by the plaintiffs in error that our courts have no jurisdiction over questions arising under the primary election laws; that they belong to the domain of political questions, with which the judicial department of the State government under the constitution and laws has nothing to do. To sustain this contention Ramey v. Woodward and State ex rel. Barbee v. Brown, both being Mississippi cases and found on page 769 of the 44th Southern Reporter, are cited and relied on.

The first' of these cases was decided to be a contest between rival candidates under the primary law, and it was held the courts could not entertain such a contest. The second was a mandamus case to compel a committee to reassemble and canvass the result of a primary in accordance with the true returns. It was held the courts of Mississippi had no power to entertain contests between candidates at primary elections. It is apparent that this court regarded the case before them as a contest between rival candidates and not simply as a proceeding to compel officers or quasi-officers to perform a statutory duty.

A large number of other cases from other States including Louisiana, Kentucky, Colorado, Missouri, Michigan, Rhode Island, New Hampshire, &c., have been cited to us in the briefs of the plaintiffs in error and to some extent some of them may be said to sustain the contention that courts have no jurisdiction of purely political questions, especially such as arise under primary election láws. But in most of these cases the courts have treated the cases as election contests.

Again, in some of the States there are constitutional provisions authorizing the legislature to designate the courts which shall try election contests. For instance the Constitution of Colorado,

Article VII,

Section 12, is as follows: “The General Assembly shall by general/ law designate the courts and judges by whom the several classes of election contests not herein provided for shall be tried, and regulate the manner of trial and all matters incident thereto.” In

section 148,

Article 3 of the Constitution of Kansas it is provided that the judicial power is vested in a Supreme Court, District Courts, Probate Courts, Justices of the Peace, and such other courts, inferior to the Supreme Court, as may be provided by law. Stimson in his work on Federal and State Constitutions of the United States,

section 238, cites a large number of States in which the constitutions have special provisions with reference to the trial of contested election cases. Exactly what effect these constitutional provisions have had, if any, in determining the views of the courts in those States upon the question of their authority to take jurisdiction of election controversies we are not able to say. Certain it is, however, that many of them refuse to entertain such a jurisdiction. It is impossible to- review these decisions in this opinion within any reasonable length of discussion though they have each been examined.

Other courts do not take this view of the power of the courts to use the writ of mandamus to compel a proper canvass of the returns in primary elections. See Bradley v. Board, Mich. , 117 N. W. Rep. 649. In the case of Freeman v. Board of Registry and Election of Metuchen, 67 Atlantic Reporter 713, the Supreme Court of New Jersey held that mandamus will lie to compel a Board of Registry and Election to make up and sign such a statement of the result of a primary election as was required by law. In the case of State ex rel. Guion v. Miles, 109 S. W.

Rep. 595, the Supreme Court of Missouri in discussing the primary election law of that State, and the rights of a committeeman who had been elected under it, and who 'had been improperly removed, held that where the duties imposed by iaw on a person either make him a public officer or a quasi-public officer, or where the position is one wherein he has the right to perform the duties and functions required of him, and the matter about which he performs the service is one of public concern, or where the position is one with such characteristics as to make it analogous to that of a public office, mandamus lies to restore him to the rights of which he has been illegally deprived by being removed from his position.

The court further says that mandamus is a prerogative writ of a remedial nature and it is issued in all cases where the party has a right to have anything done and has no other specific means of compelling' performance. This case holds that those who constitute the governing authority of a political party acting under a primary election law are ánalogous to those of a public officer; that he is elected to fill public duties of great public concern; that his duties are regulated by statute and that the law gives him a definite legal standing and legal rights which he may enforce. The court quotes from Mason v.

Byrley, 26 Ky. Law Rep. 487, 84 S. W. Rep. 767, and State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. Rep. 628, 9 L. R. A. (N. S.) 916. In the last case the doctrine was applied to a man who had received the plurality of the votes of his party at a primary election. The Missouri court also- rely upon and quote largely from the decision of the Court of Appeals of New York, in the case of People ex rel. Coffey v. Democratic General Committee, 164 N. Y. 335, 58 N. E. Rep. 124.

In this case the opinion of the majority of the court delivered by Judge Parker goes extensively into the history of primary election laws, and of the abus's that led to their adoption. It is unnecessary to state them at length in this opinion as we feel sure they are well known to the profession and the people. In this case the writ of mandamus was used under very much the same circumstances as in the Missouri case. In the case of People ex rel. Breckton v. Board of Election Commissioners of Chicago, 221, Ill. 9, 77 N. E.

Rep. 321, the writ of mandamus was used to compel the commissioners to allow the Socialist party to hold a primary election under the act of May nth, 1901. In this case they also decided the primary law to be constitutional in its main features. We think it is admitted in the briefs of the plaintiffs in error that the weight of authority now is to the effect that State Legislatures .have the general power to pass reasonable primary election laws. 5 Am. & Eng. Anno. Cases, p. 568 and note. But it is contended inasmuch as the record shows that the Congressional Committee had already issued a certificate to Mr.

Kehoe before the writ was served upon them, that this case involves an election contest between Mr. Kehoe and Mr. Mays, and that in such a case mandamus does not lie. The same question was presented by respondents in the celebrated case of Drew v. State Canvassing Board, 16 Fla. 17, but the court held in effect that there had been no canvass until all the votes cast had been canvassed. State ex rel. Bisbee v. Board of State Canvassers, 17 Fla. 29, text 64 (head-note 8); State ex rel. Bloxham v. Gibbs, 13 Fla. 55, S. C. 7 Am. Rep. 233.

Our opinion upon the point under discussion is that the rights created under our primary law are such that when violated the courts may be resorted to- for their redress, and that the writ of mandamus may be used to compel the performance of - the duties which are imposed by the statute upon the members of the Congressional or Standing Committee of a Congressional District, if those duties are ministerial and not judicial.

Section 35,

Article 5 of our constitution as amended in 1898,. reads as follows: “No courts other than herein specified shall be established in this State, except the legislature may clothe any railroad commission with judicial powers in all matters connected with the functions of their office.” As there is no- provision of the constitution authorizing the legislature to confer judicial powers upon those who hold, conduct or canvass elec- ■ tions, primary or otherwise, the powers conferred must necessarily be ministerial in their nature. Drew v. State Canvassing Board, supra; State ex rel. Bisbee v.

Board of State Canvassers, supra. It is clear from these cases that a canvassing board can have no- exclusive and ultimate power to pass upon the question whether a vote cast at an election was legally cast, for that is a judicial question. We must, therefore, construe the primary election laws in the light of these decisions.

It is contended by plaintiffs in error that this view would necessarily result in our holding the primary election law to- be unconstitutional, because according to the contention judicial powers, the power to pass upon the legality of votes cast at an election, and the making of the decisions of the County and Congressional Committees final upon these and other questions would bring the whole law in conflict with the constitution, as it cannot be concluded the legislature would have passed the primary statutes without these provisions.

It is our duty to hold the statutes to be constitutional if we can do so without violating the plain intent of the legislature. We think it plain that

section 260 General Statutes supra, provides the only occasion when and method by which the right of a person to vote at a primary election can be questioned. It is to be done at the time such person offers to vote. The inspectors then hear the evidence and then determine for or against the right of persons offering to vote, as the evidence shall reasonably warrant. This is a necessary minitserial or quasi-judicial power, without which no orderly election could be held.

Section 261 General Statutes, supra, provides for the challenge of a proffered vote by the inspectors or others.

Section 263 provides that the report by the officers holding the election to the committee shall be in writing accompanied by the original ballots and poll list, and the reasons on which any challenged vote was received or rejected. This provision is intended, we think, to preserve the evidence of what occurred at the polling places. The

section then provides thát the committee shall carefully examine the returns and reports so made, and thereupon decide who has been nominated. We do not think that this

section authorizes the committee to* seek or take any evidence outside of the returns and reports so far as the legality of any vote is concerned, for there is no authority given them to* summon witnesses or go into an investigation of such a question. It may be contended there is an implied authority under

section 8 of

Chapter 5613 to go into an investigation of irregularities generally, inasmuch as that

section requires the County Committees to forward to the Congressional Comm'ittee, where a protest is filed by a Congressional candidate “a certified copy of all such evidence submitted to and considered by them.” We think this means a certified copy of such evidence as inspectors are authorized to take upon the challenge of a vote, and which inspectors are required to send to the County Committee. It is also our opinion .that said

section 8 confers no power upon the Congressional Committee of taking testimony or of going outside of the returns made to it by the County Committee. There is no express power given, and an implied power is negatived by the fact that they are only authorized to review the findings and decisions of the County Committee.

We are furthermore of opinion that it is unnecessary to construe the word final in Sections 7 and 8 of said act, in which it is said that the decisions and rulings of the County, Senatorial, Congressional and State Committees shall be final, as giving to the said committees> absolute and final authority in the matters upon which they decide. The word may very well be understood as meaning that when a matter has been decided by a committee, that decision is to be final as to the committee; that there is to be no procrastination and delays such as are incident to- re-hearings and re-considerations.

It seems to us that such a view is essential to the proper and expeditious operation of the primary law, for if a primary election is called at a sufficiently early date, as it should be, and the committeemen and officers are ■prompt in attending to their duties and in making their decisions, it seems to us that there would be ample time left between the dates of those decisions and the date of the regular election for any candidate dissatisfied with •the final rulings against him to promptly contest with his successful opponent by quo warranto or other proper proceeding, if there be any, the legal right to* the nomination.

We think'the primary law imposes upon inspectors and committeemen very important public functions in the proper and prompt discharge of which the public has an interest, and that these duties cannot be intentionally and unnecessarily shirked or avoided without incurring liability.

Thus construed we think the primary law is constitutional, and that its ultimate connection with the right of suffrage under the constitution makes it just, and proper that the rulings of our court, in regard to the powers and duties of Canvassing Boards under the general - election law should as far as appropriate be applicáble to the construction of the primary laws.

We therefore do not think the Circuit Judge erred in overruling the motion to quash the alternative writ, or the amended alternative writ, or in sustaining the demurrer ■to the returns of the plaintiffs in error, or in awarding the peremptory mandamus. • So far as the return of J. M. Miller is concerned, and the ruling of the court thereon, it is sufficient to say that Mliller having been elected and having qualified as a committeeman, could not avoid ’responsibility by voluntarily appointing a proxy, or proxies simply to avoid some trouble and expense. The statute does not require him to appoint a proxy.

It simply permits one to be appointed, and when one is appointed he is simply the representative of his principal for the time being". It is still the duty of the principal to discharge his legal functions when the votes cast at a primary have not been canvassed as we think is shown in this case under the lig"ht of our decisions.

In this case the record shows that the Congressional Committee was having its official meetings in Leon County, one of the counties of the Congressional District, that the acts and omissions of the committee complained of took place and occurred in Leon county, and that the members of the committee were in Leon county engaged in their public duties as such committeemen when served. Under these circumstances it cannot be said there is error in requiring the committee to properly perform their public duties in Leon county.

We think we have discussed all the questions which are properly before us under the assignments of error. The judgment of the Circuit Court awarding a peremptory writ of mandamus is affirmed. - Taylor, Cockrell and Whitfield, JJ., concur. Parkhill, J., disqualified, took no

part in the consideration of this case. The Chief Justice read and approved the opinion but was prevented by illness from being present at its announcement.