State ex rel. Brewer v. Abbay

Whitfield, C, J.,

delivered the opinion of the court.

Whilst it is true that the petition avers that the' executive committee made no canvass of the returns, other averments of the petition show that the executive committee, besides ratifying what the election officers did, tabulated and added up the votes cast for Tucker and Robertson, respectively, and declared Tucker the nominee. The very gist of the complaint is that the executive committee did not declare the votes cast for Tucker legal or illegal, and did not refuse to count them. But we think it clear that the act of declaring Tucker the nominee, after tabulating and adding the votes, necessarily involved a declaration that the votes cast for Tucker were legal. How could they have declared him the nominee without finding the votes cast for him to be legal ? What the petition prays for is, in effect, that the executive committee be commanded to reconvene, to hear the evidence on the single point whether Tucker was a member of the executive committee, and acted as such, and, if he did, to declare the votes cast for him illegal, and not count them. The very essence of the prayer is that the executive committee shall declare the votes cast for Tucker illegal, and not count them., But it is perfectly obvious from the averments of the petition that Tucker was a member of the executive committee; that he did act as such; that the executive committee were bound to have seen, upon the face of the returns, exactly how many votes were cast for him; and that, in full view of this knowledge, they nevertheless declared him the nominee. There is necessarily involved in this action the finding of the executive committee that those votes were legal, and it logically follows that the real complaint is not so much that the executive committee have failed to decide whether the votes cast for Tucker were legal or illegal, as that they did decide that those votes were legal,' and that that was wrong; and plainly this would be to employ the writ of mandamus, not to compel action, but to control discretion in acting.

There is another fatal objection to the granting of the writ. The application came too late. Taking all the provisions of the law together, the scope and intent require, ordinarily, that the complaining party shall present his evidence and make his oN jections at the first meeting of the executive committee after the primary election. The committee is directed “promptly” to “receive evidence and correct wrongs.” The very nature of the case requires prompt action all round. The intent of the law is that none but eligible candidates shall appear on the party ticket, so as to avoid confusion later, ánd that whatever inquiry is had shall be had at the first appropriate time, to wit, the first meeting of the executive committee after the primary election has been held. It seems clear from the averments of this petition that Robertson knew everything touching the elegibility of Tucker quite as well before the primary election was held as afterwards, and yet not a single objection was made— no evidence was offered by him to be introduced — at the meeting of the executive committee. No excuse was shown, none existed, why he should not have offered his evidence to prove that Tucker was a member of the executive committee at the first meeting of the executive committee, and why he should not have then interposed his objections based on his ineligibility. That was the time for the executive committee to have “received his evidence and corrected any wrong” complainéd of, if any existed. Yet he waited until about twenty days after the primary election before filing his petition for this writ. We will not be understood as saying that there may not be cases in which, after the first meeting of the executive committee has been held, the writ may be used to compel the executive committee to reconvene to receive evidence and to correct wrongs. There may occur cases in which the complaining party may not have known, with the exercise of all reasonable diligence, of the fraud or illegal act vitiating the election; and it must he conceded that the power conferred upon the executive committee of the county for the correction of wrongs in a primary election are much broader than those conferred by the old law on the election commissioners for the very obvious reason that in case of an election the law provides a mode for contesting the result of that election, and that it is in that contest that the wrongs and frauds committed are to be corrected. But in the case of a primary election there is no tribunal vested with power to determine who is to be the party nominee — to correct the wrongs and frauds bearing upon the solution of that question — save only the executive committee of a county. However it may be in the case of a complaining party who had no knowledge of the wrong or fraud until after the executive committee had met, it is certain that the intent and scope of the act require, in the case of one who did have such knowledge, that he shall make his objections and offer his evidence at the first meeting of the executive committee of the county after the primary election has been held.

It results that the judgment must he affirmed.