Case 87 — Primary Election Contest by Annie R. Beasley against' C. C. Adams.

September 29.

#### Beasly v. Adams.

APPEAL FROM GRANT CIRCUIT COURT-JOHN M. LASSING, CIRCUIT JUDGE.

From the Judgment op the Circuit Court the Contestant Appeals.

Appeal Dismissed.

Primary Election — Contest—Right op Appeal.

Dnder Ky. St. 1903, sec. 1563, providing that in case of a primary election contest the governing authority of the political party holding such election shall have power to hear and determine such contest, and “decide who shall he entitled to the nomination,” the proceedings to he in such form and manner as such governing authority shall determine, is final, and an appeal is. unauthorized.

WM. CARNES and HARRISON & BEASLEY, attorneys por appellant.

1. Our contention is that under the rule) laid down by this oourtin Henry v. Secrest, 24 R., 1507, and in Cain v. Page, 19 R., 977, this court has jurisdiction to hear this appeal where a recount of the vote in a primary election was denied the contestant by the governing authority of such primary.

2. We submit that where the governing authority in calling the primary election adopted a rule “that in the final hearing of the ease the party defeated may have an appeal to the Grant circuit court if they so desire,” gives authority for this appeal.

*696CLORE, DICKERSON & CLAYTON and R. L. GREENE, attorneys ROB APPELLEE.

1. The statuté does not authorize an appeal from the action iOf a contest board in a primary election, nor is there anything in the law governing primary elections authorizing an appeal.

2. There is no question in- this case that the committee before whom this contest came, was the governing authority of the party.

3. The circuit court having no jurisdiction conferred on it by statute of this appeal, certainly such jurisdiction could not be given to it by any rule of the board.

4. Section 1563, Ky Statutes is positive and explicit. in its terms, giving the committee plenary power to receive and count the vote and declare the nominee. There is no appeal provided for in the statute, and the words used manifest the purpose on the part of the Legislature to repose the authority finally in the committee.

Opinion op the court by

JUDGE BARKER

Dismissing.

The appellant, Annie R. Beasley, and the appellee, Claude 0. Adams, were rival candidates for the nomination of the Democratic party for the office of school superintendent for Grant county, Ky., at a primary election held on the 2d day of April, 1904. After the election the returns were canvassed by the Democratic executive committee, the governing authority of the party in the county, who awarded the certificate of nomination to appellee. On the 30th day of April, 1904, appellant, being dissatisfied with the action of the committee as a canvassing board, filed with them grounds of contest in writing, in which she set forth various reasons why the certificate of nomination should be awarded her instead of appellee. On May 9, 1904, amended grounds for contest were filed, and on the same day the committee met, and, all having been duly sworn to faithfully discharge their duty as members of the contest board, it was then moved and carried that rules governing the proceedings of contest be adopted, and it was resolved as follows:

*697“Eule No. 1. The committee shall first proceed to hear and determine at this meeting any objection of the contestee, C. C. Adams, to the sufficiency of the notice of contest, and to dismiss said contest if said notice and grounds are insufficient; and, resolved:

“Eule- No. 2. That in the event the said committee should hold that the notice of contest states sufficient grounds of contest to authorize the investigation of facts and the hearing of proof, that the contestee shall have ten days’ time after this date to file an answer or counter contest, and the contestant shall have ten days after notice of the filing of same has been served upon her in which to reply; and thereupon the committee shall proceed to direct how and in what manner the testimony may be produced before said committee; and this meeting will in that event be adjourned to meet on the call of the chairman to provide said rules for the production of the testimony, and it shall be the duty of said chairman to forthwith call a meeting at some date not later than ten days after the filing of said reply for the purpose of promulgating the rules governing the production of evidence and the further hearing of the contest.

“Eule Nó. 3. In the event the committee shall hold that *\*the notice of contest is insufficient, and does not state grounds to authorize an investigation of the facts or the hearing of proof, then the contest shall be dismissed, and the committee finally adjourned from the consideration of the said contest.”

The parties to the contest were treated as litigants in court, the appellant being plaintiff, and her grounds of contest her petition. ■ The appellee, who was defendant, filed a general demurrer to the petition as amended, and this, after being duly considered, was sustained, and the petition dismissed, whereupon appellant prayed an appeal to the *698Grant circuit court, which was allowed her by the committee, under amended rules governing the contest, which were adopted on her motion, and which are as follows:

“Rule No. 1. It is ordered that should the contestant or contestee offer any amendments, they should be considered as to the sufficiency or insufficiency of them in this contest.”

“Rule No. 2. It is ordered that in the final hearing of this contest, the party defeated may have an appeal to the Grant circuit court, if they so desire.”

At the June term of the Grant circuit court a motion was made to dismiss appellant’s appeal, which was afterwards sustained, for want of jurisdiction, from which judgment this appeal is prosecuted.

The question for adjudication on this submission is whether or not an appeal lies from the decision of the committee to the circuit court. Section 1551, Kentucky Statutes, 1903, is as follows: “All primary elections held in this Commonwealth by the various political parties shall be held and conducted in the same form and manner and under the same requirements as are or shall be provided by law for the holding of regular State elections, except in such particulars as herein excepted.” Section 1503: “The duly authorized and constituted committee or governing authority in the county or district in which a primary election may be held hereunder is hereby empowered to count the votes received by all candidates in such primary elections, and to declare the candidate or candidates, in cases where candidates for more than one office are to be nominated, receiving the highest number of votes the nominee of such political party for the office for which he was voted for at such primary election. In all cases of a tie vote or contest, the committee or governing authority of the political party holding such primary election shall have the power to hear *699and determine such contest, and decide who shall be entitled to the nomination. The proceedings in such cases shall be in such form and manner as the committee or governing authority shall determine upon. Before entering upon the discharge of the duties^ set forth in this article, the committee or governing authority shall be sworn by some officer authorized by law to administer .an oath, to faithfully and honestly discharge the duties herein imposed; and the failure upon the part of any member of the committee or governing authority to discharge such duties faithfully and honestly shall be deemed a misdemeanor, and the persons so offending shall, upon indictment and conviction in the circuit court of the county or district, be fined not less than one hundred dollars nor more than five hundred dollars, and be imprisoned in the jail not less than sixty days nor more than one year.”

Appellant insists that under the language of section 1551 she is entitled to an appeal from the decision of the committee tq the circuit court, for the reason that the law regulating the holding of elections authorizes an appeal from the decision of the board of contest to the circuit court in contests for State and county offices. This position would undoubtedly be sound were it not for the language in section 1563, which limits the right of contest in primary elections to a trial before the governing authority under whose auspices the election is held, and which is as follows: “In all cases of a tie vote or contest, the committee, or governing authority of the political party holding such primary election shall have the power to hear and determine such contest, and decide who shall be entitled to the nomination. The proceedings in such cases shall be in such form and manner as the committee or governing authority shall determine upon.” This makes the decision of the contest committee *700final. The language that the committee shall have the power to hear and determine such contests, and decide who shall be entitled to the nomination, precludes the idea that there shall be an appeal. The entire matter is referred to the governing authority of the party for its decision, and this is eminently proper, as the question is purely political. This construction is consonant with sound reason, and any other would violate the elementary canon of statutory construction that the law should not be so interpreted as to make it vain or illusory. Primary elections are held for the purpose of nominating party candidatesi for the regular State election thereafter to be held for the selection by the whole people of their official servants. The right of political parties to so select their nominees has been deemed sufficiently important to safeguard the official machinery by which the elections are held with the protection of the law; but if, where there are contests over the nominations, the defeated candidates may appeal to the courts, it would necessarily follow that the State election would be held before the contest could be settled, and the political party whose nominees were thus involved in litigation would have no place on the ticket for the offices in question, and the statute rendered abortive. If subsection 12 of section 1596a, Kentucky Statutes, 1903, authorizes an appeal from the decision of the board of contest to the circuit court in a primary election, then it also authorizes an appeal from the judgment of the circuit court to the Court of Appeals, and, 'this being true, it is not believed that it would ever be possible to finally settle by adjudication a contest for a party nomination in time for the regular election. The conclusion we have reached is in line with all the utterances of this court on the subject. In Chin v. Page, 42 S. W., 336, 19 Ky. Law Rep., 977, the question was whether' or not the com*701mittee, of which one O’Neal was chairman, was the governing authority. It was necessary to decide this, question, and the court did decide that this committee, having been recognized by the State central committee as such, was the governing authority, and its decision in the matter of the contest was upheld. See, also, Moody v. Trimble, 109 Ky., 139, 58 S. W. 504, 22 Ky. Law Rep., 692, 50 L. R. A., 810, and Davis v. Hambrick, 109 Ky. 276, 58 S. W., 779, 22 Ky. Law Rep., 81551 L. R. A., 671. The case of Henry v. Secrest, 114 Ky., 677, 71 S. W., 892, 24 Ky. Law Rep., 1505, in no wise militates against this view. In that case it was sought by mandatory injunction to force the committee to act upon a contest alleged to be pending before them, and of which they refused to take cognizance. This court held that there was no contest pending, and reversed the judgment awarding the mandatory injunction.

There is no substantial ground for the inference drawn by counsel for appellant that because this court took jurisdiction in Cain v. Page and Henry v. Secrest it has jurisdiction of the case at bar. Neither of those cases involved an appeal from the decision of the governing authority of a political party. In Cain v. Page, as said before, the question was whether the committee which heard the contest was or not, the governing authority? That question alone was settled by this court, and then it was held that the ■committee’s action could not be reviewed. In Henry v. Secrest tbe court took jurisdiction, not for the purpose of reviewing the decision of the governing authority, but, upon proper showing, of requiring them to decide, between the parties in the matter of contest. In the case at bar the governing authority of the party has acted upon the sufficiency -of appellant’s grounds of contest, and rendered a decision adverse to her. This judgment can not be reviewed by us. ■Courts will often require officials to act in matters, the do*702cisión of which is exclusively within their discretion, when they refuse to do so, although they will not review the decision when made, however erroneous it may be.

Appellant further contends that, although the statute alone may not afford her the right of appeal, yet she is entitled to it under the resolution of the committee that either party dissatisfied with their decision should have an appeal to the Grant circuit court, based upon the provision of section 1563 that the proceedings in such cases shall be int such form and manner as the committee or governing authority shall determine upon. The language of the statute in no wise authorizes the resolution of the committee. They could, under it, regulate the proceedings of the contest before themselves, but could confer no jurisdiction on the Grant circuit court.

■The motion to dismiss the appeal is sustained.