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Before leaving this branch of the case, it is proper to notice that, while we have treated the order of the 7th of November as a command to admit the Brown inspectors, and therefore as purely mandatory in character, still that order may be regarded as one likewise preventive in character, and as forbidding the defendant officers from interfering with the admission of the inspectors to the polls. But, whether the order be regarded as of the one or the other character, it is a final order, in all essential respects, and not a merely temporary one.

haps truthfully say he would suffer irrepar- | out notice to appoint a receiver of a railroad able injury from the delay of giving notice. company. But, because the time for hearThus, an Indiana statute provided that no ing was put some three months in the future, injunction should be granted, except in cases the court held it was an arbitrary exercise of emergency, until the adverse party had of judicial power, and granted a writ of prohad previous notice, etc. In Vance v. Work-hibition staying the execution of the order man, 8 Blackf. 306, a bill was filed to re- for the receiver. The court held that an exstrain the defendants from selling certain cessive and unauthorized application of juland upon execution; and, although the bill dicial force, although in a case otherwise was filed on the same day the sale was to properly cognizable by the court or judge in take place, it was held not to be a case of question, may be prevented by prohibition, emergency, the court saying: "True, the and that "no temporary receivership can bill was filed on the day on which the sale rightly be set up, to last three months, withwhich the injunction was to prevent was to out affording first a hearing to the party take place; but no excuse is offered, no rea- whose possession of property is determined son assigned, why it was not filed earlier, by such an order." nor for the failure, if there was a failure, to give the ten-days' notice of the intention to file it." In Indiana C. R. Co. v. State, 3 Ind. 424, a railroad company commenced the construction of its road on the land of the complainant, and was making excavations thereon, and preparing to lay down its track, when complainant obtained an ex parte writ to enjoin the company. The court held there was not a case of emergency, within the meaning of the statute. In referring to the Vance-Workman Case, the court said: "The principle here asserted is that the complaining party must not only show that an im- Issues are also joined in the pleadings on mediate injury is about to be inflicted, but the question whether the Brown party was also that he could not reasonably have antic- entitled to inspectors. This is a matter ipated it in time to give the requisite no- which might eventually be raised on appeal. tice. Otherwise, the complainant might al-But as yet there is no final order or judg ways make a case of emergency, by waiting until the act he desires to have restrained is upon the point of being done." In the case at hand, the applicant for the injunction, at a date when there was apparently still ample time to give the reasonable notice required by the law, is found saying that he is in possession of facts which cause him to believe that he will be irreparably injured from the delay of giving notice. If there was in fact not time to give notice on the 6th, the petition ought to have disclosed the fact. It is not, therefore, a case where notice can be dispensed with; but, on the contrary, it is a case where the face of the application shows that notice was demanded by the very terms of the statute, and where, therefore, the court was without statutory authority to issue the writ, except after notice. It may be admitted that, if the order was in fact and in substance a mere temporary restraining order, the question of whether irreparable injury might result from the delay in giving notice would be addressed to the chancellor's discretion, and his order would be merely an error, if he abused his discretion. But when the order is final in its character the question becomes in a measure a jurisdictional one. As we have seen, the writ of prohibition may go, in a certain class of cases, even if the inferior tribunal may have, in general, jurisdiction of the subject-matter of the litigation. Such was the situation in the Hindman-Toney Case. So, in St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 230, sub nom. State ex rel. St. Louis, K. & S. R. Co. 33 L. R. A. 348, 36 S. W. 363, the chancellor was held to have jurisdiction in vacation with

ment from which an appeal can be taken, and may never be. There is certainly no occasion for further order in the lower court respecting this question, the former order having fully accomplished the object sought in the petition. Barring the views already presented, there would seem, therefore, to be no adequate remedy for those about to be imprisoned under what is claimed to be an erroneous decision, unless the question is considered on this application. We think, therefore, the question is fairly raised on the record. If we are right, however, on the matters heretofore discussed, little need be said on this last question. From the averments of the pleadings, the exhibits filed, and such of the current history as we may fairly take into consideration, we are of opinion that the Honest Election Democratic party is a part and parcel and faction of the regular Democratic party; differing from the regular party in some of the local and state issues, but indorsing the utterances of the platform and principles of the regular Democratic party as expressed in its last national convention. We do not think it is a distinct political party, nor do we think it has ever claimed so to be, or so regarded itself. And while it may or may not be true that only such political parties as cast 2 per cent of the vote at the previous election are the political parties entitled to inspectors under the statute, we think it reasonably clear that right is conferred on such a body or party as constitutes a distinct political party. In the McKinley-Citizens Party Case, Pa. Dist. R. 109 [10 Am. & Eng. Enc. Law, 2d ed. p. 641], it is said: "In order to consti

election

between courts of law and courts of chancery, are a proper matter of chancery jurisdiction. We would not be understood as holding that political rights are not a matter of judicial solicitude and protection, and that the appropriate judicial tribunal will not, in proper cases, give them prompt and efficient protection, but we think they do not come within the proper cognizance of courts of equity.” And in Sheridan v. Colvin, 78 Ill. 237, the same court approved the doctrine announced in Kerr, Inj. §§ 1-3, that "it is elementary law that the subject-matter of the jurisdiction of the board of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction to interfere with the public duties of any department of government, except under special circumstances. and where necessary for the protection of rights of property." In Alderson v. Kanawha County Comrs. 32 W. Va. 640, 5 L. R. A. 334, 9 S. E. 868, it was held that elections are essentially political, and courts have no jurisdiction by injunction to interfere. In Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482, it was held that a court of equity has no jurisdiction of crimes, or any matters political, or of any matters purely 'administrative in their nature. So, in Peck v. Weddell, 17 Ohio St. 283, it was said that a court of equity had no jurisdiction to enjoin an election officer from recording an abstract of a vote, although the vote about to be recorded was charged to be fraud

tute a body of electors a political party, it must have distinct aims and purposes, being united in opposition to other bodies in the community within which it exists. A mere faction of an established party will not constitute a distinct political party," etc. Our statutes (subsection 3, par. 1596) provide that the county board shall appoint two judges, one clerk, and one sheriff at each voting precinct, and, "so long as there are two distinct political parties in this commonwealth, the judges, clerk, and sheriff of shall be so selected and appointed as that one of the judges at each place of voting shall be of one political party, and the other judge of a different party; and there shall be the like difference at each voting place between the sheriff and clerk of election," etc. And further: "Each political party may appoint one challenger for each precinct, who shall be entitled to stay in the room, or at the door thereof." Ky. Stat. § 1470. And again: "The county executive committee of each party having a ticket to be voted at an election may designate a suitable person to be present at, witness, and inspect the counting of the vote in each precinct, who shall be admitted to said voting place." Id. § 1481. The law does not confer this right to have inspectors on any individual, or group or party of individuals, as such, but, as we think, on each political party. And not on it, unless it had a ticket to be voted at the election. A single individual might have his name placed on the official ballot, by petition or otherwise, as the sole representative of a known politital party; if so, his party is entitled to inspectors; or a group of candidates might have their names so placed, and, as representatives of their political party, they would be entitled to inspectors; or it may be that a new political party may be formed, with distinctive aims and purposes, and notulent; that the only mode of purging an allied with any of the existing parties, and be entitled to such inspectors. But in every case the right must rest on the fact that the individual or group or list of candidates is the representative of a distinct political party, and not the representative merely of a part or faction of an existing political party. We think, therefore, without elaborating the point further, that candidate Brown was not entitled to have the inspec

tors.

An important matter urged by counsel for the plaintiff in the application, and to which we shall now refer, is that the right of the candidate Brown to have admitted to the polls an inspector who is appointed by the executive committee of his party is a political right, and therefore not one enforceable in a court of equity. This contention is supported by the elementary writers, and by numerous decisions in the courts of other states, as well as by several of this court. We note, among other cases, that of Fletcher V. Tuttle, 151 Ill. 41, 25 L. R. A. 146, 37 N. E. 683, where the doctrine is thus aptly stated: "The question then is whether the assertion and protection of political rights, as judicial power is apportioned in this state

election of fraud was by a contest, and by executing the criminal laws. See also High, Inj. §§ 1312-1315. Our own decisions are no less emphatic, where the question has been considered. In Common School Dist. No. 88 v. Garvey, 80 Ky. 164, the principal objection urged against the validity of an election in a common-school district, with reference to the imposition of a tax, was, as the court said, "as to the manner in which the judge of the election was chosen," and it was said: "It is not pretended that the law did not authorize the imposition of such a tax, or that the property levied on was exempt from taxation; so there is nothing in the record that will authorize the chancellor to adjudge the election void and the taxation illegal. And, although this is not strictly an election, the door of a court of equity will not be opened to those whose only purpose is to invite the chancellor to supervise the action of judges of an election,

and, if so, to declare the election void, or some other person than the one chosen [as judge of the election] to have been elected." And the court held that whether an action against the judge of the election for usurpation of office could be maintained,

or proceedings by quo warranto be instituted, best works on equity jurisprudence, has not was a question not necessary to decide, but always been observed in judicial opinions; that "it is certain that the chancellor will and the expression jurisdiction' has been not exercise such a jurisdiction;" citing used when the writers meant only to inquire Cooley, Const. Lim. p. 770. In Clarke v. whether the facts before the court presented Rogers, 81 Ky. 47, Judge Pryor, for the a case for the proper exercise of the power court, said: "A court of equity is asked, in of a court of equity." While in this state, effect, to hold another election for the pur- as in New York, legal and equitable actions pose of determining who were legal voters, are, in a measure, blended as to form, prinand to purge the polls by striking from the ciples remain the same, and the chancellor, list of recorded votes those who had no unless he is so empowered by statute, will right to participate in the election. The tes- not interfere by injunction where previous timony for and against the right of the cit- to our Code he could not do so. See also izen to vote is asked to be weighed by the Woodruff v. Fisher, 17 Barb. 224. The litchancellor, and determined from the testi- igants may therefore waive objection to the mony. A court of equity should neither in- form of the action, and the judgment will vite nor claim such a jurisdiction." And not be so wholly void that it may be attacked the court said further that "it would be en- in a collateral proceeding. Still, as we have larging the field of equity jurisdiction to already seen, as in the Missouri case cited, determine that it is the duty of the chancel- a writ of prohibition may be applied for to lor to investigate the rights of the citizen at stay the chancellor if proceeding beyond his the ballot box in the election," etc. equitable jurisdiction.

It is claimed that a number of recent cases

It is said, however, that the remedy by hold to the contrary. We do not so find. mandamus is wholly inadequate in cases of Several agreed cases have been considered this kind, because there can be no such writ where the object sought was to test the con-issued until there has been a refusal or omisstitutionality of certain statutes, and this court has considered the cases on their merits. No reference in the court below or in this court was made to the question of chancery jurisdiction. In Berry v. McCollough, 94 Ky. 247, 22 S. W. 78 (a case also relied on by the defendants), the question of the power of the chancellor to entertain the question involved was made by the appellee; but the court expressly waived the point, and decided the case for the appellee on other grounds. But it may be noted that in that case appellant, the actual incumbent of the office, charged that the appellee was an intruder, and was embarrassing the plaintiff in the discharge of his public duties. This was also true in the Hopkins-Swift Case, 100 Ky. 14, 37 S. W. 155. And these averments are held generally to confer jurisdiction on courts of equity. 2 High, Inj. § 1915. It is said, however, that in these cases, tried below in equity, and heard here on appeal, the judgments below must have been treated as wholly void, unless we had regarded the chancellor as having jurisdiction, because neither the parties nor the court could waive the question of jurisdiction. If by "jurisdiction” reference is had solely to the power of the court to entertain the question presented, then there could be no waiver or agreement conferring jurisdiction. But, when we speak of lack of power or jurisdiction in a court of equity to consider other than questions of civil rights, we have reference solely to the occasion for the exercise of the court's power. Thus, in People ex rel. Gaynor v. McKane, 78 Hun, 154, 28 N. Y. Supp. 981, the distinction was pointed out between the use of the term "jurisdiction" as referring to the power of the court to hear and determine the application for the injunction, and the use of that term as referring to the occasion for the exercise of the court's power, which is “equitable jurisdiction." the court saying: "This distinction, while clearly pointed out in the

sion to do the act required of the delinquent, and to wait until after this refusal or omission would be to wait until the wrong was done. That such a writ will not be awarded ordinarily until after demand or refusal is true; but when the act required to be done involves the discharge of a public duty the rule seems not so strict, but the writ may go. if the conduct and statements of the delinquent show that he does not intend to perform his duty. Thus, in Morton v. Comptroller General, 4 S. C. N. S. 431. it was held that, where an officer charged by law with performance of a duty on or before the day fixed by law gives notice that he does not intend to perform that duty, mandamus lies to compel him. 10 Enc. Pl. & Pr. 618. But if the rule is otherwise, and mandamus may not be granted in anticipation of a supposed omission of duty,-and this view, it may be admitted, is supported by the weight of authority (High, Extr. Legal Rem. 312),—still there could rarely be cases of serious hardship. The presumption is that officers will ordinarily perform their duties, and especially so when heavy penalties are prescribed for failure to do so. The right of the judiciary to interfere with the administrative proeesses provided by law for the conduct of an election, if it exists at all, ought to be rarely exercised. The law has imposed on certain executive and administrative officers the duty of conducting elections, and it is of the utmost importance that, in the exercise of the powers and the discharge of the duties and responsibilities confided to such officers, they should not be controlled or interfered with, at least while engaged in the actual duty of holding the election. Moreover, instances of such interference will be the rarer, because generally the performance of the various duties imposed on the officers will be found to involve the exercise of intelligent discretion and judgment, and this quasi-judicial function is confessedly without the sphere of judicial interference. In

Ohio St. 652, 3 N. E. 685, it was held that a court has no jurisdiction, even by mandamus, to compel election officers to certify or reach certain results. The doctrine is fully enunciated in High, Extr. Legal Rem. §§ 42-46.

the case at bar the proper construction of | ute providing that such inspectors were to the law as to inspectors may not be the sub- be appointed from opposing political parties. ject-matter of such discretion, but whether In Dalton v. State ex rel. Richardson, 43 the claim of the Honest Election Democratic party that it is a party within the meaning of the statutes, and is therefore entitled to inspectors, is well founded, depends, not merely on a proper construction of the law, but, as we have seen, on the existence of important facts making or not making it a "party," within the meaning of the statutes, and which facts must be investigated and passed on by the precinct officers. Thus, in Taylor v. Kolb, 100 Ala. 603, 13 So. 779, it was held that a court has no jurisdiction, even by mandamus, to compel election oflicers to name election inspectors under a stat

On the whole case, we conclude that the chancellor was without jurisdiction to control or direct the plaintiffs in the manner sought, and therefore the writ of prohibition heretofore temporarily granted is now made perpetual.

Petition for rehearing overruled.

MISSISSIPPI SUPREME COURT.

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Provisions in by-laws of a mutual benefit association, that any member three months in arrears shall be declared nonfinancial, and that any member failing| to visit the lodge shall stand suspended until a prescribed fine is paid unless he has a lawful excuse, do not make a member nonfinancial for failure to pay dues until he is three months in arrears and he has been declared nonfinancial.

Failure to pay assessments will not subject a member of a mutual benefit society to suspension without notice of the arrearage, NOTE.

Forfeiture of benefit certificate by de-
fault of subordinate lodge.

As shown by the opinion in the principal case, the conclusion there reached upon the question suggested by the title of the note has the direct support of Supreme Lodge, K. of P. V. Withers, 177 U. S. 260, 44 L. ed. 762, 20 Sup. Ct. Rep. 611; and Schunck v. Gegenseiti

ger Wittwen und Waisen Fond, 44 Wis. 375, and Austerlitz v. Order of Chosen Friends, 14 Nat. Corp. Rep. 630.

In the former case the United States Supreme Court holds that the failure of the secretary of a subordinate branch or section of the Knights of Pythias to transmit to the general board of control within the time specified by the general laws of the order moneys paid to him in due time by a member will not be ground for the forfeiture of the policy, since the secretary's negligence is not chargeable to the member, but is that of an agent of the order, notwithstanding a provision in the general laws of the order to the effect that he is to be regarded as the agent of the member and not of the order, where the general laws also require the member to pay dues to such secretary only, and provide that the secretary shall transmit Immediately after the tenth of each month all moneys collected by him, and that the local branch shall be responsible to the board of control for all such moneys collected by the secre

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where the by-laws require each member to be notified as to arrears.

Wilful failure of the lodge officers to do their duty towards collecting a death claim of a member of a mutual benefit society will not forfeit the rights of the beneficiary who has done all she can in compliance with the rules of the association.

Failure of a subordinate lodge of a mutual benefit society to remit an assessment to the grand lodge will not forfeit the rights of a member, although the by-laws provide that the grand lodge shall not be held for neglect of duty of subordinate lodges.

(April 3, 1900.)

A
PPEAL by complainant from a decree of
the Chancery Court for Hinds County
dismissing a complaint filed to compel pay-
ment of the amount alleged to be due under
a mutual benefit certificate. Reversed.

tary. The court disposes of the obstacle pre-
sented by express provision that the secretary
is to be regarded as the agent of the member
and not of the order by holding that, as applied
to the payment of dues, it is opposed to the
facts of the case, and that the secretary is in
reality the agent of the Supreme Lodge from
the time he receives the payments, and that the
insured is not responsible for his failure to re-

mit. The court emphasizes the fact that under the laws of the order the member is bound to

pay his dues to the secretary, and has no means of enforcing the latter's duty to remit the same to the Supreme Lodge.

The court in that case, as does the court in

the principal case. cited, in support of its position, a number of cases dealing with the general question as to the effect of provisions in policies of insurance, that the person procuring the insurance shall be deemed the agent of the insured, and not of the insurer.

A judge of the superior court of Illinois, in an oral opinion in Austerlitz v. Order of Chosen Friends, reported in 14 Nat. Corp. Rep. 630. also held that the officers of the subordinate lodge of a benefit order were the agents of the supreme council, rather than of the members of the lodge, with reference to the duty enjoined upon them by a by-law requiring the secretary of the subordinate council to certify to its treasurer the amount due on each ass.ss

Statement by Whitfield, J.:

In December, 1896, Delia Murphy joined the Independent Order of the Sons and Daughters of Jacob of America, a benevolent institution, and received a benefit certificate showing that she was a member, and that upon her death the beneficiary therein, her mother, would be entitled to a sum of money equal to 25 cents for each member in good standing in the order. At the same time she received a membership card, upon which all payments of dues, assessments, etc., were entered. Delia died in May, 1898. The order refused to pay anything on the certificate held by her, and her mother, Sophie Murphy, filed the bill in this case in the chancery court of Hinds county, seeking to recover the amount due on it, and asking discovery as to the number of members in good standing. She alleges in her bill that ment, and to forward the amount so certified to the supreme treasurer. The opinion points out that the agency provision as applied to the payment of assessments is opposed to the general scheme of the laws under which the body is working, calling especial attention to a provision making the subordinate council and all its members liable to suspension for failure to remit an assessment within a time limited, and stating that such provision can only be explained on the theory that the subordinate council acts for the supreme council, and not for its own members, since there would be no reason why a subordinate council should be suspended for nonpayment or failure to forward assessments if that council were acting solely as the agent of its members.

Delia Murphy was accepted as a member in the defendant company, and complied with all the rules and regulations thereof until her death, and had paid all the assessments, dues, and fines up to and including the month of June, 1897; that in the early part of June, 1897, she met with a serious accident by stepping on a nail, from the effects of which she was prostrated on a bed of sickness, and from which she never recovered; that she promptly notified the officers of Madison Lodge, No. 218, of said order, located in Jackson, Mississippi, the local lodge in which she held her membership; that she was very poor, and it became the duty of the subordinate lodge to which she belonged, under the constitution and by-laws of the order, to provide for and care for her during her sickness, and that the proper officers of said lodge promised and agreed to do so to the

The principal case is also supported by Whiteside v. Supreme Conclave, I. O. of H. S2 Fed. Rep. 275, where it was held that an agency clause similar to that in the principal case was opposed to the actual facts, and that, notwithstanding it, the collector of assessments of a subordinate conclave was the agent of the Supreme Conclave, and bound the latter by extensions of time.

As pointed out by the opinion in Supreme Lodge, K. of P. v. Withers, 177 U. S. 260, 44 L. ed. 762, 20 Sup. Ct. Rep. 611, the decision in Campbell v. Supreme Lodge, K. of P. of the World, 168 Mass. 397, 47 N. E. 109, is not an authoritative decision against the views expressed in the foregoing cases. The defendant in that case, and in Supreme Lodge, K. The Wisconsin supreme court in Schunck v. of P. v. Withers, 177 U. S. 260, 44 L. ed. 762, Gegenseitiger Wittwen und Waisen Fond, 44 20 Sup. Ct. Rep. 611, was the same, and the Wis. 375, also held that the default of a local same general provision with reference to agency grove of a beneficial order in forwarding to the was involved. In Campbell v. Supreme Lodge, directory dues promptly paid by the members did K. of P. of the World, however, it was admitted not operate to forfeit or suspend the right of that a suspension of membership and forfeitthe members, notwithstanding a provision of ure occurred by reason of the default of the the constitution that "everyone whose assess- secretary of the local section in forwarding ment is not paid by his grove to the directory the monthly payments and dues to the board of within thirty days after demand made. forfeits control, and the only question raised was his claims to the insurance sum, and he is not whether the section and the members became restored to his rights until thirty days after reinstated at the time a letter remitting the payment of all arrears is made." The court addues was mailed, or at the time it was actually mitted the difficulty of placing a construction received by the board, under a provision that a upon the constitution and by-laws of the order section whose membership has forfeited their that would entirely harmonize all provisions, endowment, and whose warrant has been sus'but held that construing such provisions in the pended, shall regain all rights as a section, and view of the benevolent character of the order, any surviving member thereof shall regain full it could not have been its intention that a mem-rights and profits held previous to such forber who had paid all dues should forfeit his rights in the fund because of a default of his grove, for whose acts he was in no way responsible. It does not appear in this case that there was an express provision like that in the principal case, and in Supreme Lodge, K. of P. v. Withers, 177 U. S. 260, 44 L. ed. 762, 20 Sup. Ct. Rep. 611, purporting to make the subordinate grove the agent of its members and not of the order. But it would seem that the express provision quoted above furnished, at least, as difficult an obstacle to the preservation of the member's rights, since it is by its terms, only applicable to the payment of assessments by the subordinate grove, and the denial to it of any effect for that purpose deprives it of all effect whatever, while the general provision with reference to agency may, perhaps, be effectual for other purposes, even if its effect for the particular purpose in question be denied.

feiture, if, within thirty days from the sus-
pension of warrant, the section shall pay to the
board of control the amount of all monthly
payments, assessments, or dues accruing upon
The member in question died
said members.
between the date of the mailing and the receipt
by the board of control of the letter contain-
The court decided against the
ing the dues.
beneficiary upon the ground that the assess-
ments and dues were not paid to the board of
control until it had received them.

The decision in Peet v. Great Camp, K. of M. of the World, 83 Mich. 92, 47 N. W. 119. however, seems to be opposed to those cases. In that case a subordinate tent had been suspended because of the failure of the financial keeper to notify members of an assessment, and to notify the Great Camp of the names of the members who failed to pay the assessment. It was admitted that the suspension of the subordinate tent was proper and legal under the laws of the Order, which also provided that the

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