The appellants and the appellees are all members of the republican party in the state of Mississippi. In the year 1928, prior to the republican National Convention, the appellees, being in control of the party machinery, called state, county, and precinct conventions through the state organization. The call for precinct meetings was not to assemble at the respective voting places or precincts and vote for the delegates to the county conventions, but to assemble at convenient places, and instead of being at the precincts, were at various places, including negro lodges, negro schoolhouses, churches, and other places. The appellants, being members of one faction, different from the appellees, there being two factions in the state, sought to enjoin the holding of these various conventions because the call did not conform to the statute and was illegal, and that they would be deprived of their right to participate in the conventions, as many of the appellants' faction belonged to what is known as the "Lilly White Republicans."
Section 5866, Code of 1930, provides for the calling of these conventions, and the part thereof pertinent to this discussion is as follows: "The delegates are to be selected by county delegate conventions, to be held in each county. Delegates shall be apportioned equally among the supervisors' districts of each county, or each precinct in the county may be given representation in *Page 495 the county delegate convention in proportion to the votes cast at the preceding presidential election for its party candidates. The county executive committee shall designate a date and the number of delegates to be elected, giving at least ten days' notice for the precinct elections, on which date the electors at such precinct shall meet at ten o'clock A.M. at the usual voting places, and by secret ballot elect delegates to represent such voting precincts in the county conventions."
The delegates so elected to the county delegate conventions in turn elect the county executive committee and delegates to the state convention, being entitled to as many delegates in the state convention as the county has representatives in the Legislature. The executive committee is made up of three from each supervisor's district making a total of fifteen for the county. The state convention elects the state executive committee composed of three from each congressional district.
The statute contemplates that the state executive committee of the political party shall fix a time for the holding of the state convention and notify the county executive committee of such fixing, and it is then the duty of the county executive committee to give notice, under the statute above quoted from, of ten days or longer of the holding of the precinct convention, and the number of delegates from that precinct or supervisor's district. The statute fixes the voting precinct as the place where the electors shall meet, the meeting to be at ten o'clock A.M., and directs that the ballot shall be secret.
By other provisions of the chapter on primary elections, it is provided that any person, not nominated as provided therein, shall not hold the office involved.
It will be seen, from the statement made that the precinct meetings should be held at the precincts, that the call in the case at bar was illegal. In Barrett v. Cedar Hill Consol. School Dist., 123 Miss. 370, 85 So. 125, it was held that an election conducted at a private store some little distance from the regular election precinct, *Page 496 and not at the place designated by law was void although a large majority of the votes of the school district there involved voted affirmatively for the bond issue; and that the place fixed by the election law was one of the fundamentals of elections, and failure to comply with the law in regard thereto made the election absolutely void. This case cites numerous authorities holding in accordance therewith.
In the subsequent case of Edwards et al. v. Board of Supervisors of Bolivar County, 124 Miss. 165, 87 So. 8, the court again held that the holding of an election at the designated place was essential to the validity of the election.
These cases, therefore, clearly establish that the holding of the meetings in the case at bar, for the election of delegates to the county convention, and from that to the state convention, was illegal. Consequently, the injunction sued out was to stop the appellees from holding an illegal precinct convention, and illegal county and state conventions.
The appellants were trying to protect their rights, but resorted to an injunction which, under our decisions, was not permissible, and the injunction was dissolved for that reason alone.
As I understand it, there is no dispute that the so-called precinct and county delegate conventions were illegal.
It is a principle of both law and equity that a party cannot profit by his own wrong. "Nemo ex proprio dolo consequitur actionem (No one maintains an action arising out of his own wrong)" is a maxim of the law court, and expresses a fundamental conception of law that no one can profit by his own wrong. Equity has two maxims applicable to this suit, one of which is that he who comes into equity must come with clean hands, and another is that he who seeks equity must do equity.
As the foundation of the case at bar is a wrong injunction to restrain the appellees from doing an unlawful *Page 497 thing, recovery in this case can only be allowed by violating these fundamental maxims and principles of law.
In 1 C.J. 959, section 52, under the hearing "Illegal or Immoral Transactions," it is said that: "The general principles are well settled that the law will not permit a person to take advantage of or acquire a right of action from his own wrong, that an illegal or immoral transaction cannot be made the basis of an action by one who is a party thereto; and that as between parties in pari delicto the law will aid neither, but will leave them as it finds them. In other words, if plaintiff, in order to establish his claim, must rely in whole or in part upon an illegal or immoral transaction, to which he is a party, the action cannot be maintained. These principles are based upon considerations of public policy and have long been well settled and generally recognized, and while most frequently invoked in regard to illegal or immoral contracts, they are not restricted to cases of this character. These principles apply both at law and in equity, and whether the transaction is executed or executory, or is malum in se or merely malum prohibitum. Upon like principles, a defendant will not be permitted to set up his own wrong in defense of an action by an innocent plaintiff; and it is only upon grounds of public policy and not out of consideration for defendant, that he is permitted to do so in cases where the parties are in pari delicto." Many authorities are cited under this section.
In 1 C.J. page 952, section 48, it is said that, in order to give a right of action, there must be a violation of a legal right.
In the case at bar, there is no such violation. In my opinion, the parties here were in pari delicto. The appellees, complainants in the court below, were wrongfully and unlawfully undertaking to hold political party conventions in such manner as to deprive the other members of the party of their right to attend the meetings at the place required by law and participate therein.
The appellants were only wrong in the remedy they *Page 498 sought to prevent this unlawful action by the complainants in the court below, appellees here.
The Constitutional Convention itself, in section 247, of the Constitution of 1890, established the policy of requiring primary elections in party conventions to be held fairly, and made it the duty of the legislature to enact laws to secure fairness in party primary elections or conventions, or any means of naming candidates. This duty the legislature has performed by enacting the chapter on primary elections. When the legislature first enacted these primary election laws, the constitutionality of the act was contested, but was upheld as valid in the case of McInnis v. Thames, 80 Miss. 617, 32 So. 286.
Thus, by constitution and by statute, the policy is established in this state that primary elections and party conventions are matters of public concern, and that fairness shall be secured.
By section 5864, Code of 1930, it is provided, among other things, that "all primary elections shall be governed and regulated by the election laws of the state in force at the time the primary election is held, except as herein provided."
Under the general criminal statutes, section 878, Code of 1930, it is provided that: "If any manager, clerk, or any other officer whatever, assisting or engaged in conducting any election, or charged with any duty in reference to any election, shall designedly omit to do any official act required by law, or designedly do any illegal act in relation to any general or special election, by which act or omission the votes taken at any such election in any district shall be lost, or the electors thereof shall be deprived of their sufferage at such election, or shall designedly do any act which shall render such election void, or shall be guilty of any corrupt conduct or partiality in his official capacity at such election, he shall, upon conviction, be imprisoned, in the penitentiary for a term not exceeding two years."
It will thus be seen that, if any party officer shall *Page 499 designedly do any act which shall render such election void, or be guilty of any corrupt conduct, he shall be imprisoned for two years.
It is clear that, from these statutes, the act which the appellees were attempting to perform in 1928 was, not only illegal, but was a high criminal offense. There was no adjudication in the former suit that the acts of the appellees were legal, but merely that in no event had the chancery court power to prohibit an election of the kind here involved.
The jurisdiction of the subject-matter being absent, the defendants were not under any legal obligation to pay any attention to it, and no cost could be legally rendered against them, had the chancery court sustained the injunction. They could raise the question of jurisdiction when the execution was issued, or other process which undertook to deprive them of their property. Damages can only flow from the invasion of a legal right, or breach of a legal duty.
The appellees had no right to hold the conventions at any other place than that prescribed by law. To do so constituted a breach of the law and public policy of the state. In fact, it amounted to a high crime under the criminal law. See the statute above quoted.
It is fundamental that, to maintain a suit for damages, there must be two things: (1) A legal injury, and (2) damages flowing from such legal injury.
In 2 High on Injunctions (4 Ed.), at page 559, section 1613, it is said that: "In estimating damages sustained by the improper issuance of an injunction the courts proceed upon equitable grounds, and while it is difficult to fix any precise rule or standard for determining damages upon dissolution, it may be said generally that nothing will be allowed which is not the actual, natural and proximate result of the wrong committed. And where no damage has been sustained, none should be assessed. In other words, liability upon the injunction bond is limited to such damages as arise from *Page 500 the suspension or invasion of a vested legal right by the injunction."
In Guthrie v. Biethan, 25 Idaho, 706, 139 P. 718, 719, an injunction prevented one Muir and others from procuring the payment of property and money on a fraudulent judgment which they had wrongfully obtained. The court held the injunction to have been wrongfully issued; awarded Muir and his associates one hundred twenty-five dollars as damages, which judgment the Supreme Court reversed saying: "It is a plain rule of law and common sense that one cannot be legally damaged for being restrained from doing an illegal act. A person cannot sustain legal injury unless he has been wrongfully restrained from doing something he had a legal right to do. . . . Under the law, a person who has been damaged by reason of having been wrongfully restrained by injunction from doing something that he had a legal right to do may recover what damages he has sustained; but the law does not contemplate that a person may be compensated in damages for being restrained from doing a thing he had no legal right to do, for, if he had no legal right to do the act, he cannot be damaged, and has no cause of action if he be enjoined from doing an illegal act." See, also, East Tenn. Telephone Co. v. Anderson County Tel. Co., 115 Ky. 488, 74 S.W. 218; Macey v. Titcombe, 19 Ind. 137; Hibbs v. Webster Land Co., 81 Iowa, 285, 46 N.W. 1119; Turnpike Co. v. Kelly, 41 Ohio St. 144; Steuart v. State, 20 Md. 105; Kulp v. Bowen, 122 Pa. 78, 15 A. 717; Jamison v. Duncan, 12 La. Ann. 785; Dole v. Hickey, 6 N.H. 496,32 A. 761.
I think the principle has been settled in this state by the case of Lowenburg v. Klein, 125 Miss. 284, 87 So. 653. While that case is not precisely the case at bar, the principles are the same. That case completely negatives the idea that the suing out of an injunction and the giving of bond therefor entitles the person enjoined to damages in all cases.
It is true that in that case the contract for which the *Page 501 check was given was for liquor, and both parties were guilty of contracting in violation of law, and the decision there stated that the parties were in pari delicto and the court would leave them where it found them. It squarely decided that a party was not entitled to damages and attorneys' fees merely because an injunction had been sued out and dissolved, but that the party had to be legally damaged.
If the principles announced in cases mean anything, this case must be taken as authority for holding that a party who has violated the law cannot recover damages from the wrongful suing out of an injunction to restrain the wrong.
In Chicago, etc., R.R. Co. v. Whitney, Adm'r, etc., 152 Iowa, 520, 132 N.W. 840, 841, the court said: "If no injunction had been issued, the company could not take the money from the treasurer, under existing conditions without a violation of the law by both the treasurer and itself. If the injunction had been dissolved at any time before final hearing, the company would have been in no better condition than it was in reality in, because in that event no money was due it from the treasurer. The treasurer was alone enjoined. No restraint was placed upon the action of the trustees. In fact, they were sued for a certificate after the dissolution of this injunction. It is not to be presumed that the company would ask the treasurer to violate the law, or that the treasurer would violate it in any event; hence the writ did not, in fact, interfere in any way with the rights of the company. It did not withhold from the company any present right that it had or could exercise without the restraining order. It is therefore apparent that the writ caused no damage to the railway company, nor did it interfere with any lawful or substantial right; and to recover on the bond it must be shown that it was damaged to some extent by the issuance of the writ (Bank of Monroe v. Gifford, 70 Iowa, 580, 31 N.W. 881; Hibbs v. Wester Land Company, 81 Iowa, 285, 46 N.W. 1119), or that some *Page 502 lawful or substantial right was interfered with by the writ. Weierhauser v. Cole Johnson, 132 Iowa, 14, 109 N.W. 301." See, also, Kilpatrick v. Tunstall, 5 J.J. Marsh (Ky.) 80; Galbreath v. Thayer, 147 Miss. 566, 113 So. 180, 183, 53 A.L.R. 288. In this latter case the court said: "On the bill of complaint, a temporary injunction was issued restraining the appellees . . . from `moving off, selling off, or taking off,' of said land any and all timbers thereon, whether standing or down, and upon the proof offered on the motion to dissolve this injunction was dissolved. It is admitted that the proof shows that Mrs. W.A. Lester had no connection whatever with the purchase or removal of timber from this land, and that as to her the injunction was properly dissolved. The proof shows that the appellee Thayer sold to the appellee W.A. Lester certain timber on the leased premises, at the price of ten dollars per thousand feet, and that Lester removed this timber and paid to Thayer the full amount of the purchase price thereof. The uncontradicted proof further shows that all transactions between Thayer and Lester in regard to the timber on this land were fully concluded long prior to the filing of the bill of complaint and the issuance of the injunction restraining Lester from further purchasing, cutting, and removing timber from this land, and that no such further purchase, cutting, or removal was contemplated or in any manner threatened, and, consequently, the injunction was properly dissolved as to Lester. However, since the transaction between Thayer and Lester in reference to this timber had already been fully concluded, and Lester did not claim or assert any right or interest in the timber remaining on the land, the injunction restraining him from cutting and removing any of this timber, a thing which he had no purpose or intention of doing or attempting to do, was ineffective as to him and could in no way affect any of his rights, legal or equitable. Consequently, we do not think the appellee Lester should have been allowed attorneys' fees for securing *Page 503 the dissolution of this injunction." See, also, Ford v. Loomis, 62 Iowa, 586, 16 N.W. 193, 17 N.W. 910.
In reference to the alleged damages for the second call for a convention, I think the damages could not be allowed, because the first call was clearly illegal, and they were entitled to nothing on that score. The second call was made in pursuance of the law and after the injunction was issued. It would have been necessary to make this call anyway, although it would not have been necessary to have expended money, as it was expended, to stimulate the voters to attend the different meetings of the conventions.
I agree with the majority that there is no sufficient proof to show any damages, even if there were any damages as to this expenditure.
Of course, my view is that there were no damages, and therefore, there could be no recovery of anything.
In reference to the attorneys' fees allowed in the majority opinion, I think it is excessive even at the figures fixed therein. It was clearly excessive to the extent to which it exceeded that allowed by the majority. In allowing attorneys' fees, they must be fixed upon the basis of what it would cost to procure a competent lawyer for a cash fee to be immediately paid. As the suit for which the fee was claimed involved only the filing of a demurrer and a motion to dissolve, and prosecuting an appeal from the lower to the Supreme Court, and argument therein, any competent counsel could have been obtained where the trial took place, for one thousand dollars or one thousand five hundred dollars, and for fifty per cent of that amount on appeal. It is not permitted in such case to select what the highest priced lawyers in the state would charge, but what a lawyer of reasonable ability and competent to handle a suit could be procured for.
I think the judgment should be reversed, and the suit dismissed. *Page 504