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VELVELYN B. FOSTER v. ALICE HARDEN

DECEMBER 14, 1988

VELVELYN B. FOSTER
v.
ALICE HARDEN, EARL S. BANKS, AND THE HINDS COUNTY DEMOCRATIC EXECUTIVE COMMITTEE



EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

ON PETITION FOR REHEARING

The opinion previously issued reversing the order of the Circuit Court of Hinds County is withdrawn and this opinion is substituted as the opinion of the Court.

 This appeal presents the issue whether the circuit court had subject matter jurisdiction of an election contest wherein it is alleged that the candidates certified for the run-off election and the candidate subsequently certified as the democratic nominee for Mississippi Senate District 28 did not meet the residency requirements for service in the Senate as prescribed in Article 4, Section 42 of the Constitution of the State of Mississippi. The circuit court answered the question in the negative and dismissed the proceeding. Because the question is one peculiarly within the competence of the Senate

 itself under Article 4, Section 38 of our Constitution, we affirm.

 FACTS

 Velvelyn B. Foster (Foster) properly qualified as a Democratic candidate for the Mississippi Senate from District 28, Hinds County, Mississippi. The Primary election was held on August 4, 1987 and the Democratic Executive Committee (Committee) certified Earl S. Banks (Banks) and Alice Harden (Harden) as candidates in the run-off election held on August 25, 1987. Pursuant to MCA 23-15-921 (Supp. 1987), on August 24, 1987, Foster filed a sworn petition with the secretary of the Committee to contest the primary election. Foster alleged in her petition that Banks and Harden fraudulently qualified to seek election to the Mississippi Senate from District 28, in that said candidates were not actual residents of District 28 for two years prior to the election as required by Article 4, 42 of the Mississippi Constitution. In the run-off election held on August 25, 1987, the Committee certified Harden as the Democratic nominee in the general election held on November 3, 1987. On October 13, 1987, the Committee unanimously denied Foster's election contest petition and declared Harden as the Democratic nominee from Senate District 28.

 Pursuant to MCA 23-15-927 (Supp. 1987), on October 21, 1987, Foster filed a petition for judicial review of the August 4th and August 25th, 1987, primary elections with the Circuit Court of Hinds County, wherein she again alleged that Banks and Harden failed to meet the residency requirements as candidates for the Senate seat. While this matter was pending, Harden, being the only candidate in the November 3, 1987, general election for Senate District 28, was certified as the winner.

 A special circuit judge was appointed to preside over Foster's civil action, as prescribed in 23-15-927. Harden filed a motion to dismiss the election contest petition, and all respondents joined in her motion. After hearing arguments of counsel and reviewing the memoranda of law submitted by the parties, the lower court, by an order entered on December 31, 1987, granted Harden's motion and dismissed the petition for lack of subject matter jurisdiction. From this adverse determination Foster appealed.

 I.

 Section 38 of the Constitution provides in unambiguous language that each house of the legislature" shall judge of

 the qualifications, return and election of its own members. "The almost universal constitutional doctrine in the United States and the several states which have constitutions containing this or similar provisions is that:

 Each legislative body is the sole judge of the elections, returns, and qualifications of its own members, and its action in admitting or expelling a member is not reviewable in the courts. Furthermore, a statute which requires a court to inquire into the commission of corrupt ...


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