Opinion
No. 29628.
February 23, 1932.
1. MANDAMUS.
Mandamus did not lie to require county election commissioners to restore name erased from registration books on ground petitioner had become disqualified as elector (Code 1930, sections 2348, 5871, 6204, 6211).
2. ELECTIONS.
Remedy of elector whose name is erased from registration books is to apply for re-registration, and, on denial thereof, appeal to board of election commissioners, and, if necessary, to circuit court (Code 1930, sections 6196, 6200, 6204, 6211).
APPEAL from circuit court of Clay county. HON. J.I. STURDIVANT, Judge.
W.G. Roberds, of Roberds Malone, of West Point, for appellants.
Section 241 of the Constitution provides that for one to be a qualified elector he must have "resided in this state two years, and one year in the election district — in which he offers to vote; that he must be duly registered, must have paid his taxes, etc. and must not have been convicted of certain named crimes.
Section 242 of the Constitution provides for registration of electors. Pursuant to this section of the constitution, section 6182, Code of 1930, sets out form of registration book and section 6204 of said code sets out the form of the poll book.
There must be some tribunal with power to determine who are qualified electors in the counties. That power and that duty are imposed upon the county election commissioners.
Sec. 6177, Code of 1930.
The commissioners shall hear and determine all appeals from the decision of the registrar of their county, allowing or refusing the application of electors to be registered; and they shall correct illegal or improper registrations, and shall secure the elective franchise, as affected by registration to those who may be illegally or improperly denied the same.
Sec. 6198, Code 1930.
When the election commissioners determine that any elector is disqualified from voting, by reason of being delinquent for poll tax, removal from the precinct, or other cause that fact shall be noted on the registration book and his name shall be erased from the poll book. After disqualification for delinquency has been removed in subsequent years, the name of such elector shall be reinstated on the poll book without re-registration, and that fact shall be noted in the registration book.
Sec. 6204, Code 1930.
The commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the poll books of the several election districts.
Sec. 6211, Code of 1930.
Section 6199, Code of 1930, provides for appeals to the election commissioners and for hearing testimony by the commissioners, etc. The decision of the commissioners in all cases shall be final as to questions of fact, but as to matters of law they may be revised by the circuit and Supreme courts.
It was the intention of the Legislature to and it did provide for a detailed, complete, comprehensive and exclusive scheme and method of determining who are qualified electors and for the machinery by which such electors shall exercise his privilege of suffrage and the method of appeal above set out is the only method provided in those chapters.
Chapters 149 and 157, Code of 1930.
Erasing from the poll book is synonymous with striking from the registration book and that fact shall be noted on the registration book and his name shall be erased from the poll book.
Sec. 6204, Code of 1930.
The voter can either (a) appeal and have the question of law, if the commissioners have misapplied the law, passed upon by the circuit judge or (b) in the primary, if his name is stricken from the poll book, by making proper affidavit, he can vote and let the vote be placed and sealed in an envelope and the executive committee then passes on his right to vote when the returns are canvassed.
Sec. 5872, Code of 1930.
Appeal is the only remedy of one desiring to have his name placed on the ballot, by petition of the voters, as a candidate for municipal office, should the election commissioners refuse to recognize the petition and comply therewith by placing his name on the ballot.
Rhur et al. v. Cowan, District Attorney, 112 So. 386.
Mandamus proceedings could not be maintained in this case.
Section 2348, Code of 1930; State Board of Education v. West Point, 50 Miss. 643; 18 R.C.L. 131, 642.
If the mandamus was allowable at all the court could only command the commissioners to meet and act but could not tell them how to act. The circuit court could not control their discretion.
Madison County v. Alexander, Walker Report, 523; Attala County v. Grant, 9 S. M. 77; Swan v. Gray, 44 Miss. 383; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135; 18 R.C.L. 270, 197.
A.J. McIntyre and B.H. Loving, both of West Point, for appellee.
Where one whose name is stricken from the poll book under said section 5871 of the Code of 1930 there is no statutory provision for an appeal by him from such action.
Suitable remedies by appeal or otherwise shall be provided by law to correct illegal or improper registration and to secure the elective franchise to those who may be illegally or improperly denied the same.
Section 248, Constitution of 1890.
Section 5871 of the Code of 1930, which provides for the revision of the registration and poll books by the board of election commissioners and the erasure by them of names therefrom, to be constitutional and valid under this section 248 of the Constitution, must provide for an appeal by one whose name is stricken from the poll books thereunder, or there must be a suitable remedy for such persons provided for otherwise in the statutes.
Section 6198 of the Code of 1930 provides for the regular meeting of the board on the first Monday on October after their appointment and states as follows in conclusion: "and they shall correct illegal or improper registrations and secure the elective franchise as effected by registration, to those who may be illegally or improperly denied the same."
The writ of mandamus would certainly lie to compel the election commissioners to correct the mistakes that they had made, at their next regular meeting, and that the correction of the same, that is, such a mistake, when the act performing the same was done under a void and unconstitutional section, and when it is the positive duty of such board under the Constitution and under the law to secure the elective franchise as a sacred right to those who are legally entitled to same.
The only way to avoid declaring section 5871 of the Code of 1930, unconstitutional is to hold that where the name of an elector has been wrongfully erased from the registration books, by the election commissioners, they may be forced by mandamus to restore the name of such person to the registration books.
Brown v. Owen, 75 Miss. 319.
The statutes on appeal in matters of this nature only provide for appeals where the voter has been denied the right to register and does not provide for appeal from the action of the commissioners themselves.
This court cannot say that suitable remedies have been made if the only remedy is by appeal with only two days allowed for such, and without any semblance of notice of such disfranchisement. This section contemplates a hearing and notice of same.
Section 14, Constitution of 1890.
This is an appeal from a judgment of the court below directing that a writ of mandamus issue requiring the appellants, who compose the board of election commissioners for Clay county, to restore the appellee's name to the registration books, they having erased it therefrom in accordance with section 6211, Code of 1930, for the reason that he had "become disqualified as an elector." The petition alleges, and the court below found, that the appellee had not become so disqualified.
The authority of the court below to direct the issuance of the writ is conferred and measured by section 2348, Code of 1930, under which the writ of mandamus lies only to command an "inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station," etc.
The board of election commissioners is authorized to meet and revise the registration books only on the days specified therefor by sections 5871 and 6211, Code of 1930; by which sections, and section 6204, the board is authorized to erase from the registration books the names of persons who have become disqualified as electors. After the adjournment of the board, its acts become final, and no statute authorizes it to thereafter meet and correct any mistake it may have made in revising the registration books. Section 6204, Code of 1930, provides for the restoration of names erased from the registration books, but only after the disqualifications for which the names were erased have been removed.
The appellant's only statutory remedy is to apply to the registrar for re-registration, and, in the event of a denial, to appeal to the board of election commissioners under section 6196, and, from the decision of that board, if necessary, to the circuit court under section 6200.
The judgment of the court below will be reversed, and the petition will be dismissed.
Reversed and dismissed.