Opinion
No. 39588.
January 3, 1955.
1. Elections — absentee ballots rejected — integrity of absentee votes destroyed.
In election to elect member of Board of Education, where election manager returned ballot box to the Circuit Clerk, his official status ended and his retention thereafter, of envelopes upon which were absentee voter affidavits, for eighteen days, so that the Commissioners did not have the envelopes with the affidavits when they canvassed the returns, required rejection of absentee ballots since the integrity of the absentee votes had been destroyed. Sec. 3205-08(3), Code 1942.
2. Elections — absentee ballot statute — retention and preservation of ballots — requirements mandatory.
Requirements of absentee ballot statute that absentee voter envelope, when absent voter ballot is voted, shall be retained and preserved in the manner provided by law for the retention and preservation of official ballots in elections are mandatory, and not merely directory. Sec. 3205-08(3), Code 1942.
Headnotes as approved by Gillespie, J.
ON MOTION TO ADVANCEOctober 25, 1954 75 So.2d 56
3. Appeal — county school board election — motion to advance — sustained.
Public interest was sufficiently concerned in proceeding involving legality of election of member of county school board to warrant advancement of cause on docket of Supreme Court.
Headnote as revised by Holmes, J.
APPEAL from the circuit court of Lawrence County; SEBE DALE, Judge.
E.A. Turnage, Ed Patterson, Monticello, for appellant.
I. The Court erred in construing the verdict of the jury, which read as follows: "We, the Jury, find that the Contestant H.N. Brister 9, A.E. Lambert 3," as a favorable finding for the appellee. McDougal v. State, 199 Miss. 39, 23 So.2d 920; Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257; Wilson v. State, 197 Miss. 17, 19 So.2d 475; Secs. 1515, 1518, Code 1942; 53 Am. Jur., Sec. 1050 p. 726.
II. The Court erred in allowing the introduction into evidence of the application for absentee ballots of J.N. Lambert, Mrs. J.N. Lambert, and Veta Grace Terry, by reason of the fact that the declaration or petition did not allege, charge or contest the said application but merely the absentee affidavits. Gower v. Strain, 169 Miss. 344, 145 So. 244; Southern Ry. Co. v. Montgomery, 46 F.2d 990; Sec. 1512, Code 1942.
III. The Court erred in allowing the election managers at the Saulsbury Precinct, Mrs. D.N. Sandifer and Mrs. Jabus Peavy, to testify in an attempt to impeach their own official acts. Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902; Cooper v. Granberry, 33 Miss. 117; Daveny v. Koon, 45 Miss. 71; Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305; Hamblen v. Hamblen, 33 Miss. 455; Jones v. Seward, 196 Miss. 446, 16 So.2d 619; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Oliver v. Board of Suprs., 211 Miss. 447, 51 So.2d 766; Word v. Sykes, 61 Miss. 649.
IV. The Court erred in not allowing the introduction into evidence to be submitted to the jury the absentee affidavits of Corbett Wallace and Mrs. Corbett Wallace. Entrekin v. Tide Water Associated Oil Co., supra; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Secs. 3203-01(a, b, c), 3267, Code 1942.
V. The purported decision of the jury as construed by the Trial Court is contrary to the law, evidence and instructions of the Court. Evans v. Hood, 195 Miss. 743, 15 So.2d 37; Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Wylie v. Cade, 174 Miss. 426, 164 So. 579.
Hammond Pope, Columbia, for appellee.
I. No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested, or reversed, for mere want of form therein. Wilson v. State, 197 Miss. 17, 19 So.2d 475; Sec. 1518, Code 1942.
II. The verdict of the jury should be sustained by this Court for the reason that the verdict is definite and specific and responsive to the instructions of the Court. McDougal v. State, 199 Miss. 39, 23 So.2d 920; Wilson v. State, supra.
III. The applications for the absentee ballots of J.N. Lambert, Mrs. J.N. Lambert, and Mrs. Veta Grace Terry were secured upon the application of George W. Lambert, member of the Board of Supervisors of District Three, Lawrence County, Mississippi, without authority under the laws to so do, all in strict violation of the election laws of this State; and such ballots should never have been deposited in the ballot box at Saulsbury, and should not have been counted and tabulated, for the reason that all three of said ballots, under the undisputed testimony, were cast and voted for the appellant, A.E. Lambert.
IV. The absentee ballots of J.N. Lambert, Mrs. J.N. Lambert, and Veta Grace Terry were illegally deposited in the Saulsbury ballot box and being without any validity, the election managers should not have counted and tabulated said ballots, and all three of the said ballots were voted for the appellant, A.E. Lambert. H.N. Brister, appellee, did not receive a single absentee ballot at the Saulsbury precinct, and none were counted or tabulated for him.
V. In the Saulsbury box, when it was returned by the manager and the results of said election finally tabulated by the election commissioners of Lawrence County, Mississippi, there were no absentee envelopes with the affidavits attached, as is required under Section 3203-07. There was not a single envelope for any absentee ballot in the Saulsbury box when it was tabulated by the election commissioners the morning after the election, as was required by law. Some eighteen days after the election had been held at the Saulsbury box, the returning manager of said box brought into the Circuit Clerk's office of Lawrence County, Mississippi, what purported to be the envelopes and affidavits attached thereto for the five absentee ballots in the box. Appellee earnestly contends that these absentee ballots should never have been voted, counted or tabulated as legal ballots for the reason under the law. Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697.
VI. George W. Lambert, a brother of appellant and member of the Board of Supervisors of Lawrence County, Mississippi, was not competent under the law to notarize absentee ballots. Section 857 of Code of 1942 gave members of boards of supervisors the right to acknowledge of every conveyance, contract, or agreement proper to be recorded, but the Legislature has never given the right to any official without an official seal to notarize an absentee affidavit. Sec. 3203-07, Code 1942.
APPELLANT IN REPLY.
197 Miss. 54720 So.2d 85191 Miss. 3532 So.2d 575213 Miss. 25556 So.2d 84
II. Reply to the contention of the appellee that George Lambert, as a member of the Board of Supervisors, had the authority to administer oaths. Hunt v. Mann, 136 Miss. 590, 101 So. 369; Walker v. Smith, supra; Secs. 857, 1660, 3196-7, 3203-07, 3205-08, Code 1942.
An election was held May 4, 1954 in District Three of Lawrence County, Mississippi, to elect a member of the Board of Education pursuant to Chapter 10, Laws of 1953. Three candidates qualified. The results of the election, according to the manager's count and the canvass of the returns by the election commissioners, were: Lambert, appellant, 153; Brister, appellee, 152, and Howard, 98. Lambert was declared the winner. Brister contested the election, and the jury decided in his favor.
Five absentee ballots were voted in the Saulsberry box. These ballots, being of a distinctive color, were introduced in evidence — three were marked for Lambert, two for Howard, none for Brister. As each of the five absentee ballots were voted, Miller, one of the election managers, put in his pocket the envelopes upon which were the absentee voter affidavits. After the polls closed, the managers counted the votes, sealed the box, and Miller returned the ballot box to the circuit clerk. The next day, May 5, 1954, the election commissioners canvassed the returns and again the ballot box was sealed. Miller still had the absentee envelopes in his pocket. Miller kept the envelopes until May 22, 1954, when he took them to the circuit clerk and received a receipt therefor.
If the five absentee votes were invalid, Lambert would have deducted from his total three of said absentee votes, and the result of the election would be Lambert, 150, Brister, 152.
Section 3205-08, Mississippi Code of 1942, provides in part: "The absentee voter envelope when such absent voter ballot is voted, . . . shall be retained and preserved in the manner now provided by law for the retention and preservation of official ballots in such elections."
In the case of Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697, the absentee envelopes at the Cedar Grove box were placed in a drawer at the polling place where they remained until the votes were counted and the ballot box sealed. Then they were discovered and were taken by the manager to the circuit clerk and were available to the county executive committee when the returns were canvassed. We held that such irregularity in the handling of the envelopes with the statutory affidavits thereon was not of such serious nature as to require rejection of the ballots. In that case, the envelopes with the affidavits thereon were (1) at all times in official custody, and (2) were available for examination by the county executive committee when the returns were canvassed. In this case, when Miller returned the ballot box to the Circuit Clerk, his official status ended. Miller retained the envelopes in his pocket for eighteen days thereafter. The envelopes were not in official custody during that time. The election commissioners did not have available the five envelopes with affidavits thereon when they canvassed the returns on May 5, 1954.
(Hn 1) The election commissioners should have rejected the five absentee ballots in the Saulsberry box. The statutory affidavits were not available; the integrity of the absentee votes had been destroyed. The votes were invalid. To hold otherwise would have the effect of writing out of Section 3205-08 the legislative requirements safeguarding the integrity of absentee ballots. (Hn 2) We held in Sinclair v. Fortenberry, supra, that the requirements of the last sentence of Section 3205-08 were mandatory, and not merely directory.
On the trial in the circuit court, appellee requested, and was refused, a peremptory instruction. It should have been given; but the jury found for appellee; and the judgment there was correct. The conclusions we have reached make it unnecessary to discuss the several assignments of error.
Affirmed.
McGehee, C.J., and Lee, Arrington, and Ethridge, JJ., concur.
ON MOTION TO ADVANCE
A motion is made by the appellee to advance this cause on the docket of this Court. The record discloses that the cause on its merits involves the question of the legality of an election held on May 4, 1954 in Lawrence County, Mississippi, for the election of a member of the county school board in Beat Three of said county, and (Hn 3) we are of the opinion that the public interest is sufficiently concerned to warrant the advancement of this cause on the docket of this Court.
Accordingly, the motion to advance is sustained and the cause is set for December 13, 1954.
The appellant shall file his brief on or before November 13, 1954, and the appellee shall file his brief on or before December 3, 1954, and any rejoinder brief shall be filed no later than three days before the date fixed for hearing. The requirement for the filing of briefs is subject to such change as may be effected through agreement of counsel.
Motion to advance sustained and cause set for December 13, 1954.
McGehee, C.J., and Hall, Kyle, and Gillespie, JJ., concur.