Summary
In State ex rel. District Attorney v. Jones, 177 Miss. 598, 171 So. 678, the petition to have the name of Howard Jones placed upon the ballot as a candidate for Levee Commissioner was presented to one of the Commissioners, not shown to be the ballot Commissioner, which Commissioner in turn delivered the petition to the Chairman of the Board of Commissioners. No point was made in the case as to that, but it does illustrate what has been done in some cases.
Summary of this case from State ex rel. Rice v. Dillon et alOpinion
No. 32540.
January 4, 1937.
1. OFFICERS.
Under statute prohibiting commissioner of election from becoming candidate for office, election of member of board of commissioners of levee district held not invalid because member had previously been appointed election commissioner where he took no oath of office or active part in proceeding of election commission and resigned as election commissioner on being informed that petition for his candidacy could not be allowed while he remained member of election commission, and where there was no other candidate whose rights might have been affected by member's action (Code 1930, sec. 6213).
2. ELECTIONS.
Election of member of board of commissioners of levee district held not invalid because petition to place name of member on ballot was not acted on by quorum of election commission, where petition was in due form and was properly filed with chairman of commission.
3. ELECTIONS.
In matter preliminary to an election, the law is concerned with result and not with details by which result is reached.
4. OFFICERS.
In quo warranto proceedings to declare member elected to board of commissioners of levee district to be ineligible to hold office, fact that member's property taxes were allegedly delinquent at time of election, held not to require member's removal, where before proceeding was brought constitutional amendment was adopted withdrawing previous disqualification of electors because of nonpayment of property tax (Const. sec. 241, as amended in 1935, see Laws 1935, Ex. Sess., chap. 117).
5. OFFICERS.
Where constitutional amendment removes or strikes out that which previously constituted ineligibility of officer, ineligibility is measured by amendment and not by former constitutional provision.
APPEAL from the circuit court of Washington county. HON. S.F. DAVIS, Judge.
H.P. Farish and Ernest Kellner, both of Greenville, for appellant.
The proof shows that Howard Jones was an election commissioner of Humphreys county at the time of his pretended election as levee commissioner for said county.
Section 6213, Code of 1930.
Wherever the Constitution or the statute provides, as it does in Mississippi, that unless otherwise provided an officer shall hold office until his successor is elected and qualified, the courts generally hold that the resignation, even though accepted, is not effective until the successor is elected and qualified.
95 A.L.R. 215; Badger v. United States, 93 U.S. 559, 23 L.Ed. 991.
Applying this rule to the facts in this case would show without contradiction that J.D. Vincent, the successor in office to the defendant, Howard Jones, as ticket commissioner of the election commission of Humphreys county, was not made until June 6, 1934, one day after the pretended election of the defendant as levee commissioner for Humphreys county on June 5, 1934. The votes cast for the defendant, Howard Jones, in said election, under section 6213, Mississippi Code of 1930, were illegal and improperly counted.
The proof shows that the petition to place the name of Howard Jones on the ballots used in the election of a levee commissioner for Humphreys county was not acted upon by a quorum of the election commission of said county.
Section 6231, Code of 1930; Ruhr v. Cowan, 146 Miss. 870.
There was no competent evidence that Howard Jones was eligible to the office of levee commissioner for Humphreys county, but, on the other hand, the finding of the election commission of Humphreys county, as shown by the poll book, that Howard Jones was delinquent in 1933 is conclusive, in this proceeding, that he was not eligible to said office.
Section 6199, Code of 1930; Ruhr v. Cowan, 146 Miss. 870; Haley v. State, 108 Miss. 899; Steverson v. McLeod Lbr. Co., 120 Miss. 65; Childress v. Carley, 92 Miss. 571; Wigmore on Evidence, page 3457, sec. 2450; Calvert v. Crosby, 163 Miss. 177.
Even if competent in this proceeding to inquire into the qualification of Howard Jones to hold the office of levee commissioner for Humphreys county, the evidence is overwhelming that said Howard Jones was not qualified to hold said office either at the time of his pretended election or induction into said office.
The obvious purpose of section 6213, Code of 1930, is that, as a matter of fairness and justice, an election commissioner, who passes upon the qualifications of persons entitled to vote in an election or not, has power to place the name of a candidate on the ballots or not, is charged with the conduct of elections, and has power to determine the outcome of elections, should not be permitted to be a candidate in any election with regard to which he has acted as an election commissioner.
Sublett v. Bedwell, 47 Miss. 266; section 6213, Code of 1930.
The finding of the election commission that appellee was delinquent for 1933 is a final and conclusive adjudication of a judicial body which cannot be assailed by appellee in this a collateral proceeding.
Ruhr v. Cowan, 146 Miss. 870; Calvert v. Crosby, 163 Miss. 177.
The election commission is a judicial body, and after adjournment, its acts become final, and the remedy of the person affected and aggrieved thereby is by appeal.
Freeman on Judgments (5 Ed.), page 602; Kelly v. State, 79 Miss. 168; State v. Leizer, 77 Miss. 146.
We deny that section 241 of the Constitution, prior to the amendment of 1935, providing for the qualification of electors, construed with section 250 of the Constitution providing that qualified electors and none others shall be eligible to office, imposes a penalty or forfeiture. Appellee says that it does, but cites no authorities to support the statement. A penalty is a pecuniary punishment inflicted by law for its violation, which may or may not be a crime, and usually may be recovered in a civil action.
21 R.C.L. 207; 12 R.C.L. 124.
An office or the right to hold office is not property in any sense of the word but is a privilege in the gift of the state upon reasonable conditions for the public good.
22 R.C.L. 376.
Appellee contends that, even though he was disqualified for the non-payment of personal taxes in 1933, the 1935 amendment of section 241 of the Constitution, eliminating the payment of all taxes except poll tax as a qualification of an elector, removed appellee's disqualifications. To support this contention appellee relies solely on the case of Cooper v. Lewis, 88 A.L.R. 808, 170 S.E. 68. The facts in the Cooper case are not almost identical with the facts in this case, as appellee says, but are quite dissimilar.
The rule in Mississippi is based upon the meaning of the word "eligible" as used in the Constitution. In the case of Roane v. Matthews, 75 Miss. 94, this court says at page 100 of the report: "The `eligibility to office' meant in section 250 is eligibility at the time of election, and, unless then eligible by the payment of taxes, a candidate cannot become so by paying the taxes afterwards."
Taylor v. Sullivan, 22 Am. St. Rep. 729; State ex rel. Plunkett v. Miller, 162 Miss. 149.
Appellee was not capable of being elected to the office which he claims and therefore was not elected, and there is a vacancy in that office.
State ex rel. Jones v. Lyons, 145 Miss. 163; State ex rel. Mitchell v. McDonald, 164 Miss. 405.
It is settled by numerous decisions of this court that the power exists and it is the duty of this court in proper cases to review and reverse the refusal of a trial court to sustain a motion to set aside a verdict when it is contrary to the overwhelming weight of the testimony.
M. O.R. Co. v. Bennett, 127 Miss. 413; Universal Truck Loading Co. v. Taylor, 174 Miss. 353.
W.T. Wynn and D.S. Strauss, both of Greenville, and Sillers Roberts, of Rosedale, for appellee.
Section 6213 does not prevent an election commissioner from being a candidate for office. It only provides that an election commissioner shall not be a candidate for any office at any election with reference to which he has acted as an election commissioner. In other words, an election commissioner could be a candidate for an office and could be legally elected, provided he did not act as an election commissioner in the election.
Section 6177, Code 1930, provides for the appointment of election commissioners and their term of office. It also provides certain qualifications before a commissioner can take possession of the office and act as such. The uncontradicted proof establishes the fact that appellee did not "take and subscribe the oath of office prescribed by the constitution, and file same in the office of the Chancery Court." Therefore, appellee failing to qualify, was never an election commissioner, but on the contrary a vacancy existed.
Section 2884, Code of 1930.
The taking, subscribing and filing of the oath of office is a condition precedent to the right to enter upon the office.
Andrews v. Covington, 69 Miss. 740, 13 So. 853; State v. Lyon, 145 Miss. 163, 110 So. 243.
We have shown that appellee was never an election commissioner of Humphreys county. If, however, he ever had any right or title to the office of election commissioner (and he did not), he resigned from that office by his letter addressed to the Governor and dated June 1, 1934.
Commonwealth of Kentucky, ex rel. Wooten v. Berninger, 255 Ky. 451, 74 S.W.2d 932, 95 A.L.R. 213.
Section 6213 of the 1930 Code prescribes an additional qualification to hold public office and is therefore unconstitutional.
McCool v. State ex rel. Howie, 149 Miss. 802, 115 So. 121.
The filing of the petition with the chairman of the commission and action taken thereon meets the requirements of the section 6231.
Hunt v. Mann, 136 Miss. 590, 101 So. 369; Ruhr v. Cowan, 146 Miss. 870, 112 So. 386.
The placing of appellee's name on the ticket by the election commissioners, under the facts of the instant case, was lawful, and the court will not inquire into the matter after the result of the election is declared, certificate of election issued and commission executed.
Hunt v. Mann, 136 Miss. 590, 101 So. 369; Pradat v. Ramsey, 47 Miss. 24; Barnes v. Board of Supervisors of Pike County, 51 Miss. 305; Word v. Sykes, 61 Miss. 649; Kelly v. State, 79 Miss. 168, 30 So. 49; Shine v. Hamilton, 87 Miss. 384, 39 So. 1008; Collins v. Jackson, 119 Miss. 727, 81 So. 1; State v. Greer, 158 Miss. 315, 130 So. 482.
We submit that the evidence establishing appellee's eligibility was competent. The primary object of this lawsuit is to determine whether or not appellee is entitled to hold the office of levee commissioner. The appellant challenges his right and alleges that he is not entitled to hold the office because of ineligibility, the fact to sustain which is appellee's alleged delinquency in tax payment. Therefore, for the purpose of determining his qualification to hold office, and not for the purpose of challenging the acts of the election commissioners in marking his name delinquent, or striking his name from the poll book, the very nature of the inquiry is whether appellee was, or was not, delinquent. In such a case the purpose of quo warranto is to go behind the findings of the election commissioners and determine the real facts, because the election commissioners' holding, as stated, can at best be only prima facie evidence.
We think the rule is well established, and beyond peradventure of doubt, that the purpose of quo warranto is to go behind any action of the election commissioners to inquire into the facts as to eligibility.
Wilkins v. Large, 163 Miss. 279, 141 So. 585; Carver v. State ex rel. Ruhr, 177 Miss. 54; Sections 5872, 6215, Code of 1930.
It is true that in proper cases, such as were the facts in the cases cited by appellant, the rule is well settled that the action of the election commissioners, unless contested in the manner as provided by statute, is final. But this is not such a case. In the cases cited the acts of officials were questioned in collateral proceedings. The acts of the election commissioners in the instant case are not in question, this being a case to determine qualification on the facts and not on the acts of any official.
Assuming for the sake of this argument (but not admitting, on the contrary vigorously denying such to be a fact), that appellee owned personal property assessed for 1933, the nonpayment of which disqualified him to hold office on the day of his election and on the day of his induction into office, it does not now disqualify him to hold office for the reason that the impediment thereof has been removed by the constitutional amendment to section 241 adopted and inserted in the Constitution in October 1935, and which repeals that part of the former constitutional provision that required the payment of property tax for qualification as an elector.
Wheeler v. State, 64 Miss. 463; 59 C.J. 1188, secs. 726, 727, and page 1191, sec. 728; 25 R.C.L., page 932, sec. 183, page 941, sec. 194, page 943, sec. 195, and page 944, sec. 196.
The statute providing for the forfeiture of office because of disqualification by reason of non-payment of property tax required by former section 241 of the Constitution imposes a penalty. The provision imposing the penalty and working a forfeiture is predicated upon the failure of the person to comply with the constitutional provision requiring the payment of the tax. If there is no tax payment required then there is no failure to comply with the law and hence no penalty imposed and forfeiture exacted.
The removal of the disqualification of the appellee in the instant case was not by any act of his but by act of the sovereign, the people have spoken and have declared that no longer shall the payment of property taxes be a prerequisite to qualification to hold office, and have forever obliterated the provisions heretofore requiring the payment of property taxes as qualification to hold office, and that the effect thereof shall be the same as if such provision never existed.
Cooper v. Lewis, 170 S.E. 68, 88 A.L.R. 808.
This case was tried and judgment rendered by the court sitting as judge and jury.
The rule is well settled in Mississippi that a judgment rendered by the trial court, sitting as judge and jury, stands exactly as it would if there had been a jury trial and verdict. And if the evidence tends to establish the findings of the court, the judgment cannot be disturbed, but it must be upheld.
Aaron v. Citizens Ins. Co. of Mo., 144 Miss. 480, 110 So. 120; Green v. Pearson, 145 Miss. 23, 111 So. 862.
The record shows that issue was joined on every allegation of fact contained in the information and all of the evidence on every material fact offered by the state was contradicted by evidence offered by the appellee. In such a case the finding of the court should not be disturbed unless manifestly wrong, and this cannot ordinarily be said of a finding of fact on conflicting evidence.
Ellis v. S. Pellegrini, Inc., 163 Miss. 385, 141 So. 273; State ex rel. Jordan v. Mayor, etc., of Greenwood, 157 Miss. 836, 129 So. 682.
After the case has been heard, if the court is of the opinion that the public interests would be harmed rather than served by removing the party from office, it will decline to remove him.
State ex rel. Jordan v. Mayor, etc., of Greenwood, 157 Miss. 836, 129 So. 682.
Argued orally by Ernest Kellner, for appellant, and by Walter Sillers, and W.C. Roberts, for appellee.
Appellee became a member of the board of commissioners of the Mississippi levee district in 1926 for and from that part of Humphreys county within said district, and has continued to serve as such commissioner to the present time. For the term beginning on the second Monday in July, 1934, appellee was the sole candidate for and from said territory at the election held on the day fixed by law, to wit, June 5, 1934; and appellee having received all the legal votes cast at said election, he was duly commissioned, and entered upon the new term, and has continued therein as aforesaid.
On August 1, 1936, the district attorney for that judicial district filed in the circuit court an information in quo warranto alleging that appellee was ineligible to hold said office because at the date of his election and induction into office for the new term, he was not a qualified elector by reason of his having failed to pay the taxes assessed against him for the year 1933; and for the further reason that appellee was an election commissioner of Humphreys county at the time of the election aforesaid and acted as such therein, and that the petition to place the name of appellee on the official ballot was not acted upon at any time by a quorum of the election commissioners of the county. Upon a trial the petition was dismissed upon the merits, and the case has been brought here on appeal.
There are four assignments of error. The first is that "the proof shows that Howard Jones was an election commissioner of Humphreys county at the time of his pretended election as levee commissioner for said county."
Appellee was appointed one of the election commissioners for Humphreys county in 1932 and received his commission as such. He did not take the oath of office or give bond. He had taken no active part in the proceedings of the election commission; he attended none of its meetings, but was recognized as an election commissioner and from time to time was consulted by the other commissioners. The only part taken by him with reference to the election in question and in respect to his own candidacy thereat was as follows: A petition in proper form signed by more than fifty qualified electors of the territory requesting that appellee be a candidate was delivered to appellee, who, in turn, delivered it to the chairman of the election commission more than fifteen days before the date of the election. The chairman informed appellee that the petition could not be allowed so long as he remained a member of the election commission. On June 1, 1934, appellee forwarded to the Governor his resignation as election commissioner, and thereafter informed the chairman that he had done so, whereupon the chairman instructed appellee to inform the printer, who was also an election commissioner, that appellee's name should be printed on the official ballot, which message appellee delivered, and his name was printed.
Section 6213, Code 1930, reads as follows: "A commissioner of election shall not be a candidate for any office at any election for which he may have been appointed, and with reference to which he has acted as such; and all votes cast for any such person at such election shall be illegal, and shall not be counted." In delivering his petition to the chairman, appellee acted not as a commissioner but as a candidate. There is nothing in the mere manual or mechanical act of delivering a petition that calls for the exercise of any official judgment or discretion; and when, after his formal resignation as a commissioner, he carried the message from the chairman to the printer, he was not acting as a commissioner, having openly and solemnly disavowed any such office, wherefore he was but a messenger. As already stated, appellee took no other part whatever. There was no other candidate; and since there was no other candidate whose interests were or could be affected by what appellee did, and no interest of the public which was hurt thereby, we are of opinion that the quoted statute was not infringed.
The second assignment is that "the proof shows that the petition to place the name of Howard Jones on the ballot used in the election of a levee commissioner for Humphreys county was not acted upon by a quorum of the election commission of said county."
As already stated, the petition was in due form, was filed with the chairman of the commission more than fifteen days before the day of the election, and it is not disputed that it contained more than the fifty names of qualified electors required by law, and the name of appellee was printed on the official ballot. Under the aforesaid undisputed facts, had the commissioners or a quorum met in formal session and considered the petition, and assuming that they would have acted rightly, as we must assume, they would have ordered done exactly what was done in this case. The right result has come about, and as said in Shines v. Hamilton, 87 Miss. 384, 390, 39 So. 1008, in these matters preliminary to an election, the law is concerned with results, not with details by which the right result is reached. See, also, Hunt v. Mann, 136 Miss. 590, 101 So. 369.
The third and fourth assignments present the issues in respect to appellee's alleged delinquency for the taxes assessed against him for the year 1933. The proof is clear that appellee had reached the age of sixty years before December 31, 1931. He was due no poll taxes for the years here brought in question; and whether he was or was not delinquent for property taxes for 1933 is now immaterial, so far as concerns the issues here before us.
If, in fact, appellee had not paid the property taxes assessed against him for 1933, and if he were liable therefor as alleged, this constituted and interposed a constitutional ineligibility against him at the time of his election and at the time of his induction into office, and would continue as such throughout his entire term, so far as to anything which he himself could do to remove that disqualification. The hand of disqualification rested, and continued to rest, upon him, and it was the hand of the state itself. But by authority of the electorate of the state, given by their affirmative vote in the ratification of the amendment, which was inserted on October 15, 1935, as a part of the Constitution (section 241), by chapter 117, Laws 1935, Ex. Sess., whereby the state in its sovereign capacity withdrew the disqualification which theretofore existed in regard to nonpayment of property taxes, the hand of the state was also withdrawn from this appellee in respect to the disqualification with which he was theretofore encumbered. That which was theretofore a continuing disqualification, but not so declared in a specific judicial judgment, was discontinued by the sovereign will and power, and having been thus discontinued by the state itself, the disqualification no longer exists; and there is therefore no longer any authority on the part of any officer of the state to invoke the alleged disqualification, nor on the part of the court now to enforce it.
We think the foregoing paragraph sets forth an obvious conclusion in support of which no authority is needed; but there is authority, found in Widincamp v. Wood, 167 Ga. 57, 144 S.E. 900, which is in point on the facts and as to the result reached, although we do not subscribe to the entire course of the reasoning embraced in the opinion therein, but prefer the reasons stated in the subsequent case, Cooper v. Lewis, 177 Ga. 229, 170 S.E. 68, 88 A.L.R. 808, wherein the same point was involved in principle and wherein the court said that where a constitutional amendment removes or strikes out that which constituted the asserted ineligibility of an officer, the ineligibility is measured by the amendment and not by the former constitutional provision.
Affirmed.