Opinion
No. 38387.
November 1, 1951.
1. Elections — primary election contest — judicial review — certificate to petition for.
Attorneys who certified that, in their opinion after full and independent investigation, the petition for a judicial review in a primary election contest should be sustained were not disqualified by the fact that nephews of one of the certifying attorneys had married nieces of contestant's wife, and that the other attorney is a nephew of one of lawyers in the partnership representing contestant. Sec. 3182 Code 1942.
2. Elections — primary election contest — failure to strike allegation not proved, harmless.
Although in a judicial review of a primary election contest, an allegation by the contestee challenging a particular vote might have been properly stricken because made too late, yet when the contestee made no proof to sustain the allegation and the findings by the trial judge show that the particular vote was not considered by the court at all, contestant was not harmed by the failure to strike.
3. Domicile — elements required to establish.
Domicile of choice requires residence and the intent to remain and when these concur, domicile is established.
4. Domicile — established presumed to continue — burden of proving to contrary.
A domicile once acquired is presumed to continue and the burden of proving to the contrary is on the party so alleging.
5. Elections — permanent home of voter — temporary absences did not change domicile.
Where a challenged voter upon his marriage to a resident within the qualified area soon went there to live with the proved determination to make his permanent home there and to which he frequently returned to work after temporary absences and he and his wife were registered voters and poll taxpayers there and had never registered elsewhere, the fact that he and his wife were both temporarily absent in a temporary abode at the time of the election in question did not change their domicile and their absentee ballots should have been counted for the contestant for whom they were cast.
6. Elections — pencil marked ballots — equal number of such ballots for each candidate.
Where the contestant charged in his contest that three ballots marked in pencil were cast for contestee, and the latter answered that three ballots marked with pencil were cast for contestant, and their disallowance would not change the result, which in his cross-petition contestant denied, but no testimony whatever was taken on the issue of the pencil marked ballots and the trial judge made no reference to them in his findings of fact, and was not requested to make any such reference, the Supreme Court in giving due credit to the presumption of regularity will assume either that the trial court was led to believe that this proposition had been abandoned or else that he offset three pencil marked ballots for each candidate over against each other.
7. Elections — primary election — tie vote — procedure in case of.
Where the Supreme Court, on a review of the record in the trial court of a primary election contest, concludes that there was a tie vote and that therefore neither of the candidates was nominated, the judgment will be reversed and an order entered by the Supreme Court that such further steps be taken as is provided by statute in such a case. Sec. 3187 Code 1942.
Headnotes as approved by Lee, J.
Suggestion of Error Overruled, Nov. 19, 1951, with an amplified opinion, 54 So.2d 924.
J.L. Roberson, S.H. Roberson, Harvey T. Ross and J.W. Hopkins, for appellant.
I. Contestee's motion to dismiss the petition for judicial review.
The question presented by this motion is whether two attorneys, without bias or prejudice or interested in the outcome of the case, are disqualified to act as certifying attorneys to the petition for judicial review because: (a) the nephews of one certifying attorney married the nieces of contestant's wife; (b) the other certifying attorney was the nephew of a member of a partnership, two members of which are representing contestant. Harris v. Stewart, 187 Miss. 489; McLendon v. State, 187 Miss. 247; Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510; Shireman, et al. v. Wildberger, et al., 125 Miss. 499.
II. The vote of Mrs. J.C. Irvine.
The question is whether the Court will permit contestee to bring up matters before the special tribunal which are in no wise referred to by him in his answer and cross-petition before the executive committee. Sec. 3182, Code 1942; Darnell v. Myres, 202 Miss. 767.
III. The three ballots marked with ordinary pencil for contestee.
The question is whether contestee was entitled to have counted in his favor three ballots marked with an ordinary pencil. Chin v. Cousins, 201 Miss. 1; Sec. 3269 Code 1942, as amended by Chap. 306 of the Laws of 1948.
IV. The Hamblett vote.
The question is whether T.E. Hamblett, for many years immediately prior to the August 7th primary living in Memphis, Tennessee, with his family, and making oaths in courts of competent jurisdiction in Shelby County, Tennessee, that he was a resident of Shelby County, Tennessee, should have been entitled to cast a vote which was counted for contestee in the election in question. Bilbo v. Bilbo, 180 Miss. 536; Clay v. Clay, 134 Miss. 658; 28 C.J.S., Domicile, Secs. 10, par. b, and 11, pp. 14, 15; Hariston v. Hariston, 27 Miss. 704; Jones v. State, 207 Miss. 208; May v. May, 158 Miss. 68; Restatement of the Law, "Conflict of Laws", Sec. 15, p. 32; Smith v. Smith, 52 So.2d 1; Standard Oil Co. v. Crame, 199 Miss. 69.
V. The ballot of Mrs. Russell I. Arnold.
The question is whether a person, moved into the county on December 6, 1950, who cast a vote for contestee at the August 7, 1951, primary, should have been permitted to vote, and whether the vote so cast was an illegal ballot. Newcomb v. State, 37 Miss. 383; Rogers v. United States, 95 L.Ed. 374; Spight v. State, 127 Miss. 752; Turner v. State, 60 Miss. 351; White v. State, 52 Miss. 216.
VI. The ballot of C.F. McMullin.
Should C.F. McMullin have been permitted to vote at the Lula box in the August primary when he was not a qualified elector, and should the court have refused to permit the contestant to prove by the witness McMullin that he cast his vote for contestee? Harris v. Stewart, 187 Miss. 489; Trahan v. Simmons, 191 Miss. 353.
VII. The votes attempted to be cast by Mr. and Mrs. R.W. Donaldson.
The question is whether the court was correct in holding that Mr. and Mrs. R.W. Donaldson, who claimed Rich, Coahoma County, Mississippi, as their home and residence since May, 1948, were not qualified electors on the alleged ground that Rich was not their domicile. 17 Am. Jur., Secs. 20, 22, 29, pp. 603, 604, 607; Clay v. Clay, 134 Miss. 658; 28 C.J.S., Domicile, Secs. 9, 10, 11, and 12; May v. May, 158 Miss. 68; Patrick v. Bank of Tupelo, 169 Miss. 157; Restatement of the Law, Sec. 15, p. 32, Conflict of Laws; Smith v. Deere, 195 Miss. 502.
VIII. The X-marked ballot.
Was the court not in error in holding that this was an illegal ballot and that it should not be counted for contestant, for the reason assigned that there was an X-mark opposite the names of both contestant and contestee?
Sec. 3269 Code 1942 as amended by Chap. 306, Laws 1948; 20 C.J. 163; 29 C.J.S. 254-255; Evans v. Hood, 195 Miss. 743; Praday v. Ramsey, 47 Miss. 33; Tonnar v. Wade, 153 Miss. 722; Wylie v. Cade, 174 Miss. 426.
IX. The blotted or ink-splotched ballot.
Did the court err in counting this ballot, which was not only badly ink-splotched or blotted, but also was marked in such a peculiar manner as to be in violation of the X-mark or check mark requirement of the statute?
Conclusion and summary.
If we be correct, then contestee at the Lula box received the following illegal votes: T.E. Hamblett, three ballots marked with ordinary pencil, Mrs. Russell I. Arnold, C.F. McMullin, the so-called "ink-blotted" ballot, a total of seven (7) illegal votes, which would reduce his vote at the Lula box from 94, the number fixed by the special judge, to 87. Also the X-marked ballot counted for contestant by the executive committee, but disallowed by the special judge, should be considered and counted by this Court as a vote for contestant, thus restoring his vote at the Lula box to 81. This computation would result in contestee carrying the Lula box by a majority of six (6) instead of fourteen (14), as found by the trial court.
The only thing wrong with the trial court's findings as to the Rich box is that he refused to count the votes of Mr. and Mrs. Donaldson, who marked their ballot for contestant. If the Donaldson votes were legal, and contestant claims that they were, then contestant's vote at the Rich box should be increased from 35, the number counted by the executive committee and the trial court for him, to 37. It is undisputed that the contestee received at the Rich box 23 votes; therefore, instead of contestant having carried the Rich box by 12 votes, he actually carried it by a majority of 14 votes.
The over-all picture for the entire district would then be: For contestee, 87 votes at Lula, and 23 at Rich; a total of 110; and for contestant-appellant, 81 votes at Lula and 37 at Rich, a total of 118, or a majority of 8 in favor of contestant instead of a majority of 2 in favor of contestee, as found by the trial court.
The only illegal vote left would be that of Russell I. Arnold. There is no proof how he voted. However, regardless of that fact, his vote would not either change the result, or leave it in doubt.
The Corrupt Practices Act is distinct, unusual, and separate from the general body of the statutory law with reference to court procedure. It is one which makes the Supreme Court, in a measure, an executive committee. There can be no remand of a case by the Supreme Court in a primary election contest. There can be only one trial of such contest in a special tribunal. On appeal, the Supreme Court does that which the lower court should have done, and the Supreme Court can only do one of three things: Affirm the case; reverse and render; or order another primary election.
Sec. 3185 Code 1942 (Sec. 15(d), Acts of 1935, Chap. 19) deals with appeals from the judgment of a trial judge and reads in part as follows: "But if not so many as two of the Commissioners are and have been in attendance, * * * a transcript of the testimony may be filed with the bill of exceptions * * * and the Supreme Court, upon review thereof, may make such findings upon the facts as the evidence requires, giving only such consideration as the Court may think warranted to the presumption of correctness of the conclusions of the trial judge. The appeal shall be immediately docketed in the Supreme Court and referred to the Court en banc without oral argument, unless the Court shall call for oral argument, and shall be decided at the earliest possible date, as a preference case over all others, and such judgment shall be entered and certified as the trial tribunal should have entered and certified, with the same effect as had such judgment been entered by the trial tribunal and no appeal had been taken therefrom".
In the case of Briggs v. Gautier, 195 Miss. 472, at page 485, the Court stated: "And since the statute here involved expressly requires that the Supreme Court shall render such judgment on appeal as the court appealed from should have entered, * * *."
In the case of Harris v. Stewart, 187 Miss. 489, at page 512, the Court states: "And the Court did here what, in the judgment of the Court, the executive committee should have done, to-wit: it ordered another primary to be held within five days from the date of the order, and appointed managers to hold the same — the date fixed for the other primary being within a time that would allow the nominee thereat to get on the ticket for the regular election on November 7, 1939. We will note here that the Court ordered another primary not only at the two offending boxes, but at all four boxes of the District. No point is made as to this, and we express no opinion whether the primary ordered should have been only at the two challenged boxes, or at all four within the District. It may be that the parties agreed that if the primary was to be ordered by the Court it should be at all the boxes, and it may be in the particular situation that this was the fair and proper thing to do."
That the case cannot be affirmed seems abundantly clear. It seems equally clear that under the proof in this record, that the contestant should be declared the nominee. It will be noted by the Court that no proof whatsoever was offered on behalf of contestee, other than some exhibits introduced on cross-examination of some of contestant's witnesses. The conclusive presumption to be entertained by the Court would be that there was no proof available to the contestee which would be of any help to any of his contentions.
The calling of another primary would serve no purpose, except to find out whether contestant would again receive the majority of the legal votes which might be cast in the election. Courts, of course, are not organized for such purposes. Once a candidate is nominated, no second nomination could be contemplated.
However, should the Court be of the opinion that we are wrong in our contention that the contestant is the legal nominee, and should the Court further consider that there were enough illegal votes at the Lula box to make it impossible for the Court to determine the will of the voters thereat, or to leave the result in doubt, then, in such event, the primary should be limited to the Lula box. Sec. 3167 Code 1942.
The Court in the case of Hays v. Abney, 186 Miss. 208, at page 217, stated: "The rule is that where enough illegal votes were cast to change the result or leave it in doubt, the election is void. See 20 C.J. 182. The authorities are in conflict as to the burden of proof as to illegal votes found to be cast. Under our secret ballot system it may be doubted whether any voter, legal or illegal, may be required to reveal, over his protest, how he voted. 20 C.J. 246, 247. In the case at bar, there was no effort to show how any person voted. It will be seen, from what we have already stated, that the result of this election is in doubt."
In the case at bar, as we have demonstrated, it cannot be doubted that contestant received the majority of the legal votes. The holding of another primary in order to ascertain how the illegal voter, one in number, cast his vote in the August 7 primary would be without any purpose whatsoever.
The question of what should be done, when it is not shown for whom the illegal votes were cast, provided they were sufficient in number to leave the result in doubt, is definitely settled in the case of Harris v. Stewart, 187 Miss. 489. In Sec. 13 of the syllabus the following statement is made: "In proceeding for judicial review of Executive Committee's denial of primary election contest, where contestant proved that enough illegal votes had been cast to change the result, action of Court in ordering another primary election was justified." Citing Sections 4 and 5, Chap. 19 of the Corrupt Practices Act.
In this connection, compare Briggs v. Gautier, 195 Miss. 472; Chinn v. Cousins, 201 Miss. 1.
This Court should declare contestant the nominee for the office of Supervisor of the First Supervisors' District of Coahoma County, Mississippi, and make proper certificate thereasto.
Holcomb Curtis, and Stovall Lowrey, for appellee.
I. Response to Point I. Contestee's motion to dismiss the petition for judicial review. Sec. 3182 Code 1942; Perez, et al. v. Wall, 26 So. 1020; Harris v. Stewart, 187 Miss. 489, 193 So. 339; Pittman v. Forbes, 186 Miss. 783, 191 So. 490; Pearson v. Jordan, 186 Miss. 789, 192 So. 39; Sec. 165, Const. 1890; Y. M.V. RR. Co. v. Kirk, 102 Miss. 41, 58 So. 710.
II. Response to Point II. The vote of Mrs. J.C. Irvine.
It is the contention of appellee that the court's action in overruling the motion of appellant to strike the allegation in the cross-petition with reference to the vote of Mrs. J.C. Irvine is not an issue which can in anywise affect the appellant's appeal. It is shown conclusively by the findings of the special judge and the final judgment itself that the Irvine vote was not even considered by the trial judge in reaching his decision.
Consequently, appellant has no cause to complain of the court's action on the motion. The Irvine vote in no way affected the outcome of this cause in the court below and played no part in the court's final decision.
III. Response to Point III. The three ballots marked with ordinary pencil for contestee. Trahan v. Simmons, 191 Miss. 353, 2 So.2d 591; Miss. Chancery Practice, Secs. 350, 356, 357, 359; Robertson v. Southern Esso Bithulithic Co., et al., 129 Miss. 453, 92 So. 580; White v. State, 159 Miss. 207, 131 So. 96; Yazoo M.V. RR. Co. v. Wallace, 90 Miss. 609, 53 So. 469.
IV. Response to Point IV. The Hamblett vote. Trahan v. Simmons, 191 Miss. 353, 2 So.2d 591; Jones on Evidence, 3rd Ed., Sec. 299, p. 455; 20 Am. Jur., Secs. 454, 455, p. 403; 1 Am. Jur., Secs. 29, 30, p. 955; Martindale-Hubbell Law Directory, Vol. III; McHenry v. State, ex rel. Rencher, District Attorney, 119 Miss. 289, 80 So. 763; Citizens Bank of Coldwater v. Callicott, et al., 178 Miss. 747, 174 So. 78; Parker v. California Co., et al., 54 So.2d 174.
V. Response to Point V. The ballot of Mrs. Russell I. Arnold. Sec. 3274 Code 1942; Newcomb v. State, 37 Miss. 383; White v. State, 52 Miss. 216; Spight v. State, 127 Miss. 752; Rogers v. United States, 95 L.Ed. 374; Harris v. Stewart, 187 Miss. 489, 193 So. 339; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 591.
VI. Response to Point VI. The ballot of C.F. McMullin. Harris v. Stewart, 187 Miss. 489, 193 So. 339.
VII. Response to Point VII. The votes attempted to be cast by Mr. and Mrs. R.W. Donaldson. Art. 12, Sec. 241, Const. 1890; Secs. 3130, 3235 Code 1942; Shaw v. Burnham, 186 Miss. 647, 191 So. 484; Jones v. State, ex rel. McFarland, 207 Miss. 208, 42 So.2d 123; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Patrick v. Bank of Tupelo, 169 Miss. 157.
VIII. Response to Point VIII. The X-marked ballot. Guice v. McGehee, 155 Miss. 858, 124 So. 643; Secs. 3269, 3274 Code 1942; Tonnar v. Wade, 153 Miss. 722; 29 C.J.S. 269.
IX. Response to Point IX. The blotted or ink-splotched ballot. Guice v. McGehee, 155 Miss. 858, 124 So. 643; 29 C.J.S. 272; Tonnar v. Wade, 153 Miss. 722; Evans v. Hood, 195 Miss. 743, 15 So.2d 37.
Conclusion and summary.
Appellant's conclusion is meaningless unless the findings of fact and conclusions of the chancellor are reversed. This we do not believe the Court would be justified in doing on this record.
The chancellor found categorically against the contestant in the court below, and the evidence as reflected by the record amply supported this finding. The burden of proof was on contestant throughout as was stated in the case of: Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575: "It was distinctly announced by this Court in Hayes v. Abney, 186 Miss. 208, 188 So. 533, 535, that `where enough illegal votes were cast to change the result or leave it in doubt, the election is void'. The rule as stated, whatever may be its ultimate effect, is applicable, however, only when the attorney general or district attorney has, in such a case, instituted an action in quo warranto, solely in the name of the State, to oust a person who has intruded himself into office under an election void for the stated reason. It can have no application in an election contest between the candidates wherein the candidate certified as having lost seeks, not to avoid the election, but to avail of it and to show by his contest that in fact he was elected by the majority of the qualified voters who voted. In such a contest he has the burden of the proof; and manifestly this is not met simply by showing that enough illegal votes were cast to change the result or leave it in doubt."
In the case at bar no fraud, irregularity or impropriety that would invalidate the election was charged by contestant, and certainly none was proved against contestee. The only impropriety in the whole election was induced by the contestant when he urged an admittedly disqualified voter, C.F. McMullin, to go to the polls and vote, as is clearly demonstrated in Point VI herein.
T.E. Hamblett was declared by the executive committee and the lower court to be a qualified voter. The evidence as hereinabove stated in Point IV amply supports this finding.
The three ballots marked with ordinary pencil for contestee were in issue; were avoided in contestee's answer. The burden of proof was on contestant's counsel. They introduced no proof in relation thereto, and this Court has repeatedly held that it will not decide issues of fact which the court below has not decided; that such constitute original jurisdiction.
The so-called ink-blotted ballot was allowed as a vote for contestee by the executive committee and by the chancellor below. Such finding on the facts cannot be disturbed here, and too, an inspection thereof is sufficient to show that the same was a legal vote for contestee.
It was not shown how Mrs. Russell I. Arnold voted, and the court was perfectly correct in this respect, as reflected in Point V herein.
Too, the X-marked ballot is before this Court and is obviously a spoiled and identifiable ballot, as demonstrated by authorities contained in Point VIII herein.
The Donaldson votes were properly excluded, as pointed out in Point VII herein.
Therefore, the mathematical calculations of appellant's counsel are entirely hypothetical.
From the above, then, it is respectfully submitted that counsel for appellant did not show in one particular wherein the lower court erred.
The chancellor was presented for decision a disputed case of facts. He found in favor of contestee. He made his findings, dictated to the reporter covering all controversial material issues of fact and entered judgment accordingly, and all in compliance with Sec. 3184 Code 1942.
As was said by this honorable Court in the very recent case of Parker v. California Co., et al., decided Sept. 24, 1951, as reported in 54 So.2d 174: "There was thereby presented to the chancellor for a decision a disputed case of fact, and we are not authorized to disturb these findings thereon."
Contestant's counsel obliquely suggests that since there were illegal votes cast that a new election should be ordered. There is no merit to this.
The case of Harris v. Stewart, 187 Miss. 489, 193 So. 339, provides: "In most cases it would be too harsh a remedy to order an entire box thrown out; and this, perhaps, should not be done unless the candidate whose apparent majority has been procured at that box has been an active participant, either himself or through others with his knowledge and approval, in the frauds and irregularities therein, or where the communities represented by the challenged boxes have so long and persistently indulged in election frauds and irregularities that no other means, more effectual to make them know that the policy of the State is against such wrongs, is to be found than to throw out their illegal and fraudulent boxes."
And then again in the later case of Allen v. Funchess, 195 Miss. 486, 15 So.2d 343, Justice Griffith in the concluding paragraph of said opinion announced the law very aptly and very practicably as follows: "We are satisfied with what was said and done by us in Briggs v. Gautier, as applied to the wide and vital departure from the statutory course there shown, but if we should advance that holding so as to embrace cases such as presented under all the facts in the instance now before us, primary election contests, especially as to the larger precincts, would become so common as to overbear the good that was sought to be accomplished in allowing them. Affirmed."
Here the chancellor found there was no fraud or irregularity. There was no intentional fraud by those illegal voters that did vote. There was simply a misconception of their qualifications.
No special election is indicated or authorized on this record, it is respectfully submitted.
The learned lower court grasped the full and complete picture and put it into focus in his opinion with clarity and vision. To disturb such a finding of fact and conclusion of law would be a distortion of that picture.
J.B. Hopkins and J. Van Wilson were candidates for the office of supervisor of the First District of Coahoma County in the primary election on August 7, 1951. There are two precincts in that district, namely, Lula and Rich. According to the reports of the managers of the election, each candidate received 116 votes. The executive committee, on its canvass of the returns, found that Wilson received 117 votes and Hopkins 116, and declared Wilson to be the nominee.
Hopkins, thereupon proceeding under Section 3143, Code 1942, filed his contest with the committee, setting up his several grounds of contest. Seasonably Wilson filed his answer and cross petition. However, no action on the contest was ever taken by the committee.
Hopkins, thereupon proceeding under Section 15, Corrupt Practices Act of 1935, Code 1942, Secs. 3182-3188, filed his petition in the circuit court for a judicial review, setting up the same grounds of contest. Wilson filed both a motion to dismiss for want of jurisdiction, and his answer and cross petition. The special court was constituted, and on the hearing, overruled the motion to dismiss, together with several other motions not necessary to mention.
On the trial, at the conclusion of the evidence, oral and documentary, the trial judge made his findings of fact, and dictated them to the reporter. He adjudicated that Wilson had received 117 votes and Hopkins had received 115 votes, and declared Wilson to be the nominee. A decree was entered accordingly and Hopkins appeals here upon his bill of exceptions, which, on order of the trial judge, includes the transcript of the evidence.
ON APPELLEE'S MOTION TO DISMISS
(Hn 1) This motion was urged in the lower court and is urged here. The contention is that Section 3182, Code 1942, was not complied with as regards the two certifying attorneys. However, the proof showed that two nephews of one of the certifying attorneys married two nieces of appellant's wife, and that the other attorney is a nephew of one of the lawyers in the partnership representing appellant. Neither of these attorneys was disqualified on account of the stated relationships, and the evidence was ample, in all respects, to sustain the action of the trial judge in overruling the motion. Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676, 11 A.L.R. 1321; Shireman v. Wildberger et al., 125 Miss. 499, 87 So. 657; McLendon v. State, 187 Miss. 247, 191 So. 821; Harris v. Stewart, 187 Miss. 489, 193 So. 339.
ON THE MERITS
Several points are assigned and argued by the appellant, and we shall deal with as many of them as we deem to be necessary.
(Hn 2) (1) The vote of Mrs. J.C. Irvine. The objection by the appellant was that this item was a new matter; that it was not referred to in the answer filed with the executive committee; and that it could not be brought up before the special tribunal. However, appellee made no proof on this matter, and the finding of the trial judge, and his decree thereon, show that this vote was not considered by the court at all. Thus no harm could have resulted in the failure to strike the allegation.
(2) As to the Hamblett vote, the Mrs. Russell I. Arnold vote, the G.F. McMullin vote, the X marked ballot, and the blotted or ink-splotched ballot, without detailing the facts, it is sufficient to say that, in our opinion, the trial court was correct in his decision of all of these matters.
(3) The absentee ballots of Mr. and Mrs. R.W. Donaldson. These ballots were for appellant, but were not counted by the trial judge, on account of which appellant claims error. R.W. Donaldson was born in Texas in 1925 and lived there until 1943, when he enlisted in the Navy. He was sent to Millsaps College, in V-12 training, until November 1945. There he met Frances Ashley of Rich, Mississippi, whom he married on May 12, 1945. In June 1946 he reported for active duty aboard ship. He was discharged in 1947 and came, as he says, "home to Rich". He attended summer school at the University of Oklahoma, and returned to Millsaps in the fall of 1947, from which institution he was graduated on June 1, 1948. He was exempt from examinations and spent the two weeks immediately prior to obtaining his diploma by working in the crops at Rich. About June 15, 1948, he accepted a temporary job with California Oil Company at Natchez and has since worked for that company. He was working 40 hours, and went to Rich on weekends while his wife was nursing her mother. He had made up his mind in 1946 that he was going to make Rich his permanent home. On his discharge from the Navy, he gave Rich, Mississippi, as his address. His wife registered there on March 12, 1949; and he likewise registered January 14, 1950. Both paid poll taxes for 1949 and 1950 in Coahoma County. They lived at Natchez in rented quarters. They operated a small grocery because it was in the same building with their apartment, and they would have been required to move, if it had been rented to someone else. They never registered anywhere else. They never offered to vote anywhere else. Of course they did not pay poll taxes elsewhere. Their surplus clothing and personal effects are kept in the home at Rich, in which Mrs. Donaldson is interested, and no one else uses their living quarters. (Hn 3) Domicile of choice requires residence and the intent to remain. When these concur the domicile is established. 28 C.J.S., Domicile, Sec. 9, p. 11. See also 17 Am. Jur. 603.
In May v. May, 158 Miss. 68, 130 So. 52, in a divorce action, it was held that where (Hn 4) a domicile is once acquired it is presumed to continue, and the burden of proving the contrary is on the party alleging it. See also 28 C.J.S., Domicile, Secs. 9, 10, 11 and 12; Smith v. Deere, 195 Miss. 502, 16 So.2d 33.
(Hn 5) We think that, subsequent to the time of his determination in 1946 to make his permanent home at Rich, the voter, by his acts, established his domicile at that place; and his temporary absence, in view of his intention to return, did not change his domicile. See 28 C.J.S., Domicile, Sec. 11, p. 18.
Manifestly these parties were qualified electors of the precinct of Rich, and their ballots should have been counted for the appellant.
(Hn 6) (4) Three ballots for appellee marked with pencil. Appellant charged in his contest that three ballots, marked with pencil, were cast for appellee. In his answer, appellee admitted such allegation, but averred that "there were also three pencil marked ballots cast in said box for contestant; so that the disallowance by the committee of all pencil marked ballots would result in no advantage to either candidate, nor in any wise change the result of the election." In his answer and cross petition, appellant denied, on information and belief, that three pencil marked ballots were cast for him. No proof at all was introduced in regard to such ballots. But appellant contends that he is entitled to rest on the admission of his adversary, and, since appellee made no proof on his averment, the total number of appellee's votes should have been decreased by three.
But it must be kept in mind that, in the trial of a case under this Act, Section 3184, Code 1942, declares the duty of such court as follows: "The special tribunal so constituted shall fully hear the contest or complaint de novo and make a finding dictated to the reporter covering all controverted material issues of fact * * *". (Emphasis supplied.)
After all the evidence was heard, and the arguments were concluded, the trial judge made a full finding of fact on a number of objections, and announced his conclusion that the appellee had received 117 votes and appellant had received 115 votes. He made no reference to the pencil marked ballots at all. In fact, nowhere in the record other than in the pleadings above mentioned is there any reference to or mention of those ballots. The record discloses that both the Lula and the Rich boxes were in court. It affirmatively appears that some of the records were taken out of those boxes. Whether the trial judge examined the contents does not appear. At least they were available to him. If appellee's qualified admission in his answer was sufficient proof that three illegal pencil marked ballots should be taken from him, why was not a suggestion to that effect made to the trial judge? Why was there a failure to obtain from the trial judge a finding of fact on that question? If he, in fact, had overlooked those ballots, by calling the matter to the court's attention, there would have been a change by which the appellant would have been victor by one vote.
In the concluding words of his opinion the court informed counsel to write in the decree "the court having heard the proof fully from the contestants and your motion (evidently to dismiss) and that this court affirms the action of the county democratic executive committee, except as to the marked ballot which was counted for Mr. Hopkins and should not have been counted, giving Mr. Wilson 117 votes and Mr. Hopkins 115". From this statement it is clear that the judge reached a definite conclusion. He necessarily adjudicated all essential facts to justify that conclusion. He thought he was making a finding "covering all controverted material issues of fact" as the statute required. And there was no request for a finding of fact as to the pencil marked ballots and none was made. In giving due credit to the presumption of regularity, we must assume (1) either that the trial court was led to believe that this proposition had been abandoned, or (2) that he covered all controverted issues of fact and he did, in fact, view the documents which were available and could have been viewed by him, and that he offset three pencil marked ballots for each candidate over against each other.
The trial judge, in holding that Wilson was the nominee, excluded the two Donaldson ballots, which have been dealt with herein above. (Hn 7) Since we are holding that these two ballots should have been counted for Hopkins, the result is that each of the candidates received 117 votes. Since there is a tie, neither candidate is the nominee.
We, therefore, reverse the judgment of the lower court, and will enter a judgment here to the effect that Wilson was not nominated, but that the vote between him and Hopkins is a tie, so that in accord with the rule laid down in Smith v. Deere, 195 Miss. 502, 16 So.2d 33, 35, "such further course may be taken as provided in said Subdivision (f), Section 15", Section 3187, Code of 1942.
Reversed and judgment here.
ON SUGGESTION OF ERROR.
Appellant and appellee have each filed a suggestion of error.
Appellee contends on his suggestion of error that the Court decided this appeal on its merits while there was pending and undisposed of a motion to dismiss the appeal. The cause was submitted for consideration on both the motion to dismiss the appeal and on its merits. Although no specific mention of the motion to dismiss the appeal was made in the opinion, the Court gave due consideration to such motion and was of the opinion that it should be, and it was, overruled before proceeding to a consideration of the appeal on its merits. In order to clarify the question raised, the original opinion is modified by adding as an additional paragraph thereto, just preceding the caption "On Appellee's Motion to Dismiss", the following: "We have given due consideration to the motion to dismiss the appeal and are of the opinion that it should be and it is overruled."
Appellee further contends that the Court erred in holding Mr. and Mrs. R.W. Donaldson to be qualified voters of the Rich precinct. We are unable to concur in this contention.
We have duly considered the suggestion of error filed by appellant and are of the opinion that it should be overruled.
It follows, therefore, that both suggestions of error are overruled.
Opinion modified and suggestions of error overruled.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the opinion is modified and suggestions of error overruled.