Opinion
No. 33994.
January 22, 1940. Suggestion of Error Overruled March 4, 1940.
ELECTIONS.
A qualified elector and taxpayer could not contest election which resulted in abolishment of office of county prosecuting attorney, at which election no one was a candidate for the office (Code 1930, secs. 4221, 6258).
APPEAL from the circuit court of Hancock county; HON. L.C. CORBAN, Judge.
Edward I. Jones, of Bay St. Louis, for appellant.
The cause of action is based upon Chapter 101 of the Code of 1930, which provides for an (popularly termed local option election) election by the people of a county to decide whether or not said county shall have a county prosecuting attorney's office, and said chapter, and especially Section 4221 thereof was patterned after many similar local option election statutes on other matters, and appellant particularly desires to show the analogy of said Chapter 101 and especially Section 4221 thereof, of the Code of 1930, to Chapter 37 of the Code of 1892, and especially Section 1610.
In a suit by qualified electors and taxpayers in an appeal from a decision of the Board of Supervisors ordering an election under Section 1610 of the Code, wherein it is asserted that there was no right in the qualified elector and taxpayer to maintain the action, the court, in the case of Ferguson v. Board of Supervisors, 14 So. 83, 71 Miss. 524, held that a taxpayer and an elector had the right to appeal and maintain an action contesting the proceedings of said board, and stated in its decision as follows: "Were it doubtful whether the right exist, it would be proper to solve it in favor of the right, but we do not so regard it, and think it plainly given." Certainly when the court held that the right of appeal was plainly given a fortiori it decided that any qualified elector and taxpayer had a sufficient interest to maintain an action to contest an erroneously judgment of the Board of Supervisors in a matter of the calling of a local option election, and if this be true, the right to maintain the action in a taxpayer and qualified elector is sufficient to set aside a void judgment of the Board of Supervisors, either calling the election or declaring the office abolished in pursuance of an election held under a void order calling it.
Power v. Robertson, 93 So. 773.
Appellants maintain that the theory under which they maintain their action and right to set aside the void order of the Board of Supervisors calling the election to abolish the office of county prosecuting attorney and declaring the office of county prosecuting attorney abolished is clearly established by said case of Ferguson v. Board of Supervisors, 14 So. 83, 71 Miss. 524.
George R. Smith, of Gulfport, and Robt. L. Genin and Gex Gex, all of Bay St. Louis, for appellees.
At the outset we must suggest, though the proposition is so well established that it may be called "Hornbook Law," that the only issue to be determined in this cause is which side received the greatest number of legal votes. And all of the other matters injected into the proceedings by appellant should be disregarded.
In the case of May v. Young, 164 Miss. 35, 143 So. 703, a proceeding under Section 6258 of the Code of 1930, the Supreme Court said: "The only question which the court below was authorized to investigate and determine was which of the parties hereto received the greatest number of legal votes at the election."
Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Pradat v. Ramsay, 47 Miss. 24; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; 20 C.J. 217; State v. Greer, 158 Miss. 315, 130 So. 482.
Our statutes provide a means of appealing from the actions of the Board of Election Commissioners, and if any irregularities had been committed, it was incumbent upon appellant to follow that procedure.
Calvert v. Crosby, 163 Miss. 177, 139 So. 608.
If any elector had been deprived of his privilege of voting due to an erroneous construction by the Board of Election Commissioners of the law governing poll tax requirements, that elector should have appealed such ruling, and they may have applied to vote and exhibited his proper receipts and if refused the right to vote proof thereof should have been offered at the trial below.
In conclusion we wish to state that under Section 4221 of the Code of 1930 it was within the province of the people of Hancock County to decide whether they wanted to continue to be burdened with the expenses of the office of county prosecuting attorney. This being a democratic government the laws of this state vest in the majority of the electors the right to decide that question; and the overwhelming majority of the electors of Hancock County have spoken; by a vote of almost three to one, they have decided that said office should be abolished, and we respectfully submit that such expression of the will of the people of that county has been made in compliance with the Constitution and the statutes of this state; and that the judgment of the lower court should be affirmed.
Argued orally by Edward I. Jones, for appellant.
Edward I. Jones filed a petition to contest an election in the Circuit Court of Hancock County. The contest seems to have been filed under Section 6258, Code of 1930, which provides how an election of a county officer or district attorney may be contested.
The board of supervisors of that county ordered an election to be held on January 24, 1939, to decide whether or not the office of county prosecuting attorney should be abolished in that county. That election was held and the returns of the commissioners of election to the board of supervisors showed that 335 voted for the office and 940 voted against it, the majority against the continuance of the office being 605. Upon said return, the board of supervisors entered an order abolishing the office. As a qualified elector and taxpayer, Edward I. Jones brought suit to contest the election. No one was a candidate for the office in that election.
The appellant asserts here, and so asserted in the lower court, that the election was void because of the date of the filing of the petition of qualified electors for the abolition of the office. He further alleged that eight hundred or more citizens voted in that election who were not qualified because there had not paid their poll taxes for the year 1938. The election commissioners and board of supervisors contended that the electorate of that county had until February 1, 1939, in which to pay their taxes. The court below agreed with the appellees and directed the jury to return a verdict for the appellees, sustaining the order of the board of supervisors abolishing the office of county prosecuting attorney.
Section 6258, Code of 1930, is the only section which applies to elections other than primary elections in the county. There is nothing in the section which indicates that a taxpayer or qualified elector could contest the election of a county officer. That section limits the right to contest in the person or persons who were candidates in the election. This is clearly demonstrated by the judgment directed to be rendered by the court, as provided in that section.
In a contest under that section "The sole issue which the court that tried the contested election case was authorized to submit to the jury is that prescribed by section 6258, Code of 1930, which is that it `shall find the person having the greatest number of legal votes at the election.' . . . `it is of course obvious that issues outside of the jurisdiction of the court to determine, cannot become res adjudicata by virtue of its judgment.'" Weisinger v. McGehee, 160 Miss. 424, 134 So. 148, 149, and authorities there cited.
There is no provision in Section 4221 for a contest by a taxpayer or qualified elector of an election ordered to determine whether or not the office of county prosecuting attorney should be abolished. Therefore Jones was without the authority to appear as a contestant of the election held in that county on January 24, 1939.
Appellant Jones cites two cases as authority for his right to bring the contest here involved — Ferguson v. Board of Supervisors, 71 Miss. 524, 14 So. 81; and Power v. Robertson, 130 Miss. 188, 93 So. 769. Neither of these cases has any application whatever to the question here involved. In the former case, the Court held that a taxpayer had a right as a party aggrieved to appeal from an order of the board of supervisors directing a local option election as to the sale of intoxicating liquors. In the latter case, this Court upheld the right of a qualified elector to have a judicial review of the action of the secretary of state in passing upon the petition for an initiative and referendum election. In that case, the Court held that a qualified elector was entitled to invoke a writ of certiorari in the circuit court in order to pass upon the validity and sufficiency of the petition there involved.
We shall not be inclined to read into the statutes mentioned the right of a qualified elector and taxpayer, without other interest, to contest an election held by the people.
We shall not take up for decision the questions raised by the petition to contest the election.
Affirmed.