Opinion
No. 30145.
October 17, 1932.
1. ELECTIONS.
In election contest, only question which court could determine was which of parties received greatest number of legal votes (Code 1930, section 6258).
2. ELECTIONS.
Votes cast at general election, by writing name on blank space, for one who was candidate at primary election but who was not nominated held illegal (Code 1930, section 6233).
3. ELECTIONS.
That contestee was disqualified from holding office did not affect legality of votes cast for him (Code 1930, section 6258).
4. ELECTIONS.
That contestant's name was fraudulently kept off ballots did not authorize voters to write his name thereon (Code 1930, section 6233).
APPEAL from circuit court of Lincoln county. HON.E.J. SIMMONS, Judge.
J.H. Sumrall, of Jackson, for appellant.
Fraud vitiates everything it enters into. The allegations of the petition of appellant which constitute all the facts in the case, which facts are admitted, plainly show facts which establish fraudulent acts on the part of the authorities upon whom appellant was required by law to depend, for the protection of his rights.
The allegation of wilful and intentional wrongful acts of the officers charged with certain specific duties under the law, constitute a sufficient charge of fraud, which, when admitted by the demurrer results in sufficiently establishing fraud to vitiate every act of said officers which resulted in denying to this appellant substantial rights, and thereby furnishes ample ground for intervention by the courts, and a restoration of the rights to which appellant was entitled by the courts.
Hutson v. Miller, 148 Miss. 783; State ex rel. v. Greer, 158 Miss. 315.
It is manifest from the allegations of the petition, which must be accepted by this court, that there was no reasonably fair attempt to comply with the requirements of the law, and fraud was practiced, according to the admitted allegations of the petition.
This proceeding was instituted under the provisions of Section 6258 of the Code of 1930, which this court has said is the exclusive remedy for the trial of such an issue. The language of the statute provides that the issue to be tried is which person received the greatest number of legal votes.
Legal votes means those votes which would be legal at an election contemplated by the Constitution and laws.
Bew v. State, 71 Miss. 1.
If qualified electors cast their votes in favor of some question not properly presented to them, or for some candidate for office not qualified for such office, the mere fact that the voter was qualified to vote, would not make of such vote so cast a "legal vote," as contemplated by the statute providing for determination of the question to be decided in a proceeding to contest an election.
The petition alleges that many voters of Lincoln county wrote the name of appellant upon the tickets used in the general election, at the proper place on the ticket under the proper head as a candidate for the office of county superintendent of education, and placed the proper mark opposite his name thereby properly designating him as their choice for said office; and since said voters who were qualified electors, as indicated by being allowed to vote, and casting their votes for a candidate fully qualified for the office, and he being entitled to be considered a candidate because of the fact that he had done all in his power that the law required of him, to become a candidate for said office, then such votes so cast for appellant constituted the only legal votes cast for said office in said election, and necessarily appellant received the greater number of legal votes, cast in said election, for said office, since he received all of the legal votes cast.
Warren v. Barnes, 141 So. 901.
A proper proceeding has been instituted to clothe the courts with jurisdiction to inquire into the alleged wrongful and fraudulent acts complained of; the facts are before the court and admitted to be true, therefore, there is no inquiry to be made as to the facts, and the law is plain that the courts should grant the relief prayed for in the petition.
Mississippi ex rel. Bourgeois v. Laizar, 77 Miss. 146.
R.L. Jones, of Brookhaven, for appellee.
Participant in primary election cannot become opposition candidate in general election.
Section 5887, Code of 1930; Rhur et al. v. Cowan, District Attorney, 146 Miss. 870, 112 So. 386.
Action of the democratic party in declaring Young the nominee was political.
Ramey v. Woodward, 90 Miss. 777; State ex rel. Barbee v. Brown et al., 90 Miss. 876.
The action of the election commissioners was final in absence of appeal.
Section 6199, Code of 1930; Section 6200, Code of 1930; Rhur v. Cowan, 112 So. 386, 146 Miss. 870.
No fraud is shown.
The allegations of the petition do not show that there was any fraud committed by any voter. It does not show that there was any fraud by any manager or clerk. It does not show any action that would make the casting of any ballot a fraud.
Hunt v. Mann, 136 Miss. 590, 101 So. 369.
Having failed to receive majority of the votes in either the primary or general election, Mr. May cannot be declared by the courts to have been elected.
Sublett v. Bedwell, 47 Miss. 266; Shivers v. Thomas, 87 Miss. 384; 13 L.R.A. (N.S.) 1013.
The great weight of American authority upon this question holds that, in order that a candidate may be legally elected, he must receive a majority of the votes cast, and that the mere fact that the one receiving the highest number proves ineligible confers no right to the office upon the one receiving the next highest number. The votes cast for such disqualified candidate are generally held to be legal votes, which may properly be counted, and which therefore required a second election in order that a candidate may be chosen who is legally qualified, and who received a majority vote.
13 L.R.A. (N.S.) 1013.
The ballots cast in general election for appellant were void.
The only provision of our statute for the writing of names on the ballot in this manner is section 6233, Code of 1930.
McKenzie v. Boykin, 111 Miss. 256, 71 So. 384.
A contest of an election is not the proper remedy to test the qualification of one elected to office.
Section 3053, Code of 1930; Section 6258, Code of 1930; 20 C.J. 217, sec. 275; Weisinger v. McGehee, 134 So. 148.
This is an appeal from a judgment rendered in an election contest begun by the appellant under the provisions of section 6258, Code of 1930. The allegations of the appellant's petition are in substance as follows: He is a duly qualified elector and possesses the other qualifications for the office of county superintendent of education. In due time he filed with the democratic executive committee of Lincoln county a statement declaring his desire to become a candidate for nomination by the democratic party for election to the office of county superintendent of education, and complied with all of the requirements therefor. The appellee filed with the executive committee a similar request, but that he, the appellee, did not possess the statutory requirements for holding the office of county superintendent of education, and in addition thereto was not a qualified elector, which facts were known to the executive committee. It was therefore the duty of the executive committee to declare the appellant the party nominee for the office and to certify that fact to the election commissioners, but the committee fraudulently declined so to do.
The petition, without alleging who were the candidates in the party primary election, proceeds to allege that the appellee was declared the party nominee after the primary election, and his name was placed on the official ballot at the general election; that the action of the executive committee in failing to declare the appellant the party nominee and permitting the appellee to be a candidate for the nomination at the primary election was fraudulent and void, resulting in all votes being cast for him at the general election being illegal. The appellant's name was not on the ballot at the general election, but some of the voters "knowing of the lack of qualification for the office of the said Eddie M. Young, because of the publicity given to the matter of his disqualification, and relying upon the statute which authorizes the writing of the name of a candidate upon a ticket, when the candidate whose name appears on the ticket is known to be unable to qualify and serve in the office, wrote the name of your petitioner upon the ballots used by them in casting their votes in the general election in November, 1931, in the proper place designating him as a candidate for the office of county superintendent of education of Lincoln county, and placed the proper mark opposite his name, thereby indicating him as their choice for said office."
The election certificate, over the appellant's protest, was awarded to the appellee by the election commissioners. The prayer of the petition is that the appellant "be declared elected to the office of county superintendent of Lincoln county, Mississippi, and that he be commissioned by the governor, and allowed to qualify for said office." A demurrer to this petition was sustained, and on his request therefor the appellant was granted permission to amend his petition within ten days, and on failure so to do "the petition is dismissed." It does not appear from the record whether or not this amendment was made, and we will presume that it was not; no point being made by counsel thereon.
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." Section 6258, Code of 1930; Pradat v. Ramsey, 47 Miss. 24; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148.
Two of the contentions of counsel for the appellee are, first, that the votes cast for the appellant were illegal, and second, that the votes cast for the appellee were legal. Both of these contentions are sound.
The only instance in which the name of a person not appearing on the ballots at an election for office can be written thereon by the voters is that permitted by section 6233, Code of 1930, which provides: "There shall be left on each ballot one blank space under the title of each office to be voted for, and in the event of the death of any candidate whose name shall have been printed on the official ballot, the name of the candidate duly substituted in the place of such deceased candidate, may be written in such blank space by the voter." McKenzie v. Boykin, 111 Miss. 256, 71 So. 382. Therefore the votes cast for the appellant were illegal.
That the appellee is disqualified from holding the office, which on this record we must assume to be the fact, does not affect the legality of the votes cast for him. "The question of the successful candidate's eligibility to hold office is a proper subject of inquiry by quo warranto and cannot as a rule be raised in a statutory contest of election." 20 C.J. 275, p. 217. This question was expressly so decided in Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338, in an election contest under section 391, Rev. Code of 1871, which provides as does the statute here that the verdict of the jury shall find the person having the greatest number of legal votes at the election. This is in accord with the holdings of courts elsewhere. Note, also, State of Indiana ex rel. v. Bell, 169 Ind. 61, 82 N.E. 69, 13 L.R.A. (N.S.) 1013, 124 Am. St. Rep. 203. Compare, Warren v. State ex rel. Barnes (Miss.), 141 So. 901.
But it is said by counsel for appellant that the democratic executive committee fraudulently permitted the appellee to be declared the party nominee, and that as fraud vitiates everything the appellee's name was illegally on the ballot at the general election. Without stopping to inquire how far, if at all, the legality of a primary election can be inquired into in election contests of the character here in consideration, it will be sufficient to say that the fraud charged is simply that the members of the party executive committee knew of the appellee's disqualification for the office. This fraudulent conduct, if such it was, resulted only in (a) the appellant's name not being on the ballots at the general election, and (b) in the name of a person disqualified for the office being thereon. That the appellant's name was fraudulently kept off of the ballots did not authorize the voters to write his name thereon; the right so to do being conferred and measured by section 6233, Code of 1930, and that the appellee is disqualified from holding the office does not, as hereinbefore stated, render the votes cast for him illegal.
Affirmed.