Opinion
No. 33968.
October 23, 1939.
1. ELECTIONS.
A candidate for nomination for county sheriff could not contest the successful candidate's nomination in proceedings before special court provided for by corrupt practices act, upon the ground that the nominee was not a qualified elector of the county (Laws 1935, Ex. Sess., chap. 19).
2. ELECTIONS.
The special tribunal set up by the corrupt practices act has no authority to go beyond ascertaining the will of qualified electors participating in a party primary (Laws 1935, EX. Sess., chap. 19).
3. ELECTIONS.
The special tribunal set up by the corrupt practices act has authority to determine whether those voting or offering to vote at primary election are qualified electors and entitled to vote, and whether in all substantial respects the election was fairly and honestly held in compliance with provisions of the law (Laws 1935, Ex. Sess., chap. 19).
4. QUO WARRANTO.
The only remedy available to defeated candidate for nomination for office of county sheriff, who contended that the successful candidate was not a resident of the county, was a proceeding in the nature of quo warranto in the name of the state after the holding of the general election, since the contention involved a public and not a private question (Code 1930, sec. 3053).
APPEAL from special court of Forrest county; HON. J.C. SHIVERS, J.
T.J. Wills, of Hattiesburg, for appellant.
Section 250, Constitution of the State of Mississippi provides.
"All qualified electors and no other shall be eligible to office except as otherwise provided in this constitution."
The appellee resided in the McCallum election district. He changed his registration when a new registration was ordered by the Board of Supervisors to the McLaurin election district. He was a resident of the McCallum election district and was not a resident of the McLaurin election district. He thereby became disqualified as an elector and under the constitution is ineligible to hold the office of sheriff.
Section 242, Constitution of 1890; Sections 6179, 6182, 6190, and 6207, Code of 1930.
Chapter 140, Code of 1930, provides the machinery by which nominations in primary elections may be made. This law provides for Executive Committees in the counties in the districts embracing two or more counties and in the state. It provides that these Executive Committees shall be the mouthpiece of the party and that all primary elections shall be governed and regulated by the election laws of the state, in force at the time the primary election is held. It gives to the Executive Committee the same power that Election Commissioners have except the power of revising the poll books. The law, creating the Executive Committee, vested it with the power to speak for the Democratic Party and imposed upon it the duty of conducting primary elections to select the standard bearer of the Democratic Party for each office to be voted for in the November election. Prior to the extraordinary session of 1935, however, the courts were without power or authority to control the action of the Executive Committees in making the nominations.
Howard v. Sheldon, 151 Miss. 284, 117 So. 839; Haynes v. Abney, 188 So. 533.
Chapter 19, general laws of the State of Mississippi, Extraordinary Session of 1935, was enacted as a law, and Section 15 thereof provided for a judicial review of the acts of the Executive Committee for the purpose of placing the responsibility of seeing that the nominees of the Democratic Party, whose name is to be placed on the ticket, to be voted for at the November election, was fairly and honestly nominated and was a qualified elector eligible to hold the office to which he was elected.
Omar v. West, 188 So. 917.
The Corrupt Practice Act, in speaking of the fact that no candidate should be declared the nominee unless he received a majority of votes, has reference to the first primary and prohibits the declaring of a nominee when more than two are in the race on plurality vote. In the second primary appellant here received all of the votes legally cast for a candidate for sheriff. Not only did he receive a majority of the legal votes cast but he received all of the votes cast for the office of sheriff that could be legally considered and legally counted. The election cannot fail. The party cannot be left without a candidate, whose name is to be placed on the ticket to be voted for at the November election. A third primary cannot be held so that appellant is entitled to and should be declared the nominee of the party. Any other construction placed upon the law would defeat the very purpose for which the constitution was adopted and the laws enacted.
Hannah, Simrall Foote, of Hattiesburg, for appellee.
The special tribunal, under the Corrupt Practices Act, is limited in its jurisdiction to determining the fairness of the primary election and the correctness of the result and has no jurisdiction under the law to pass upon the qualifications of the successful candidate and determine his right to hold the office, if elected, such questions being committed by the law to the Circuit Court in a quo warranto proceeding.
Title of Chapter 19 of the Laws of the Extraordinary Session of 1935; Hayes v. Abney, 188 So. 533; Section 21, Chapter 19, Laws of the Extraordinary Session of 1935; Section 3053, Code of 1930; Omar v. West, 188 So. 917; May v. Young, 164 Miss. 35, 143 So. 703.
Appellant, McKenzie, cannot maintain this proceeding because, having conceded that he did not get the majority of the votes, the courts are without jurisdiction to declare him the nominee, and there is no relief which he could obtain from the court in this proceeding.
May v. Young, 164 Miss. 35, 143 So. 703; State v. Ratliff, 108 Miss. 242, 66 So. 538; Hoskins v. Brantley, 57 Miss. 814; Sublett v. Bedwell, 47 Miss. 266.
Appellant, McKenzie, contested the nomination of appellee, Thompson, as the Democratic nominee for sheriff of Forrest County. The Democratic executive committee of the county declared Thompson nominated. McKenzie instituted proceedings under the Corrupt Practices Act (Chapter 19, Laws of 1935, Ex. Sess.) to contest the nomination before the special court provided for in that act. The trial resulted in the judgment of that court declaring Thompson the nominee. From that judgment, McKenzie appeals.
The only question is whether McKenzie was entitled to contest Thompson's nomination upon the ground alone that he was not a qualified elector of the county. Thompson's position is that his qualifications for the office are not involved in a proceeding of this character. We so hold and reach that conclusion upon the following considerations: The special tribunal set up by the Corrupt Practices Act has no authority to go beyond ascertaining the will of the qualified electors participating in the party primary. To that end, it has the authority and duty to determine whether those voting or offering to vote are qualified electors and entitled to vote, and whether in all substantial respects the election was fairly and honestly held in compliance with the various provisions of the law. Hayes v. Abney (Miss.), 188 So. 533.
We think by analogy this question is governed by the principles applicable to contests between candidates in a general election. It is a public question, not a private one. The only remedy is after the general election in the nature of a quo warranto under Section 3053, Code of 1930, which provides for such a remedy in the name of the state against any person who unlawfully holds or exercises the functions of a public office. May v. Young, 164 Miss. 35, 143 So. 703; Omar v. West (Miss.), 188 So. 917.
McKenzie does not claim that he was nominated by receiving a majority of the votes, but that Thompson was not because he was not eligible to the office. In other words, he admits that Thompson got the majority of the legal votes cast, but they should not be counted for him because of his disqualification to hold the office. That is a public question, and not a private one.
Affirmed.