Summary
In Shaw v. Burnham, 186 Miss. 647, 658, 191 So. 484 (1939), the Court, discussing this act, referred to the fact that "any candidate has the privilege of a full examination of the boxes and their contents, within the early and appropriate time therein mentioned."
Summary of this case from Weeks v. BatesOpinion
No. 33967.
October 23, 1939.
1. ELECTIONS.
Ballots bearing notation "Help" or "Helped" or "Received Help" indorsed thereon, and ballots with such notations on the face instead of the back, were properly counted (Code 1930, sec. 6244).
2. ELECTIONS.
Under statute regarding assistance to an illiterate voter, it is mandatory that a voter entitled thereto shall have assistance, but that part of statute which deals with the notation thereof by the manager or managers is directory in so far as concerns the validity of the ballot when cast (Code 1930, sec. 6244).
3. ELECTIONS.
Votes cast by voters who were not qualified electors of county could not be counted.
4. ELECTIONS.
Where contestant in complaint and specifications before county executive committee of political party did not contest vote at a certain box but contestee filed cross-complaint, contesting vote at such box, and the cross-complaint was brought forward as an exhibit to the contestee's answer to petition in trial court for judicial review of executive committee's action, trial court properly examined such box, notwithstanding contestee's claim that his cross-complaint was subject to challenge for want of particularity (Code 1930, sec. 5896; Laws 1935, Ex. Sess., chap. 19, secs. 7, 15).
5. PLEADING.
A party cannot raise an objection which has its foundation in a defect in his own pleadings.
6. ELECTIONS.
When a person desires to contest the nomination of another person as party candidate and has the purpose to follow up his contest by a petition for a judicial review, his contest or petition or complaint before the executive committee must be reasonably specific in its charges and not in mere general language (Code 1930, sec. 5896; Laws 1935, Ex. Sess., chap. 19, secs. 7, 15).
7. ELECTIONS.
When a contestant has made charges of illegality before county executive committee of political party, the contestee may file a cross-complaint with the Committee, but the cross-complaint must be reasonably specific and particular (Laws 1935, Ex. Sess., chap. 19, sec. 7).
8. ELECTIONS.
In election contest, whether the particular issues are presented by contestant or by contestee, it is the duty of county executive committee of political party to act upon them, and its action or refusal to act then comes within the scope of inquiry which either the contestant or contestee may present before special judicial tribunal for judicial review (Code 1930, sec. 5896; Laws 1935, Ex. Sess., chap. 19, secs. 7, 15).
APPEAL from Special Court, of Sunflower county; HON. JULIAN P. ALEXANDER, Judge.
Everett Everett, Johnson Allen, Forrest G. Cooper, and J.M. Forman, all of Indianola, for appellant.
Special tribunal is limited in authority to review of contest and protest before Executive Committee.
Section 15, Chapter 19, Laws 1935, Extraordinary Session.
The Democratic Party has acted; its officials have spoken. The will of the voters and of the Party is not to be thwarted by any court unless it clearly and positively is shown that ballots have been counted erroneously. And if a ballot is doubtful and that doubt is reasonable and the court cannot say with absolute certainty that Burnham should have the ballot or that Shaw should not have it, such ballot should be construed liberally from Saw's point of view.
Tonnar v. Wade, 121 So. 156; 20 C.J. 163; Kelly v. State, 79 Miss. 168, 30 So. 49; Guice v. McGehee, 124 So. 643; 20 C.J. 157, Sec. 187.
We call attention to the fact that there was a line underneath the names of the two candidates and while that line is mentioned in the statute and is available to the voter in the first primary, it cannot be used by the voter to vote for a third party in a second primary for the reason that Section 5868 of the Mississippi Code of 1930, and also Section 21 of the Corrupt Practices Act provides that the second primary is held after weeding out all of the candidates except the two highest and only can the two highest then run off the race in the second primary. If a voter could write in the name of a man left out in the first primary on the ballot in the second primary, he would do so in violation of the statute.
At Linn Box voting precinct, referred to in the Bill of Exceptions, as Contestants Exhibit "Y", we find a situation rather hard to untangle. Contestant's Exhibit "Y", a manilla envelope, shows there were six rejected votes at the Linn Box. It was claimed by contestant that four of these ballots were cast by four persons named "Richardson" and they were referred to as the Richardson votes. When this box was considered by the executive committee four other ballots got mixed with the original six and no one seems to know just how this all came about. At the trial of the case there were eight votes taken from Exhibit "Y", and upon an examination thereof five are for Shaw and three are for Burnham. Now, whether the five votes for Shaw include the Richardson votes, or whether the three votes for Burnham were Richardson votes no one was able to tell, for the four Richardson votes were not and could not be identified or distinguished from the other four votes in the same envelope. However, the court settled this tangle by deducting four votes from Shaw's total at this box, and no one knows whether the votes deducted were Richardson votes or not, for no one ever identified them as having been voted for Shaw. We say this action in deducting four unidentified votes from Shaw's total at the Linn Box was error, and that these four votes should be added to his total, which in addition to Hale votes would make Shaw's total 2363.
When the Doddsville box was opened during the trial there was found a sealed envelope in which the committee had placed ten (10) questioned ballots. The contestant took out seven of these ten ballots and offered them in evidence as ballots that should have been counted for Burnham, and these seven (7) ballots are marked Exhibits 1-7, inclusive, to the Doddsville box. The trial tribunal counted all of these votes for Burnham except Exhibit 4.
Exhibit 1 is a ballot which should not be counted for either Burnham or Shaw because the ballot shows on its face that it has a cross (x) mark opposite the name of each.
Exhibit 2 is a ballot which the lower court counted for Burnham and which should not be counted for either. We call particular attention to this ballot. It has a cross (x) opposite the name of both candidates.
Exhibit 3 — this vote was counted by the lower court for Burnham. We think the lower court fell into error because the cross (x) opposite Shaw's name is not quite as heavy as the cross opposite Burnham's name. Another objection to this ballot is that there is marked on the back of it the following words "Received Help — R.T.O."
Exhibit 5 has marked on the bottom of the face of the ballot the word "Helped."
Exhibit 6 has written at the top on the back of the ballot the word "Help."
Exhibit 7 has written on the bottom of the face of the ballot the word "Helped".
These last four were all counted by the lower court for Burnham. The objection of the appellant to the counting of these four ballots is that they either have distinguishing marks on them, or, if not, they do not comply with the requirements of Section 6244 of the Mississippi Code of 1930 which is as follows: "Illiterate voter to have aid. A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to same."
At our instance the Drew box was opened.
When the Indianola Box was opened, it contained the sealed envelope containing five (5) questioned ballots. The ballots involved in this appeal is Exhibit 7 to contestee's proof, Indianola Box, which the lower court counted for Burnham over our objection. An inspection of this ballot discloses clearly that it has a complete "A" instead of a cross (x). The voter knew how to make a cross (x) as there are clear crosses (x) opposite Johnson, Wood, Causey, and Yarbrough. When the plain mandate of the statute which requires a cross (x) in ink is considered, it is clear that this voter did not make a cross (x).
The requirement of the statute to note on the Poll Book those who have voted is just as mandatory as it is to require the voter to sign the Receipt Book.
Section 4, Chapter 19, Laws of 1935.
The proper place for a defeated candidate to have errors corrected is the Democratic Executive Committee. He must give that Democratic Executive Committee the opportunity under proper pleadings to correct their errors. If they fail to correct the errors he complains about, then this special tribunal may review his complaints of the acts of the committee and correct only those acts. The special tribunal is not a substitute for the executive committee. It does not try the case de novo as the lower court seemed to think, but only de novo on the "material issues of fact".
Moody Davis and Neill Townsend, all of Indianola, for appellee.
As to the point or points of law at issue, the Bill of Exceptions should contain a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the said points of law.
But for a review of the findings upon the facts as the evidence requires the Supreme Court must have before it a transcript of the testimony, and not a synopsis thereof. Such transcript of testimony may be filed with the Bill of Exceptions, or within such short time thereafter as the Supreme Court may allow.
In other words, the record must contain the transcript of the testimony, filed with the Bill of Exceptions or within such short time thereafter as the Supreme Court may allow, and then and only then "the Supreme Court upon a 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."
Unless, therefore, a transcript of the testimony is filed with the Bill of Exceptions, or within such short time thereafter as the Supreme Court may allow, it is not a part of the record on appeal even though otherwise incorporated in the record.
McDonald v. Spence, 179 Miss. 342; 174 So. 54, 56.
Inasmuch, therefore, as a transcript of the testimony is not filed with or as a part of the Bill of Exceptions, this court is limited to a consideration of the point or points of law as to which the trial court erred and cannot on the record made by this appeal consider whether or not the court erred in its findings of fact.
The exhibits which are mentioned in paragraphs "Sixth" to "Twentieth" call in question a consideration of the testimony with reference to such exhibits and hence such exhibits cannot be considered out of relation to the testimony, a transcript of which is not filed with the Bill of Exceptions. But if you decide that it is your duty, on the Bill of Exceptions filed herein, to examine the different exhibits, copies of which are not filed with such Bill of Exceptions, then we take it that your duty limits you solely to a consideration of such exhibits, and that you cannot consider any testimony with reference to such exhibits for the transcript with reference to the same is not a part of the record of this appeal.
In the "Ninth" paragraph of the Bill of Exceptions several ballots are referred to denoted as Exhibits 1 to 7, inclusive, of the Doddsville box. This paragraph, as to Exhibits 1, 2, and 3 raises only questions of fact which as we see from the finding of the court, the court and the three members of the Committee decided without a dissent.
The Bill of Exceptions makes objection to Exhibit 7 at the Indianola box. The ballot without a doubt shows a cross mark opposite the name of Burnham and surely it shows that the voter attempted to make a cross mark. As to Exhibits 8, 9, and 10 at the Indianola box, these bear checked marks which renders them illegal.
Carver v. State, 177 Miss. 54, 170 So. 643.
The "Twentieth" paragraph raises only a question of fact as to whether a certain ballot should have been counted for Burnham. The court and all three commissioners agreed that it was a vote for Burnham.
To fully review the facts this court must have before it the record of testimony that was before the lower court. This is not before the court.
May v. Young, 164 Miss. 35; 143 So. 703; State v. Greer, 130 So. 482, 158 Miss. 315.
In Oglesby v. Sigman, 58 Miss. 502, the court held that it was the duty of the commissioners, in canvassing the returns, to cast out all ballots which appeared illegal on inspection. Certainly the same duty rests on a court who is to conduct a de novo hearing on the action of the Executive Committee as is required by the Corrupt Practices Act.
The pleadings in the case at bar were so general and broad that they of necessity brought into question the whole action of the Executive Committee and the only question was which of the parties received the greatest number of legal votes. This court has held that this is the only question to be investigated and determined.
May v. Young, 164 Miss. 35; 143 So. 703.
There are provisions of the election laws which will be treated as directory, not mandatory, if necessary, in order to ascertain the will of the electors. It is the policy of the law to give effect and validity to elections of the people when there has been a reasonably fair attempt to comply with the requirements of the law, and no fraud has been practiced. Mere technical irregularities and omissions in the performance of ministerial duties by commissioners will not be permitted to defeat the popular will where there has been an attempt to conform to the law and no injury has resulted to any one. When the will of the electors has been fairly expressed, it should control. The court will not countenance purely technical reasons for the overthrow of the result.
Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554, 7 So. 432; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; State v. Greer, 158 Miss. 315, 130 So. 482; Wylie v. Cade, 174 Miss. 426, 164 So. 579.
Counsel may have a great deal to say concerning three ballots at the Indianola box containing a check mark opposite the name of Shaw. This court has disposed of this question in Carver v. State, 177 Miss. 54, 170 So. 643; Kelly v. State, 79 Miss. 168, 30 So. 49.
In considering the appellant's brief and the contentions therein made, the court should keep in mind that no fraud was charged by either parties. The only question for the trial court and election commissioners to determine was which of the parties received the highest number of legal votes.
The court recently held in an election contest the following: "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."
May v. Young, 164 Miss. 35, 143 So. 703.
While this had reference to a contest brought under Section 6258, Code of 1930, we think the same is applicable to any contest and more especially one brought under the Corrupt Practice Act.
In another election case this court held in substance that the fundamental inquiry is whether or not there has been a full, fair and free expression of the public will.
Hunt v. Mann, 136 Miss. 590, 101 So. 369; State v. Greer, 158 Miss. 315, 130 So. 482.
At the second Democratic primary, held on August 29, 1939, in Sunflower County, Burnham and Shaw were the candidates for sheriff. The original tabulation made by the County Executive Committee of the returns from all the boxes showed for Burnham 2,375, and for Shaw 2,378. Burnham requested a recount of all the boxes and an inspection of all the ballots and papers at each box. This request was granted and both parties with their advisers were present, with the result that the Committee, at the conclusion of the recount and examination, announced the vote as follows: For Burnham 2,353, and for Shaw, 2,361.
Burnham thereupon gave notice that he desired to file, and would file, with the Committee his formal complaint and contest specifying, with the requisite particularity, wherein the actions by the Committee had not been in accord with the facts and the law. The Committee then recessed to a fixed and early day, at which time Burnham was to file his complaint and the specifications thereof. On the day fixed the Committee reassembled and had before it Burnham's particularized contest. Shaw also appeared on the day last mentioned and asked leave and time to file an answer and cross-complaint, which was granted, and Shaw's answer and cross-complaint was filed with the Committee within the time fixed by the Committee. The Committee took no further action than to certify Shaw as the nominee.
Burnham promptly filed his petition for a judicial review, the petition being accompanied by the statutory certificate and a sworn copy of his contest before the Executive Committee; and such steps were forthwith taken as resulted in a hearing before the circuit judge of another district, together with the election commissioners of the county, and on the 26th day of September, 1939 the special tribunal, after a full and painstaking hearing of several days, declared and adjudged that, under the facts and the law applicable thereto Burnham had received 2,363 votes and Shaw 2,358.
We have carefully reviewed each point argued in appellant's brief, in the light of the entire record, including the original of the questioned ballots which are here before us. We are of the opinion that the trial court was correct in every one of the rulings complained of except as to one ballot, not counted, but which we think should have been counted for Shaw, and which would make the result Burnham 2,363, and Shaw 2,359.
Four ballots cast at the Doddsville box bear the endorsement "Help" or "Helped" or "Received Help," and on two of them this endorsement was on the face instead of the back. These ballots were counted by the court for Burnham, and appellant contends that this was error, citing Section 6244, Code 1930, which is the statute providing the means by which an illiterate voter may be aided. Appellant contends that this statute should have a strict and literal construction, and that since the quoted endorsements do not comply strictly and literally with the statute, the four ballots should have been rejected. It is mandatory that a voter entitled thereto under the facts shall have assistance under that statute; but that part of the section which deals with the notation thereof by the manager or managers is directory in so far as concerns the validity of the ballot when cast. The applicable principles are sufficiently disclosed in State ex rel. Sowell v. Greer, 158 Miss. 315, 322, 130 So. 482.
Referring more particularly to the four Richardson votes offered at the Linn box, which were rejected by the precinct managers and placed in the envelope of Rejected Ballots, but which were counted for Shaw by the Executive Committee; These four voters were not qualified electors of Sunflower County as the Court expressly found; and there is no contention placed before us by appellant that this finding was erroneous on the facts or the law. Manifestly, the Court was correct in deducting these four illegal votes from those counted by the Executive Committee for Shaw.
Appellant Shaw argues that the Court should not have examined into the Indianola box at all, because in Burnham's complaint and the specifications thereof before the Executive Committee, he stated in definite language that he did not contest the vote at that box. This argument puts aside the fact that appellant Shaw in his cross-complaint, filed with the Executive Committee, averred that in this Indianola box there were valid ballots cast for Shaw which the Committee had failed and refused to count for him, and that votes at that box had been counted for Burnham but which were not in fact cast for him; and this cross-complaint was brought forward as an exhibit to Shaw's answer to the petition in the trial court. Thus appellant himself put the Indianola box in issue and cannot complain that the court went into it. And if it be said that this cross-complaint was subject to challenge for want of particularity and definiteness in respect to the Indianola box, that point could not avail appellant Shaw, because a party is not permitted to raise an objection which has its foundation in a defect in his own complaint or pleadings.
It is contemplated by the statutes, Section 5896, Code 1930, and Section 15, Chap. 19, Laws 1935, Ex. Sess., that, when a person desires to contest the nomination of another person and has the purpose to follow up his contest by a petition for a judicial review, his contest or petition or complaint before the Executive Committee shall be reasonably specific in its charges and not in mere general language. This is a reasonable requirement from several standpoints, but particularly in view of the fact that by Section 7 of said Chapter 19, Laws 1935, Ex. Sess., any candidate has the privilege of a full examination of the boxes and their contents, within the early and appropriate time therein mentioned. And, as a matter of right, when a contestant has made charges of wrong or illegality before the Executive Committee, the contestee may file a cross-complaint with the Committee — the cross-complaint to be in reasonably specific and particular terms and not in assertions of mere generality. The right to file a cross-complaint results, as a matter of necessity, else the contestant might restrict the review to grounds of his own choosing, when upon other grounds the contestee could show that other and counterbalancing wrongs and irregularities had been permitted in behalf of the contestant.
The result is, therefore, that whether the particular issue or issues are presented by the contestant or by the contestee, it is the duty of the Executive Committee to act upon them, and its action, or refusal to act, then comes within the scope of the inquiry which either the contestant or the contestee may present, by proper petition and answer thereto, before the special judicial tribunal called out under the provisions of the cited statute.
Affirmed.