*1 858
tending- all check covered the amount this logging balance operations. him date reason due on that per- circumstances, Under it was these accept appellee check so tendered missible for he reservation-that in full mental settlement, with the additional claim for com- would afterwards assert (cid:127) pensation having think that under the so, we done and, pre- & Sons he is & v. Cain Sons Greener doctrine antedating recovering for transactions cluded from will therefore below of the court The decree settlement. for entered here will be decree i-eversed, fifty-two ninety-nine dollars appellee the sum of appellants. cents tendered appellee. for the here and decree Eeversed, McGehee. Guice v. 1929.)
(Division B. Nov.
[124 28103.] No. So. 643.
§00
(Suggestion 5, 1930.) Error Jan. Overruled
[125 433.] So. Kennedy Geiseriberger, appellant. & of Natchez,
Whittington appellee. McGehee, & Meadville, for Argued orally by Kennedy, appellant, L. T. for Whittington, appellee. L. A. opinion
Anderson, J., delivered the court. petition Appellant against appellee filed in the cir- cuit court of Franklin under section 4186 of the
863 1927) Hemingway’s Code of 1906 Code of county appellee to contest the of to the officeof election county. superintendent of Franklin There of education jury by a trial the court without a consent was before judgment ap- parties, resulting of in the in favor the of pellee. prosecutes judgment appellant From that appeal. things, provides, among “the
The statute other that term, at an issue made shall, court the first cause he up by jury, jury and tried a and the verdict of the shall legal person having greatest number of find the the votes at the election.” superintendent vacancy in of was a the of
There office county. special A of Franklin election was education day 1928, to fill the December, the 15th vacan- held on of managers cy. the election at The returns of the county county voting precincts in various appellee had received showed that election commissioners appeared Appellant plurality a votes.
county a demanded recount commissioners and election had. The recount showed votes, which was twenty-four votes, appellee hundred had seven received appellant McCue, votes, nineteen seven hundred votes. hundred four two candidate another being vacancy a in the office fill The election to party primary, under the law regular election, and not legal receiving largest number votes the candidate Appellee was declared office. was entitled plural- have received commissioners accordingly ity was commissioned she votes, charge the office. took voter bal- was that six absent ground contest One illegal appellee because for the counted Were lots complied with. Another was statute absent appellee were counted other ballots five was illegal they distinguishing because contained marks. We grounds will consider these order stated. ground question The first turns whether chapter *6 1920, absent voter 155 statute, of the Laws o'f (sections chapter 256 and of the Laws of 1922 8116 to Hemingway’s 1927), 8129, of inclusive, Code is to liberally strictly construed against in favor of the or voter, applied principle him. The trial court of the liberal and held the absent in construction, voter ballots question generally valid. The have construed courts only mandatory election laws as when their enforcement sought proceeding is election in direct purpose. After to election, the such laws are held be di- rectory support determining in of result. In the ef- through irregularities fect of mistakes of voters and limiting all voter officers, election statutes in the liberally right suffrage exercise of his of construed are majority will favor, in his to ascertain the of the order machinery laws of the entire of election voters. The expression purpose eliciting of an of choice is for the prescribed of the of the electors. The omissions forms part irregularities managers, law, of the on they gross are so will not election unless invalidate the palpable preference, popular or to as defeat to satisfactory production thereof evidence render the affecting “purity impossible. Irregularities, not made man to matters election, and not reference v. datory Word election.” invalidate the law, do Ramsey, 24; Sykes, 649; v. 47 Miss. Pradat 61 Miss. 432; L. R. State, 9 C. 554, 7 So. 67 v. Miss. Fullwood 1172; 1094, 1095. the Constitution- Under 6 L. 1093, R. C. registration state, laws and election qualification right one. absolute is not an vote provisions Con franchise fixed voters is carry those adopted out laws election stitution adopted by Beginning with the ordinances provisions, coming Constitutional Convention of 1890', down present been, system time, Australian ballot has policy chapter a fixed regis- this state. The Code (Hemingway’s tration and election Code 1927, section seq.) carefully designed 7998 et contains elaborate and system registration for the voters, the conduct purposes, outstanding of elections; one of the in order against voting, being provisions to insure fraudulent casting secretly for electors their ballots in booths at respective precincts. their
The absent innovation voter statute was an on the adopted system, Australian ballot and amended 1920, in 1922. The absent statute, amended, is con- Heming- tained in sections 8116' 8129, inclusive, way’s Code of 1927. Heming-
The first section of the statute way’s defines “absent voter” to mean 1927) *7 qualified expects elector is absent or who to be absent county, precinct, the in from or which he ward resides day on the of the election. (section Heming-
The second section the act 8117, way’s any qualified provides Code that elector who 1927) registration complied and who is ab- has with the laws, day holding- any county from the on election, sent complies may any election if with vote at such he the voter absent statute. (section Heming-
The third the act section of 8118, way’s provides that in all elections there Code 1927) days printed, prepared in at ten ad- least be shall to district, for each be ballots, election vance, official shall be designated which ballots ballots, voter as absent printed of the same prepared form and in the same they except regular ballots, the and texture as size printed paper color from the be on a different shall regular ballots. Heming- (section 8119', act
The fourth section of the way’s 1927) duty commissioner the of the Code makes it distributing charged printing with election, county registrar, least official to furnish the at ballots, days voter bal- election, ten sufficient absent likely to absent from for of all be lots the use electors county day of on the the election. (section Hemingway’s '81201, The fifth section of the act thirty any 1927), provides time within at that, Code expecting days be to elector election, next before an county day from of the election absent may county application make he which is an elector registrar county to be an absent voter ballot for in election. voted such Heming- act The sixth section 1927) application way’s provides for an county registrar made to the absent voter’s ballot shall be county applicant which is an elector, of application which the signed by writing shall be
“shall precinct applicant. at It toard shall state the ap- applicant vote.; and is entitled to which if plication primary it shall ballot, state be for party political applicant with which the the am,d is'affiliated following substantially to-wfit.” form, shall complete very (Italics ours.) form Then follows application which is to be elector, to be used signed paragraph him. The last of this and sworn provision who are unable for electors makes section application registrar absent make may writing ballot; his vote elector cast such an *8 he or candidates whom the candidate name of paper, using or blank of on sheet to vote desires prescribed manner; in either but in the officialballot required ballot an affidavit attach to his to he is case qualified is a effect that he officer taken participat- election in is qualified in the which he elector ing, setting county, voting precinct, and ont his or ward, opportunity applica- and that has not had “he to make ’’ tion for an absent voter ballot. Heming- seventh section of the act 8122 of way’s 1927) provides upon receipt ap- anof that, plication properly signed for an ballot, absent voter’s and or thereafter as absent voter to, sworn as soon county registrar printed, been ballots have shall send person, applicant by him in mail, to such or hand to one if than official absent there more ballot, or, voter’s election, one voted at such one absent voter’s ballot or inclose with such ballot ballots each and shall kind, upon envelope, of which shall be front side one - County, County Registrar, printed, “For Mississippi,” the back of such O'., -P. envelope printed an affidavit and certificate shall be substantially following form: County -. do I,-- , “State of -, — duly qualified
solemnly elector of the swear that I am a (ward-, city (or) (precinct -) in the Mississippi, county -), state of -, in the (precinct) (or) at that I am entitled to vote said expect (ward) I election; that to be absent next at the day holding election, on such from the said person opportunity vote in no and that I will have Signed.--. day. ‘‘ the-day to before me this, Subscribed sworn hereby certify ex- I that the affiant ; of-, 19'— unmarked; he to me voter ballot hibited his absent presence my presence, [no] other then person, vote, I could not see his and in manner that such by me solicited ; that he was not such marked ballot — against man or measure. for or vote advised to Seal.” sign he name, his shall
“If is unable absent voter taking this affidavit officer and the mark, ‘x,’ make the reason shall state sign name and voter’s such shall *9 being signed for such affidavit in such in manner certificate attached affidavit. if
“Provided that the absent voter ballot be is to voted primary politi- at a the affidavit election, shall state the party cal with which the absent voter is affiliated.” (section eighth The section of the act 8123 Hem- 1927) ingway’s provides Code voter absent shall make and subscribe to the affidavit an of- above ficer with seal, authorized to administer and the oaths, thereupon, presence absent shall “in the of such voter presence person, no other mark such officer and but. that such officercan- ballots, ballot or in such manner ballots there- vote, not see the upon, and such ballot or shall presence officer, such be such folded separate shall be and so as voter so that each ballot presence in the officer vote, and be such conceal the envelope deposited by and such en- in such such voter said, envelope may securely velope be mailed, The sealed. registrar county personally, to whom to that or handed may addressed.” it be Heming- (section 8124, act of the ninth section
The registrar, county 1927) provides way’s such'envelope, forthwith enclose receipt “shall applica- together unopened, the written with same, such, previously made order to absent tion of envelope, larger m a ballot, absent voter such obtam securely with the sealed and endorsed shall which voting precinct, proper the name and name official registrar, county en- the words-. ‘This amd such title of must ballot and velope voter’s absent contains day polls only at while the same opened registrar comity shall thereafter open,’ such are delivery by him keep until in his safely same office ours.) (Italics provided next section.” in the Heming- (section 8125, act section tenth 1927) provides transmission for the way’s Code
8(59 absent voter’s registrar ballot tbe man- agers of election voting*precincts of the different in the county.
The eleventh section of Heming- act *10 way’s provides 1927) Code any as follows: “At time opening closing between polls and on such day, managers election presence such of election, managers of precinct the other of election for such or open larger ward, shall envelope only or outer first compare signature and such absmt voter on such signature application with the on such In case affidavit. managers election is sufficient, find affidavit signatures correspond, and appli- that the and that the duly qualified precinct cant is a elector of such or ward already they and not has in such election, voted shall open envelope the absent voter in such manner as to not destroy the affidavit thereon, and take out the or ballot unfolding* per- without therein, ballots and same or deposit mitting the to be examined, same the same in showing by proper box, ballot records such absent In voter to have voted. such affidavit is case found signatures correspond, not insufficient, be the said do or duly qualified applicant or is not a elector such precinct such shall not but ward, or vote allowed, managers opening envelope absent voter without ‘rejected thereof, face shall mark across the of election ‘rejected an elector,’ not as case defective,’ or as envelope, may such The voter when absent be. absent envelope with voted, is the absent voter ballot rejected, unopened shall when such ballot is its contents provided preserved now in the manner retained preservation of officialbal- law for the retention elections.” at such lots voted (section 8128, of the act Hem- section thirteenth penalties violation, 1927) provides its
ingway’s for falsely willfully any person swear shall “If as follows: provided he shall for section affidavit perjury guilty shall deemed conviction thereof be any provided punished law. If as in he such cases county registrar, or member or commissioner manager of shall election, or committee, the executive prescribed neglect perform any of the duties refuse by any provisions thereof, or shall violate act, provided any taking for sec- or if officer the affidavit in his certificate tion 6 statement shall make false guilty of misde- he deemed he shall attached, thereto exceeding punished of not fine meanor and shall be by imprisonment in the five jail dollars or hundred exceeding or both such fine six months, imprisonment.” section of the act
It from the above will be observed felony the elector to make a false it is made a for .county registrar application to oath to statute declares such false absent ballot. The voter’s *11 perjury, felony, a and as oath to he a further denounces county registrar, part the on of the misdemeanor the managers or of the election, the commissioners, any perform neglect part pre- to of on their the duties any by the or the violation of the statute, scribed of provisions And also criminal of- it is made a thereof. by taking for the officer this section affidavit fense application for absent of an voter’s the elector to his jurat in statement, make false thereto at- ballot to a such act as The denounces a misde- tached. statute by exceeding punishable a not five fine hundred meanor, jail imprisonment in the not exceed- or dollars, imprisonment. ing months, or both such fine six language pur- of a careful consideration After pose inescapable, the conclusion statute, of the is we adopting legislature, in that the looked think, act, long- exception or an innovation on, it as an a to, public policy of this in state, as evidenced established registration had laws, and election in our which been
871 By thirty years. the absent statute, force for over granted privilege which a voter was favored. He was statute, The had in state. never theretofore existed this- mandatory, every in in most its couched terms section, is by denouncing the fail- as a misdemeanor concludes required duty perform ure election officer to felony part on the of him under the as statute, application to his for the elector to make a false affidavit evidently legislature had The his absent ballot. voting, to mind conducive fraudu- in would be that absent explicit voting, lent most man- undertook, datory provide against fraud. to manner, as manda- hold that the must be construed
We statute requirements; tory in and therefore all of its substantial exception general laws rule that election are liberally of the electors. construed in favor Applying principle to the case we are hand, that challenged opinion six absent voters’ ballots that the illegal they that were cast case for reason were application previously made for electors who had (section provided 6 of act section such ballots, 1927). requirement Hemingway’s Code 8121, outstanding pro- is of the of the act we think one section voting. prevent designed Under fraudulent visions Hemingway’s act section genuine- managers 1927) election determine of the signature comparing ballot ness signature application with his to the voter attached envelope inclosing the back the affidavit managers opportu- no had such In this ease the ballot. only they duty, perform nity had them *12 namely, signature signature voter; of one envelope inclosing the ballot. the back affidavit containing challenged dis- original as five ballots They up record. tinguishing with the sent marks were respectively. Ex- X, N, it, H, Exhibit are marked I, 872 opposite
Mbit X appellee bas gen- name mark erally known opposite as a check Exhibit H has mark. appellee’s perpendicular name mark. Exhibit N opposite has pen X McCue’s name with made plainly ink, pen out, scratched and then an X made with opposite appellee’s and ink name. E X. Exhibit has an pen made, plainly with opposite appel- ink marked opposite appellee’s lant’s name, and one name. And opposite appellee I Exhibit has the name of an X made pen opposite with ink, one much dimmer name of McCue, also made with ink. Hemingway’s
Section 4175, Code provides 1927), “Any as follows: shall, voter who except provided, as herein his allow ballot to be seen any person, or shall make a false who statement as to his inability place any to mark his or ballot, who shall mark his ballot which it can afterward be identified as any person him, one voted or who shall interfere attempt or to interfere with voter when inside the compartment place, marking or or enclosed when any voter, who shall endeavor to ballot, or induce voting, voting will or mark, show how he after how punished by ballot, he has marked his shall be a fine of twenty-five than nor more than one hundred less any person shall dollars; and the cause election officers violating the law to be and carried before the so arrested proper trial for officer tribunal commitment and such offense.” construing in Tonnar court statute, held,
In that (Miss.), should not 156, 160, 121 So. ballots v. Wade rejected having distinguishing on account marks marking; irregularities slight manner of appear mark that,the intended to it clear must identification; where the ballot that, ballot for con legal pre- than such marks will be other marks,, tained
873 innocently ap- sumed to have been made, unless their “ pearance contrary.” shows to the opinion marking are of We that the of N Exhibit was a mere inadvertance of the in- voter, and was not distinguishing opposite tended as a mark, that X and op- name of McCue on Exhibit I blot X is a from the posite appellee’s on name said of exhibit, result opposite failure of voter to use a X blotter .the appellee’s perpendicular name. On Exhibit H the line opposite appellee’s every appearance name has of hav- ing by design, been made and not in an effort to make an opposite ap- And the X. pellee same true of mark is the check question ’s name on Exhibit X. is There some properly as to record whether this ballot was intro- pass in evidence; duced we do not on that. R Exhibit pen opposite a contains cross made with and ink the ap- appellant, opposite name one and the name pellee, appears it that neither was made blot from the other. principles
We hold under laid down in the case of v. X Tonnar and H Wade, Exhibits contain dis- tinguishing marks, N, while I do R, Exhibits not. But R Exhibit should be candidate, counted for either for. N because both were voted Exhibit should be counted appellee, distinguishing has for because it no mark, appellee. R was for Exhibit should be á cast treated as spoiled ballot, should not be because the counted, opposite appellant, X an as well voter made name appellee. ap- Exhibit as that of I should counted opposite pellee, name of McCue was because the cross opposite appellee. plainly from name blot below, case the court After trial after appellee appealed an filed af- court, it had been appeal. dismiss motion fidavit and a motion to The parte which affidavit, ex affidavit on the is was based that, by appellee. affidavit out since the sets made appellant trial of this cause the court mar- below, had Raymond Weisinger, ried one and is now a Texas, resident citizen of that state, and therefore under the laws of this state would not entitled hold office county superintendent legally if been she had elected *14 Appellee’s position showing, thereto. is with that that, duty appeal. it is the court dismiss the this to We can- give proposition. question not brought our that assent to The is by
in the case for the first in court time ex parte given appellee any op- alone, evidence without portunity part appellant on be to heard.' do not either this court or
We decide whether the trial question in court is authorized to determine this a con- in think, tested election case. We the absence however, question, thoroughly presenting and in briefs view unsatisfactory in some of the fact that the record is respects, judgment to it would be well reverse the other appealed back be tried from send the whole case party reversing instead of desires, anew if either entering judgment judgment here. and remanded.
Reversed Ethridge, opinion J., of the P. delivered the court Suggestion of Error. suggestions of error. For the filed
Both sides have judg- suggested ought appellant we to render is it in view of taken, do not think this is well ment here. We being brought court; it to the attention the facts appellant alleged married and in a motion that the had opinion, permanently from the state. In our it moved only question by proper motion, but to raise this was appellant appeal. by plea If is in fact in bar of the holding disqualified should not main- she from office, being between claim- a contest case, in this tain the suit proceeding remove to officeand not a state to ants office. from appellee suggests holding that the court erred
that certain illegal, absent ap- ballots were because no plication by'the for such prior ballots was made to port stating’ only election, and sup- that the evidence to finding registrar of fact is a statement county, application “not blanks for absent printed, voter ballots were distributed, used the. election.” This statement is contained in an exhibit which was to filed in be case, which, argument of missing the case, was stated from by agreement the record, and was of counsel there- point after to agreement be filed. No was made in the presume what the exhibit should contain. We that the original exhibit contained what the record consisted of. appears It only that counsel contends that the clerk was to furnish the list of absentee ballots and not the en- velopes applications required and the which were voting used in the of absentee ballots. The absentee bal- *15 requires application lot law to be to made the clerk applica- in the circuit and court, affidavit made, and the placed envelope tion and ballot be in to and taken by according the voter before an and officer, there voted application signature statute, and the and the on the envelope comparing signature to be used in of the manager at the election. We think bal- only lots, as used in this not connection, mean, printed ticket with names thereon, candidates machinery necessary a but the entire .Furthermore, to make it ballot. appellee show it incumbent was legal in ballots, we held and, that the ballots were as strictly opinion, followed, and the the statute must provided applied manner in ballots must showing absentee took to have the the statute. It ap- harm come to the no could counted, ballots opinion applications holding pellee no required by as made for ballots as law, there were nothing* application was to show that such inwas fact made. appellee
It is further contended that the contest by law, here involved was not because it authorized was vacancy in an election fill a office, that the court subject-matter jurisdiction did not have because We law not authorize such a contest. did do think regular can be made between a this distinction election special a election. The contestants for officeare as special securing interested an officeat a much regular a election, at and are entitled to have fair proper regular count, and a fair election, return. jurisdiction had court enter- think the circuit
We suggestions will of error be over- Both tain the contest. ruled. Mangum
Tropical Oil Co. v. & Hatcher. & Paint 1929.) (Division A. Dec. 28232.)
[125 248. So. No.