Hunt v. Mann

101 So. 369 | Miss. | 1924

Anuerson, J.,

delivered the opinion of the court.

These cases were argued and submitted together. The controlling facts in each are the same. They are governed by the same principles of law. They are therefore considered and decided together. The cases involve a contest by appellants Dulaney and Hunt against appellees Brown and Mann, over the office of supervisor for the third and fifth supervisors ’ districts of Issaquena county. The proceedings were begpn by appellants in the circuit court of said county and resulted in a judgment for appellees, from which appellants prosecute this appeal.

Appellees Mann and Brown, when the result of the rpgular November, 1923, election had been ascertained, were declared by the proper authorities to have been elected members of the board of supervisors of Issaquena county, and, accordingly, they were commissioned by the secretary of state, qualified by each giving bond according to law, and taking' the required oath of office, and, when these proceedings were instituted, were serving; as members of the board of supervisors of said county.

Appellants Hunt and Dulaney were candidates against appellees. Their names, with the names of the appellees, appeared on, the official ballots as candidates for members of the board of supervisors. Appellees received a majority of the votes cast in the election. Appellants, conceiving that under the law appellees were not entitled to have their names on the official ballots used in said election and to be voted for, instituted this contest to oust appellees from office and have themselves declared the legally elected members of the board of supervisors, instead of appellees. There was a judgment in favor of appellees, from which appellants prosecute this appeal.

The ground of appellants’ contest is that appellees, under section 4159, Code of 1906 (section 6793, Hemingway’s Code), were not entitled to have their names placed upon the official ballot, and therefore were not entitled to be voted for in the election,'and that appellants’ names, having been legally placed upon the ballot, and being the only names entitled to be thereon for the office involved, were legally elected and therefore entitled to said office. Section 4159, Code of 1906 (section 6793, Hemingway’s Code), among other things, provides:

“The commissioner shall also have, printed on the ballot the name of any qualified elector who has been requested to be a candidate for any office, by a written petition signed by at least fifteen qualified electors, for any beat or municipal office in a town, or village of less than three hundred inhabitants, or fifty qualified electors for any other office. ’ ’

Appellants were the regular Democratic nominees for the office in question in a primary election held in the summer of 1923, while appellees g;ot their names on the official ballot in the regular election by petitions under said statute containing more than, fifteen names each, but less than fifty. Appellants contend that at least fifty qualified electors were necessary to sign each of these -petitions, while appellees contend it was only necessary that each have as many as fifteen. And appellees contend, further, that, if they are mistaken in that contention, after the general election such irregularities cannot be inquired into.

There is division among the members of the court on the first question, but on the second the court is in agreement. The first question,therefore is pretermitted.

In determining how far irregularities in party nomdn actions for office will affect the result of the general election, the fundamental inquiry is whether or1 not the irregularity complained of has prevented a full, fair, and free expression of the public will. , Unless the statute which has been violated in making the nomination expressly declares that, the particular act in question is essential to the validity of the election, or that its omission shall render the election void, the statute will be treated as directory, and not 'mandatory, provided such act of irregularity is not calculated to affect the integrity of the election. Some courts have held that an election is not void, although ballots are used containing the name of a person not certified as a nominee, and some that, in the absence of a statutory provision to the contrary, an election is not invalidated bj^ the fact that the nomination of the successful candidate was brought about by fraud, and not in the manner prescribed by the statute, provided it appears that a noncompliance with the law had not the effect of preventing a fair and free vote. And it has been held that the fact that the signatures to a nomination petition, which was. required to be signed by a certain number of qualified electors, were forged will' not invalidate the election. 9' R. C. L., section 161, p. 1172, and notes.

There is no claim whatever upon the part of appellants that the alleged irregularity in placing the names of appellees on the official ballot affected the integrity of the election; that it had the result to prevent the full, free, and fair expression of the public will. No elector could have been led into voting for a candidate he did not want to vote for. The electors had a free choice as betweeii appellants and appellees; they preferred appellees, and so declared bAr their ballots.

Appellants argue, however, that McKenzie v. Boykin, 111 Miss. 256, 71 So. 382, is decisive of this question in their favor. We do not so understand that case. The question in that case was, using the language of the court, “whether or not an elector in a general election can vote for any person for office other than one whose name is printed on the official ballot, by writing thereon the name of his choice for the office, except in the case of the death of a candidate.” The court held that the elector was confined to the names printed on the ballot, except in case of the death of one of the candidates whose name appeared on the official ballot. In that case no candidate whose name had been printed on the ballot had died; nevertheless a majority of the electors voting had written on the ballot the name of their choice for one of the offices, and marked opposite the name so written a cross-mark. In effect, the court said in that case that the action of the electors in so mutilating their ballots affected the integrity of the election. The court said, in part:

“To hold otherwise would, in effect, destroy the secrecy of the ballot, and put the timid voter at the mercy of those who might coerce him, and put the corrupt voter within the easy grasp of the bribe gjver; for, as illustrated, the Voter could easily agree beforehand that he could write the name of'some particular person on the ballot for any particular office, and the man who has the power to coerce him, or the man who bought his vote, would know whether or not the ballot had been cast according to his behest.”

To hold that each of the requirements of the primary election law may be inquired into in a contested election case, after the result of the general election has been declared, it appears, would lead to many evils, while the principle we are laying down would lead to fax fewer evils.

Affirmed.