Roane ex rel. Tunstall v. Matthews

75 Miss. 94 | Miss. | 1897

Whitfield, J.,

delivered the opinion of the court.

Tunstall had the right to hold over, as marshal of Holly Springs, until a legal successor had been duly qualified. Code 1892, §§ 3030, 3031. And his successor must be one who is legally eligible. Taylor v. Sullivan, 22 Am. St. Rep., 729. And Tunstall, on the facts of record, had the right to test Matthews’ right to the office in this proceeding, which is a quo warranto by the state, in the name of the district attorney, on the relation of R. H. Tunstall. Code 1892, §§ 3520 — 3522; Taylor v. Sullivan, supra. In the case of Andrews v. Covington, 69 Miss., 740, the relator, Covington, was not claiming under the right to hold over, but was claiming against Andrews’ right to hold over, on the ground that he, Covington, had just been elected. The relator, Covington, failed to show his own title — his own eligibility — and the court said that that action, being a private suit to try the right to the office, failed, ‘ ‘ for the reason that Covington had not shown himself to be legally entitled to be inducted therein. ’ ’ He admitted that he was not a qualified elector, and we held that, not being a qualified elector, sec. 250 of the constitution made him ineligible to hold office. Here Tunstall was legally qualified as an elector, and legally appointed, and does not claim on the ground of any new election, but claims that Matthews is usurping the office, and that he, Tunstall, is, under the sections of the code cited, entitled merely to hold over — being legally in already — until an eligible successor shall be legally qualified.

The qualification of an elector — so far as the payment of his taxes is concerned, as prescribed by sec. 241, constitution of 1890 — depends upon the fact of the actual payment of such taxes, and not the party’s thought or supposition or belief, however honestly- entertained, that the taxes have been paid; nor upon any agreement he may have with another to pay them for him. The right To vote as an elector rests upon no such shadowy grounds as these. Section 250 of the constitution provides that “all qualified electors, and no others, shall be eligible to office, except as otherwise provided in this constitution;” and section 245 provides that “electors in municipal elections shall possess all the qualifications herein prescribed, and such additional qualifications as may be provided by law.” The "eligibility to office” meant in section 250 is eligibility at the time of election, and, unless then eligible by the payment of taxes, a candidate cannot become so by paying the taxes after-wards. This is the manifest meaning of the constitution, and any other construction leads to the most absurd results. The precise question was thus determined in Taylor v. Sullivan, supra, on irrefragable reasoning, construing a constitutional provision substantially identical. Compare Andrews v. Covington, supra. Learned counsel for appellee cite two cases contra: Smith v. Moore, 90 Ind., 294, and Vogel v. State, 107 Ib., 374. But they are wholly unlike this case, merely holding that one who held a judicial office by election may, under the Indiana constitution, section 176 (R. S., 1881), "be elected to an office not judicial, the term of which will begin after his judicial term expires; ” and Elliott, J., dissented from this even in the case in 90 Ind., supra. Learned counsel also insist that payment of‘taxes is not a condition to registration; but it is a condition of the right to vote. "One is not qualified to vote if not duly registered.” Bew v. State, 71 Miss., 6.

Clearly, Matthews was not a qualified elector at the date of fhe election, second Tuesday in December, 1896, for marshal, and was not eligible to hold the office, and did not become so by the subsequent payment of his poll tax for the year 1895, by Dancy for him, on December 11, 1896, and is therefore holding the office without authority of law; and clearly, also, Tnnstall has the right to hold over until an eligible successor, within the meaning of the constitution as above declared, has legally qualified.

it follows that the judgment must be reversed, and, the case being here on an agreed statement of facts, judgment final will be entered here, removing E. J. Matthews, appellee, from the said office, and debarring him therefrom, and for costs.

So ordered.