Shines v. Hamilton

39 So. 1008 | Miss. | 1905

Truly, J.,

delivered the opinion of the court.

Tbe contest was properly instituted. The cases of Easly v. Badenhausen, 59 Miss., 580; Harrison v. Greaves, 59 Miss., 453, and other cases decided prior to tbe adoption of tbe code of 1892, are not controlling at tbis time, at least- so far as relates to municipalities operating under tbe code chapter. Code 1892, § 3034 — a new provision enacted in full view of previous decisions — expressly provides that “all tbe provisions of law on tbe subject of state and county elections, so far as applicable, shall govern municipal elections,” and reference is thereby specially made to other code sections controlling elections generally. Among tbe sections referred to and so expressly made applicable to municipal elections is Code 1892, § 3679, under which tbis contest was instituted.

But tbis being true cannot avail for tbe benefit of tbe contestant. Although tbe contest was properly instituted, tbe demurrer to tbe petition was nevertheless correctly sustained. Tbe facts stated in that petition, considered in any light authorized by tbe law, give tbe contestant-no standing in court. It nowhere appears that tbe name of tbe contestee was wrongfully on tbe ballots used at tbe election. It is true that tbe petition undertakes to negative tbe existence of several of tbe ways in which tbe name of a candidate may lawfully be placed on a ballot to be used at an election, but it is significant that tbe petition does not undertake by express averment to deny that tbe name of tbe contestee was properly on the ballot. Tbe contention that tbe name of a nominee cannot be placed on a ballot, except upon tbe written request of one of tbe candidates so nominated or of a qualified elector who makes oath that be was a member of tbe nominating body or participated in tbe primary election, is not sound. These are simply easy methods of getting all names properly on tbe ballot, devised to prevent tbe possibility of any duly nominated candidate being wrongfully left off tbe ticket. But they are not tbe exclusive ways. Section 3655 provides that “after tbe proper officer has knowledge of or has been notified of the nomination, as provided, of any candidate for office, he shall not omit his name from the ballot unless upon the written request of such candidate.” And it* is made mandatory that “every ballot shall contain the names of all candidates nominated as specified and not duly withdrawn.” The fact of such nomination coming to the knowledge of the proper officer — the ticket commissioner— his duty is imperative to place the name of the nominee on the official ballot. The law deals with results, not the minor details by which the information is communicated. Whether the method adopted to advise the commissioner of such nomination be the written request of one or more of the candidates, the affidavit of a participating elector, the report of the officer conducting the primary election, or other legally recognized method of nomination, the effect is the same — the desired result reached. If the “proper officer has„ knowledge of” the nomination, “he shall not omit his name from the ballot,” except upon request duly made. The petition does not aver either that the contestant was not duly nominated in some of the several ways permitted by .the law or that the fact of his nomination had not come to the knowledge of the election commissioners. If such fact existed and was within the knowledge of the election commissioners, it would have been a violation of law to have left the name off the ticket.

The contention of the appellant that only the votes represented by the ballots prepared by Parkinson should have been counted is without merit. If, as contended, the appointment of the other election commissioner as ticket commissioner was void because of the irregularity in the manner in which the special meeting of the mayor and board of aldermen was called, the same objection with equal force applies to Parkinson’s appointment and designation as ticket commissioner. If it be conceded that the appointment of .election commissioners by the mayor and board of aldermen at the called meeting was valid, then the ballot prepared by the last selected ticket commissioner and approved by a majority of the election commissioners, and which contained the names of all the candidates, was the official ballot. If it be conceded that the same irregularity avoided each appointment and the same invalidity attached to each so-called official ballot, then, notwithstanding this, the electors holding the election were duly empowered to act by virtue of Code 1892, § 3643, and the ballots actually used were properly counted, whether official or not, under Code 1892, § 3661.

Under no view of the case authorized by law can we understand how the contestant — who, granting everything for which he contends, received less than one-fourth of the votes cast at the elec- • tion — can claim to have been duly elected or to be entitled to the office. There is no charge of fraud, and, conceding the existence of all the irregularities complained of, the will of the people was fairly and honestly ascertained. This is the sole purpose of all elections. When the will of the sovereign people has been so fairly expressed, it should control. This court will not countenance for purely technical reasons an overthrow of the result. Wherefore, in our judgment, the demurrer to the petition was properly sustained.

The judgment is affirmed.