82 Miss. 559 | Miss. | 1903
delivered the opinion of the court.
Whilst it is true that the petition avers that the' executive committee made no canvass of the returns, other averments of the petition show that the executive committee, besides ratifying what the election officers did, tabulated and added up the votes cast for Tucker and Robertson, respectively, and declared Tucker the nominee. The very gist of the complaint is that the executive committee did not declare the votes cast for Tucker legal or illegal, and did not refuse to count them. But we think it clear that the act of declaring Tucker the nominee, after tabulating and adding the votes, necessarily involved a declaration that the votes cast for Tucker were legal. How could they have declared him the nominee without finding the votes cast for him to be legal ? What the petition prays for is, in effect, that the executive committee be commanded to reconvene, to hear the evidence on the single point whether Tucker was a member of the executive committee, and acted as such, and, if he did, to declare the votes cast for him illegal, and not count them. The very essence of the prayer is that the executive committee shall declare the votes cast for Tucker illegal, and not count them., But it is perfectly obvious from the averments of the petition that Tucker was a member of the executive committee; that he did act as such; that the executive committee were bound to have seen, upon the face of the returns, exactly how many votes were cast for him; and that, in full view of this knowledge,
There is another fatal objection to the granting of the writ. The application came too late. Taking all the provisions of the law together, the scope and intent require, ordinarily, that the complaining party shall present his evidence and make his oN jections at the first meeting of the executive committee after the primary election. The committee is directed “promptly” to “receive evidence and correct wrongs.” The very nature of the case requires prompt action all round. The intent of the law is that none but eligible candidates shall appear on the party ticket, so as to avoid confusion later, ánd that whatever inquiry is had shall be had at the first appropriate time, to wit, the first meeting of the executive committee after the primary election has been held. It seems clear from the averments of this petition that Robertson knew everything touching the elegibility of Tucker quite as well before the primary election was held as afterwards, and yet not a single objection was made— no evidence was offered by him to be introduced — at the meeting of the executive committee. No excuse was shown, none existed, why he should not have offered his evidence to prove that Tucker was a member of the executive committee at the first meeting of the executive committee, and why he should not have then interposed his objections based on his ineligibility. That was the time for the executive committee to have “received his evidence and corrected any wrong” complainéd of, if any existed. Yet he waited until about twenty days after
It results that the judgment must he affirmed.