Bourgeois v. Fairchild

• Decision Date: 16 February 1903
• Citation: 33 So. 495,81 Miss. 708
• Court: Mississippi Supreme Court
• Parties: OLUS M. BOURGEOIS v. LEMUEL H. FAIRCHILD

33 So. 495

81 Miss. 708

OLUS M. BOURGEOIS v. LEMUEL H. FAIRCHILD

Supreme Court of Mississippi

February 16, 1903

FROM the circuit court of Hancock county. HON. JAMES H. NEVILLE Judge.

Bourgeois appellant, was plaintiff, and Fairchild, appellee, defendant in the court below; from a judgment dismissing the suit, the plaintiff appealed to the supreme court.

An election was held in the town of Waveland for mayor and aldermen. Appellee, Fairchild, was the mayor, and appellant Bourgeois, and one Fell were candidates for mayor at the election. During the progress of the election, eleven ballots, some voted for Bourgeois and some for Fell, were thrown out by the election commissioners, and not counted. The election of Bourgeois was the result of the count after these votes were thrown out. Fairchild, the mayor, refused to certify the results, claiming that the returns presented by the commissioners were false. The suit was for a writ of mandamus, to compel Fairchild to sign the returns. On the trial, the court below held that the mayor could not be compelled to sign a false return, and gave a peremptory instruction for defendant.

Reversed and remanded.

W. J Gex and Harper & Harper, for appellant.

The returns of the commissioners were their award, and it was then only left to the mayor and the one alderman to sign same that it might operate as a certificate of election and commission to those who appeared elected from the return sheet. It was clearly the duty of the respondent to Sign the return sheet. 10 Am. & Eng. Ency. Law (2d ed.), 765; 19 Ib., 772.

The position taken by adverse counsel, that respondent had a discretion in the matter of signing the returns, is untenable, in the face of the following well-considered authority, which is directly to the point, and to which authority we would especially call the court's attention: Green v. Adam, 24 So. 41 (119 Ala. 472).

It would be against public policy to permit a mayor to perpetuate himself in office (he holding over until his successor is elected), as defendant is attempting to do, by withholding his signature from correct returns, which is the only certificate of election provided for by the charter of the town.

Ford & White, for appellee.

This being simply a proceeding by mandamus to compel the mayor whose duty it was to certify to the correctness of the election returns, to sign and certify to returns which were false, the court below...