Calvert v. Crosby

• Decision Date: 23 February 1932
• Docket Number: 29628
• Citation: 163 Miss. 177,139 So. 608
• Court: Mississippi Supreme Court
• Parties: CALVERT et al. v. CROSBY

139 So. 608

163 Miss. 177

CALVERT et al. v. CROSBY

No. 29628

Supreme Court of Mississippi

February 23, 1932

Division A

1 MANDAMUS.

Mandamus did not lie to require county election commissioners to restore name erased from registration books on ground petitioner had become disqualified as elector (Code 1930 sections 2348, 5871, 6204, 6211).

2 ELECTIONS.

Remedy of elector whose name is erased from registration books is to apply for re-registration, and, on denial thereof, appeal to board of election commissioners, and, if necessary, to circuit court (Code 1930, sections 6196, 6200, 6204, 6211).

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Clay county HON. J. I. STURDIVANT, Judge.

Mandamus proceeding by W. H. Crosby against David Calvert and others, composing the board of election commissioners for Clay county. From a judgment directing issuance of the writ respondents appeal. Reversed and petition dismissed.

Reversed and dismissed.

W. G. Roberds, of Roberds & Malone, of West Point, for appellants.

Section 241 of the Constitution provides that for one to be a qualified elector he must have "resided in this state two years, and one year in the election district--in which he offers to vote; that he must be duly registered, must have paid his taxes, etc. and must not have been convicted of certain named crimes.

Section 242 of the Constitution provides for registration of electors. Pursuant to this section of the constitution, section 6182, Code of 1930, sets out form of registration book and section 6204 of said code sets out the form of the poll book.

There must be some tribunal with power to determine who are qualified electors in the counties. That power and that duty are imposed upon the county election commissioners.

Sec. 6177, Code of 1930.

The commissioners shall hear and determine all appeals from the decision of the registrar of their county, allowing or refusing the application of electors to be registered; and they shall correct illegal or improper registrations, and shall secure the elective franchise, as affected by registration to those who may be illegally or improperly denied the same.

Sec. 6198, Code 1930.

When the election commissioners determine that any elector is disqualified from voting, by reason of being delinquent for poll tax, removal from the precinct, or other cause that fact shall be noted on the registration book and his name shall be erased from the poll book. After disqualification for delinquency has been removed in subsequent years, the name of such elector shall be reinstated on the poll book without re-registration, and that fact shall be noted in the registration book.

Sec. 6204, Code 1930.

The commissioners of election shall meet at the office of the registrar and carefully revise the registration books and the poll books of the several election districts.

Sec. 6211, Code of 1930.

Section 6199, Code of 1930, provides for appeals to the election commissioners and for hearing testimony by the commissioners, etc. The decision of the commissioners in all cases shall be final as to questions of fact, but as to matters of law they may be revised by the circuit and Supreme courts.

It was the intention of the Legislature to and it did provide for a detailed, complete, comprehensive and exclusive scheme and method of determining who are qualified electors and for the machinery by which such electors shall exercise his privilege of suffrage and the method of appeal above set out is the only method provided in those chapters.

Chapters 149 and 157, Code of 1930.

Erasing from the poll book is synonymous with striking from the registration book and that fact shall be noted on the registration book and his name shall be erased from the poll book.

Sec. 6204, Code of 1930.

The voter can either (a) appeal and have the question of law, if the commissioners have misapplied the law, passed upon by the circuit judge or (b) in the primary, if his name is stricken from the poll book, by making proper affidavit, he can vote and let the vote be placed and sealed in an envelope and the executive committee then passes on his right to vote when the returns are canvassed.

Sec. 5872, Code of 1930.

Appeal is the only remedy of one desiring to have his name placed on the ballot, by petition of the voters, as a candidate for municipal office, should the election commissioners refuse to recognize the petition and comply therewith by placing his name on the ballot.

Rhur et al. v. Cowan, District Attorney, 112 So. 386.

Mandamus proceedings could not be maintained in this case.

Section 2348, Code of 1930; State Board of Education v. West Point, 50 Miss. 643; 18 R. C. L. 131, 642.

If the mandamus was allowable at all the court could only command the commissioners to meet and act but could not tell them how to act. The circuit court could not control their discretion.

Madison County v. Alexander, Walker Report, 523; Attala County v. Grant, 9 S. & M. 77; Swan v. Gray, 44 Miss. 383; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135; 18 R. C. L. 270, 197.

A. J. McIntyre and B. H. Loving, both of West Point, for appellee.

Where one whose name is stricken from the poll book under said section 5871 of the Code of 1930 there is no statutory provision for an appeal by him from such action.

Suitable remedies by appeal or otherwise shall be provided by law to correct illegal or improper registration and to secure the elective franchise to those who may be illegally or improperly denied the same.

Section 248, Constitution of 1890.

Section 5871 of the Code of 1930, which provides for the revision of the registration and poll books by the board of election commissioners and the erasure by them of names therefrom, to be constitutional and valid under this section 248 of the Constitution, must provide for an appeal by one whose name is stricken from the poll books thereunder,...