Guice v. McGehee

• Decision Date: 25 November 1929
• Docket Number: 28103
• Citation: 124 So. 643,155 Miss. 858
• Court: Mississippi Supreme Court
• Parties: GUICE v. MCGEHEE

124 So. 643

155 Miss. 858

GUICE v. MCGEHEE

No. 28103

Supreme Court of Mississippi

November 25, 1929

Division B

1 ELECTIONS. Statutes limiting voter in exercise of his right of suffrage are construed liberally in his favor.

All statutes limiting the voter in exercise of his right of suffrage are construed liberally in his favor in order to ascertain the will of the majority of voters; the entire machinery of election laws being for the purpose of eliciting an expression of the choice of electors.

2 ELECTIONS. Right to vote is not absolute.

Under the Constitution and the registration and election laws of state, the right to vote is not an absolute one.

3. ELECTIONS. Absent voter statute must be construed as mandatory in all its substantial requirements (Hemingway's Code 1927, sections 8116-8129).

Laws 1920, chapter 155, and Laws 1922, chapter 256 (Hemingway's Code 1927, sections 8116-8129), constituting absent voter statute, must be construed as mandatory in all its substantial requirements as an exception to general rule that election laws are construed liberally in favor of electors.

4. ELECTIONS. Absent voters' ballots cast by electors without previously making application therefor were illegal (Hemingway's Code 1927, section 8121).

Absent voters' ballots cast by electors without previously making application therefor, in accordance with requirement of Hemingway's Code 1927, section 8121, were illegal, in view of provision of section 8126 relative to manager of election determining genuineness of ballot by comparing signatures.

5 ELECTIONS. Ballot containing perpendicular line opposite name of candidate contained "distinguishing mark" within statute (Hemingway's Code 1927, section 8066).

Ballot containing perpendicular line opposite the name of candidate held to contain distinguishing mark within meaning of Code of 1906, section 4175 (Hemingway's Code 1927, section 8066), as having every appearance of having been made by design and not in an effort to make an X.

6. ELECTIONS. Ballot containing check mark opposite name of candidate contained "distinguishing mark" within statute (Hemingway's Code 1927, section 8066).

Ballot containing check mark opposite name of candidate, with every appearance of having been made by design and not in an effort to make an X, contained distinguishing mark within meaning of Code 1906, section 4175 (Hemingway's Code 1927, section 8066).

7. ELECTIONS. Ballot marked with X after name of two candidates could not be counted for either.

Ballot marked with an X opposite name of two different candidates for the same office could not be counted for either candidate, because both in such case were voted for.

8. ELECTIONS. Ballot marked with X plainly scratched out in addition to X after name of other candidate did not contain "distinguishing marks" (Hemingway's Code 1927, section 8066).

Ballot marked with an X opposite name of one candidate in addition to X opposite name of another, which was plainly scratched out, did not contain distinguishing mark within meaning of Code of 1906, section 4175 (Hemingway's Code 1927, section 8066).

9. ELECTIONS. Ballot with blot from X opposite name of candidate as result of failure to use blotter did not contain "distinguishing mark" (Hemingway's Code 1927, section 8066).

Ballot marked with an X after name of candidate did not contain distinguishing mark within meaning of Code 1906, section 4175 (Hemingway's Code 1927, section 8066), by reason of blot from the X opposite candidate's name as result of voter's failure to use a blotter.

10. ELECTIONS. Appeal in election contest could not be dismissed on ex parte affidavit of appellee that contestant had become nonresident and not entitled to hold office.

Appeal in election contest could not be dismissed pursuant to ex parte affidavit of appellee that contestant after trial of cause had married and was now resident of another state and therefore not entitled to hold office, though legally elected thereto.

ON SUGGESTION OF ERROR.

(Suggestion of Error Overruled Jan. 5, 1930.)

[125 So. 433.]

1. APPEAL AND ERROR. To bar prosecution of appeal for conditions arising subsequent to taking thereof, there must be plea in bar of appeal. In order to bar a person from prosecuting an appeal for conditions arising subsequent to the taking thereof, there must be a plea in bar to bar the appeal. 2. ELECTIONS. Agreement in election contest to furnish list of ballots used by absent voters held to include application as well as printed ticket; statement on exhibit that no absentee applications were printed may be considered in judging legality of ballots (Hemingway's Code 1927, section 8120). Under the absentee ballot law, chapter 155, Laws of 1920, Hemingway's 1927 Code, section 8120, there must be an application for an absentee ballot made in the manner required by statute, and, where an agreement was filed that a witness would furnish the list of ballots used by absent voters in an election, the agreement includes the application as well as the printed ticket; and, where it was agreed in the argument that the exhibit to show certain ballots should be substituted, a statement on the exhibit that no absentee ballot applications were printed may be considered in judging the legality of the ballots; especially is this true where it devolves upon the party claiming the ballots to prove the ballots legal, and where there is no evidence that an application for absentee ballot had been made as required by law. 3. ELECTIONS. Circuit court has jurisdiction to try issue between claimants for office under special election; right to contest special election is same as right to contest election for full term. The circuit court has jurisdiction to try an issue between the claimants for office, the right to which office results from a special election to fill a vacancy in the office. The right of contest as to a special election is authorized the same as the right to contest the election for a full term.

HON. R. L. CORBAN, Judge.

APPEAL from circuit court of Franklin county, HON. R. L. CORBAN, Judge.

Election contest by Miss Ida B. Guice against Mrs. J. C. McGehee. Judgment for defendant and contestant appeals. Reversed and remanded.

Judgment reversed and remanded.

Kennedy & Geisenberger, of Natchez, for appellant.

Section 4171 of the Code of 1906, requires that the voter indicate his choice by an X opposite the name. Section 4175 of the Code of 1906, provides that no one shall place any mark upon his ballot by which it can be afterwards identified as the one voted by him. The statute does not say "intentionally mark;" it simply says "mark upon his ballot by which it can be afterwards identified."

Hunt v. May, 101 So. 359; McKenzie v. Boyken, 11 Miss. 256.

A mark by which the ballot can be distinguished is invalid.

20 Corpus Juris, pages 163-164.

Voting is a privilege under the law, not an absolute right. Absentee voting is an additional privilege given by statute, not an absolute right. In order to have the benefit of an absentee vote, the statute giving the privilege must be followed. The statute is found at Chapter 155 of the Laws of 1920, and the steps to be followed in exercising this privilege were not complied with.

Whittington & McGehee, of Meadville, for appellee.

As a general rule the ballots received and counted by duly appointed officers are presumed to be legal.

9 R. C. L., p. 1162.

All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction to the free and intelligent casting or to the ascertainment of the result, etc.

9 R. C. L., p. 1162.

In determining the effect of irregularities due to the mistake of election officers, it should be remembered that all statutes tending to limit the citizen in the exercise of the right of suffrage are to be construed liberally in his favor . . . the will of the majority is to be respected even when irregularly expressed.

Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554.

Argued orally by L. T. Kennedy, for appellant, and by L. A. Whittington, for appellee.

Anderson, J. Ethridge P. J.

OPINION

Anderson, J.

Appellant filed a petition against appellee in the circuit court of Franklin county under section 4186 of the Code of 1906 (section 8077, Hemingway's Code of 1927) to contest the election of appellee to the office of county superintendent of education of Franklin county. There was a trial before the court without a jury by consent of the parties, resulting in the judgment in favor of appellee. From that judgment appellant prosecutes this appeal.

The statute provides, among other things, that "the court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election."

There was a vacancy in the office of superintendent of education of Franklin county. A special election was held on the 15th day of December, 1928, to fill the vacancy. The returns of the managers of the election at the various voting precincts in the county to the county election commissioners showed that appellee had received a plurality of the votes. Appellant appeared before the county election commissioners and demanded a recount of the votes, which was had. The recount showed that appellee had received seven hundred twenty-four votes, appellant seven hundred nineteen votes, and McCue, another candidate two hundred four votes.

The election to fill the vacancy in the office being a regular election, and not...