Harris v. Stewart

• Decision Date: 29 January 1940
• Docket Number: 34014
• Citation: 187 Miss. 489,193 So. 339
• Court: Mississippi Supreme Court
• Parties: HARRIS v. STEWART

193 So. 339

187 Miss. 489

HARRIS v. STEWART

No. 34014

Supreme Court of Mississippi

January 29, 1940

APPEAL from the Special Court of Pontotoc County HON. T. H. MCELROY Judge.

Proceeding by Kelly Stewart against W. B. Harris for a judicial review of a denial of a primary election contest. From an adverse judgment, Harris appeals. Affirmed.

Affirmed.

K. G Rayburn and J. B. Fontaine, both of Pontotoc, and Adams &amp Long, of Tupelo, for appellant.

It is the contention of the appellant that the primary election law, Chapter 149, Code of 1930, was not repealed by the Corrupt Practices Act of 1935.

There is absolutely nothing in Section 2042 or 2043 giving the right to throw out the vote, at any box, merely because some man, who was illegally registered or who illegally voted did actually vote. Section 2043 does say that the whole matter is subject to judicial review of said matter as elsewhere provided by the Act, but it is bound to be the law that such judicial review must be confined to such matters as are mentioned in such two first sections, and that only the matters and things mentioned in said sections are matters of review.

Section 2059 and Section 2060 define the duty of the judge and election commissioners, sitting as triers of the petition of review. This section also provides that the cause shall be tried de novo, but this does not mean that the judge trying such petition for review has any power to act on anything or set such election aside for any cause or reason other than those mentioned in the two sections above first named.

It is necessarily the law, this whole proceeding being statutory that the judge who tried the petition for review is confined in his examinations and rulings and his power to act strictly and alone on such matters as are mentioned in the statute.

Our court has held from the earliest date to the present time that in the consideration and trial of an election contest that the main question and what should govern the Supreme Court in its decision is who received the majority of the legal votes cast.

Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554; Word v. Sikes, 61 Miss. 649; Shines v. Hamilton, 87 Miss. 384; State ex rel. Sowell v. Greer, 158 Miss. 315; Bourgeois v. Lazier, 77 Miss. 146.

The contest in the present case, as well as many others, brought after the recent primary, in the courts of Mississippi, was doubtless brought about and instigated by that part of the decision in the case of Hayes v. Abney, 188 So. 533, in which it is stated that the rule is that where enough illegal votes are cast to change the result or leave any doubt, the election is void, citing 20 C. J. 182 and which opinion also states that the authorities are in conflict as to whom the burden of proof is upon as to the illegal votes cast, and that under our system of secret balloting it may be doubtful whether any voter, legal or illegal, may be required to reveal how he voted. As a matter of fact all of the above quoted part of the above opinion is "obiter dicta" and the question of whether a voter, illegal or legal could be required to divulge how he voted was not involved in the case because no attempt had been made by either side to this contest to show for whom such voters voted.

So far as we have been able to find, the question of whether or not an illegal voter can be compelled to divulge how he voted has never been before the Supreme Court of Mississippi.

20 C. J. 246, Sec. 389.

The privilege to the voter is personal and if waived or if by other evidence it is proved that he did vote when he was not a legal voter he may then be compelled to testify for whom he voted.

People v. Turpin, 49 Colo. 234; Ann. Cas., 1912A, 724; Lafargue v. Galloway, 127 So. 167; Barham v. Dennison, 17 S.W.2d 692.

In the case of Hickman v. Switzer, Number 33970, lately decided in the Supreme Court, it is held that the petition for a judicial review must set out facts and charges enough affirmatively to show that the effect of sustaining the challenges and discarding the votes would change the result arrived at by the Executive Committee or not, and we respectfully submit that under the language in this case, the original petition filed by the contestant with the Executive Committee, and the original petition filed by him for review, neither one charges how many votes were polled at any of the contested boxes for W. B. Harris or for Kelley Stewart, and, therefore, on the face of same it could not be ascertained whether the result of the election would have been changed even though the prayer of said petition had been granted, and the contested boxes thrown out. The second petition for review does set out the respective vote of each candidate at the boxes but we submit that under the law it was incompetent and the contestant was powerless to set up any new or material facts in his new petition other than those contained in the original protest and the original petition, and we submit that if we are right about the contention that this case should be reversed and dismissed under the above authority.

It is also our contention that the motion to dismiss the second petition filed should have been sustained for the reason that in our opinion the law does not provide for the filing of but one petition for review and that when the contestant voluntarily dismissed this original petition he was out of court as the statute nowhere provides or empowers the trial court to grant a nonsuit and without prejudice and allow the filing of a new cause of action.

It is also our contention that the motion to dismiss should have been sustained for the reason that in our opinion neither the Chief Justice of the Supreme Court, nor any other member of this body, has the power under this statute, to ever appoint a judge to try a review proceeding except on the one original petition provided by the statute, and that when he once appoints, that power is exhausted, and all power and authority to proceed under statute is ended.

It is further our contention that the certificate required by the statute of an independent investigation and certificate by two disinterested attorneys is jurisdictional, and that the law does not allow the same to be filed or amended at any time after the original petition for review is filed.

We further submit that under the Corrupt Practices Act any petition for review must be filed forthwith, accompanied with proper certificate of two disinterested attorneys filed therewith, at the time of the filing of the petition, and we submit that the intervention of seven days between the final action of the executive Committee of Pontotoc County and the filing of the petition was not in compliance with the law requiring such petition to be filed forthwith, but if mistaken in the proposition, we assert with confidence that when the nonsuit was taken on this original petition and the matter went out of court that the refiling of a new petition on the 25th day of October, 1939, just about two weeks before holding the general election, was not a filing forthwith of the petition for review, as required by the statute.

Fred B. Smith, of Ripley, and W. H. Inzer and B. A. Jaggers, both of Pontotoc, for appellee.

Sections 3a to 3d, inclusive, as amended by Chapter 320 of the Laws of 1936, specifically designate who shall be legally entitled to vote and who shall not be legally entitled to vote, dealing both with the matter of poll taxes and exemption certificates. Then the very heart of Section 4 is contained in the clause at the beginning of the third sentence thereof, which is as follows: "When any person entitled to vote shall appear to voter, " the following things shall be done. But the principal thing, as contained in that section, is that the person who shall appear to vote, and about whose voting the various procedural requirements shall take place, shall be a person "entitled to vote." To say that an election would be void, unless some little procedural requirement was complied with, even when every person presenting himself to vote was a legal voter, but that, if these requirements by way of procedrue were complied with, the election would be legal, even though a majority of the persons voting were illegal voters and not qualified to vote, would make of the Act a mere joke. The prime and paramount purpose of the Act is to prevent illegal, voters from voting and to safeguard the rights of those who are entitled to vote. And every requirement of the Act is based on the central thought of Section 4, that is, that certain things shall be done "when any person entitled to vote shall appear to vote." Therefore, to say that a court is powerless to declare an election void, and to call another election, when it is admitted that more than a sufficient number of illegal voters voted, to have changed the result of an election, is to destroy the whole purpose, and the wholesale effect of the Act.

Hayes v. Abney, 188 So. 533.

We will not encumber this brief by a detailed analysis of each of the cases cited by the appellant, but a careful analysis of each and every one of same will reveal that they are not applicable to the question here at issue and do not sustain the petition of the appellant, and were decisions rendered long before the enactment of the Corrupt Practices Act, while the definite, positive, and specific holding of the Abney case, based on the Corrupt Practices Act, definitely endorses the appellee's position in this regard. If a candidate for office may bring to the polls illegal voters, who fraudulently cast their votes for him in large numbers, and can then defend any question raised thereon, by taking the position that the burden is on his opponent to prove the person for whom they voted,...