Hayes v. Abney

• Decision Date: 17 April 1939
• Docket Number: 33643
• Citation: 186 Miss. 208,188 So. 533
• Court: Mississippi Supreme Court
• Parties: HAYES et al. v. ABNEY et al

188 So. 533

186 Miss. 208

HAYES et al. v. ABNEY et al

No. 33643

Supreme Court of Mississippi

April 17, 1939

APPEAL from the circuit court of Jasper county HON. W. J. PACK Judge.

Election contest by T. O. Hayes and another against R. L. Abney and another. From a judgment holding the, election valid and dismissing the contest, contestants appeal. Reversed and rendered.

Reversed and judgment here.

O. M Oates, of Bay Springs, for appellants.

The learned court below very properly held that four votes were illegal. Those of W. O. Mason, Mrs. W. O. Mason and R. H Hancock for failure to pay 1936, poll tax on or before February 1, 1937, as provided by section 3-a and 3-e, as amended, of Corrupt Practice Act of 1935 which illegality is admitted by answer of contestees but who excuse this by saying it was not purposely done. The other illegal vote of Mrs. W. A. Langly who for the past two years lived in another county and had not registered in the town and county and had not lived within the municipality for twelve months prior to primary or general election. This, of course, was a correct holding. Hence, this certainly would have and did change the results of this election.

Abney never made the required affidavit that he had read the Corrupt Practice Act, etc. This is undisputed but admitted. Citing Section 1, pages 33-34, Corrupt Practice Act of 1935, this law says it shall be done.

Error number 2 shows that the pleadings admit as well as the order of the court in his opinion, as well as the synopsis of fact, that the manager in receiving the blank ballots did not receipt the distributor, and the distributor receipt the manager, and to enclose this receipt of the number of printed ballots in the ballot box and the executive committee shall see to it that the total blank ballots shall correspond with the total of the receipts executed by local managers.

Sec. 2, page 4, Corrupt Practice Act of 1935.

The initialing manager failed to legally initial the ballot as per section 4, pages 36 and 37, Corrupt Practice Act, by not initialing some, some inside and others on the back.

The managers and clerks did not execute a certificate in duplicate of the results of the election.

Section 5, page 37, Corrupt Practice Act.

Joe A. McFarland, Jr., and H. L. Bayless, Jr., both of Bay Springs, for appellees.

The trial judge gave particular significance to the first section of the Act and it is believed that this section should be used as the key to the construction of the Act in its entirety. Quoting from this section: "That this Act may be cited as the Mississippi Corrupt Practice. Act of 1935, and its provisions shall receive an ordinary and reasonable construction in order to accomplish its purposes, rather than a strict and illiberal construction." Inasmuch as this rule of construction is given as the preface and incorporated into the very first section of the act itself, we contend that all technical rules of the act are merely directory and not mandatory.

State ex rel Sowell v. Greer, 158 Miss. 315, 130 So. 482.

Another section of the Corrupt Practice Act to be considered by this court on the hearing of this cause is Section 22. Quoting this section verbatim, we are told: "All the provisions of this act as far as practicable shall apply to and regulate primary elections for the nomination of elective municipal offices." It is the contention of the appellees that this section was placed into the act by the Legislature for the purpose of allowing a wider latitude in the liberal construction, application, and interpretation of the Act itself in reference to small municipalities as is the case in the cause at bar.

Referring back to Section 1 and Section 22 of the Act and the factual situation involved in this case, we ask the court to consider this act in its entirety in reference to this particular town. Bay Springs is comparatively small, with a population of approximately one thousand (1000), and with only around two hundred and fifty (250) qualified voters therein. The provisions of the Corrupt Practice Act are highly technical and we are of the opinion that they could not, and would not, be followed if another election should be ordered by this court; even following the strife, litigation, and investigations involved in this contest. The corrupt Practice Act is no doubt timely and a wise bit of legislation; but we submit that it is practically impossible to follow the letter of the act in a municipality where offices involve so little, where there is such a few qualified electors, where there is practically no one familiar with election laws; and especially where managers who are appointed, as in this case, knew or had reason to know, so little about such highly technical set of rules governing elections. Certainly, Section 1 of the Act contemplates a most reasonable construction of the statute in this particular case; and the purpose of the act was to have an election without fraud, and where the will of the voters was fairly expressed and their popular choice placed in office.

We contend that if the appellants wish to rely on the number of disqualified votes cast, it is then their duty and the burden of proving that the appellant received a majority of the qualified votes; which was not done nor attempted to be done.

Pradat v. Ramsey, 47 Miss. 24.

Appellees would summarize the situation surrounding the contest of this election by saying that there was an admitted number of irregularities present, that four disqualified votes were cast; but that the irregularities were not of such a material nature as would warrant the election being held void because thereof but were mere irregularities of procedure and directory rules; that these irregularities were not deliberately or wilfully engaged in for the purpose of electing or defeating any candidate or candidates; that the managers were not guilty of any fraud whatsoever, but on the other hand, tried to the best of their ability and understanding to hold an election fairly and followed the provisions of the Corrupt Practice Act out so far as they knew how. That the four disqualified votes cast did not change the results of the election, that they were not deliberately allowed to vote but were allowed to vote because of a failure to closely and correctly scrutinize the very small lead penciled date of the payment of the poll tax as it appeared on the top of the poll tax receipt.

Appellees would most respectfully represent and state unto the court that the election has undoubtedly been proven to have been held fairly and without any prejudice whatsoever toward any candidate or candidates; that appellees, R. L. Abney and E. L. Boykin, received a majority of the votes and should be entitled to remain in the offices they were elected to and which they now occupy for the duration of their elected terms.

McGowen, J., Ethridge, J., dissenting.

OPINION

McGowen, J.

This case arises under Chapter 19, Laws of 1935, Extraordinary Session, known as the Corrupt Practices Act.

A municipal primary election was held in the Town of Bay Springs for the election of officers thereof. Hayes was a candidate for mayor, as was Abney, incumbent, a candidate for reelection; and Windham, a candidate for marshal, with several opponents; it being the first Democratic primary election held on October 28, 1938.

On the face of the returns, Abney was declared elected by the election officers who made returns thereof to the constituted authorities, and the same result was declared by the municipal executive committee. Thereafter, in due time, Hayes and Windham, unsuccessful candidates, filed their contest of the elections as to the offices of mayor and marshall. The said committee dismissed contestant's petition.

The contestants, proceeding under the terms of the Act, took the necessary step to obtain a judicial review of the election; and a circuit judge of another district, together with the then municipal election commissioners, set up as advisers, on a day named, heard the contest as a special court or tribunal upon appearance of parties' pleadings and proof, entered its final judgment, signed by the judge and all of the commissioners, holding the election valid and dismissing the contest.

From the judgment of that tribunal, appeal is prosecuted directly to this Court by the contestants, as permitted under Section 15, subsection (d) of the Act.

Before considering the merits of the election contest, two questions properly raised by members of this Court must be determined. These questions are raised by the members of this Court touching its jurisdiction, and it is proper so to do under the case of Drummond v. State, Miss., 184 Miss. 738, 185 So. 207, and the authorities there cited.

These questions as to the jurisdiction of this Court are: (1) is the special tribunal from whose judgment this appeal, created by Section 15 of the Corrupt Practices Act, is taken, such an inferior court as may be established under Section 172, Constitution of 1890; and (2) may an appeal be taken from the judgment of the special tribunal so created direct to the Supreme Court?

Both of these questions have been so thoroughly considered by this Court, that without again entering discussion thereof, they are now answered in the affirmative.

The functions of this special tribunal are judicial in character, even more than a drainage district, and is an inferior court within and authorized by Section 172, Constitution of 1890. See Pegram v. West Hatchie & Owl Creek Drainage District, 108 Miss. 793, 67 So. 453, This case was cited with approval in Knox v. Speakes, 144 Miss. 125, 109 So. 129, in which case the constitutional bar was finally let down.

As to an appeal direct to this Court from the...