Hutson v. Miller

• Decision Date: 12 December 1927
• Docket Number: 26704
• Citation: 148 Miss. 783,114 So. 820
• Court: Mississippi Supreme Court
• Parties: HUTSON v. MILLER. [*]

114 So. 820

148 Miss. 783

HUTSON v. MILLER. ^[*]

No. 26704

Supreme Court of Mississippi

December 12, 1927

(Division B.)

1. MUNICIPAL CORPORATIONS. Municipal election contests are governed by statute relating to election of county officers (Hemingway's Code 1927, sections 7024, 8077).

Under Code 1906, section 3439 (Hemingway's Code 1927, section 7024), contested municipal election cases are governed by Code 1906, section 4186 (Hemingway's Code 1927, section 8077), which provides for contests of election of county officers.

2. MUNICIPAL CORPORATIONS. Contestant for municipal office need not go through form of qualifying for office until after contest has been determined. (Hemingway's Code 1927 sections 2991, 7020, 7024, 8077).

Where election of town officers was held as provided by Laws 1922 chapter 219 (Hemingway's Code 1927, section 7020), and returns were made to secretary of state, who issued contestee a commission as mayor, under Code 1906, section 3439 (Hemingway's Code 1927, section 7024), contestant for office of mayor was not required, under Laws 1924, chapter 230 (Hemingway's Code 1927, section 2991), to go through statutory form of taking oath of office and giving official bond until after contest had been determined in his favor since Code 1906, section 4186 (Heming way's Code 1927 section 8077), should be read into and treated as part of section 2991.

3. ELECTIONS. Where contestant's petition stated facts showing election was fraudulent, voters could testify that votes had been fraudulently changed from one condidate to another.

Where contestant's petition did not charge fraud in election in so many words, but, if facts stated were true, election was necessarily fraudulent, voters were competent to testify that their votes had been fraudulently changed from one candidate to another.

4 FRAUD. Fraud vitiates everything.

Fraud vitiates everything it enters into.

Division B

APPEAL from circuit court of Humphreys county.

HON. S. F. DAVIS, Judge.

Action by M. H. Miller to contest the election of F. H. Hutson as mayor of the town of Isola. From a judgment for contestant, contestee appeals. Affirmed.

Affirmed.

Montgomery & Montgomery, for appellant.

An election contest involves the eligibility and qualification of the contestant for the office. 9 R. C. L., secs. 147, 1157. We want to be perfectly frank with the court about this proposition. Some of the text books indicate the questions as to eligibility and qualification can only be raised in a quo warranto proceeding. 20 C. J., secs. 275, p. 217. We are also not unmindful of the expressions by way of dicta in several of our own decisions. Pradat v. Ramsey, 47 Miss. 32; Loposser v. State, 110 Miss. 240, 70 So. 345. However, it will be noted that statutes in other states are probably somewhat different from ours and this no doubt accounts for the foregoing statement from Corpus Juris. Furthermore, the expressions of our court cited above were mere expressions of opinion in a case wherein the question of eligibility and qualification of the contestants was not involved.

There has been, however, one case of an election contest involving this very question. Our supreme court went into the matter in detail, discussed the question fully, and reached a clear cut decision that the "right" to the office is involved in a contest under our statute. It is true that this case was decided under the Code of 1871, but the election contest statute at that time, and the present election contest statute are almost identical except that the jurisdiction of the contest was formerly conferred upon the justice court. See Sublett v. Bedwell, 47 Miss. 266.

If disqualification of contestant to hold office be raised in an election contest, then the declaration here was insufficient, and appellant's demurrer thereto should have been sustained, because the declaration failed to allege that the contestant had qualified for the office. Sections 5995 (3435), Hemingway's 1917 Code; Water Valley v. State, 103 Miss. 645, 60 So. 576; Secs. 5996 (3436), Hemingway's 1917 Code; Bouregois v. Laizer, 77 Miss. 146, 25 So. 153; State v. Cresswell, 117 Miss. 795, 78 So. 770; Hemingway's 1921 Sup., secs. 2797 (3459), and 2797a; Secs. 2991 (2797), Hemingway's 1927 Code; Andrews v. Covington, 69 Miss. 740, 13 So. 853; State ex rel. Jones v. Lyon, 110 So. 243; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886.

Oral testimony as to the purity and integrity of the actual ballots themselves should have been excluded because same was utterly foreign and not responsive to the grounds of contest set up in the declaration. Secs. 8077 (6820), Hemingway's 1927 Code; Pradat v. Ramsey, 47 Miss. 24.

Chapman, Moody & Johnson, for appellee.

It is, of course, conceded that the right to contest an election, and the procedure therefor, is purely of statutory origin. Where, as was the case in the town of Isola, there is only one election precinct, a municipal election is conducted by three commissioners, appointed by the mayor and board of aldermen. Returns of the election are made by the commissioner to the secretary of state, whose duty it is to issue a commission to the person returned as elected to a municipal office. Hemingway's Code 1927, secs. 7022 (5997); Hemingway's Code 1927, secs. 7024 (5999). When, and not until, a commission is issued by the secretary of state to the person returned as elected to a municipal office, he must qualify on or before the first Monday of January, after such election. Hemingway's Code 1927, section 7020.

To qualify, or have the right to qualify, one must first be elected, that is receive a majority of the votes cast at the election. But, in addition, there must be an adjudication of that fact by the commissioners of the election, and, on the adjudication, so made by the commissioners, a commission must issue to the person elected. Then, and not until then, has one the right to qualify. The first step, in order to qualify, is the receipt of a majority of the votes cast at the election. This fact alone does not give the person elected a right to the office. The returns of the election commissioners may show that such a person received a majority of the votes cast, when as a fact, such majority was for another. That the will of the majority of the qualified electors may not be defeated, it is provided, in the case of a county office, that: "A person desiring to contest the election (not his right to the office) of another person returned as elected to any office, within any county, may, within twenty days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested," etc.--Parenthesis ours. Hemingway's Code 1927, sec. 8077; Hemingway's Code, sec. 7024, expressly provided that: "All of the provisions of law on the subject of state and county elections, so far as applicable, shall govern municipal elections." The clause, just quoted, in identical words, is a part of section 3034, Code 1892, and section 8077, Hemingway's Code 1927, supra, is identical in terms with section 3679, Code 1892. See Shines v. Hamilton, 87 Miss. 384, construing sections 3034 and 3679, Code 1892.

The attorneys for the appellee failed to note the distinction between the right to contest an election, and the procedure prescribed for the adjudication of that right, and the right to an office, and the procedure prescribed for the adjudication of that right. Section 7024, Hemingway's Code 1927, when construed in connection with section 8077 of same prescribes the procedure, or remedy, where the right to contest an election is involved. The procedure, or remedy, is prescribed by chapter 61 on Quo Warranto where the right to an office is involved. The distinction is obvious when it is considered that one is not entitled to an office merely because one received a majority of the votes cast at the election. There must be an adjudication of that fact, and, on such an adjudication, a commission must issue. If there is a wrong adjudication of that fact, that is, the fact of election, by the commissioners and a commission is issued, such an adjudication may be reversed by the procedure prescribed by section 8077, supra. That is, when such a commission is issued by the Governor, the person, thus elected, when he qualified, that is, by entering into bond, if one is required, and taking the oath prescribed, has a right to the office. Then, and only then, is one contesting an election entitled to the office. Surely it would be an idle ceremony for one to endeavor to qualify as an officer when there had been no adjudication, either by the commissioners, or by a court of competent jurisdiction following the procedure prescribed in the statute, that he was elected.

The remedy (to contest an election) is purely statutory. The statute itself does not prescribe any condition on the right to pursue this remedy. If it does not, by what authority would such a condition be imposed.

Even if the appellee had received a majority of the votes cast at the election--and the jury found this fact in his favor--and even if he had made the bond, if one was required, and had taken the oath of office, he still would not, in the absence of a commission issued by the secretary of state, or the Governor, have been entitled to the office of mayor. Therefore, if his right to contest the election was based on his right to the office, no candidate could contest an election because he could never get a commission until the election commissioners, or the circuit court had adjudicated the facts of his election.

The right of an office depends (1) on an election, (2) an adjudication of that fact, (3) a commission issued pursuant to,...