Kellum v. Johnson, 41460

• Decision Date: 29 October 1959
• Docket Number: No. 41460,41460
• Citation: 237 Miss. 580,115 So.2d 147
• Parties: J. W. KELLUM v. Roy E. JOHNSON.
• Court: Mississippi Supreme Court

Page 147

115 So.2d 147

237 Miss. 580

J. W. KELLUM v. Roy E. JOHNSON.

No. 41460.

Supreme Court of Mississippi.

Oct. 29, 1959.

J. W. Kellum, Sumner, for appellant.

McClure, Fant & McClure, Sardis, for appellee.

LEE, Justice.

J. W. Kellum appealed from a judgment of the Special Court, set up under the Corrupt Practices Act of 1935, which dismissed his petition to contest the democratic nomination of Roy E. Johnson in the primary election of August 4, 1959, for the office of District Attorney of the Seventeenth Circuit Court District of the State.

In the primary election, Kellum received 9411 votes and Johnson received 1943 votes thus giving to Johnson a majority of 19 votes. Thereupon the State Executive Committee declared Johnson to be the nominee.

On September 8, 1959-35 days after the primary--Kellum filed with the chairman of the State Democratic Executive Committee his complaint as to the result. (This petition or contest was, by agreement of the parties, omitted from the record). At any rate, the petition for a judicial review recited that the chairman of the State Democratic Executive Committee gave notice that the committee would take no action thereon.

On September 21, 1959, Kellum filed, in the Circuit Court of the Second Judicial District of Tallahatchie County, his petition for a judicial review.

In answer to that petition, Johnson filed what he denominated as a 'Motion to Dismiss' in which it was pointed out that 'the petition exhibited against him therein by the Contestant shows on its face the following facts, to-wit:

'That the Contestant's original petition by which he initiated his contest was not filed with the Chairman of the State Democratic Executive Committee within a period of twenty days after the primary election sought to be contested; that, therefore, any right which the Contestant may have had to contest the declared result of said election had expired prior to the filing of said original petition with said Chairman; and that, accordingly, said Chairman properly and correctly declined to take any action on said original petition.

'Wherefore, the Contestee respectfully moves the court to dismiss the petition exhibited against him herein.'

On the date of the hearing, on question of fact was presented. The Special Judge, Hon. Arthur B. Clark, Jr., appointed by the Chief Justice of the Supreme Court of Mississippi, heard the parties and concluded that the motion to dismiss was well taken. Consequently, the motion was sustained, the petition was dismissed, and the action of the State Democratic Executive Committee in declaring Roy E. Johnson as the nominee of the democratic party for the office of District Attorney of the Seventeenth Circuit Court District of the State was approved, ratified and affirmed.

The sole question for determination is whether or not the contest was filed in time.

Prior to 1908, there was no tribunal vested with power to hear a primary election contest and determine who was the party nominee--to correct the wrongs and frauds bearing upon the solution of that question--except the Executive Committee. State ex rel. Brewer v. Abbay, 1903, 82 Miss. 559, 35 So. 153, a contest over the democratic nomination for the office of county treasurer; Ramey v. Woodward, 1907, 90 Miss. 777, 44 So. 769, a contest over the democratic nomination for the office of chancery clerk; State ex rel. Barbee v. Brown, 1907, 90 Miss. 876, 44 So. 769, a contest over the democratic nomination for the office of sheriff.

However, the Legislature by Chapter 136, Laws of 1908, provided a method of contest in such instances; and that Act, with slight and unimportant amendments, now appears as Sections 3143-45, Code of 1942 Rec., and has remained unchanged after the enactment of the Corrupt Practices Act of 1935, Section 3158 et seq., of the Code of 1942.

Section 3143, supra, is as follows: 'A person desiring to contest the election of another person returned as the nominee of the party to any county or beat office, may, within twenty days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which fraud is alleged to have been perpetrated, setting forth the grounds upon which the primary election is contested; and it shall be the duty of the executive committee to assemble by call of the chairman or three members of said committee, notice of which contest shall be served five days before said meeting, and after notifying all parties concerned, proceed to investigate the allegations of fraud, and, by majority vote of members present, declare the true results of such primary.' (Emphasis supplied). Under this Section the petition to contest must be filed within twenty days after the primary election.

Section 3144, supra, is as follows: 'In state, congressional and judicial districts, upon complaint filed with the chairman of the state executive committee, by petition, reciting the allegations of fraud, and with the advice of four members of said committee, the chairman shall issue his fiat to the chairman of the county executive committee, where fraud is alleged to have been committed, and in like manner as in county office, the county committee shall investigate the complaint and return their findings to the chairman of the state committee, which shall declare the candidate nominated, whom the corrected returns show is entitled to the same. And the same procedure shall apply to senatorial and flotorial contests in and by their respective executive committees.' (Emphasis supplied). Under this section, the time within which a petition to contest must be filed is not mentioned.

Section 3145, supra, merely grants the power to subpoena and attach witnesses.

In construing statutes, ...