Kelly v. State ex rel. Kierskey
| Citation | 30 So. 49,79 Miss. 168 |
| Court | United States State Supreme Court of Mississippi |
| Decision Date | 20 May 1901 |
| Parties | ROBERT M. KELLY v. STATE, EX REL. ABRAHAM KIERSKEY |
FROM the circuit court of Warren county, trial in vacation. HON R. H. THOMPSON, Special Judge.
The state, on the relation of Kierskey, appellee, was the plaintiff, and Kelly, appellant, was defendant in the court below. On December 4, 1900, an election was held in Vicksburg for the purpose of choosing city officials to serve for four years from the second Monday of January, 1901, as provided by the city charter. Among other offices to be filled was that of city assessor and tax collector, and for this office there were two candidates, Kierskey, the relator in this proceeding, and Kelly, the defendant. The latter was declared by the election commissioners to have received a majority of the votes over his opponent, was given the certificate of election, and took possession of the office. This quo warranto proceeding was instituted against him in the circuit court. The circuit judge of the district being disqualified to try the case, a commission was issued to R. H. Thompson Esq., as special judge, and on March 7 the cause was announced ready for trial, the summons having been returnable by virtue of an order of the court to January 16, a day in vacation, and the cause continued from that time. Defendant filed a motion to quash the summons on the ground that the cause was not triable in vacation, which motion was overruled by the court. Defendant then filed a plea to the jurisdiction, setting up that the March criminal term of the court was then in session, and that the court was without jurisdiction to hear the cause at that time. A motion to strike out this plea was sustained, and defendant demurred to a certain part of the information, and filed a plea setting up certain new matters; whereupon relator filed a replication and an amended replication, averring that certain persons therein named, not qualified voters, were permitted to vote for defendant, and that their votes should not be counted. To these replications the defendant demurred, on the ground among others, that no fraud was charged on the part of the election managers or the defendant, or of the so-called disqualified voters, and because there was in the nature of the case, no way in which it could be legally shown how such persons voted; this demurrer was sustained. By consent a jury was waived, and the cause was tried before the court, and the relator introduced in evidence the ballot boxes and their contents, over defendant's objection, and asked the court to order a recount of the ballots contained in the several boxes, which order was made by the court and the ballots counted. A number of votes were found that were marked with a straight mark opposite the name of a candidate, and a number were found where the names of a candidate were scratched out. All of these were rejected by the court. There were others with two cross marks opposite the name of a candidate, and still others with a cross mark before and after a candidate's name. These the court allowed to be counted. The count made by the court showed that relator was elected by two votes. After all the evidence for relator had been introduced, defendant offered to amend his answer or plea to show that at said election one Bowman and one Martin, both of whom voted for relator, were not residents of the city, but resided outside the city, and that one Olivar was a duly registered voter of the city, but on the day of the election was in Chicago, and that one Gillian falsely and fraudulently represented the said Olivar, although he was not himself a qualified voter, and his name was not on the poll book; that said Gillian voted for relator, and defendant offered to introduce evidence to prove the allegations of his amended plea. The court declined to allow said amendment to be filed or said testimony to be introduced. After all the evidence on both sides had been introduced, it was adjudged by the court that relator had been elected to the office by a majority of two votes. From this judgment defendant appeals.
Reversed and remanded.
Catchings & Catchings, Murray F. Smith, John Brunini, L. W. Magruder, and W. J. Voller for appellant.
R. L. McLaurin, J. F. Thames, Henry & Scudder, and Alexander & Alexander, for appellee.
Argued orally by O. W. Catchings and Murray F. Smith, for appellant, and by C. H. Alexander, for appellee.
If under the laws of this state, the object of the contest here made is to determine whether the relator or the defendant received a majority of the legal votes cast for the office of assessor and tax collector of the city of Vicksburg, we think the decision made by the court below must be reversed; for the record distinctly discloses that the defendant below offered to allege and show that three certain votes, to wit, those of Bowman, Gillian, and Martin, cast and counted for the relator, were illegal--illegal because two of said persons did not, at the time of the election, reside within the limits of the city of Vicksburg, and one of them was not a qualified voter, but falsely personated a qualified...
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O'Neal v. Simpson
...supra, and held that if sufficient illegal votes were cast to change the result it was proper to order another primary election. 79 Miss. 168, 30 So. 49, has convinced us that an illegal voter may be summoned as a witness and be put on the stand and compelled to disclose for whom he cast hi......
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...It is our contention, and the law is well settled in Mississippi, that a special judge has no vacation authority or jurisdiction. Kelly v. State, 79 Miss. 168. Section Hemingway's Code is in point. See, also, Adams v. Kyser, 61 Miss. 407; Martin v. O'Brien, 34 Miss. 21; Grinstead v. Buckley......
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