McHenry v. State ex rel. Rencher

• Decision Date: 03 March 1919
• Docket Number: 20603
• Citation: 80 So. 763,119 Miss. 289
• Court: Mississippi Supreme Court
• Parties: MCHENRY v. STATE, EX REL. RENCHER, DISTRICT ATTORNEY

80 So. 763

119 Miss. 289

MCHENRY v. STATE, EX REL. RENCHER, DISTRICT ATTORNEY

No. 20603

Supreme Court of Mississippi

March 3, 1919

Division B

APPEAL from the circuit court of Noxubee county, HON. THOS. B CARROLL, Judge.

Proceedings in quo warranto by the state on relation of G. J. Rancher District Attorney, to remove Thomas McHenry from the office of Supervisor of District No. 2 in Noxubee County. From a judgment for the state, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and petition dismissed.

Jacobson & Brooks, Baskin & Wilbourn and Strong Bush, for appellant.

Green & Green, Chas. Richardson, G. J. Rencher and Frank Roberson, Assistant Attorney-General, for appellee (state).

OPINION

STEVENS, J.

From the judgment of the circuit court of Noxubee county in, quo warranto proceedings filed on information of the district attorney, ousting appellant from the office of supervisor of district No. 2 in said county, this appeal is prosecuted, Appellant, McHenry, was elected a member of the board of supervisors at the general November, 1915, election, and qualified and continued to discharge the duties of the office from January 1, 1916, to the date of the judgment appealed from.

The petition avers that McHenry was not a resident of district No. 2 of Noxubee county, but that on the 2d day of November, 1915, prior thereto and ever since, the said McHenry is a resident of the city of Macon, and that he is disqualified on that account to hold the office of supervisor for the second supervisor's district of Noxubee county. Upon issue joined the cause was tried to the court and jury, verdict was rendered by the jury in favor of the state, and judgment was duly entered, removing appellant from his said office. Section 176 of the Constitution provides:

"No person shall be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen. The value of real estate necessary to be owned to qualify persons in the several counties to be members of said board shall be fixed by law."

Section 292, Code of 1906 (section 3664, Hemingway's Code), is as follows:

"A person shall not be a member of the board of supervisors who is not a resident freeholder in the district for which he is chosen, and the owner of real estate of the value of three hundred dollars."

No point was made in the trial court on the provision of the law requiring a supervisor to be a freeholder and there is no contention that appellant did not own real estate in excess of the value provided by statute. The sole ground for removal is the averment that McHenry was not a resident of district No. 2, but was a resident of the city of Macon, which the proof shows to be in district No. 3 of Noxubee county. When all proof was in, appellant moved the court for a peremptory instruction. This motion was overruled. Many instructions were given, both for the state and the defendant, in the trial of the case, and the accuracy of various instructions given the state is challenged by an appropriate assignment of errors. The main ground relied upon is the refusal of the court to grant appellant a peremptory instruction. The conclusion which the court has reached, after most elaborate arguments and a careful consideration of the cause makes it unnecessary to copy in full the several instructions which are assigned as error, and renders the questions argued on these instructions purely academic. We accordingly go at once to the heart of this case, and in doing so it becomes necessary to determine whether the verdict of the jury is supported by competent and satisfactory testimony.

The alleged conflicts in the testimony will be adverted to later. We will state first what we consider the prominent and proven facts of the case. Thomas McHenry was born and reared at Ridgeway, the old country plantation situated in district No. 2 of Noxubee county. His old home place was known as Ridgeway, and the post office as Paulette. While a young man he joined the church at Ridgeway, and on reaching his majority registered and voted in district No. 2, and continued to exercise his rights of franchise in district No. 2 until about 1905, when appellant moved with his wife and children to Clarksdale, Miss., where they resided for some years. In 1902 appellant temporarily moved to Kemper county on a plantation known as Fox Trap, and resided in Fox Trap from 1902 to 1905. It appears that while he was in Kemper county appellant retained his citizenship and exercised his right to vote in district No. 2 of Noxubee county. In 1911 appellant returned from Clarksdale to Ridgeway, the place of his birth, and there established a home with his wife and children, and there resumed the duties of citizenship. He then registered and voted in district No. 2, increased his real estate holdings, managed a large plantation, a ginning business, and had unquestionably for several years no other residence, actual or legal, until about the time he became a candidate for the office of supervisor. It appears that McHenry was the owner of about six thousand acres of land, and farmed extensively. His country home was comfortably and well equipped, and sometimes referred to as "Ridgeway House." In 1915 appellant was road commissioner for his district under appointment of the board of supervisors, and it appears that he maintained much interest in good roads; that he was instrumental in having established a consolidated school in his district; and we are justified in saying he was attached to and had some pride in the community of his birth. In 1915 he became a candidate for supervisor, won the nomination in the primary election over one or more candidates, and was thereafter duly elected in the regular or general election in November. At Ridgeway his family consisted of his wife and three children, but prior to the election and apparently some time in 1913 Mrs. McHenry and the children went to Macon to live with and keep house for a Mr. Wade, an uncle of Mrs. McHenry, and at the time the petition in this cause was filed the wife and children were still residing in the home of Mr. Wade in Macon. Mr. McHenry testified that Mr. Wade lost his wife, was growing old and in bad health, and desired the presence, help, and companionship of his favorite niece. It does appear that Mr. Wade offered inducements in the way of a comfortable and well equipped home in the city of Macon, where the children could attend the Macon school. In removing to Mr. Wade's home Mrs. McHenry carried with her some of her household goods and furnishings, but there was retained in the country home much furniture and furnishings, and the country home remained open and continued to be equipped as a comfortable dwelling house. In other words, the Ridgeway home was not abandoned, nor was it stripped of its furniture, but was left with two furnished bedrooms, a sitting room, hall, dining room, and kitchen. Appellant employed a cook, and, except for the time appellant's foreman occupied a portion of the Ridgeway house, the cook appears to have had supervision of the premises, and there prepared meals for appellant and any guests which he might happen to take, and which he at times did invite, to his country home. Appellant at times spent the night at Ridgeway, and, according to his testimony, spent approximately three fourths of his time there. There can be no doubt about the fact that he did maintain a gin for the ginning of his own cotton, and also operated it for the public generally, and that during the ginning season he was at Ridgeway practically all of his time, supervising the operation of his gin and the gathering of his crops. At other seasons of the year appellant made frequent visits to Ridgeway, both on business and on pleasure. Sometimes he would invite guests for purposes of fishing and hunting. On one occasion a Thanksgiving dinner was served, and, one or two occasions are in evidence, when guests not only took meals, but spent the night with McHenry at his country home. The proof shows further that Mrs. McHenry and the children occasionally visited Ridgeway and spent the week-ends, and in the summer the family would spend some time preserving fruits and making use of the premises generally. Appellant always claimed to hold, and has attempted to hold, his citizenship at Ridgeway, where he registered, voted, gave in his tax list, served as road commissioner, became a candidate for supervisor, and where he was elected to the office from which he has now been ousted. There is no evidence that he has any business except in district No. 2, and he does not own a dwelling house anywhere else. He claims Ridgeway as his permanent residence, his real home. The distance from Macon to Ridgeway is approximately twelve miles, and the evidence discloses that appellant goes into Macon at night in an automobile, and frequently spends the night with his family, returning to his business in the early mornings. He has a post office box in Macon, where he receives such mail as is addressed to him at Macon, but much of his mail is addressed to him at Paulette post office, and such mail as is properly addressed to Paulette is received by appellant at his country home. Appellant is positive in his testimony that, Ridgeway is his permanent abiding place, and that he has not claimed any other place as his home. The facts thus far stated we believe are established by the overwhelming testimony in the case.

The cause was submitted to the jury, however, upon the theory that there is conflict in the testimony, and it is insisted on this appeal that the verdict of the jury is justified by competent testimony and should not be overturned. This phase of the controversy justifies and has...