McKenzie v. Boykin

• Decision Date: 17 April 1916
• Citation: 111 Miss. 256,71 So. 382
• Court: Mississippi Supreme Court
• Parties: MCKENZIE v. BOYKIN

71 So. 382

111 Miss. 256

MCKENZIE v. BOYKIN

Supreme Court of Mississippi

April 17, 1916

March 1916

APPEAL from the circuit court of Smith county, HON. W. H. HUGHES Judge.

Election contest by W. E. McKenzie against N. B. Boykin. From a judgment for contestee, contestant appeals.

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

Affirmed.

Watkins & Watkins, for appellant.

S. L McLaurin, T. J. Wills and Guthrie & Tullos, for appellee.

POTTER J. SMITH, C. J., specially concurring.

OPINION

POTTER, J.

This is a contested election suit, instituted by W. E. McKenzie, the appellant, against N. B. Boykin, the appellee, under section 4186, Mississippi Code 1906, by petition in the circuit court of Smith county, to contest the election of appellee, who now holds the office of supervisor of the fifth district of said county, by virtue of a general election held in said county on the 2d day of November, 1915. The appellant alleged in his petition that he was a citizen of said district and county at the time of the general election above mentioned, and that he was eligible to be voted for in said election for the office of member of the board of supervisors of said county from said fifth supervisor's district, by reason of his being a qualified elector of said county, a resident freeholder of said district, and the owner of the requisite real estate; that the official ballot printed and distributed for use in said election had only the name of the appellee printed thereon as the person to be voted for in said election for the aforesaid office of member of the board of supervisors, and that two hundred and seventy-seven of the qualified electors of said county and said district cast their ballots in said election for supervisor, of which number one hundred and eight voted for the appellee by marking an "X" opposite the name of appellee, and that one hundred and forty-two of the electors wrote on the face of the official ballot the name of appellant for said office and marking an X mark opposite his name, and also twenty-seven voted for appellant by writing his name on the official ballot without putting the X mark opposite thereto; and it was alleged that, exclusive of the twenty-seven who had voted for the appellant by simply placing his name on the ticket, appellant had been elected by a majority of thirty-four votes, counting only those ballots upon which the appellant's name was written and an X mark placed opposite to it. It was further alleged that the local managers who held said election in said district excluded the aforesaid twenty-seven votes, but counted the two hundred and fifty, showing a majority in appellant's favor of thirty-four votes, and that the election commissioners met to declare the result of said election, and rejected all the votes for appellant, and declared appellee elected to said office, and so returned to the secretary of state. To the petition appellee filed two pleas, the plea of general issue and a special plea in bar in confession and avoidance. The special plea set out that appellant and all of the qualified electors who participated in said general election in said district participated and voted in the primary elections in 1915 of the Democratic party, by which party appellee was nominated as the candidate of said party to said office in said general election, and that no other person was nominated in said year by any party as its candidate for said office in said election, and that the name of no other person than appellee was printed on said ballot as a candidate for said office, and that there was no death of any candidate for said office in said general election. To this special plea appellant demurred on the ground that it set forth no legal defense, and showed that appellant was eligible to be voted for in said election for said office.

The question to be determined in this case is whether or not an elector in a general election can vote for any person for office other than one whose name is printed on the official ballot, by writing thereon the name of his choice for the office, except in case of the death of a candidate. It is urged that, unless qualified electors are permitted to write the name of their choice on the official ballot and put the X mark opposite same to indicate their choice, the provisions of section 250 of the Constitution of 1890 would be violated. Section 250 is as follows:

"All qualified electors and no others, shall be eligible to office, except as otherwise provided in this Constitution."

The present election laws are practically rescripts of the election ordinance of the constitutional convention of 1890. The election ordinance was to be in force until 1896, and thereafter the legislature had the power to enact laws not violative of the Constitutions of the state and the United States with reference to the holding of elections. The election ordinance was adopted by the convention itself, and it would not be contended, therefore, that it is violative of the state Constitution, and it is not contended that this ordinance in any way violates the Constitution of the United States. The validity of the franchise laws of the Constitution of 1890 was vigorously assailed as being unconstitutional in both the United States Senate and the supreme court of the United States. The enactment of the franchise sections of the Constitution of this state by that convention, and the defense of them by the late Senator James Z. George, and the final adjudication of the supreme court of the United States upholding said franchise laws, mark an epoch in the history of our state--in fact, of the entire South. The genius of Senator George in conceiving the franchise sections of our Constitution, eliminating the ignorant and vicious from the exercise of the franchise, has thus been vindicated, and our state restored for all time to come to the control of a capable and intelligent electorate.

The purpose of the election ordinance was to carry out and enforce the franchise sections of the Constitution, the machinery whereby the franchise laws of the Constitution were put into operation. The sections of the Code involved in the case at bar, being practically rescripts of the election ordinance, take its place, and the election ordinance itself was violative of no constitutional provision; likewise the statutes in question do not violate any constitutional provision.

As stated by counsel on both sides in their oral argument of this case, the right of Mr. Boykin or Mr. McKenzie to hold the office of member of the board of supervisors of the fifth supervisor's district of Smith county is only an incidental question in this case; a greater...