Prather v. Ducker, 40080

• Decision Date: 02 November 1955
• Docket Number: No. 40080,40080
• Citation: 82 So.2d 897,225 Miss. 227
• Parties: Harvey PRATHER v. John DUCKER.
• Court: Mississippi Supreme Court

Page 897

82 So.2d 897

225 Miss. 227

Harvey PRATHER v. John DUCKER.

No. 40080.

Supreme Court of Mississippi.

Nov. 2, 1955.

Laub, Adams, Forman & Truly, Natchez, for appellant.

Joseph E. Brown, Natchez, Charles Herring, Meadville, for appellee.

KYLE, Justice.

This case is before us on appeal by Harvey Prather, the contestant, from a judgment of a Special Court of Franklin County affirming an order of the Franklin County Democratic Executive Committee refusing to declare the contestant the nominee of the Democratic Party for the office of Supervisor for District No. 2 upon the basis of the returns of the August 2, 1955 primary election, and ordering that the names of the contestant and John Ducker, the contestee, be placed upon the ballot as runoff candidates in the second primary election to be held on August 23, 1955.

The record in the case shows that there were three candidates in the August 2, 1955, Democratic primary for nomination for the office of Supervisor for District No. 2 of Franklin County, namely, John Ducker, E. L. McLemore and Harvey Prather. There were two voting precincts in the district, one known as the Hamburg precinct, and the other known as the Antioch precinct. The managers' returns showed that in the Hamburg precinct 93 votes were cast for the three candidates for supervisor; and of that number Ducker received 51 votes, McLemore 5 and Prather 37. In the Antioch precinct, the managers' returns showed 185 votes cast for the three candidates for supervisor; and of that number Ducker received 65 votes, McLemore 16 and Prather 104. One other ballot was dimly marked and not counted. When the County Executive Committee met on August 3 to canvass the returns, the votes were tabulated, and the tabulation showed that Prather had received 141 votes, McLemore 21 votes and Ducker 116 votes. Prather had a clear majority of 4 votes over his two opponents and was declared the nominee for the office of supervisor.

On August 5, the Committee met again for the purpose of making a recount of the votes cast in the sheriff's race; and while the votes were being recounted in the sheriff's race, Ducker requested a recount of the votes cast for supervisor in District No. 2. There were no charges of irregularities in the holding of the election or the counting of the votes by the managers and clerks, but merely a verbal request for a recount of the votes by the committee. A recount of the votes cast in the two election precincts was made by the committee. The recount resulted in no change in the number of votes received by any of the candidates in the Hamburg precinct. But the recount of the votes in the Antioch precinct resulted in a loss of three votes by Prather and a gain of one vote by Ducker, and Prather's total vote was thereby reduced from 141 votes to 138. McLemore's total vote remained the same. Ducker's total vote was increased from 116 to 117. Prather appeared to be in a tie with his two opponents. Prather therefore requested a recount of the ballots in the Antioch box, and the committee agreed to recount the ballots.

The ballots in the Antioch box were recounted after the committee had finished the recount in the sheriff's race, and the second recount showed that Prather had received 103 votes, McLemore 16 votes, and Ducker 65 votes in the Antioch precinct. When these numbers were added to the votes received by the three candidates in the Hamburg precinct, which were not questioned, Prather's total vote amounted to 140 and the combined vote of his two opponents was 137. The committee, however, by a majority vote of its members, ordered that Prather and Ducker run the race over, 'since the two tallies did not agree.'

On August 9 Prather filed a formal complaint with the executive committee, in which he alleged that, although he had received a majority of three votes over the combined votes of the other two candidates according to the recount made by the committee, the committee had failed to declare him the nominee; that the committee's action was illegal and arbitrary and was based upon no facts or law; and Prather asked that the committee promptly meet and declare him the nominee. The committee met on August 13 for the purpose of hearing Prather's complaint, and after hearing the complaint the chairman announced that the box would not be opened, neither would the votes be counted again, and Prather and Ducker would be required to run the race over. The committee, by a majority vote, approved the announcement made by the chairman.

Prather, as contestant, then filed his petition for a judicial review, as provided in Section 3182, Code of 1942; and in his petition alleged the above mentioned facts. Ducker, as contestee, answered the petition on September 24. In his answer Ducker admitted that the managers' returns showed that Prather had received a majority of four votes over his two opponents in the first primary. Ducker, however, denied that Prather had received 140 votes and the other two candidates only 137 votes in the recount made by the committee on August 6; and he denied that it was the duty of the committee to declare Prather the nominee of the Democratic party for the office of supervisor upon the basis of the recount made by the committee. Ducker admitted that the committee had met on August 13, 1955, to consider Prather's complaint and had refused to declare Prather the nominee upon the basis of that complaint. But Ducker averred in his answer that he had received no notice of the filing of the complaint and had been afforded no opportunity to file an answer to the complaint. He also averred in his answer that Prather had participated in the second primary election on August 23 and in doing so had waived his right to object to the committee's action in ordering the second primary runoff in the supervisor's race.

The cause was heard by the special tribunal on September 26. We have before us a complete transcript of the testimony taken during the hearing.

It was expressly stipulated and agreed that the tabulation of the votes made by the managers in the Hamburg precinct was correct, and that Ducker had received 51 votes, McLemore 5 votes, and Prather 37 votes in that precinct.

Mrs. B. McMillan, the secretary of the Franklin County Democratic Executive Committee and a member of the county election commission, testified as the main witness for the contestant. Mrs. McMillan testified that the committee met on August 3, 1955, and canvassed the returns of the August 2 primary. Prather, as we have stated, was declared the nominee for supervisor for District No. 2 by a majority of four votes over the other two candidates. The witness testified that a special meeting of the committee was held on August 5 for the purpose of making a recount of the votes in the sheriff's race, and while the recount was in progress Ducker appeared before the committee and asked for a recount of the votes cast in the supervisor's race in District No. 2. The request was granted and a recount made of the votes cast in the supervisor's race. When the result of the recount was announced, Prather requested that a second recount be made of the votes cast in the Antioch precinct, and the second recount was made on the following day. The managers and clerks of the Antioch precinct were present. The second recount showed that Ducker had received 65 votes, McLemore 16 votes and Prather 103 votes in the Antioch precinct. The minutes of the meeting were read to the court, and the minutes showed that, 'after much discussion between the supporters of each candidate,' the committee then voted in favor of a proposal made by the chairman that Prather and Ducker run the race over, 'since the two tallies did not agree.'

The attorney for the contestant offered in evidence the ballot box of the Antioch precinct, which contained the ballots cast in the August 2 primary election; and the court was asked to examine and count the ballots cast for supervisor. The box was opened and the votes were counted. All of the ballots which had been counted by the committee on August 6 were fastened together with a string. But there were two ballots in the box that were not on the string. As the count proceeded, objection was made to four of the ballots, which had been counted by the committee on August 6. Ballot No. 14, which was marked for Prather, was objected to by the contestee on the ground that it had been marked with a pencil that was not indelible. Ballot No. 101, also marked for Prather, was objected to by the contestee on the ground that it was marked with a singular perpendicular mark opposite Prather's name. And absentee ballot No. 17, which was marked for Prather, was objected to by the contestee on the ground that it was not marked by a check in the form of a 'V' or a cross, but by filling in the blank box square completely with ink. The contestant's attorney than objected to ballot No. 99, which was marked for Ducker, on the ground that it had been marked with a pencil that was not indelible.

After the tabulation of the votes on the string had been completed, Mrs. McMillan was questioned about one of the two loose ballots found in the ballot box but not on the string. One of the ballots, which is identified in the record as Contestant's Exhibit 4, was plainly marked in ink by a cross placed opposite Prather's name and appeared to have been properly initialed by the initialing manager. Mrs. McMillan was asked to explain why that ballot was placed in the box but not on the...