Roane ex rel. Tunstall v. Matthews

• Decision Date: 29 March 1897
• Citation: 75 Miss. 94,21 So. 665
• Court: Mississippi Supreme Court
• Parties: W. A. ROANE, DIST. ATTY., EX REL. R. H. TUNSTALL, v. E. J. MATTHEWS

21 So. 665

75 Miss. 94

W. A. ROANE, DIST. ATTY., EX REL. R. H. TUNSTALL, v. E. J. MATTHEWS

Supreme Court of Mississippi

March 29, 1897

March 1897

FROM the circuit court of Marshall county HON. Z. M. STEPHENS Judge.

This was a proceeding by quo warranto brought by the district attorney, on the relation of R. H. Tunstall, for the purpose of ousting the appellee, Matthews, from the office of marshal of the city of Holly Springs. The petition set up that Matthews had usurped the office, and was exercising its functions on the claim that he was elected thereto at an election of officers that occurred on the second Tuesday in December, 1896, at which time he was not a qualified elector of the municipality, and ineligible to said office by reason of the fact that he had not paid, on or before the first day of February, 1896, all taxes legally required of him, for the two years 1894 and 1895, although he had opportunity to do so according to law, the tax for which he was delinquent being his poll tax for the year 1895; and that, neither at the time of his election nor when inducted into office, in January 1897, was he duly registered as a voter in said city. It was further averred that the relator, Tunstall, was the legal incumbent of the office, and entitled to hold over until his successor was duly elected and qualified. The plea of the defendant traversed the allegations of the petition, denied that Tunstall was entitled to hold over, and averred that defendant had been duly elected, and was in office under a commission issued by the governor.

The case was tried on the following agreed statement of facts: On August 29, 1895, Tunstall was appointed marshal by the governor to fill a vacancy, and, having received his commission and given bond, entered upon the discharge of his duties, in which he continued until Matthews took possession of the office on the first Monday in January, 1897, since which time Matthews has held possession and discharged the duties of the office. On November 23, 1896, a Democratic primary election to nominate officers for the city was held therein, and, at the same, Matthews was denied the right to vote, because, as held by the judges at the election, he was delinquent for his poll tax for the year 1895. Before making their decision, the election judges heard a statement from Matthews, and also one from R. A. McWilliams, ex-sheriff of the county, through whom Matthews claimed to have paid said poll tax. At the primary election Matthews received more votes than did Tunstall, and was declared the nominee thereof. Before the regular election, on the second Tuesday in December, 1896, the commissioners of election for the city met, within less than five days before the election, to revise the poll books of the city, and, after going over said books, marked the name of said Matthews, among others delinquent, by writing opposite his name the letter "D"--meaning delinquent--and said name stood in such shape on the day of said election, and still continues so to stand. After so marking said Matthews' name, the commissioners considered him ineligible to office, and decided to leave his name off the ticket to be voted at the election in November, but afterwards, under a mandatory injunction, placed it thereon, and, at the election, Matthews received a majority of the votes cast, and his election having been duly certified to the secretary of state, he was duly commissioned by the governor, and, on the first Monday in January, 1897, duly qualified by giving bond and taking the oath of office, since which time he has been in possession of the office, discharging the duties thereof.

On October 18, 1895, Matthews was a deputy under said McWilliams, sheriff of the county, who "had contracted with him to pay, and keep paid, all taxes legally assessed against him, " and on that day there was a settlement between them, in which McWilliams, who had been paying Matthews' taxes under the contract, turned over to him tax receipts covering several years, which taxes had been paid by McWilliams under the agreement, and also turned over at the same time certain moneys due to the said Matthews. At the time of said settlement taxes for the year were due and payable, and in said settlement Matthews intended to pay, and thought he was paying, all taxes then due by him, including those for 1895, there being one receipt dated January, 1895 which he erroneously supposed to cover the taxes of 1895, but he, in fact, received no receipt for the poll tax of 1895 until after his election, in November, 1896, when it was paid by another person, H. S. Dancy, under protest. The poll tax for 1895 was legally assessed, and Matthews, several times during the year 1896, refused to pay the same, when demanded, on the ground that he had already made payment. After Matthews' election, and after his poll tax for 1895 had been paid and he had received a receipt therefor, but before his induction into office, he applied for registration before the proper municipal officer, but was refused, on the ground that the books were closed. On the hearing the petition was dismissed, and from the judgment denying him relief the relator prosecuted this appeal.

Judgment reversed.

Fant & Belk, for appellant.

1. When appointed and duly qualified, Tunstall had the right to hold over until a successor in office was duly elected and qualified. Code 1892, § 3030; State v. Home, 18 Am. St. Rep., 321. And this means a successor legally eligible to hold the office. Taylor v. Sullivan, 22 Am. St. Rep., 729. This right to hold over until his successor is elected and qualified, confers upon Tunstall the right to test the legality of the election of Matthews by quo warranto. Code 1892, § 3020, 3022; Taylor v. Sullivan, supra; United States v. Addison, 6 Wall., 291.

2. Matthews' right to be treated as a qualified elector did not depend upon what he thought he did, but upon an actual compliance with the conditions upon which it rested. Const. 1890, § 241; Code 1892, § 3631. Payment of the tax after the election was ineffectual, since his eligibility must be determined by his qualifications when the election took place. Const. 1890, § 250; Taylor v. Sullivan, supra; Andrews v. Covington, 69 Miss. 740; 74 Am. Dec., 749; 34 Am. St. Rep., 113; 37 Ib., 517; 43 Ib., 397.

3. He was not registered, and no one can be a qualified elector who is not registered. Const. 1890, § 249. The marking of his name on the poll book as delinquent was a denial of registration; and from this decision of the commissioners he took no appeal, as he might have done under the law, and it must be treated as final. Code 1892, § 3635, 3627.

Strickland v. Gary, for appellee.

1. The relator, being a private person, cannot found his claim on the ineligibility of Matthews. Andrews v. Covington, 69 Miss. 740. The state alone, through its proper officer can do that. Section 3030, code of 1892, providing that the marshal shall hold over until his successor is "duly elected and qualified, " was enacted for the benefit of the public, it being the policy of the state that no public office shall be vacant. The term "duly elected and qualified, " as used in the statute, means nothing more than that the person elected must comply with requirements of the statute--that is, he must give bond and take the oath of office. State v. Neibling, 6 Ohio St., 44. When the respondent, Matthews, was commissioned, gave bond, and took oath of office and entered upon the discharge of duties, as required by law, even if he is not eligible to hold it, this question cannot be adjudicated in this proceeding by a private individual, unless it is shown that the relator is entitled to the office. Harrison v. Greaves...