Sartin v. Barlow ex rel. Smith

• Decision Date: 24 January 1944
• Docket Number: 35530.
• Citation: 196 Miss. 159,16 So.2d 372
• Court: Mississippi Supreme Court
• Parties: SARTIN, Circuit Clerk, v. BARLOW, Dist. Atty., ex rel. SMITH.

16 So.2d 372

196 Miss. 159

SARTIN, Circuit Clerk, v. BARLOW, Dist. Atty., ex rel.

SMITH.

No. 35530.

Supreme Court of Mississippi

January 24, 1944

J M. Alford, of Tylertown, and Hall & Hall, of Columbia for appellant.

T B. Davis, of Columbia, for appellee.

GRIFFITH Justice.

Relator was one of the two candidates for member of the Board of Supervisors for District No. 1 of Walthall County at the second primary held on Tuesday, August 24, 1943. The result looking alone to the returns made by the precinct managers for the three boxes in the district, was that relator's opponent was nominated by a majority of one vote. At the polls relator had challenged the vote of one Norris on the ground that Norris had not been a resident of the State for two years. The County Democratic Executive Committee met on Wednesday morning following the election. Relator was present and again challenged the vote of Norris, which it is admitted was cast for relator's opponent, but the committee overruled the protest and declared the nominee according to the stated returns.

Relator did not have any information at that time sufficient to form the basis of a protest of any irregularities or illegalities in the election other than the receipt of the illegal vote of Norris; but during the week following, relator obtained information deemed reliable that there were many other illegalities and irregularities of a serious nature in the conduct of the election, wherefore on August 30, 1943, he gave notice, duly served personally on his opponent, that, on September 3, 1943, he would examine the boxes in the presence of the circuit clerk, as provided by law. The provision of the law on that subject, as found in Sec. 7, Chap. 19, Laws 1935, Ex.Sess., is as follows: "At any time within twelve days after the canvass and examination of the box and its contents by the executive committee, any candidate or his representative authorized in writing by him, shall have the right of full examination of said box and its contents upon three days' notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with; upon the completion of which examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved."

When relator on the day and at the hour set appeared at the clerk's office to make the examination, the clerk, respondent here, refused to permit relator to make the examination or to have any access to the boxes whatever. Thereupon relator informed the district attorney of the district of what had happened, and that officer immediately filed a petition for a writ of mandamus against the said clerk to compel him to perform and to permit to be performed what the law so clearly required of said clerk, and the circuit judge fixed an early day, to wit, September 11, 1943, as the date upon which said petition would be heard in vacation.

Upon the hearing held on said day, the respondent clerk made the excuse, if it may be euphemized as such, that he had been directed in writing by the chairman of the County Democratic Executive Committee not to permit the examination, and that worthy gave as his excuse for so directing, that relator had been offered a recount on the morning following the election, which offer relator had not then accepted. This matter of the examination of the boxes under the quoted statute was one with which the chairman of the county executive committee had nothing to do; and it is neither within the language nor the purpose of the quoted provision that any offer, such as mentioned, whether made on the first or any other day after the election, shall bar the right of examination conferred by the statute. It is seldom the case that a candidate will have at or immediately following an election the information which will or may come to him in the days following, and the statute expressly allows twelve days; and if such an offer made during the first few days after the election were held to bar the right of examination, a corrupt or partisan executive committee could easily so manipulate the offer so as to make the examination abortive and ineffective. Appellant, the respondent clerk, has not followed up his suggestion that the right of examination was barred by estoppel or waiver, because of the specious offer above mentioned. He has submitted no authority in support of it, and, upon our own investigation, we find none such. To the contrary, we may cite a much stronger case, Johnston v. State ex rel. Sefton, 128 Ind. 16, 27 N.E. 422, 423, 12 L.R.A. 235, 237, 25 Am.St.Rep. 412. In that case there was a tie vote. The law required, in such case, that the election be determined by lot. Relator at first objected to this course being taken but later changed his mind, and it was contended that he was barred. The court said: "The appellant's position that the relator cannot successfully urge his claim to the office, for the reason that he created an estoppel against himself by requesting the election officers not to determine the result of the election, cannot be defended. The duties of the election officers were prescribed by a public law, and all the interested parties had equal knowledge, so that no estoppel could possibly arise. But, more than this, the public had an interest in having the election officers perform the duty enjoined upon them by law, and it was not for the relator to relieve them of this duty, and this they were bound to know."

And this brings us appropriately to the main contention made by the respondent clerk, namely, his contention that the matter involved in this petition for a mandamus is not one "affecting the public interest" as must be under Section 2357, Code 1930, in order to be heard and determined in vacation. It is respondent's contention that the right of examination given by the statute above quoted is a private right only and is one which concerns none other than the candidate seeking to exercise it. In this we are of the opinion that respondent is very much mistaken.

When the convention system for the nomination of candidates was abandoned in favor of the primary election in the hopeful expectation that the primary would result in a better expression of the will of the majority of all qualified electors, it was sorrowfully found after long years of disappointing experience that in many counties such a measure of corruption and fraud and divers illegalities on the part of executive committees and their precinct managers had crept into the making of the nominations that in fact the primary system had become no better than, if as good as, the old-time convention. The Legislature finally determined to enact an additional and supplemental primary election law which so far as practicable would stop up the gaps by which those wrongs upon the electorate and incidentally upon candidates were being perpetrated, and Chap. 19, Laws 1935, Ex.Sess., was enacted.

This chapter is filled with what may be briefly termed gap-stopping devices, and among these, and what may be properly regarded as the chief device among them all, was this provision for the allowance of an examination of the boxes by any candidate within twelve days after any primary election. In erecting this device thought was taken of one of the most familiar lessons in human experience, namely, that when in any governmental procedure or other business, there is a device or set-up by which any wrong or fraud or thievery is reasonably certain to be detected,...