Shines v. Hamilton

• Decision Date: 05 February 1906
• Citation: 39 So. 1008,87 Miss. 384
• Court: Mississippi Supreme Court
• Parties: EDWARD C. SHINES v. JOEL G. HAMILTON

39 So. 1008

87 Miss. 384

EDWARD C. SHINES v. JOEL G. HAMILTON

Supreme Court of Mississippi

February 5, 1906

FROM the circuit court of Holmes county, HON. A. MCC. KIMBROUGH Judge.

Shines the appellant, was plaintiff in the court below; Hamilton the appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court.

To the petition, brought under Code 1892, § 3679, a demurrer was filed, heard, and sustained; and, contestant declining to amend, the petition was dismissed. The petition shows that the town of Durant is governed by the code chapter on municipalities and amendments thereto, and that on the 13th day of December, 1904, an election was held in said town for the office of mayor and other town officers. According to the returns of this election, as made to the mayor and board of aldermen by the majority of the election commissioners Hamilton, appellee, was elected mayor, he having received ninety-seven votes, and Shines, appellant, seven; and sixteen votes were not counted, for the reason that they were not cast upon official ballots, since they contained only the name of the contestant as a candidate for mayor, while the ballots which were counted contained the names of both contestant and contestee. There is no allegation of fraud in connection with the election, other than that the voters should have been restricted to voting for the contestant for the office of mayor, since the contestee's name was not placed on the ballot in a regular way. At a called meeting of the mayor and board of aldermen, as shown by the proceedings on the 25th day of November, 1904, Parkinson, Mayfield, and West were appointed election commissioners to conduct the election to be held on December 13th following, Parkinson being named as ticket commissioner to have the official ballots prepared and printed. It is admitted that there was no written notice or call for this meeting, as provided for in sec. 2990 of the code. It is also admitted that this requirement of law was not met touching a similar meeting held on November 29th, at which meeting Mayfield was substituted for Parkinson as ticket commissioner. Mayfield then had a ballot prepared containing the name of Hamilton, the regular nominee of the democratic party, chosen by a party primary; and the name of Shines, who presented to the commissioners a written petition requesting that his name be placed upon the ballot, as provided in sec. 3652 of the code. Parkinson had a ballot prepared which contained the name of Shines, but omitted the name of Hamilton therefrom, for the reason that his name was not presented to the election commissioners "upon written request of one or more of the candidates so nominated, or of any qualified elector who will make oath that he participated in the primary election which nominated him." The contestee filed a demurrer to the petition, setting forth several grounds, and the court held that the following grounds were well taken--to wit:

"(3) Because said petition does not deny that defendant was the regular nominee of the democratic party for mayor for the regular municipal election held on December 13, 1904, and that said James Parkinson and all the other election commissioners had been notified of such nomination and had knowledge of that fact, and, therefore, had no right to omit the name of respondent from such ballot unless upon his written request, which request was not made.

"(4) Because, as shown by said petition and by exhibit A thereof, said Parkinson was never legally appointed ticket commissioner, no notice having been given of said special meeting on November 25th and no entry having been made on the minutes of said meeting of such notice; and said commissioners of election had, under sec. 3661 of the code, authority to prepare ballots for an emergency, and such ballots were prepared, giving to voters their choice between petitioner and defendant, and defendant was overwhelmingly elected. . . .

"(5 1/2) Because the tally sheets and lists of voters were legally sufficient as returns of election and did not invalidate the election."

Judgment affirmed.

W. L. Dwyer, and S. L. Dodd, for appellant.

The fifteen days previous to the day of election is a limitation on the right of the appellee to have his name placed on the petition to be presented to the commissioner of election, James Parkinson, and which was not done by the appellee, and the placing of his name on a ballot after that was without authority of law and made the ballot illegal, and it should not have been counted by the commissioner. Had this been done, and such ballots thrown out, the appellant would have been duly elected mayor. It makes no difference whether Hamilton was the regular nominee of the democratic party for the regular municipal election or not. The law is imperative that when the names of candidates to be voted for are placed on the official ballot it must be "upon the written request of any one or more of the candidates so nominated, or of any qualified elector who will affirm that he was a member of such convention or other nominating body or participant in such primary election, and that the name presented by him was the nominee of said convention or nominating body or primary election."

Noel, Pepper & Elmore, for appellee.

The...