Sinclair v. Fortenberry, 38405

• Decision Date: 04 February 1952
• Docket Number: No. 38405,38405
• Citation: 213 Miss. 219,56 So.2d 697
• Parties: SINCLAIR v. FORTENBERRY.
• Court: Mississippi Supreme Court

Page 697

56 So.2d 697

213 Miss. 219

SINCLAIR v. FORTENBERRY.

No. 38405.

Supreme Court of Mississippi.

Feb. 4, 1952.

Satterfield, Ewing, Williams & Shell, Jackson, for appellant.

Roy Goss, Henry Mounger, Columbia, for appellee.

KYLE, Justice.

This ia a primary election contest case growing out of the Democratic Primary election held on August 28, 1951, for the election of a supervisor for District No. 2 of Marion County. Sheldon L. Fortenberry and Nooks Sinclair were the candidates for the office of supervisor. After the election returns had been canvassed it appeared that Fortenberry had received 667 votes and that Sinclair has received 606 votes, which indicated a majority of 61 votes for Fortenberry; and Fortenberry was declared the nominee by the County Democratic Executive Committee.

On September 15, 1951, Sinclair filed a petition with the County Democratic Executive Committee contesting the election of Fortenberry. The committee met on September 27 to consider Sinclair's contest, but adjourned without disposing of the contest. Another meeting was held on a later date; but the committee declined to proceed with the hearing of testimony, and, upon motion duly made, reaffirmed its former action declaring Fortenberry to be the nominee. On October 9 Sinclair filed a petition for a judicial review, as provided for in the Corrupt Practices Act. Chapter 19, Laws of Mississippi Extraordinary Session, 1935. The Chief Justice of this Court designated the Honorable J. F. Guynes, Chancellor of the Fifteenth Chancery District, to hear and determine the contest. The hearing was begun on October 25 and was completed on November 9. The three county election commissioners attended the hearing and took part in the proceedings; but before the hearing had been completed one of the county election commissioners became ill and was unable to attend during the last days of the hearing or to take part in the final determination of the contest.

There were four voting precincts in the supervisor's district. The election contest involves alleged irregularities in the holding of the election and the counting of the votes in the Goss voting precinct and in the Cedar Grove voting precinct. No questions have been raised as to the manner of holding the election or the counting of the votes in the Carley voting precinct or the Hathorn voting precinct.

The special tribunal found that in the Goss voting precinct Fortenberry received 159 votes and Sinclair 87 votes, not including the absent voters' ballots; that Fortenberry received 18 votes cast by absent voters' ballots, and that Sinclair received 10 votes cast by absent voters' ballots. The special tribunal found that the applications for absent voters' ballots and the envelopes with the statutory affidavits had been lost or destroyed and not preserved as required by the statute; and the court held that the failure of the election officers to preserve the envelopes with the statutory affidavits destroyed the integrity of the ballots, and that the 28 absent voters' ballots could not be counted. The court also found that 28 other illegal votes had been cast at the Goss precinct by persons who for various reasons were not qualified to vote in the election.

The court found that in the Cedar Grove voting precinct the total number of votes received by Fortenberry was 304, and the total number of votes received by Sinclair was 108. The total number of ballots cast for Fortenberry, not including the absent voters' ballots, was 245; and the total number of ballots cast for Sinclair, not including the absent voters' ballots, was 92. The court found that six regular ballots, that is to say, ballots other than absent voters' ballots, had been marked in pencil, not indelible, four for Fortenberry and two for Sinclair; and the court held that these ballots should not be counted. The court found that there were three ballots for Sinclair and one for Fortenberry, which were marked 'void' and should not be counted. The court found that there were nine ballots which had not been initialed by any manager of the election, seven of which had been cast for Fortenberry and two for Sinclair; and the court held that these ballots should not be counted.

The court found that the number of absent voters' ballots cast for Fortenberry was 59, and that the number of absent voters' ballots cast for Sinclair was 16. The court found that there were 72 applications for absent voters' ballots in the ballot box of the Cedar Grove precinct when the box was opened, but that the envelopes with the statutory affidavits were not found therein; that the envelopes had been left out of the ballot box, when the counting of the ballots had been completed, and were carried by the manager to the circuit clerk after the counting had been completed. The court held that because of the facts above stated the absent voters' ballots had lost their integrity and could not be counted.

The court found that in the Cedar Grove box there were 87 ballots which had been initialed 'BA' by the initialing manager, Bill Autry, and that there were 240 ballots initialed 'B' by H. O. Breland. The court found that H. O. Breland had been designated as the returning manager for the Cedar Grove box; that prior to the opening of the polls H. O. Breland had been elected by the managers as the initialing manager, but that after the polls had been opened Bill Autry was elected as the initialing manager and served part of the time as initialing manager. The court held that under the Corrupt Practices Act the returning manager was disqualified from serving as initialing manager; and that the 240 ballots initialed by H. O. Breland were illegal and could not be counted.

The court found that the managers of the election in the Cedar Grove precinct had permitted many irregularities to occur in the voting; that 58 persons had been permitted to vote who were not legally qualified to vote in the election; that it was impossible to ascertain how the 58 illegal voters voted, and that it was therefore impossible to determine the will of the voters in the Cedar Grove precinct. The court was unable to say that the irregularities mentioned were deliberately permitted or engaged in by the managers for the purpose of electing or defeating either candidate, so as to justify the throwing out of the entire box. It was not shown for whom the illegal voters had voted; but the court found that the number of illegal votes cast was sufficient to change the result of the election. The court held that to entitle Sinclair to be declared the nominee it was necessary for him to show by proper proof that the illegal votes were cast for his opponent, and that he had failed to make such proof.

The court therefore ordered that the Cedar Grove box be thrown out because of the failure of the election officers to follow the provisions of the statutes relating to the holding of primary elections, and that a special primary election be held in the Cedar Grove precinct and that new managers be appointed to hold the election.

From the judgment of the special tribunal ordering that a new primary election be held in the Cedar Grove voting precinct on November 14, 1951, with the said Nooks Sinclair and Sheldon L. Fortenberry as the candidates for the office of Supervisor of District No. 2, both parties have prosecuted appeals to this Court.

The contestant, Nooks Sinclair, in his assignment of errors contends (1) that the court erred in failing to declare the contestant the nominee of the Democratic Party for the office of supervisor, and (2) that the court erred in failing to order a new primary election to be held in the Goss precinct as well as in the Cedar Grove precinct. The contestee, Sheldon L. Fortenberry, who has filed a cross appeal, in his assignment of errors contends (1) that the court erred in ordering a new election in the Cedar Grove precinct, and (2) that the court erred in failing to find that the contestee had been duly nominated for the office of supervisor in the August 28 primary election.

There are three main points which must be considered by us on this appeal in disposing of the above mentioned assignments of error, and in view of the conclusions that we have arrived at on those points it will not be necessary for us to discuss many of the other details of the findings of the special tribunal.

The first point relates to the findings of the special tribunal with reference to the absent voters' ballots cast in the election held in the Goss precinct and the absent voters' ballots cast in the election held in the Cedar Grove precinct. In the Goss precinct 28 absent voters' ballots were cast and in the Cedar Grove precinct 75 absent voters' ballots were cast. The...