Smith v. Deere

Decision Date20 December 1943
Docket Number35532.
Citation195 Miss. 502,16 So.2d 33
CourtMississippi Supreme Court
PartiesSMITH v. DEERE.

Stevens & Stevens, of Jackson, and T. B Davis, of Columbia, for appellant.

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

ANDERSON, Justice.

Appellant Smith and appellee Deere were candidates in the party primary election in August of the present year for the nomination for the office of supervisor of one of the supervisor's districts in Walthall County. No nomination was made in the first primary. In the second primary, which was held on August 24th, Deere was declared nominee by a majority of one vote. Smith contested the nomination under the authority of the Corrupt Practices Act, Chapter 19, Laws of 1935, Ex.Sess. The contest, as provided by that statute was tried by a court composed of one of the judges of the state and the three election commissioners of the county. The result was a judgment declaring that Deere was the party nominee and his name should go on the ticket as such in the general election to be held on November 2d. From that judgment, Smith prosecutes this appeal.

One of the grounds of the contest was that one J. Q. Norris who voted for Deere was not a legal voter because he had not been a resident citizen of the state for two years prior to the general election. Section 241 of the Constitution provides among other things, that residence in the state for two years next before the general election shall be one of the qualifications to vote. Section 3A of the Corrupt Practices Act contains, among other things, the same provision. In the second primary, Smith challenged Norris' right to vote upon the ground that he had been a resident of the state less than two years before the general election, also upon a ground unnecessary to mention. His objection was overruled. At the meeting of the executive committee, Smith made the same claim, which was overruled. Thereupon, the matter was tried before the special tribunal referred to, which held that Norris was a legal voter. There was no substantial conflict in the evidence as to the issue. Norris had a wife without children and was a resident citizen of the State of Louisiana for several years. In the summer of 1941, he decided to change his home and residence to the State of Mississippi in Walthall County. During the summer, he bought a tract of land in Walthall County for the purpose of building a home, mercantile store and a filling station. This place was only about twelve miles from his Louisiana home. He proceeded at once to build the residence, store and filling station. They were completed and he moved into the home on December 27, 1941. He thereupon registered as a voter and paid the required poll tax. It will be observed that when he purchased the land in this state and made up his mind to build a home thereon, and when completed move into it, it was more than two years before the general election, but when he actually moved into the home, it was less than two years before that election.

We are of the opinion that the special tribunal erred in holding that Norris was a qualified elector. In Hairston v. Hairston, 27 Miss. 704, 60 Am.Dec. 530, the court quoted with approval Judge Story's definition of the word "domicile" as follows: "'That is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning.' Confl.Laws, p. 39, § 41. This is perhaps the most comprehensive and correct definition of the term which could be given." 28 C.J.S., Domicile, pp. 30-32, § 13, states the rule thus: "A domicile continues until another is acquired; before a domicile can be considered lost or changed, a new domicile must be acquired by removal to a new locality with intent to remain there, and the old domicile must be abandoned without intent to return thereto." It is manifest that Norris' status did not meet these requirements.

Deere contends, however, that Smith was barred from instituting the proceeding before the special judicial tribunal because of delay in doing so. Section 15 of the Corrupt Practices Act provides, among other things, that the proceeding before that tribunal shall be begun "forthwith." As stated, the election was to be held on November 2d. The petition for a judicial review was filed October 14th. The hearing was held on October 21st, and judgment rendered on October 22d, eleven days before the general election. The evidence shows that the delay grew out of and was the result of the following state of affairs: At the first meeting of the county executive committee, Smith urged alone the disqualification of Norris as a voter. The committee decided against him. At that meeting, the committee offered him an opportunity to examine the contents of the ballot boxes if he so desired. He declined the offer. Afterwards, Smith claimed that he had discovered other irregularities in the voting that he did not know of before. He set them out before the county executive committee and asked permission to examine the...

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24 cases
  • Shannon v. Henson
    • United States
    • Mississippi Supreme Court
    • December 3, 1986
    ...meaning depends upon consideration of the surrounding facts and circumstances and varies with each particular case. Smith v. Deere, 195 Miss. 502, 507, 16 So.2d 33, 35 (1943); Turner v. Henry, 187 Miss. 689, 695-96, 193 So. 631, 632 (1940); Harris, 187 Miss. at 502-04, 193 So. at The Court ......
  • Pearson v. Parsons, 58731
    • United States
    • Mississippi Supreme Court
    • March 8, 1989
    ...meaning depends upon consideration of the surrounding facts and circumstances and varies with each particular case. Smith v. Deere, 195 Miss. 502, 507, 16 So.2d 33, 35 (1943); Turner v. Henry, 187 Miss. 689, 695-96, 193 So. 631, 632 (1940); Harris [v. Stewart,] 187 Miss. at 502-04, 193 So. ......
  • Hale v. State
    • United States
    • Mississippi Supreme Court
    • July 24, 2015
    ...had been abandoned as of November 2013. “[T]he old domicile must be abandoned without intent to return thereto.” Smith v. Deere, 195 Miss. 502, 16 So.2d 33, 34 (1943) (emphasis added) (internal citations omitted); see also McLeod v. Allstate Ins. Co., 789 So.2d 806, 810 (¶ 14) (Miss.2001) (......
  • Cook v. Brown, 2003-EC-02515-SCT.
    • United States
    • Mississippi Supreme Court
    • February 3, 2005
    ...to mean as little as four days (e.g., Shannon v. Henson, 499 So.2d 758 (Miss.1986)) or as many as forty-one days (Smith v. Deere, 195 Miss. 502, 16 So.2d 33, 35 (1943)), depending on the circumstances of the case. Pearson v. Parsons, 541 So.2d 447, 450 The trial court then set-out the argum......
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