State ex rel. Bourgeois v. Laizer
| Decision Date | 06 March 1899 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI, EX REL. OLUS M. BOURGEOIS, v. EDWIN LAIZER |
March 1899
FROM the circuit court of Hancock county, HON. THADDEUS A. WOOD Judge.
The state, ex. rel., Bourgeois, appellant, was the plaintiff in the court below; Laizer, appellee, was defendant there. The opinion states the case.
The section of the code discussed by counsel is as follows
Judgment reversed and demurrer overruled.
D. B. Seal and J. I. Ford, for appellant.
The question raised by the demurrer to the petition is, whether appellant was required as a condition precedent to his right to contest, by a quo warranto proceeding, with the appellee the question of his election to the office of mayor of Waveland, to first go through the formality of qualifying, or attempting to qualify, as provided by § 3052 of the code. This statute does not apply to municipal officers at all, but to state and county officers. General provisions of the election and registration laws of the state, and worded similarly to this statute, were held not to apply to municipal elections, unless especially incorporated in the municipal charter. Easly v. Badenhausen, 59 Miss. 580; Harrison v. Green, 59 Miss. 453.
The town of Waveland is a municipality operating under a charter independent of the code chapter on municipalities, and there being no provision in its charter requiring qualification by a certain day as a condition precedent to the right to hold an office, the appellant is not required to show that he did qualify, or attempt to, as a condition to his right to institute such suit. But we contend that even though § 3052 does embrace municipal officers, that it has no application to a case of this kind where a man's right to the office is denied, and where it is conceded that on the face of the returns that the contestee had a prima facie right to the office. This provision of the law is intended to enjoin upon a man holding a certificate of election the necessity of being prepared and equipped to enter upon the discharge of the duties of the office upon the day fixed by the law for the beginning of his term, so that the proper authorities may be advised whether a new election will be necessary, and as stated by this court in the case of Pearson v. Wilson, 57 Miss. 848, where an election is contested the requirement to qualify within a certain time does not apply. The law never requires or contemplates a vain thing, and what would be the sense of requiring a man to attempt to do something that he could not possibly accomplish. No officer, or set of officers, charged with the duty of accepting and approving official bonds would, or could, accept and approve one bond from the person holding a certificate of election, and also the bond of another, who merely asserts a claim to the office. Sec. 3522 of the code, in regard to the trial of title to an office under a quo warranto proceeding, provides that if the trial result in favor of the relator, "he shall be entitled to the office upon his qualifying according to law, " etc. If the relator was required to qualify, or a attempt to qualify, before suing, this § 3522 would read that "he should be entitled to the office, provided he had qualified, or attempted to qualify, according to law." So we submit that § 3052 was never intended to embrace persons who hold a certificate of election and prima facie right to the office, but applies only to persons who possess the evidence of his title to the office, in the shape of a commission or certification of election.
Bowers, Chaffe & McDonald, for appellee.
We apprehend that the court will have very little difficulty in determining that § 3052 of the code of 1892 applies to municipal as well as county and state officers. The words of this statute are, "If any person elected to any office shall fail to qualify, " etc., "a vacancy in said office shall thereby occur . . . and it shall be filled in the manner prescribed by law for filling vacancies in such office, unless the failure to qualify arises...
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