State ex rel. Brewer v. Abbay

• Decision Date: 19 October 1903
• Citation: 35 So. 153,82 Miss. 559
• Court: Mississippi Supreme Court
• Parties: STATE EX REL. EARL BREWER, DISTRICT ATTORNEY, v. RICHARD F. ABBAY ET AL. [*]

35 So. 153

82 Miss. 559

STATE EX REL. EARL BREWER, DISTRICT ATTORNEY, v. RICHARD F. ABBAY ET AL. ^[*]

Supreme Court of Mississippi

October 19, 1903

FROM the circuit court of Tunica county. HON. SAMUEL C. COOK Judge.

The state, on the relation of Earl Brewer, district attorney, was the plaintiff in the court below. Richard F. Abbey, chairman and other members of the Democratic Executive Committee of Tunica county, were defendants there. The suit was a proceeding for a mandamus to compel Chairman Abbay and the other members of the committee, appellees, to reassemble and recount the votes which had been east at a primary election in Tunica county for candidates for the democratic nomination to the office of county treasurer of said county.

At said election there were but two candidates for the nomination to said office, one Tucker and one Robertson. The petition averred that Tucker was ineligible to receive said nomination because he was a member of the executive committee of the democratic party, which was holding the primary election that after the election the democratic executive committee met, though it is not averred that Tucker attended the meeting, and that a majority, without canvassing the votes cast, had accepted the returns of the election managers and had adjudged that Tucker received more votes at the primary election than Robertson, and had declared Tucker to be the democratic nominee for said office. The petition prayed that the democratic executive committee of the county be compelled to reassemble and investigate the matter of fact as to whether Tucker was ineligible to be nominated because he was a member of the democratic executive committee of the county and if it should be found that he was ineligible, that the committee then be required to declare Robertson the democratic nominee for said office. To this petition there was a demurrer on the grounds following: First, that the committee was shown to have already performed its duties. Second, that the committee had no power to reject votes which were counted by the election managers, and third, that there is no law making votes cast for an executive committeeman illegal. The court below sustained the demurrer and rendered a final judgment dismissing the petition and the plaintiffs appealed to the supreme court.

Judgment affirmed.

Calvin Perkins, for appellant.

The record in the case at bar shows that there were only twelve executive committeemen, and there were more than twelve county offices for which candidates were to be nominated. Now, if one executive committeeman had the legal right to be a candidate for nomination to an office at that election, all of them had that right, and what a travesty it would be on the efforts of the legislature to "secure fairness in party primary elections" if it should turn out that it has passed a law which permits this to be done.

When the primary election law provides that the county executive committee shall discharge the functions imposed upon the election commissioners, and makes that provision in the same section of the act in which it had already been provided that the primary election "shall be governed and regulated by the election law," it thereby, in terms, says that both of the regulations contained in section 3634 of the code shall be applicable to the county executive committeemen.

It is altogether unnecessary, for the solution of the question under discussion, to determine whether the section of the code named is a penal statute or not. If it be a penal statute and applies a penalty to commissioners of election, then, in the language of section 1 of the primary election law a like penalty is placed upon executive committeemen, because the words of that act are that executive committeemen "shall be subject to all the penalties to which county election commissioners are subject." If it be not a penal statute, then it must be liberally construed, because looking at "the entire legislation on the subject-matter, its policy and reason, as well as the text," it is within the "scope and object, spirit and meaning" of the primary election law that executive committeemen shall be ineligible as candidates, and that all votes cast for them shall be illegal and shall not be counted. Or, to put it more succinctly, if the section of the code under consideration be a penal statute, it is within both the letter and the scope of the primary law, and if it be not a penal statute, then it is within the scope, although not within the leter, and in either event must be construed as applicable to the executive committee.

Even the election commissioners, with their restricted powers, were held in Oglesby v. Sigman, 58 Miss. 502, to be authorized to go behind the returns to the extent of rejecting any ballots which, upon their face, appeared to be illegal, and most clearly, under section 14 of the primary election law, the executive committeemen are not mere ministerial officers, and not merely quasi judicial officers, but are authorized and required to hear evidence whether unauthorized persons have been permitted to vote, whether illegal ballots have been cast, and whether any act has been done in relation to the primary election by which any fraudulent result has been obtained, and after such hearing to correct the wrong. "To hear evidence and correct the wrong" is a strictly judicial function, and by said section 14 the county executive committee is made a court with plenary powers as to the subjects in that section enumerated--viz.: whether unauthorized persons have been permitted to vote, illegal ballots cast, or any act done with regard to the primary election by which any fraudulent result has been obtained. Not only is it a court with full powers to hear and determine, but it is also made the court of last resort--no appeal is given.

But it is argued that the petitioner was not entitled to the writ of mandamus, because it appeared on the face of the petition that the executive committee had canvassed the returns and determined and declared the result. The allegations of the petition are very distinct and clear that there was no canvass of the returns.

The error of counsel for appellees, on this point, consists in assuming that when section 6 of the primary election law provides that the executive committee "shall receive and canvass the returns," the word "returns" has reference only to "the result of the election in the several election districts, certified and signed by the managers and clerks." There is nothing in the primary election law itself defining the meaning of the word "returns" in this context, but as that election is to be ...