State ex rel. Sowell v. Greer

• Decision Date: 20 October 1930
• Docket Number: 28873
• Citation: 130 So. 482,158 Miss. 315
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. SOWELL v. GREER

130 So. 482

158 Miss. 315

STATE ex rel. SOWELL v. GREER

No. 28873

Supreme Court of Mississippi

October 20, 1930

Division B

1. SCHOOLS AND SCHOOL DISTRICTS. Where chairman of patrons' meeting refused to certify result of school election, county superintendent, if he found true returns were made by secretary, should have accepted his certificate (Hemingway's Code 1927, section 8707).

Laws 1924, chapter 283 (School Code), section 72, Hemingway's Code 1927, section 8707, relating to election of school trustees, provides that chairman and secretary shall forthwith certify result of election to county superintendent and cause certificate thereof to be delivered to him on or before the following Saturday.

2 ELECTIONS.

Elections should be given validity when there has been fair attempt to comply with requirements of law and no fraud was practiced.

3 ELECTIONS.

When will of electors has been fairly expressed, it should control.

4. SCHOOLS AND SCHOOL DISTRICTS.

Where county superintendent failed to ascertain true result of patrons' meeting for election of trustees, and act thereon, where chairman refused to certify result, court could do so (Hemingway's Code 1927, section 8707).

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Tate county, HON. GREEK L. RICE, Judge.

Petition by the state, on the relation of J. R. Sowell, against Lem Greer, in the nature of quo warranto for the purpose of ousting respondent as one of the trustees for the Greenleaf Consolidated School District of Tate county. From a judgment dismissing the petition, relator appeals. Reversed and remanded.

Reversed and remanded.

J. F. Dean, of Senatobia, for appellant.

It has been held repeatedly that even where the certificate is required by law, its absence will not affect the result of the election but the candidates who received the highest number of votes has sufficient color of title to become an officer de facto.

10 A. & E. Ency. Law (2 Ed.) 765; Stinson v. Sweeney, 17 Neb. 309.

It has always been the policy of the courts of this country to give effect and validity to the elections of the people when there has been a reasonably fair attempt to comply with the requirements of the law and no fraud has been practiced or advantages acquired. Mere technical irregularities and omissions in the performance of ministerial duties by election officers should not be permitted to defeat the popular will in any case where there has been an attempt to conform to the requirements of the statute and no injury has resulted to any one.

Marion v. Territory, 1 Okla. 221; Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554; Shines v. Hamilton, 87 Miss. 384; Hunt v. Manor, 136 Miss. 590; 20 C. J. 193.

Forrest B. Jackson, Assistant Attorney-General, for the state.

There is no provision for the calling of the election provided by section 75, chapter 283, Laws of 1924, nor is this omission supplied by any other statute. The section in question does not provide who shall call such election or who shall hold the election, or who shall certify the results of said election. In addition to the failure to provide for the giving of notice of the day and time that the election will be held. This omission is specifically condemned by the case of Hurdle v. State ex rel. Harding, 95 So. 514, 131 Miss. 517.

Argued orally by J. F. Dean, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for the state.

OPINION

Anderson, J.

Appellant, the state, on the relation of J. R. Sowell, filed a petition in the nature of a quo warranto in the circuit court of Tate county against appellee, for the purpose of ousting the latter as one of the trustees of the Greenleaf consolidated school district of that county, and having Sowell declared the legally elected trustee of such school district in the place of appellee. Appellee demurred to the petition, which demurrer was sustained, and the petition dismissed. From that judgment appellant prosecutes this appeal.

The petition, leaving off its formal parts, is in this language:

"That on the first Saturday in March, 1930, same being the first day of March, the patrons of Greenleaf Consolidated School of Tate county, Mississippi, met at the schoolhouse in said district at 2 o'clock, P. M. as required by law and proceeded to elect a chairman and secretary who were respectively Van Thomas and M. H. Massey and Floyd Dossett for the purpose of holding an election to elect a trustee for said Greenleaf Consolidated School for three years. At said meeting the holdover trustees prepared and presented a list of the names of the patrons of the school entitled to vote for trustees. No proxies were allowed or voted. At such election so held as required by law in all respects there were cast by the qualified electors one hundred eleven votes of which number relator, J. R. Sowell, received the sum of fifty-eight votes and his opponent the sum of fifty-three votes, the said J. R. Sowell was duly and legally elected trustee of said district. The chairman of said election when he saw that his candidate for the office of trustee of said school was defeated arbitrarily refused without any cause to sign as required by law the certificate of the election of said J. R. Sowell as such trustee, but said certificate was duly signed by the secretaries and by one of the trustees and was delivered to Mrs. Winnie Clayton Smith, county superintendent of education of Tate county, Mississippi, at her office in Senatobia before the following Saturday but said superintendent of education refused to accept said certificate of the election of relator, holding that said election was void because the chairman of the said election refused to sign same and without any notice by posting three notices in the school district, one of which should be posted at the door of the schoolhouse, within three days after the alleged vacancy occurred, giving the number of the vacancies, the names of those vacating the office of trustee and why and on what date and further to the effect that the patrons of the school district are given notice that they have ten days in which to hold an election to fill such vacancy and without giving the patrons of the district ten days within which to elect a trustee, even if there had been a vacancy, to fill same, she appointed defendant Lem Greer as trustee of said district, without authority of law."

"Relator J. R. Sowell is a person of good moral character, a patron of the school, able to read and write and eligible to vote in trustee's elections as defined by law in order to be qualified to hold such office and relator was fully and legally qualified to hold said office of school trustee of said Greenleaf Consolidated School.

"Therefore, the state of Mississippi on the relation of J. R. Sowell gives the court here to understand and be informed that a certain person, Lem Greer has for six days last past used and still does use the following liberties and franchises without lawful authority, to-wit, the office of school trustee of Greenleaf Consolidated School of Tate county, Mississippi, in said county, which said franchises and privileges the said Lem Greer has usurped and still usurps.

"Wherefore the state of Mississippi by said J. R. Sowell prays that he be debarred of such rights and that relator J. R. Sowell be recognized as the trustee...