State v. Nichols

• Decision Date: 19 January 1914
• Docket Number: 16,989
• Citation: 106 Miss. 419,63 So. 1025
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. JOHN BAKER v. E. S. NICHOLS

63 So. 1025

106 Miss. 419

STATE ex rel. JOHN BAKER v. E. S. NICHOLS

No. 16,989

Supreme Court of Mississippi

January 19, 1914

APPEAL from the circuit court of De Soto county, HON. N. A. TAYLOR Judge.

Quo warranto by the state on the relation of John Baker against E. S. Nichols. From a judgment for respondent relator appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Geo. H Ethridge, assistant attorney-general, for the state.

The facts are sufficiently stated in the briefs of the other attorneys in the case, and as this is a case on demurrer, are sufficiently stated in the information, I desire especially to call the attention to the second paragraph of the allegation of the information "That on November 25 1912, W. P. Harris, sheriff and tax collector of DeSoto county, Mississippi, lost his life, the office deputy in said office, E. S. Nichols, was not at that time a qualified elector of said county. He had not resided in the Hernando precinct where he then lived twelve months, and was not a registered voter of said county."

It will be readily seen that by this allegation, which is full and positive in its terms, and which is admitted by the demurrer that Nichols was not qualified to hold the office of sheriff, or that of deputy sheriff. It follows that so far as the law was concerned the situation was the same as if the sheriff had not had a person in the office at all.

Section 103 of the state Constitution authorizes and requires the governor to fill all vacancies in any office where no other method of filling such vacancy has been provided for by the legislature. Section 4189 of the Code of 1906, provides for filling vacancies in certain cases, but a careful reading of the section will demonstrate that it provides no method for filling a vacancy where the unexpired term exceeds six months until an election can be ordered. The period that exists from the happening of the vacancy until the holding of an election, and the qualification of the officer is nowhere provided for. Therefore under the above section of the Constitution it is the duty of the Governor to fill such vacancy until a person, qualified under the law to hold office is elected and shall qualify. Section 3487 does not prevent a vacancy occurring, nor would the fact that a duly qualified and regularly appointed deputy was in the office, prevent the governor at once exercising the right of appointment to the vacant office. In fact the sureties on the bond of the deceased officer would not be liable for the acts of the deputy of the deceased officer after the governor had appointed and the appointee had qualified. In the present case the bond of the deceased officer is not liable for the default of the deputy after Baker had qualified.

Under the facts stated in the information an election was not held until the 2nd of January, 1913, which was more than a month after the death of the regular sheriff. Under the requirements of law this was about as speedy as an election could be held in any case. Therefore, the principle contended for by the appellant is important to the public. The allegations of the information further show that when the election was held that the said Nichols could not vote in the election because he had not been registered four months as required by section 251 of the stage Constitution. He was not at the time of the election a qualified voter under and within the meaning of section 250 of the Constitution. Bew v. State, 71 Miss. 1, 13 So. 868; State ex rel. v. Kelly, 81 Miss. 1. Under these authorities a man does not become a qualified elector until four months shall have expired after he has registered as such. Section 251 of the Constitution prohibits the contention of the appellee. The allegations in the information show that the appellee was registered December 2, 1912, seven days after the death of his principal and as section 242 of the Constitution requires him to make oath that he has, in good faith, been a resident of the precinct for twelve months it necessarily follows that during that period of time he could not have been a qualified voter of any other precinct. A person cannot, legally, be a resident of two different places at the same time. For a full discussion of the law bearing on residence as qualification to vote, see 10 Am. & Eng. Ency. Law, p. 596, et seq.: Counsel for the appellee seem to think if this construction were adopted that it would result in disqualifying many of the state and county officers. I do not think any such result would follow. It is conceded by all the authorities that a mere temporary removal for business or pleasure would not result in loss of citizenship or the right of suffrage where animo revertendi exist. Whenever, therefore, it becomes necessary for an officer to make a temporary removal for the purpose of attending to official duty he could move to the county site or any other point without losing his right to vote in the precinct of his residence. Such a move is not a change of residence in a legal sense at all. The residence is the place where a person expects to return when he is away from home. The argument of the appellee is vain in this case because Nichols did remove from his former precinct, and in fact and intention became a resident of Hernando, Mississippi, and cannot now controvert that fact because he has sworn when he registered that he had done so bona fide. The ground of the demurrer which undertook to say that Baker could not raise the question of the want of qualification of Nichols is utterly without merit because the suit is brought by the district attorney in the name of the state and is signed in that capacity.

I submit that there is no sound reason why Baker could be alleged to be entitled to the office. The state may not only show that the holder is not legally qualified and is an usurper but it may also allege and prove that some other person is entitled to hold the office. This allegation is proper especially as it would save ordering an election or making a temporary appointment. The allegation could not prejudice the appellee in any respect. The suit was heard in this case in the court below at a time when Nichols was not qualified and could not have been qualified. The principle contended for is important as the court below declined to recognize the governor's right to fill a vacancy. Conditions may easily arise where the prompt exercise would be of the utmost public importance. The case should therefore be reversed.

J. B. ECKLES, for appellant.

A deputy sheriff is an officer. See section 4664, Code 1906, under the terms of which he must take and subscribe an oath "faithfully to execute the office of deputy sheriff."

"Where provision is made by statute for the position of deputy, such deputy is regarded as a public officer. 29 Cyc. 1395. See, also, Railroad Co. v. Bolding, 69 Miss. 255. In Wimberly v. Boland, 72 Miss. 241, Mr. Chief Justice COOPER says of deputy circuit clerk Hiram Creekmore: "That, by reason of his minority, he could not have been lawfully appointed as such deputy, is not material, for a de facto officer is one who is such in fact but not in law, and minority is not different from any other legal disqualification."

Was appellee a qualified elector on the 25th day of November, 1912? The petition says not; and on this, demurrer must be taken as true. Could appellee have been a qualified elector on the facts disclosed by the petition? It is respectfully submitted that he could not, for the petition states that "on the 25th day of November, 1912 . . . Nichols (appellee) was not at that time a qualified elector of the county. He had not resided in the Hernando voting precinct where he then lived, twelve months and was not a registered voter of said county." And again, the petition says: "The said Nichols had not resided in the Hernando precinct one year until December, 1912."

Section 241 of Constitution declares who are "qualified electors." Attention is directed to the clause in this section, "and who is duly registered as provided in this article." That is as provided in article 12, this article includes section 251, which provides that registration shall be good for an election to be held not less than four months after such registration.

Appellee was not a qualified elector on November 25, 1912, at the time of Harris' death; nor on December 2nd, at the time when Baker, relator, made demand upon him for the office, after qualifying under appointment by the governor; nor on January 2, 1913, at the time he received a plurality of the votes cast in an attempted election to fill the office for the unexpired term.

He was therefore during all this time merely a de facto officer and not entitled to hold the office against the appointee of the governor.

It would seem that all questions as to this proposition has been definitely set at rest by this court, as shown by the opinion of Mr. Chief Justice CAMPBELL in the case of Bew v. State, 71 Miss. 1. The attention of the court is specially called to the second paragraph on page 8.

Lauderdale & Lauderdale and L. J. Farley, for appellee.

In the discussion of this question the first thing that presents itself is: Was there a vacancy in the office of sheriff at the time German Baker was appointed to said office within the contemplation and true construction of section 103 of our Constitution, which is as follows: "In all cases, not otherwise provided for within this Constitution, the legislature may determine the mode of filling all vacancies in all offices, and in cases of emergency, provisional appointment may be made by the governor to continue until the vacancy is regularly filled; and the legislature shall provide suitable compensation for...