Stats ex rel. v. Jones

• Decision Date: 04 January 1937
• Docket Number: 32540
• Citation: 177 Miss. 598,171 So. 678
• Court: Mississippi Supreme Court
• Parties: STATS ex rel. v. JONES

171 So. 678

177 Miss. 598

STATS ex rel. v. JONES

No. 32540

Supreme Court of Mississippi

January 4, 1937

Division B

1 OFFICERS.

Under statute prohibiting commissioner of election from becoming candidate for office, election of member of board of commissioners of levee district held not invalid because member had previously been appointed election commissioner where he took no oath of office or active part in proceeding of election commission and resigned as election commissioner on being informed that petition for his candidacy could not be allowed while he remained member of election commission and where there was no other candidate whose rights might have been affected by member's action (Code 1930, sec 6213).

2 ELECTIONS.

Election of member of board of commissioners of levee district held not invalid because petition lo place name of member on ballot was not acted on by cuorum of election commission where petition was in due form and was properly filed with chairman of commission.

3. ELECTIONS.

In matter preliminary to an election, the law is concerned with result and not with details by which result is reached.

4. OFICERS.

In quo warranto proceedings to declare member elected to board of commissioners of levee district to be ineligible to hold office, fact that member's property taxes were allegedly delinquent at time of election, held not to require member's removal, where before proceeding was brought constitutional amendment was adopted withdrawing previous disqualification of electors because of nonpayment of property tax (Const, sec. 241, as amended in 1935, see Laws 1935, Ex. Sess., chap. 117).

5. OFFICERS.

Where constitutional amendment removes or strikes out that which previously constituted ineligibility of officer, ineligibility is measured by amendment and not by former constitutional provision.

HON. S. F. DAVIS, Judge.

APPEAL from the circuit court of Washington county HON. S. F. DAVIS, Judge.

Proceeding by the State on the relation of the District Attorney, against Howard Jones. The petition was dismissed on its merits, and the State appeals. Affirmed.

Affirmed.

H. P. Farish and Ernest Kellner, both of Greenville, for appellant.

The proof shows that Howard Jones was an election commissioner of Humphreys county at the time of his pretended election as levee commissioner for said county.

Section 6213, Code of 1930.

Wherever the Constitution or the statute provides, as it does in Mississippi, that unless otherwise provided an officer shall hold office until his successor is elected and qualified, the courts generally hold that the resignation, even though accepted, is not effective until the successor is elected and qualified.

95 A.L.R. 215; Badger v. United States, 93 U.S. 559, 23 L.Ed. 991.

Applying this rule to the facts in this case would show without contradiction that J. D. Vincent, the successor in office to the defendant, Howard Jones, as ticket commissioner of the election commission of Humphreys county, was not made until June 6, 1934, one day after the pretended election of file defendant as levee commissioner for Humphreys county on June 5, 1934. The votes cast for the defendant, Howard Jones, in said election, under section 6213, Mississippi Code of 1930, were illegal and improperly counted.

The proof shows that the petition to place the name of Howard Jones on the ballots used in the election of a levee commissioner for Humphreys county was not acted upon by a quorum of the election commission of said county.

Section 6231, Code of 1930; Ruhr v. Cowan, 146 Miss. 870.

There was no competent evidence that Howard Jones was eligible to the office of levee commissioner for Humphreys county, but, on the other hand, the finding of the election commission of Humphreys county, as shown by the poll book, that Howard Jones was delinquent in 1933 is conclusive, in this proceeding, that he was not eligible to said office.

Section 6199, Code of 1930; Ruhr v. Cowan, 146 Miss. 870; Haley v. State, 108 Miss. 899; Steverson v. McLeod Lbr. Co., 120 Miss. 65; Childress v. Carley, 92 Miss. 571; Wigmore on Evidence, page 3457, sec. 2450; Calvert v. Crosby, 163 Miss. 177.

Even if competent in this proceeding to inquire into the qualification of Howard Jones to hold the office of levee commissioner for Humphreys county, the evidence is overwhelming that said Howard Jones was not qualified to hold said office either at the time of his pretended election or induction into said office.

The obvious purpose of section 6213, Code of 1930, iq that, as a matter of fairness and justice, an election commissioner, who passes upon the qualifications of persons entitled to vote in an election or not, has power to place the name of a candidate on the ballots or not, is charged with the conduct of elections, and has power to determine the outcome of elections, should not be permitted to be a candidate in any election with regard to which he has acted as an election commissioner.

Sublett v. Bedwell, 47 Miss. 266; section 6213, Code of 1930.

The finding of the election commission that appellee was delinquent for 1933 is a final and conclusive adjudication of a judicial body which cannot be assailed by appellee in this a collateral proceeding.

Ruhr v. Cowan, 146 Miss. 870; Calvert v. Crosby, 163 Miss. 177.

The election commission is a judicial body, and after adjournment, its acts become final, and the remedy of the person affected and aggrieved thereby is by appeal.

Freeman on Judgments (5 Ed.), page 602; Kelly v. State, 79 Miss. 168; State v. State Leizer, 77 Miss 146.

We deny that section 241 of the Constitution, prior to the amendment of 1935, providing for the qualification of electors, construed with section 250 of the Constitution providing that qualified electors and none others shall be eligible to office, imposes a penalty or forfeiture. Appellee says that it does, but cites no authorities to support the statement. A penalty is a pecuniary punishment inflicted by law for its violation, which may or may not be a crime, and usually may be recovered in a civil action.

21 R. C. L. 207; 12 R. C. L. 124.

An office or the right to hold office is not property in any sense of the word but is a privilege in the gift of the state upon reasonable conditions for the public good.

22 R. C. L. 376.

Appellee contends that, even though he was disqualified for the non-payment of personal taxes in 1933, the 1935 amendment of section 241 of the Constitution, eliminating the payment of all taxes except poll tax as a qualification of an elector, removed appellee's disqualifications. To support this contention appellee relies solely on the case of Cooper v. Lewis, 88 A.L.R. 808, 170 S.E. 68. The facts in the Cooper case are not almost identical with the facts in this case, as appellee says, but are quite dissimilar.

The rule in Mississippi is based upon the meaning of the word "eligible" as used in the Constitution. In the case of Roane v. Matthews, 75 Miss. 94, this court says at page 100 of the report. "The 'eligibility to office' meant in section 250 is eligibility at the time of election, and, unless then eligible by the payment of taxes, a candidate cannot become so by paying the taxes afterwards."

Taylor v. Sullivan, 22 Am. St. Rep, 729; State ex rel. Plunkett v. Miller, 162 Miss. 149.

Appellee was not capable of being elected to the office which he claims and therefore was not elected, and there is a vacancy in that office.

State ex rel. Jones v. Lyons, 145 Miss. 163; State ex rel. Mitchell v. McDonald, 164 Miss. 405.

It is settled by numerous decisions of this court that the power exists and it is the duty of this court in proper cases to review and reverse the refusal of a trial court to sustain a motion to set aside a verdict when it is contrary to the overwhelming weight of the testimony.

M. & O. R. Co. v. Bennett, 127 Miss. 413; Universal Truck Loading Co. v. Taylor, 174 Miss. 353.

W. T. Wynn and D. S. Strauss, both of Greenville, and Sillers & Roberts, of Rosedale, for appellee.

Section 6213 does not prevent an election commissioner from being a candidate for office. It only provides that an election Commissioner shall not be a candidate for any office at any election with reference to which he has acted as an election commissioner. In other words, an election commissioner could be a candidate for an office and could be legally elected, provided he did not act as an election commissioner in the election.

Section 6177, Code 1930, provides for the appointment of election commissioners and their term of office. It also provides certain qualifications before a commissioner can take possession of the office and act as such. The uncontradicted proof establishes the fact that appellee did not "take and subscribe the oath of office prescribed by the constitution, and file same in the office of the Chancery Court." Therefore, appellee failing to qualify, was never an election commissioner, but on the contrary a vacancy existed.

Section 2884, Code of 1930.

The taking, subscribing and filing of the oath of office is a condition precedent to the right to enter upon the office.

Andrews v. Covington, 69 Miss. 740, 13 So. 853; State v. Lyon, 145 Miss. 163, 110 So. 243.

We have shown that appellee was never an election commissioner of Humphreys county. If, however, he ever had any right or title to the office of election commissioner (and he did not), he resigned from that office by his letter addressed to the Governor and dated June 1, 1934.

Commonwealth of Kentucky, ex rel. Wooten v. Berninger, 255 Ky. 451, 74 S.W.2d 932, 95 A.L.R. 213.

Section 6213 of the 1930 Code prescribes an additional qualification to hold public office and is...