Ulmer v. Currie

• Decision Date: 10 December 1962
• Docket Number: No. 42604,42604
• Citation: 245 Miss. 285,147 So.2d 286
• Parties: J. E. ULMER, Jr. v. Homer CURRIE.
• Court: Mississippi Supreme Court

Page 286

147 So.2d 286

245 Miss. 285

J. E. ULMER, Jr. v. Homer CURRIE.

No. 42604.

Supreme Court of Mississippi.

Dec. 10, 1962.

W. J. Blass, Wiggins, for appellant.

W. W. Pierce, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellee.

ETHRIDGE, Justice.

This is an election contest under the Corrupt Practices Act of 1935. Miss.Code 1942, Rec., Secs. 3158-3195. It involves the Democratic primary election, held on June 5, 1962, for Circuit Judge of the Thirteenth Circuit Court District. The district is composed of four counties, Smith, Simpson, Covington and Jasper. The two candidates were Honorable Homer Currie of Raleigh, in Smith County, the incumbent circuit judge, and Honorable J. E. Ulmer, of Bay Springs, in Jasper County.

According to the original canvass by the State Democratic Executive Committee, there were 8,720 votes cast in the election. Currie received 4,453, and Ulmer 4,267 votes, thus giving Currie a majority of 186 votes on the original canvass. Subsequently Ulmer made a timely request for examination of ballot boxes, with counter- requests by Currie. In July Ulmer filed with the State Democratic Executive Committee a petition contesting the election. Currie answered and cross-petitioned, contesting ballots in certain boxes.

The County Democratic Executive Committees of three counties, Smith, Simpson and Covington, held separate hearings, found there was no fraud, and declined to make any substantial changes in their original returns. The Democratic Executive Committee of Jasper County reported that there were no valid ballots cast in any precinct except one, with forty votes, because of failure to comply with mandatory provisions of the statute, and recommended a new primary be called in that county.

There are ninety precincts in the Thirteenth Circuit Court District. On September 8, 1962, the State Democratic Executive Committee considered the contest. It found that, because of failure to comply with several mandatory provisions of the Corrupt Practices Act, the elections held in forty-eight of the ninety precincts of the district were without effect and void. There was no showing of fraud, but failure to comply with the statute 'in more than half of the precincts in the district make it impossible for this committee to say that the remaining vote constitutes a true expression of the public will and a new election should be called and properly held in the forty-eight void precincts * * *.' It was directed to be conducted on September 13, 1962, although it was not held but was superseded, after Currie took an appeal to the Circuit Court of Hinds County, from the order of the State Committee.

On October 20, 1962, the Circuit Court reversed the order of the State Committee, dismissed Ulmer's contest of the election, and declared Currie the Democratic nominee. Judge Currie's name therefore was on the ballot as the Democratic nominee in the general election in November 1962, and as the Democratic nominee, was elected.

The circuit judge not only held that forty-four boxes were invalid for various infractions of the required provisions of the law (as both sides agreed), but also ruled that ten other boxes were invalid. In other words, out of a total of ninety precincts, all of the votes in fifty-four of them were void because of failures to comply with the statutes. Only thirty-six boxes contained valid ballots. Currie does not cross-appeal from these findings of the circuit court.

Nevertheless, the circuit court reversed the State Democratic Executive Committee and declared Currie the nominee. It held that, after all of the ballots in fifty-four of the ninety boxes were declared void, a count in the remaining thirty-six boxes reflected that Currie received a majority of 259 votes; and 'regardless of the large number of illegal votes', there were not enough of them to change the election or the cast doubt on it.

The ballots cast in the remaining thirty-six, valid boxes aggregated 3,707 votes. The total vote in the entire district was 8,720. Assuming all of the votes cast in the thirty-six valid boxes to be good, there were only 3,707 valid ballots, as against 5,013 which were invalid. In other words, only 3,707 out of a total of 8,720 votes were valid. Five thousand and thirteen were void. Hence approximately 57.5 per cent of the total vote in the election was void, because of failure of election officers in the precincts in question (fifty-four out of ninety), to comply with the mandatory provisions of the Corrupt Practices Act. Conversely, only 42.5 per cent of the total votes in the Democratic primary of June 5, 1962, for circuit judge, could be counted. The remainder were void.

In the fifty-four invalid boxes, material departures from the Corrupt Practices Act occurred in various ways: Ballots were not initialed by the initialing officer. The initialing officer and the receiving officer or custodian were one and the same person. Voters did not sign a receipt book for their ballots. Code Sec. 3164. These provisions are mandatory.

This is a plain case for application of the rule summarized in May v. Layton, 213 Miss. 129, 55 So.2d 460, 56 So.2d 89 (1952). That involved a primary election for the board of supervisors. The Special Tribunal held void 836 votes out of a total vote in the district of 2,213. There was no finding of fraud but the judgment was based upon the failure of election managers to initial the regular ballots, of regular voters to sign receipt books therefor, and upon defects in the method of delivery of absentee ballots. Thirty three per cent of the total vote was declared invalid. It was there said:

'Hence the result of excluding such a large proportion of the total votes cast in the district is to make it impossible for one to reasonably say that the result arrived at by the Special Tribunal represented the will of the voters, because the votes of more than one-third of the voters of that district were held void for failure to comply with mandatory provisions of the statutes. * * *

'* * * it is manifest that these above-stated failures to comply with the mandatory provisions of the statutes require that practically all of the votes in all four of the boxes in question must be held void.

'As was said in Birggs v. Gautier, 1943, 195 Miss. 472, 485, 15 So.2d 209, where there is a total departure from the mandatory provisions of the statute, and it is not possible to ascertain the will of the electors, because a substantial portion of the votes were void, a new election should be ordered for the purpose of ascertaining the voter's choice. See also Chinn v. Cousins, 1946, 201 Miss. 1, 27 So.2d 882; Code, Sec. 3167.'

In Walker v. Smith, 213 Miss. 255, 56 So.2d 84, 57 So.2d 166 (1951), also a contest for the board of supervisors, the main issues centered around absentee voter ballots. It was said the burden of proof was on the contestant to show that the illegal, absentee voter ballots would have changed the result, and he did not do that. Hence the contestee was declared the nominee. On suggestion of error, contestant asserted that under Hayes v. Abney, 186 Miss. 208, 188 So. 533 (1939), he did not have this burden, but needed to show only that there were enough illegal votes to change the result or leave it in doubt. This contention was rejected on the facts. This rule was contrasted with a supplementary, additional doctrine. We think the latter is applicable to the instant case:

'A competing principle, set out in Code of 1942, Sec. 3167,...