Warren v. State ex rel. Barnes

• Decision Date: 30 May 1932
• Docket Number: 30044
• Citation: 163 Miss. 817,141 So. 901
• Court: Mississippi Supreme Court
• Parties: WARREN v. STATE ex rel. BARNES

141 So. 901

163 Miss. 817

WARREN v. STATE ex rel. BARNES

No. 30044

Supreme Court of Mississippi

May 30, 1932

Division A

QUO WARRANTO.

As respects remedy by quo warranto, declaration of election commissioners that certain party received majority of legal votes cast at election and was duly elected could be contested only in accordance with statute providing for election contest (Code 1930, section 6258).

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Covington county, HON. D. M. ANDERSON Judge.

Proceeding by the state, on the relation of Willis J. Barnes, against W J. Warren. From a judgment for relator, respondent appeals. Reversed, and petition dismissed.

Reversed and petition dismissed.

E. L. Dent, of Collins, and Stevens & Heidelberg, of Hattiesburg, for appellant.

Section 6258, Code of 1930, provides that any person desiring to contest the election of another person may, within twenty days after an election, file a petition in the office of the circuit clerk of the county, and sets forth the method by which the contest shall be tried. No contest was filed under this statute in the case at bar, and the finding of the election commissioners that the appellant Warren, had received a majority of the legal votes cast was final and conclusive unless attacked by contest under this statute.

Loposser v. State ex rel. Guase, 70 So. 345, 110 Miss. 240.

The provisions in the election law are exclusive, and one claiming that the commissioners erred in counting the votes, and that he should have been inducted into office, cannot bring quo warranto.

Loposser v. State ex rel. Gause, 70 So. 345, 110 Miss. 240.

On election contest, the sole issue to be decided was who had received the greatest number of legal votes.

Weisinger v. McGehee, 134 So. 148.

T. J. Wills and Paul B. Johnson, both of Hattiesburg, for appellee.

Why would appellee contest his own election? What was there for him to contest? Had the election commissioners thrown out the six hundred forty-seven votes cast for appellee or refused to tabulate them and certify the votes on the official returns, then it would have been necessary for him to have contested the action in so doing. On the official returns as is shown the election commissioners certified that Warren received four hundred sixty legal votes, and that Barnes received six hundred forty-seven legal votes. The voter wrote Warren's name on the ticket and voted for him. Under the authority of McKenzie v. Boykin, 111 Miss. 256, 111 So. 382, these votes were illegal and could not be counted, but why would Barnes contest the votes counted for Warren when they were one hundred eighty-seven short of the number of legal votes that had been accorded to him and duly certified by the election commissioners.

OPINION

Smith, C. J.

On the 6th day of January, 1932, the relator filed a petition in the court below, alleging, in substance, that he had been duly elected sheriff of Covington county at the general election on the 3d day of November, 1931, but that the appellant, William J. Warren, is in possession and discharging the duties of the office, and refuses to surrender it to him, and prayed that Warren be ousted from office, and that he (the relator) be put in possession thereof. The judgment of the court below was in accordance with the prayer of the bill.

The record discloses that the appellant and the relator were candidates at the Democratic primary election, held on the 4th day of August, 1931, for nomination as the parties' candidate for the office of sheriff at the election therefor to be held on the 3d day of November following. After canvassing the votes, the Democratic executive committee, declared the appellant to be the nominee. Afterwards the relator filed a contest thereof before the committee, resulting in a majority of the committee declining to hear the contest and again declaring the appellant to be the nominee, and a minority of the committee declaring the relator to be the nominee.

A few days prior to the 3d day of November, 1931, the relator sued out an injunction against the county election commissioners restraining them from putting the appellant's name on the official ballot. This injunction was dissolved by the court, and an appeal was...