Opinion
No. 32399.
November 16, 1936. Suggestion of Error Overruled November 30, 1936.
1. ELECTION.
Where election commissioners met for purpose of revising registration and poll books, notation "transferred to [another election district]" made on poll book opposite names of voters held ineffective as an adjudication that they were disqualified as electors (Code 1930, section 6211).
2. ELECTION.
Ballot which was marked by an ordinary check mark opposite name of candidate could not be counted (Code 1930, section 6240).
APPEAL from circuit court of Hancock county. HON.W.A. WHITE, Judge.
E.J. Gex, of Bay St. Louis, for appellant.
The court in our opinion ruled correctly on the question of not counting the ticket marked by a check mark, for the reason that this was not in compliance with the statute.
Kelly v. State ex rel. Kierskey, 30 So. 49; Guice v. McGehee, 124 So. 643; Oglesby v. Sigman, 58 Miss. 506; Section 6240, Code of 1930.
The court should not have counted the tickets of Mr. and Mrs. Hillis, for the reason that this duty was delegated by statute, under section 6211, which provides that the commissioners of election shall meet five days before any election, and shall erase the name of any person not qualified to vote at said election. This was a judicial matter to be determined by the commissioners of election.
Calvert v. Brosby, 139 So. 608.
Section 6204, Code of 1930, provides for the restoration of names, erased from the registration books, but only after the disqualification for which the names were erased have been removed.
Our contention is that the board having acted, that when it adjourned, its acts were final; that the court had no right to adjudge, whether the Hillises were qualified electors or not, having met as required by statute, and judicially determining that these folks were not qualified, the circuit court had no right to adjudge it, or concurrent jurisdiction with the commissioners to reinstate, or declare the folks qualified.
The proof is abundant in this case that the Hillises had moved from Waveland and, of course, this was a point in dispute, and the court could have found from the evidence that the Hillises were not disqualified, but as to their right to do this, it had to depend on the right of the state to do it, and when the commissioners adjourned their meeting, it was an end, as far as the right of the Hillises was concerned.
It is contended by the appellant that by no right or stretch of imagination could Carver have been disqualified or should have been disqualified. The commissioners did not, as appears from the registration books and the poll books, meet and declare him disqualified. On the contrary, there is nothing that appears of record that shows that Carver was ever scratched off, but an introduction of the books will show that Carver was a qualified voter and had so been passed upon by the commissioners of election, when they revised the polls.
The question may be contended that the commissioners could have stolen the election, by refusing to let any one vote who did not think their way, but in section 6200 of the Code of 1930 it is there provided, our appeal shall be taken, and the records fail to show, that any appeal was ever taken by the Hillises, and the right was, therefore, precluded with the rendering of the judgment by the commissioners of election.
Robert L. Genin and Edward I. Jones, both of Bay St. Louis, for appellee.
We wish to show the court that the undisputed fact that the commissioners of election, in revising the poll books, came to the city of Bay St. Louis, out of their jurisdiction, held a meeting, and that what they did write opposite the names of G.W. Hillis and Mrs. Helen Hillis was: "Transferred to Bay St. Louis." These words on the poll book meant nothing, and if they did, the Hillises had no notice thereof and are not bound thereby.
Those words marked on the poll book was not a valid judgment or finding that had the effect of striking the Hillises off as qualified electors, the commissioners having no authority to make such transfer on the poll book.
Counsel for appellant contends that the court cannot go behind the findings of commissioners of election. Our Supreme Court, in the case of Kelly v. State, 30 So. 50, did go behind the finding of the commissioners.
If the commissioners mark a person disqualified on the poll books, then the court has the right to be behind the findings of the commissioners.
Ferguson v. Board of Supervisors, Monroe County, 14 So. 81.
Any one declared to be a qualified elector by our Constitution should be entitled to vote, regardless of any action of any one, and his right to vote is reviewable by a court of competent jurisdiction.
If a person has been deprived of his constitutional right he has a remedy in a court of law, and if a person is illegally or fraudulently deprived of the office to which he is elected, certainly the remedy of quo warranto is that remedy.
Bourgeois v. Laizer, 25 So. 153; Newson v. Cocke et al., 44 Miss. 356; Sublett v. Bedwell, 47 Miss. 277.
If the Hillises had removed, it was the duty of the election commissioners to "erase" from the poll book and the registration roll and not make a transfer on the poll book.
Sections 6204 and 6211, Code of 1930.
No act of the Legislature or decision of our court have we been able to find that has the semblance of declaring that such act as done by the commissioners of election in this case is final and not reviewable.
We will further assume for the sake of argument that the court cannot go behind the findings of the commissioners when they revised the poll book. The defendant in this case should have availed themselves of that defense by demurrer, but the defendant not only waived that defense, but consented to go behind the findings of the commissioners when they pleaded the affirmative matter in their plea of general issue and when they requested the court to count the vote of Sam Carver.
Now let us see what is the rule in practically all states with reference to going behind the findings of the commissioners, as boiled down in Corpus Juris: 51 C.J. 358, par. 79: "In Proceeding Relating to Office. In a quo warranto proceeding to test a person's authority to exercise an office, the court may determine whether defendant has the qualifications expressly required by constitutional or statutory provisions (10), and if illegality in his election is charged, the validity of the election may be examined in all respects concerning the office involved (11), it being permissible (12) except in some jurisdictions (13) to go behind the returns or certificates, and, except in some jurisdictions (14) to extend the inquiry even to the ballots (15). If a forfeiture is claimed by reason of facts arising subsequent to a valid election, the court may inquire thereinto (16) although misconduct is charged which constitutes a criminal offense of which defendant has not been convicted (17)."
Under Note 11, appears: Ala., Echols v. State, 56 Ala. 131; Ind., State v. Shay, 101 Ind. 36; Covington, etc., Plank Road Co. v. Moore, 3 Ind. 510; Miss., Moore v. Caldwell, Freem. 222; Nev., State v. Sadler, 25 Nev. 131, 58 P. 284, 59 P. 546, 63 P. 128, 83 Am. R. 573; N.H., Osgood v. Jones, 60 N.H. 543; N.J., State v. Passaic County Clerk, 25 N.J. 354; N.Y., Bee v. McCausland, 54 How. Pr. 151; N.C., Davis v. Moss, 81 N.C. 303; Saunders v. Gatling, 81 N.C. 298.
20 C.J. 250, par. 347.
A qualified elector who complies with the law and who is registered has a personal right to have his name remain on the register or voting list for the period prescribed by law. He cannot be deprived of this right without some procedure which complies with the requirements of the due process of law.
20 C.J. 86, sec. 63.
A registration list is conclusive evidence as to the fact of registration of those persons whose names appear therein. It is at least prima facie evidence of who constitute the qualified voters. Some courts hold that it is not conclusive evidence of the right of those registered to vote, and the qualification of registered voters may be inquired into in a contest by the tribunal having jurisdiction of such contest, but other courts hold the contrary it is final and conclusive evidence of the right of persons named therein to vote when made so by constitution or statute, but some statutes making it conclusive contains exceptions and are applicable only to certain elections.
20 C.J. 87.
The relator is in this happy situation, if the registration poll is conclusive and the finding thereon cannot be inquired into, the Hillises vote must be counted, and if, as stated in Corpus Juris, the qualifications may be inquired into, their vote should be counted.
It is a general rule that statutes prescribing the power and duties of registration officers should not be construed as to make the right to vote by registered voters dependent on a strict observance by such officers of minute directions of the statute, thereby rendering the constitutional right of suffrage liable to be defeated through the fraud, caprice, ignorance, or negligence of the registrars.
20 C.J. 87, sec. 66.
This is a contest by the relator, W.A. Ruhr, against Allen Carver for the office of alderman of the town of Waveland, Miss. The quo warranto petition alleges that the appellant, Allen Carver, is claiming and usurping the office of alderman of the first ward of the town of Waveland, to which the relator was elected at a special election regularly called for the purpose of filling a vacancy in said office. It was further averred that the said Allen Carver and W.A. Ruhr were the only candidates for said office at the special election; that there were thirteen ballots cast at said election, three of these being protested and placed in separate envelopes with the name of the voter written thereon; that the managers of the election counted only the ten unprotected ballots, with the result that there was a tie vote; that the said managers thereafter failed and refused to make a report of their count, and the commissioners of election refused to meet and canvass the returns of the election.
The petition further averred that, at the instance of the district attorney, a writ of mandamus was issued commanding said commissioners to meet and canvass the returns of the election; that, in obedience to the command of said writ, the commissioners met and canvassed said returns; that of the ten unprotected votes the commissioners wrongfully failed and refused to count for the said W.A. Ruhr one ballot which was marked with an ordinary check mark opposite his name; that of the three protested ballots, the commissioners rightfully refused to count the ballot of Sam Carver, who had marked his ballot for Allen Carver, and that they wrongfully and fraudulently refused to count the ballots of Mr. and Mrs. G.W. Hillis who had voted for the relator; that if all of said ballots had been counted in accordance with the law and the intentions of the qualified electors, the relator would have received a majority of two votes at such special election; and that, consequently, the said relator was duly elected to the office of alderman of the first ward of said town of Waveland, and was and is entitled to hold said office. The prayer of the petition was that the relator be declared to be entitled to said office, and that the appellant be removed therefrom and prohibited from exercising or claiming any title to, or right or interest in, said office.
To this petition the defendant, Allen Carver, filed a plea of the general issue and gave notice thereunder that he would offer evidence to prove that Sam Carver was a qualified elector and was entitled to vote, and that his ballot which was voted under protest should have been counted for the defendant; that the names of Mr. and Mrs. G.W. Hillis had been properly and legally scratched off the roll of voters, for the reason that they had removed from the town, and consequently they were not entitled to vote in said election.
The cause was heard before the court, without the intervention of a jury, and upon the oral and documentary evidence the court found that Mr. and Mrs. G.W. Hillis were qualified electors of the first ward of said town and were entitled to vote in said election; that Sam Carver was not a resident of said ward and was therefore not entitled to vote; that the ballot marked with a check mark was not entitled to be counted, and that there were eleven legal ballots cast in said election, of which the relator received six votes while the defendant, Allen Carver, received five votes, and that, therefore, the said relator was entitled to the office. The judgment further ordered that the said Allen Carver be removed from the office, and that the relator be recognized as the duly elected alderman, and that he be entitled to take possession of said office upon qualifying as required by law. From this judgment, this appeal was prosecuted.
The proof shows that, before the special election in question, the election commissioners of the town of Waveland met for the purpose of revising the registration and poll books, and that at such meeting they entered on the poll books opposite the names of both Mr. and Mrs. G.W. Hillis the notation "transferred to Bay St. Louis," and while the question does not seem to have been directly raised in the court below, it is here contended that the action of the commissioners in placing this notation on the poll books was a final and conclusive adjudication that these parties were not qualified electors of the first ward of the town of Waveland, and that in this proceeding the court was without jurisdiction to reinstate them or to declare them to be qualified electors of said town.
While the right and power of the court, in quo warranto proceedings, to go behind the action of the election commissioners in passing upon the qualification of voters seems to be expressly recognized in the cases of Kelly v. State ex rel. Kierskey, 79 Miss. 168, 30 So. 49, and State ex rel. Bourgeois v. Laizer, 77 Miss. 146, 25 So. 153, it will not be necessary to determine that question here, since the mere notation on the poll books of the words "transferred to Bay St. Louis" was ineffective for any purpose. Section 6211, Code of 1930, provides that five days before any election, other than a general election, the commissioners of the election shall meet in the office of the registrar and carefully revise the registration books and the poll books of the election district, and shall erase therefrom the names of all persons erroneously thereon, or who have died, removed, or become disqualified as electors from any cause. The power granted to the commissioners by this statute is to revise both the registration and poll books by erasing therefrom the names of persons who have removed from the election district. In this case the commissioners did not erase the names of Mr. and Mrs. Hillis from either the registration or the poll books and made no notation whatever on the registration book, and no power is granted to the commissioners to transfer voters from one election district to another; consequently, the notation made on the poll book opposite the names of these voters was ineffective as an adjudication that they were disqualified as electors, and that question must be determined from the facts as presented on the hearing of this proceeding.
The court below committed no error in refusing to count the ballot which was marked with an ordinary check mark opposite the name of the relator on the ballot. Section 6240, Code of 1930, requires that the voter shall mark his ballot by placing a cross (x) opposite the name of the candidate of his choice for each office to be filled. In Kelly v. State ex rel. Kierskey, supra, it was held that the voter's choice cannot be indicated by a straight mark opposite the name of the candidate, and that a ballot so marked cannot be counted; while in the case of Guice v. McGehee, 155 Miss. 858, 124 So. 643, 125 So. 433, it was held that ballots marked with an ordinary check mark, which appeared to have been made by design and not in an effort to make an X should be rejected.
The findings of the court below as to the residence and qualification as voters of G.W. Hillis, who was principal of the public school of the town of Waveland, his wife, Mrs. G.W. Hillis, and Sam Carver, find support in the evidence, and we are unable to say that such findings are manifestly erroneous. The judgment of the court below will, therefore, be affirmed.
Affirmed.