Summary
In Fillingane, Breland and Fillingane ran in the Democratic primary for District Five Supervisor in Perry County. Breland received 171 votes and Fillingane received 170 votes.
Summary of this case from Waters v. GnemiOpinion
No. 38380.
November 1, 1951.
1. Elections — corrupt practices act — petition for judicial review — oath to.
Contestant's oath to his "sworn petition" for a judicial review in a primary election contest is sufficient when its recital is "that the matters and things set forth in the foregoing petition are true and correct according to the best of his knowledge, information and belief". Sec. 3182 Code 1942.
2. Elections — corrupt practices act — judicial review confined within petition.
On a judicial review of a primary election contest the findings of the judicial tribunal in behalf of the contestant must be confined within the allegations of his original protest, as amended, and where the complaint charged that one ballot marked in ordinary pencil was counted for the contestee the tribunal may not go further and find that three ballots were illegally so marked and counted.
3. Elections — corrupt practices act — tie vote.
When on a judicial review of a primary election contest the result produced is a tie, a new election will be ordered. Sec. 3184 Code 1942.
Headnotes as approved by Alexander, J.
APPEAL from special court of Perry County; ROY P. NOBLE, Chancellor.
E.C. Fishel, and Dudley W. Conner, for appellant.
The special tribunal erred in holding that it had no jurisdiction because of the appellant's affidavit to the petition for judicial review was based upon knowledge, information and belief.
The question of jurisdiction was raised for the first time by the contestee in his memorandum brief to the special tribunal and that court did not have the benefit of a brief on this question by the contestant. It was the ruling of the court in sustaining this point which resulted in the court not passing on the other questions alleged and proven as shown in the finding of facts by the special tribunal.
Sec. 3182 Code 1942 sets forth the petition for judicial review and what it shall contain.
The court, interpreting the meaning of this section where it requires, "* * * a sworn copy of said protest or complaint, together with a sworn petition * * *", applied the doctrine set forth in Section 1294 Code 1942 on modification of the rule requiring two witnesses, being a rule in equity of evidence, and cited as authority Fant, et al. v. Fant, et al., 162 So. 159.
It will be noted from a reading of the above case it merely applies to a rule of evidence in equity where the pleadings are used as evidence. When the statute modifying this equity rule was under consideration by the Court in Carpenter, et al. v. Edwards, et al., 1 So. 64, Judge Campbell said: "A denial upon information is a denial `otherwise than by the general traverse', and is sufficient to prevent facts averred in the bill from being taken at the hearing as admitted. It is true, as held in Toulme v. Clarke, 1 So. 624, that an answer upon information does not put the complainant to the proof of his bill by more than one witness, but the sufficiency of an answer to require some evidence to maintain the bill is a different question. The answer in this case is sufficient to require proof to maintain the bill, * * *."
In the Fant case, supra, neither of the defendants testified at the trial. The whole question presented was based upon the pleadings as evidence. This is not the case at bar and all the cases cited in Fant v. Fant are merely an application of the same rule of equity as to the sufficiency of pleading in order to constitute evidence.
Sec. 3182, supra, requires a sworn petition with a sworn copy of the protest before the executive committee, and in response thereto the contestant filed a petition for judicial review and recited therein, among other things, that a carbon duplicate copy of the contest before the executive committee was attached, and the petition for judicial review was sworn to as follows: (Reporter's note: See the opinion for the full copy of the affidavit).
Thus, the contestee and special tribunal now argues and holds that this affidavit is insufficient to give jurisdiction when no evidence was sought to be established by the pleadings. What more could the contestant honestly and truthfully swear to when the contestee had secured an injunction (wrongfully as we maintain) prohibiting him from opening the boxes and obtaining information on which he could have sworn on his personal knowledge.
Distinguishing the Fant case, supra, and Sec. 1294 Code 1942, from Sec. 3182, supra, we maintain the affidavit to the petition for judicial review complied with the statute. 18 Am. Jur. 361; 29 C.J.S. 383; State v. Whitaker, 284 P. 119, 34 N.M. 477; Brought v. Cherokee Nation, 129 F. 192, 195, 63 C.C.A. 350.
It is manifest from a reading of the statutes and the above quoted authorities that the Fant case, supra, does not apply and, particularly, where the case at bar was not submitted upon the pleadings but positive and direct proof offered and which was found to exist in the finding of fact by the special tribunal.
It was error for the special tribunal to refuse to consider the other points raised as shown by the special bill of exceptions.
The first two points raised before the special tribunal and which appear in the special bill of exceptions are as follows:
Point No. 1: In the petition for judicial review the contestant alleged that there was one ballot cast in the Janice Precinct, which ballot was marked with an ordinary pencil, not with ink or an indelible pencil. The complaint before the executive committee charged that one ballot was cast for the said Fred A. Breland marked with an ordinary lead pencil but did not allege the particular box. Could the court consider that one ballot?
Point No. 2: Can the court consider the two additional ballots found in the Janice box and not charged in either the petition before the executive committee or the special tribunal?
Because of the Court's ruling on the jurisdictional question it did not pass upon these questions and we respectfully submit it should have done so and that failure is assigned here as error.
Section 3269 Code 1942, as amended by Chap. 306 Laws 1948, provides how ballots shall be marked.
It will be noted from a careful reading of this statute that the voter is authorized when he elects to use a cross or "X", to indicate his choice of candidates, can only mark the ballot with ink. That if he elects the other alternative of marking with a check or "V", he is given the privilege of marking either with ink or indelible pencil, and in the statute, a final admonition is made to the voter that he must use only one of said methods throughout his ballot.
It is also noted that in the alternatives the statute gives to the voter, he can only use indelible pencil or ink in marking the ballot, ink used on either method and indelible pencil only when the ballot is marked with an ordinary check or "V".
In Guice v. McGehee, 155 Miss. 858, 124 So. 643, the Court said: "* * * We hold that the statute must be construed as mandatory in all of its substantial requirements; and therefore an exception to the general rule that election laws are construed liberally in favor of the electors."
Again, in Hayes v. Abney, 186 Miss. 208, 188 So. 533, the Court quoted Guice v. McGehee and repeated that the statute is mandatory and said: "* * * We hold that the statute must be construed as mandatory in all of its substantial requirements; and therefore an exception to the general rule that election laws are construed liberally."
Prior to the enactment of the above quoted statute in which the voter is given alternatives in making his ballot, the law authorized only one method by which a ballot may be marked, and that was the cross or "X" in ink, and when presented to this Court in Carver v. State, ex rel. Ruhr, 170 So. 643, the Court held that a "ballot which was marked by an ordinary check mark opposite name of candidate could not be counted".
We argue that no other conclusion can be reached from this authority except that a ballot marked with the ordinary lead pencil cannot be legally counted. It will be noted in the finding of facts by the court that the Janice Box contained three such ballots all cast for the contestee, Fred A. Breland, and which had been counted thus enabling the contestee to poll a total of 171 votes. If these ballots were illegal and could not be counted for the same reason that a ballot marked with an ordinary check mark could not be counted, then the three ballots found in the Janice Box marked with an ordinary lead pencil should not have been counted for the contestee, Fred A. Breland, thereby making the contestant the due and legal nominee of the Democratic Party for Supervisor of District 5, Perry County, Mississippi. It appears to us Point No. 1 raised in the special tribunal should have been decided in the affirmative which would have created a tie, resulting in the necessity for a new election. We earnestly and sincerely argue to the Court that Point No. 2 in the bill of exceptions should also have been decided in the affirmative, because the contestee himself raised the issue in his answer that there was another ballot in the box marked with an ordinary lead pencil which was cast for the contestant, J.A. Fillingane. This was found to be untrue upon the opening of the box and the ballot was not cast for the contestant, J.A. Fillingane, but for the contestee, Fred A. Breland, thus making two such ballots raised by the pleadings, and which the proof, an examination of the ballots, found to have been cast for Fred A. Breland. This would have enabled the contestant to have been the nominee by a margin of one vote. And, if all three ballots could be counted, and we sincerely argue they should in view of the letter of the contestant dated September 1, 1951, to the executive committee wherein he alleged irregularities consisted of voting with a lead pencil, the contestant was the legal nominee by a margin of two votes by reason of the ballots actually cast without regard to any other irregularity.
Ben Stevens, for appellee.
Sec. 3182 Code 1942 requires a contestant to file a sworn copy of his protest or complaint before the executive committee, together with a sworn petition for judicial review, setting forth with particularity wherein the executive committee wrongfully denied the relief prayed for before the committee. The requirements of this statute, as well as all of the statutes governing the machinery for judicial reviews under our Corrupt Practice Act, are mandatory.
The two exhibits of contestant to his petition for judicial review are unsworn, as is shown by the record. In the case of Darnell v. Myres, cited by the court below in its findings this Court, speaking through Judge Griffith, presiding justice, said: "A fundamental consideration must always be kept in mind as regards judicial reviews of primary election contest, and that is this:
It is plain enough on a careful analysis of Section 15, Chap. 19, Laws 1935, Ex. Sess., Sec. 3182, Code 1942, that what the special tribunal created under that chapter is to hear and determine is in what respect or respects the party `executive committee has wrongfully * * * denied the relief prayed by said contest', meaning of course the contest theretofore filed by the contestant with and before the executive committee under Sec. 3143, Code 1942. So it is then that Sec. 15, Sec. 3182, requires that the petition for a judicial review shall exhibit as an essential part of the petition a sworn copy of his protest or complaint theretofore made before the executive committee, from which it follows that if the contestant made no protest or contest in writing before the executive committee, there can be no jurisdiction in the special tribunal to review the action of the executive committee, and further that unless a sworn copy of his said protest or contest before the executive committee is made a part of his petition for a judicial review, the said petition will present no cause of action for such a review."
And again in said case, the Court said: "A contestant by the express terms of the statute must exhibit a sworn copy of his contest as made before the executive committee, without which his petition for a judicial review makes out no cause therefor, and the contestee must present with his petition by sworn exhibit what issues he placed before the executive committee else he has shown no cause for a judicial review." Both the above quotations are from the case of Darnell v. Myres, 202 Miss. 767, 32 So.2d 684.
I submit that the case of Fant, et al. v. Fant, et al., 162 So. 159, is absolutely in point, and that it is more than a mere rule of evidence. In this case the Court was construing the requirements of Sec. 388, Code 1930, (Sec. 1294 Code 1942) dealing with the abolishment of the two witness rule where the bill is sworn to by the complainant. The affidavit of the bill in the Fant case alleged that "the allegations of said bill are true as therein contained, to the best of her knowledge, information and belief." The Court held that such an affidavit was insufficient. That the oath required by that statute must be positive and on knowledge, not mere information and belief. The requirement that a sworn petition for judicial review shall be accompanied by a sworn copy of the protest of the contestant before the executive committee is more than a rule of evidence, it is a jurisdictional requirement.
In further support of the holdings of the Court as to the requirement that the affidavit be in positive terms rather than upon information and belief, I cite the following cases: Jacks v. Bridewell, 51 Miss. 881; Waller v. Shannon, 53 Miss. 500; Tri State Transit Co. v. Mondy, 194 Miss. 714, 12 So.2d 920, 194 Miss. 714.
The affidavit to the petition for judicial review in the case at Bar merely states that the allegations of the petition for judicial review, and of the exhibits thereto, are true and correct "to the best of his knowledge, belief and information", and further, "believes that it was a fraud upon the rights of this petitioner for the executive committee to deny him the relief prayed for in exhibit C and prayed in this petition * * *". It was only an expression of mere belief.
The authority cited by contestant in 18 Am. Jur. 361, is authority for the contestee. I quote from the aforesaid citation in part as follows: "Therefore, as a general rule, a strict observance of the statute is required, so far as regards the steps necessary to give jurisdiction, and the jurisdictional facts must appear on the face of the proceedings."
The jurisdictional facts required by Sec. 3182 Code 1942 do not appear on the face of the proceeding in this cause, and the presiding chancellor in the court below so held and properly dismissed the petition for judicial review. The citation of contestant, 29 C.J.S. 383, is in no wise in conflict with the law as heretofore announced by this Court, nor as followed by the court below in the dismissal of the petition in this cause.
The case of State v. Whitaker, a New Mexico case, and the case of Brought v. Cherokee Nation, cited by contestant, are in no wise applicable in the case at bar. These cases were construing statutory requirements of other jurisdictions.
Counsel for contestant, in referring to Sec. 23 of the Mississippi Constitution of 1890 that a search warrant may issue upon the affidavit of any credible person, overlooked the fact that there must be an adjudication that the person making such an affidavit is a credible person. Contestant, in his affidavit to his petition for judicial review, as well as in the unexecuted copy of his exhibit to said petition, contented himself with charging that he believed the allegations of the petition to be true, but he did not charge that he believed such things to be true upon information furnished to him by any credible person. I submit, therefore, that the action of the court below in dismissing the petition for judicial review was absolutely correct.
All of the argument advanced by counsel for the contestant under their second assignment of error is nullified by reason of the fact that contestant was not specific in his allegations in his protest or in the amendment thereto before the executive committee. He did not charge that there was an illegal ballot in the Janice box. He did not charge that such an alleged illegal ballot was in the Breland box. He did not charge with definiteness and/or certainty as to which of the ballot boxes of the district wherein any alleged irregularity occurred. He simply took a pot-shot at all of the boxes in the district. He did not charge that Houston Breland was a voter in the Breland box or the Janice box. In paragraph 3 of his amendment to his protest before the executive committee he did not designate the particular box in which such an alleged illegal ballot was cast, nor did he do so in his original protest.
Contestant in this case filed his protest with the executive committee within two days after it canvassed and reviewed the returns of the election and declared the results, contented himself with the mere making of general allegations. Did he avail himself of the machinery afforded to him by Sec. 3169 Code 1942 and cause an inspection to be made of the ballot boxes in which he claimed any irregularity occurred? He did not, but on the contrary, he was slothful and waited until the last day upon which such an examination could be made upon notice served upon the other party, and on that day gave notice that he desired to make such an inspection at a later date and at a time not authorized by law.
I respectfully submit that the reasons announced by this Court in the case of Shaw v. Burnham, 186 Miss. 647, 191 So. 484, condemns such practice. I quote from the opinion of the Court in that case as follows: "It is contemplated by the statutes, Sec. 5896, Code 1930, and Sec. 15, Chap. 19, Laws 1935, Ex. Sess., that, when a person desires to contest the nomination of another person and has the purpose to follow up his contest by a petition for a judicial review, his contest or petition or complaint before the executive committee shall be reasonably specific in its charges and not in mere general language. This is a reasonable requirement from several standpoints, but particularly in view of the fact that by Section 7 of said Chapter 19, Laws 1935, Ex. Sess., any candidate has the privilege of a full examination of the boxes and their contents, within the early and appropriate time therein mentioned. And, as a matter of right, when a contestant has made charges of wrong or illegality before the executive committee, the contestee may file a cross complaint with the committee — the cross complaint to be in reasonably specific and particular terms and not in assertions of mere generality. The right to file a cross complaint results, as a matter of necessity, else the contestant might restrict the review to grounds of his own choosing, when upon other grounds the contestee could show that other and counterbalancing wrongs and irregularities had been permitted in behalf of the contestant.
If the contestant on the 1st day of September, 1951, intended to follow up his protest before the executive committee, then it was his duty to cause an inspection of the specific ballot boxes wherein he alleged that any such irregularities occurred, in order that any and all of the counterbalancing wrongs and irregularities in such specific ballot box could have been ascertained, and it could have been definitely determined whether or not the free will of the people had been overthrown, or avoided in the conduct of the election at such precinct, or precincts.
It is true that there were only two ballot boxes in the district involved in this case, but the same rule of law that is applicable to this case will apply to every other election district regardless of its size.
In the Democratic primary for the nomination of a Supervisor for District Five, Perry County, Breland received a count of 171 votes and Fillingane 170.
Fillingane promptly wrote to the County Democratic Executive Committee requesting an investigation of alleged irregularities, and the calling of a new election. Shortly thereafter he filed a sworn petition of protest setting out numerous irregularities including a ballot marked with ordinary lead pencil. It was alleged that this ballot was cast for his opponent and that this vote taken with others, allegedly defective and void for other reasons, would, if cast out, change the result of the election in his favor.
Appellant applied for permission to examine the two precinct boxes in the district and notified appellee of his purpose. The application was denied as being one day late and the following day the appellee procured an injunction against the appellant, forbidding examination of the ballot boxes.
To the sworn petition of protest, the contestee Breland filed an answer of general denial which contained a concession that he "admits that he had been informed that there was one ballot voted with pencil, but that he doesn't know whether it was indelible pencil or not." He filed also a motion to dismiss the petition which was sustained. The order thereon gave no reasons for the action of the Committee.
Thereupon, appellant filed a sworn petition for appeal and a judicial review. It carried forward the allegations of the original protest, a certified copy of which, together with the proceedings before the Executive Committee, being made a part thereof. The special tribunal heard testimony and examined the contents of one of the boxes, some of the ballots therein being withdrawn and made exhibits to the testimony.
The tribunal made certain findings of fact among which is a finding that there were three ballots by ordinary lead pencil cast for the contestee. However, the appeal was dismissed on the ground that it was not a "sworn petition" under Code 1942, Section 3182, and that the tribunal therefore had no jurisdiction in the matter. Our first inquiry is directed to this finding.
The petition was definite in its charges and allegations and contained the following oath: "Personally appeared before me the undersigned authority in and for said county and state, J.A. Fillingane, who after being by me first duly sworn on his oath says: That he is the petitioner in the foregoing cause, and that he filed said petition for contest, together with the sworn amended specifications thereto and which are made Exhibit `C' to this petition, and who says that the matters and things set forth in this petition and the matters and things set forth in said Exhibit `C' hereto, are true and correct to the best of his knowledge, belief and information, and believes that it was a fraud on the rights of this petitioner for the executive committee to deny him the relief prayed for in said Exhibit `C', and prayed in this petition, and it was a fraud on the rights of this petitioner to permit the illegal votes to be cast, as enumerated in this petition, and to have the vote cast by a lead pencil (other than an indelible pencil), as set forth in this petition."
(Hn 1) The Corrupt Practices Act, Code 1942, Sections 3158-3195, does not provide a form for verification of the petition on appeal. The contention is that it is made merely upon information and belief and would not support a decree if there were no answer. This is not the test. Nor is it to be measured by Section 1294 modifying the rule requiring two witnesses or one witness and corroborating circumstances to overthrow an answer under oath. Cases cited by the appellee involve an interpretation of this statute, which is after all but a rule of evidence. Here, testimony was taken and ballots introduced as exhibits. In considering the sufficiency of an oath to a bill or petition, it is stated, by way of summary, in Griffith, Chancery Practice, Section 175: "The correct allegation must be not less positive than this: The complainant has been informed and believes, and upon such information and belief charges the facts to be, stating them as facts, or it may be stated thus. Complainant charges, as he is informed and believes, stating the facts charged." This section is documented by cases involving the Code section just referred to, and therefore states a rule more stringent than that which is applicable to the sufficiency of the oath considered apart from the statute. It will be seen that the affiant states that the allegations of the petition are true and correct. Its efficacy is not impaired by adding that the assurance of such truth is derived from belief or information as indeed are most assertions of fact. Our conclusion could, if necessary, take reinforcement from Section 3158 which requires "an ordinary and reasonable construction * * * to accomplish its purposes."
In this connection, it may be recalled that, for reasons here immaterial, the contestant did not examine the boxes and was later enjoined therefrom. Verification of his petition could not well have been more definite and we hold that it need not have been. Moreover, the allegations, at least as to the pencil ballots, were proven to be true and so found as facts by the special tribunal. The original protest was similarly verified, so that we need not decide whether it was required to be sworn to, or whether the "sworn copy" of the protest required on appeal relates to the protest as originally filed.
We are left, therefore, with the finding that three ballots cast for the contestee were marked in ordinary pencil, and our examination of such ballots verifies such conclusion.
(Hn 2) The original protest charged that only one such ballot was cast, and the finding of the tribunal must be restricted to such allegation since the petition on appeal may not overrun the allegations of the original protest, as amended. Houston v. Baldwin, 54 So.2d 543.
Other charges in the petition relate to the alleged failure of the circuit clerk to mail absentee ballots, and other irregularities including such as were directed to the disqualification of the contestee. There were no findings of fact which could operate to change the result of the election, save only as to the one illegal ballot marked with pencil for the contestee.
(Hn 3) This requires a reduction of contestee's vote to 170 and results in a tie. Therefore the cause is reversed and a new election ordered in said District Five, as provided in Section 3184.
Reversed and election ordered.