Opinion
No. 35723.
December 11, 1944.
1. ELECTIONS.
Where board of county supervisors designated store as voting place for voting district and when it developed that store could not be used as voting place it was too late for special meeting of board to be called for designating another voting place and election managers held election at pressing shop across public street and about 100 feet from store, the votes cast at the pressing shop were valid (Code 1942, secs. 3207-3209).
2. ELECTIONS.
Where two sets of managers held election at voting place, three of managers sitting at one end of table and three at the other end, one set receiving ballots of persons whose names began with letters "A" to "L", inclusive, and other those whose names began with "M" to "Z", inclusive, each set of managers using separate ballot box and assisted by separate clerks and ballots were counted and certified to by respective managers who received them, the votes so received were valid (Code 1942, secs. 3207-3209).
3. ELECTIONS.
Where an election contestee pleads an affirmative defense to the election contest he must set forth the grounds upon which his defense rests (Code 1942, sec. 3287).
4. EQUITY. Pleading.
Generally, in order to obtain relief from a court, a litigant must make it appear by his declaration, bill of complaint, or plea that he is entitled thereto.
5. ELECTIONS.
In election contest, contestee's plea which failed to set forth for whom allegedly illegal votes were cast was insufficient (Code 1942, sec. 3287; Const. 1890, sec. 241).
6. ELECTIONS.
Where trial court erroneously held that election contestee had given good excuse for not setting forth in plea for whom allegedly illegal votes were cast but contestee stated by his plea that he did not know and could not ascertain for whom votes were cast until proof thereof was made at trial, cause would not be remanded to enable contestee to amend his plea (Code 1942, sec. 3287; Const. 1890, sec. 241).
APPEAL from the special court of Coahoma county, HON.E.H. GREEN, Judge.
Hugh F. Causey, of Cleveland, and J.M. Talbot, of Clarksdale, for appellant.
There was a vital and total departure from the election laws regulating elections at the West Clarksdale precinct.
McKay v. Minner (Mo.), 55 S.W. 866; Code of 1930, Secs. 6179, 6180, 6181, 6204, 6214, 6215, 6216, 6217, 6219, 6220, 6228, 6238, 6249 (Code of 1942, Secs. 3207, 3208, 3209, 3232, 3243, 3244, 3245, 3246, 3248, 3249, 3257, 3267, 3279).
Primary election statutes are a part of general election statutes, except as modified, and the same interpretation applies to each.
Code of 1942, Secs. 3105, 3159, 3164, 3167, 3168, 3257, 3267, 3279, 3296, Code of 1930, Secs. 5864, 6267.
Provisions of election statutes are mandatory and no attempt was made to comply with them.
Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209; Hayes v. Abney, 186 Miss. 208, 188 So. 533, 536; Keller v. Toulme (Miss.), 7 So. 508; State ex rel. Sowell v. Greer, 158 Miss. 315, 130 So. 482; Cramer's Case (Pa.), 93 A. 937, 939; State v. Hager (W. Va.), 136 S.E. 263; People ex rel. De Valle v. Butler (Calif.), 129 P. 600; Tebbe v. Smith, 108 Cal. 101, 49 Am. St. Rep. 68, 74; Sedgewick (2 Ed.), p. 325.
The six managers, four clerks, and two bailiffs who undertook to function in West Clarksdale precinct were neither de jure nor de facto officers and the undertaking to hold election in that precinct is void.
Board of Mississippi Levee Comr's v. Montgomery, 145 Miss. 578, 110 So. 845, 846; Cohn v. Beall, 61 Miss. 398; Tooele County v. De La Mare, 90 Utah 46, 59 P.2d 1155, 106 A.L.R. 182; In re Gunn, 50 Kan. 155, 32 P. 948, 19 L.R.A. 519, 533; State ex rel. Wells v. Cline, 29 Okla. 157, 116 P. 767, 35 L.R.A. (N.S.) 527, Ann. Cas. 1913A, 481; Hallgren v. Campbell, 82 Mich. 255, 46 N.W. 381, 9 L.R.A. 408, 21 Am. St. Rep. 557; Hamlin v. Kassafer, 15 Or. 456, 15 P. 778, 3 Am. St. Rep. 176; State v. Taylor, 108 N.C. 196, 23 Am. St. Rep. 51; Tanninen v. Eleleth, 189 Minn. 229, 249 N.E. 184, 99 A.L.R. 289; Constitution of 1890, Sec. 241; 43 Am. Jur. 226, Sec. 473.
The failure to hold election in Binder's Store in Riverton precinct in Coahoma County and holding it in the pressing shop renders the election void in that precinct.
Chadwick v. Melvin, 68 Pa. St. 484; State v. Alder, 87 Wis. 554, 58 N.W. 1045; Goree v. Cahill, 35 Okla. 52, 128 P. 124, Ann. Cas. 1914D, 549; Rice v. Mountoz, 123 Ky. 590, 96 S.W. 887; State v. Ely, 23 N.D. 619, 137 N.W. 834; Egly v. Armstrong, etc., 158 Pa. St. 65, 27 A. 851; People v. Gochenour, 54 Ill. 123; Code of 1930, Secs. 6179, 6180, 6181, Code of 1942, Secs. 3207, 3208, 3209; McCrary on Elections (4 Ed.), Sec. 158, p. 122; 18 Am. Jur. 252, Sec. 114; 20 C.J. 101, 102, Secs. 86, 88; 29 C.J.S. 101, Sec. 76.
See also Boutwell v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12; Barrett v. Cedar Hill Consol. School Dist., 123 Miss. 370, 85 So. 125; Board of Supervisors of Stone County v. O'Neal, 130 Miss. 57, 93 So. 483; Edwards v. Board of Supervisors of Bolivar County, 124 Miss. 165, 87 So. 8; Brantley v. Board of Supervisors, 152 Miss. 241, 119 So. 185; Farnell v. Trustees of Orange Lake Consol. School Dist., 157 Miss. 276, 127 So. 280; Laws of 1924, Ch. 283 (Code of 1942, Sec. 6372).
Compare Steele v. Calhoun, 61 Miss. 556.
The court erred in holding that the payment of poll taxes for the year 1943, on or before February 1, 1944, was not a prerequisite to the qualification to vote at an election held on February 1, 1944.
Planters Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323; Lynds v. Van Valkenburg, 77 Kan. 24, 93 P. 615; Breese v. United States, 143 F. 250, 253; Code of 1942, Secs. 701, 702 (See Secs. 10, 12, Code of 1880), 9744; Constitution of 1890, Secs. 115, 241, 243, 257; 46 C.J. 1168.
Actual payment of poll taxes is not necessary.
Roane v. Matthews, 75 Miss. 94, 21 So. 665; Bew v. State, 71 Miss. 1, 13 So. 868; Ferguson v. Brown, 75 Miss. 214, 21 So. 603; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Thompson v. Crains, 294 Ill. 270, 128 N.E. 508, 12 A.L.R. 931.
It was not necessary for appellant to allege for whom disqualified persons voted.
May v. Young, 164 Miss. 35, 143 So. 703; Word v. Sykes, 61 Miss. 649, 662; Trahan v. Simmons, supra; Hayes v. Abney, 186 Miss. 208, 188 So. 533, 535; Willow Hole Ind. School Dist. v. Smith, 123 S.W.2d 709, 710; Jaycox v. Varnum, 226 P. 285; Cobb v. Berry, 168 P. 46, 48; Luger v. Burns, 150 N.E. 774; Humphries v. McAuley, 187 N.E. 262; Hamilton v. Marshall, 41 Wyo. 157, 282 P. 1058, 66 A.L.R. 1154; 18 Am. Jur. 375, Sec. 303.
The appellee, as contestant, had no right under Section 3287, Code of 1942 (Section 6258, Code of 1930) to amend his pleadings and set up new grounds of contest after the expiration of twenty days from the date of the election, but this twenty day limitation does not apply to amendments by appellant as contestee.
Loposser v. State, 110 Miss. 240, 70 So. 345; Warren v. State, 163 Miss. 817, 141 So. 901; Cox v. American Freehold Land Mortgage Co. of London, 88 Miss. 88, 40 So. 739; Crisler v. Farrar, 57 Miss. 791; Hall v. Lyon, 59 Miss. 218; Humphries v. McAuley, supra; Black v. Pate, 140 Ala. 514, 30 So. 434; Pearson v. Alverson, 160 Ala. 265, 59 So. 756; Groom v. Taylor (Ala.), 178 So. 33; Sutherland v. Sanderlin, 44 Fla. 332, 32 So. 786; Harmon v. Tyler, 112 Tenn. 8, 83 S.W. 1041; 20 C.J. 234.
Appellee has not filed a cross assignment of errors, therefore cannot complain about rulings of the court against him.
Smith v. Lundy, 175 Miss. 485, 167 So. 631; Board of Mississippi Levee Comr's v. Kellner, 189 Miss. 232, 196 So. 779; Mississippi Fire Ins. Co. v. Evans, 153 Miss. 635, 120 So. 738, 745; Stephenson v. Louisiana Oil Refining Co., 180 Miss. 410, 177 So. 912; Aetna Life Ins. Co. v. Thomas, 166 Miss. 53, 146 So. 134; Rickets v. Rickets, 152 Miss. 792, 119 So. 194.
Stovall Lowrey, Maynard, FitzGerald Maynard, Vincent J. Brocato and Dan C. Brewer, all of Clarksdale, and W.B. Alexander and John T. Smith, both of Cleveland, for appellee.
Appellant's failure to state in his pleadings for whom the persons failing to pay their 1943 poll taxes voted precluded appellant from introducing proof as to such 1943 poll tax non-payments, and from contending in the lower or Supreme Court that votes cast in the February 1, 1944, election were illegal because of the voters' failure to pay their 1943 poll taxes.
Torrey v. Fisk, 10 Smedes M. (18 Miss.) 590; Carr v. Miller, 162 Miss. 760, 139 So. 851; State v. Woodruff, 170 Miss. 744, 150 So. 760; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Mississippi State Highway Commission v. Hillman, 195 So. 679, 189 Miss. 850, 198 So. 565; 10 R.C.L., Evidence, Sec. 48; 18 Am. Jur., Elections, Sec. 301; 29 C.J.S., Elections, Sec. 274.
The appellant nowhere in his pleadings sets up for whom the illegal votes were cast or that this would have affected the results of the election. We respectfully submit that there is no issue properly before this court with reference to the non-payment of the 1943 poll taxes.
Hamilton v. Marshall (Wyo.), 282 P. 1058, 66 A.L.R. 1154.
However, should the court disagree with us on this proposition, we respectfully submit that the weight of authority is to the effect that illegal votes are apportioned between the contestant and the contestee, when it is not shown for whom they were cast.
Flowers v. Keller, 322 Ill. 265, 153 N.E. 351; Moore v. Sharp (Tenn.), 41 S.W. 587; Barham v. Deneson (Tenn.), 17 S.W.2d 692; Hamilton v. Marshall, supra; People ex rel. Williams v. Cicott, 16 Mich. 283, 315, 322, 97 Am. Dec. 141; Atty. Gen. ex rel. Reynolds v. May, 99 Mich. 538, 25 L.R.A. 325, 58 N.W. 483; Potter v. Robbins, 155 Tenn. 1, 290 S.W. 396; Berg v. Veit, 136 Minn. 443, 162 N.W. 522; Russell v. McDowell, 83 Cal. 70, 23 P. 183; Heyfron v. Mahoney, 9 Mont. 497, 24 P. 93, 18 Am. St. Rep. 761 (but see Atkinson v. Roosevelt County, 71 Mont. 165, 227 P. 811); Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321.
Payment of 1943 poll taxes is not necessary to qualify an elector to vote in an election held on February 1, 1944.
Ferguson et al. v. Brown, 75 Miss. 214, 21 So. 603; Myers v. State, 167 Miss. 76, 147 So. 308; Code of 1930, Sec. 3229, repealed by Sec. 41, Ch. 188, Laws of 1934; Code of 1930, Sec. 3244, repealed by Sec. 42, Ch. 188, Laws of 1934; Code of 1942, Sec. 9919; Constitution of 1890, Sec. 241; Laws of 1934, Ch. 188, Sec. Sec. 41, Ch. 192; Opinions of Attorney General 1931-1933, pp. 46, 47, 130.
The alphabetical division of the West Clarksdale box did not invalidate the vote cast there.
State ex rel. Sowell v. Greer, 158 Miss. 315, 130 So. 482; Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554, 7 So. 432; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432; Word v. Sykes, 61 Miss. 649; Code of 1930, Secs. 6214, 6221, 6235, Code of 1942, Secs. 3243, 3250, 3265.
The Corrupt Practices Act is not applicable.
Hayes v. Abney, 186 Miss. 208, 188 So. 533; Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209; State v. Greer, supra; Corrupt Practices Act, Ch. 19, Laws of 1935.
Appellant cites no authority which holds West Clarksdale void, and we believe all decided cases uphold it.
Mizell v. State ex rel. Gresham, 173 Ala. 434, 55 So. 884; King v. Board of Education, 42 Ga. App. 563, 156 S.E. 710, 174 Ga. 685, 164 S.E. 52; Weil v. Calhoun, 25 F. 765; Bowers v. Smith, 110 Mo. 45, 20 S.W. 101; Morris v. Vanlaningham, 11 Kan. 208; 29 C.J.S. 71, Sec. 54.
The holding of the election at Castanza's Pressing Shop rather than at Binder's Store in the Riverton precinct was a mere irregularity which did not invalidate the election. Statutes mandatory before election are directory after election.
20 C.J.S. 102, Sec. 88; 29 C.J.S. 101, Sec. 78; 18 Am. Jur. 252, Sec. 114.
Statutes for school elections and bond elections must be strictly followed and are not applicable here.
Edwards v. Board of Supervisors of Bolivar County, 124 Miss. 165, 87 So. 8; Parnell v. Trustees of Orange Lake Consolidated School District, 157 Miss. 276, 127 So. 280; Boutwell et al. v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12.
We have obtained pamphlets from the West Publishing Company reporting a large number of cases throughout the country in which the facts were similar to the facts of the instant case and in which the elections were upheld as valid elections, notwithstanding that they were held at places other than the previously designated places for holding the same. Practically without exception the inquiry has been as to whether or not the election was without fraud and whether the electors had notice and had a fair opportunity to freely express their will.
Steele v. Calhoun, 61 Miss. 556; State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1; Smith v. Hackett, 129 Md. 73, 98 A. 140; Muncy v. Duff, 194 Ky. 303, 239 S.W. 49; Younker v. Susong, 173 Iowa, 663, 156 N.W. 24; Barham v. Denison, 17 S.W.2d 692; State v. Logan, 5 S.W.2d 247; State ex rel. Marlowe v. Himmelberger-Harrison Lumber Co. (Mo.), 58 S.W.2d 750; State v. Shanks, 25 S.W. 55, 125 N.W. 122; Whitcomb v. Chase, 83 Neb. 360, 119 N.W. 673; Farrington v. Turner, 53 Mich. 27; People v. Graham, 267 Ill. 426, 108 N.E. 699; Bordwell v. State, 77 Ark. 161, 91 S.W. 555; Chenoweth v. Earhart, 14 Ariz. 278, 127 P. 748; Atkinson v. Roosevelt County, 71 Mont. 165, 227 P. 811; Semke v. Wiles, 101 Okla. 105, 224 P. 312; Anderson v. Likens, 104 Ky. 699, 47 S.W. 867; Wakefield v. Patterson, 25 Kan. 709; Wildman v. Anderson, 17 Kan. 344; Dale v. Irwin, 78 Ill. 170.
Appellee as contestant was entitled to amend after twenty days from date of election.
May v. Young, 164 Miss. 35, 143 So. 703; Broom v. Southern Ry. in Mississippi, 115 Miss. 493, 76 So. 525; Easter v. Riley, 79 Miss. 625, 31 So. 210; Heyfron v. Mahony, 9 Mont. 497, 19 Am. St. Rep. 257, 763; Nash v. Craig (Mont.), 35 S.W. 1001; Dale v. Irwin, supra; Anderson v. Likens, supra; Code of 1930, Secs. 567, 3074, 6259, Code of 1942, Secs. 1511, 1141, 3288.
If either or both of the Clarksdale boxes in question should be declared void the cause must be reversed and judgment rendered in this court in favor of the appellant. If both of the Clarksdale boxes are upheld but the court rules that reversible error was committed by the lower court in ruling on the 1943 poll tax questions, then the case should be reversed and remanded for a new trial. In event of a reversal on the 1943 poll tax question, which would necessitate a new trial, this court should rule that appellee is not confined solely to the Mound Bayou fraud but should have the right to amend and set up additional grounds of contest, especially as to the qualifications of voters. We respectfully submit, however, that no error was committed by the court below and that the judgment of the circuit court should be affirmed.
Argued orally by Hugh F. Causey, for appellant, and by W.B. Alexander and Stovall Lowrey, for appellee.
At a special election to fill the office of District Attorney held on February 1, 1944, there were three candidates, Simmons, Crisler, and Luckett. Simmons was declared by the election officers to have received a plurality of nine votes over Crisler, his nearest opponent, and was awarded a certificate of election and received from the Governor a commission as District Attorney. Within twenty days after the election Crisler filed a petition for a contest thereof in the court below in accordance with Section 3287, Code 1942. This petition challenged the legality of the votes counted for Simmons at Mound Bayou voting precinct in Bolivar County, and alleged that if these votes should not be counted that the petitioner would appear to have received a majority of the legal votes cast at the election. Simmons' plea to this petition was in the form of an answer, one paragraph of which denied the illegality of the votes cast at Mound Bayou and others alleged in substance that even if the Mound Bayou votes should be thrown out that nevertheless Simmons would appear to have received the greatest number of the legal votes cast at the election for the reason that the election was not lawfully held in two election districts in Coahoma County, to wit: the Riverton and the West Clarksdale Districts. The evidence relative to which will be hereinafter set forth. By an amendment to this answer Simmons set forth another reason to be hereinafter stated as to why he should be held to have received a majority of the legal votes cast at the election. At the close of the evidence the court below directed the jury to return a verdict for Crisler, and there was a verdict and judgment accordingly. In directing this verdict the court below necessarily held that the votes cast for Simmons at Mound Bayou were illegal, but the correctness of that holding is not before us, for it is not here challenged by Simmons.
As to the legality of the votes cast in the Riverton election district. Sections 3207, 3208, and 3209, Code of 1942, provide that the board of supervisors shall define the metes and bounds of the several election districts in the county and there shall be only one voting place in each district to be designated by the board by an order on its minutes. Pursuant thereto the Board of Supervisors of Coahoma County designated Binder's Store as the voting place for the Riverton District. A day or two before the election one of the managers appointed for holding the election at Binder's Store, and who was also a member of the firm of Binder Brothers, who owned and operated Binder's Store, advised one of the election commissioners "that they would not be able to hold it (the election) there (Binder's Store)." Without the consent of Binder Brothers the election could not be held at their store; consequently this election commissioner directed the managers of the election to hold it at a pressing shop across a public street and about one hundred feet from Binder's Store, at which pressing shop elections in the district had theretofore been occasionally held. This election was held in that pressing shop and except for the change in the voting place, complied in all respects with the requirements of the statute for holding elections; and no complaint is made that any elector was prevented from voting because of the place at which the election was held or that the vote cast did not fully and fairly express the will of the voters who there voted. When it developed that Binder's Store could not be used as the voting place for the election district, it was too late for a special meeting of the board of supervisors to be called for designating another voting place, and, confronted by this emergency, the managers of the election could do but one or two things, either call the voting off in that district and thereby deprive the electors therein of their constitutional right to participate in the election, or receive the votes at another place; and they wisely and rightly chose the latter. Not only did no harm to the voters or any of the candidates result therefrom, but no contention is made that any could have resulted, and such being the case, the will of the voters should not be defeated by declining to receive the votes there cast. Pradat v. Ramsey, 47 Miss. 24. This thought will be hereinafter further developed.
As to the legality of the votes cast in the West Clarksdale Election District. Under the governing statutes the county election commissioners are required to appoint three managers of the election in each election district, to whom shall be delivered, among other things one ballot box and one poll book in which the names of the registered voters shall be entered alphabetically; these three managers are to receive the ballots, determine whether the persons offering to vote are qualified electors, count the votes cast and certify the results of the election in the district to the election commissioner. The Board of Supervisors of Coahoma County some years ago designated Firehouse No. 2 as the voting place for the West Clarksdale District. This district usually polls a large vote and the custom had grown up, without the sanction of the board of supervisors or change by it in the boundaries of the district or in the designation of its voting place, for the election commissioners to designate the election district as West Clarksdale No. 1 and West Clarksdale No. 2; to appoint three managers for West Clarksdale No. 1 and three for West Clarksdale No. 2; to deliver to the managers of West Clarksdale No. 1 a ballot box and a poll book containing the registered electors whose names begin with the letter "A" and to and including the letter "L"; and to deliver to the managers of West Clarksdale No. 2 district one ballot box and a poll book containing the registered electors whose names begin with the letter "M" and to and including the letter "Z". Such was the course pursued here when this election was held. Two sets of managers held the election at Firehouse No. 2, three of them sitting at one end of a table and three at the other, one set receiving the ballots of persons whose names began with the letters "A" to "L" inclusive, and the others, those whose names began with "M" to "Z", inclusive, each set of managers using a separate ballot box and assisted by separate clerks. The ballots of persons whose names began with the letters "A" to "L" were counted and certified to by the managers who received them, and those of persons whose names began with the letters "M" to "Z", inclusive, were counted and certified to by the managers who received them. Each set of managers conducted the election as to the electors allotted to them, in the exact manner that one set of managers would have been required by the statute to conduct the election had this division of responsibility therefor not been made. No elector of the district was deprived of an opportunity to vote and no contention is made that the election was not fairly conducted and did not express the will of the electors in the district who desired to vote. All of the electors of the district having had an opportunity to vote and their choice of the person they desired to fill the office having been fairly expressed, their will should not be frustrated by a departure by the managers of the election from the method designated by the statute for holding the election (Pradat v. Ramsey, supra) unless obedience to the provision of the statute violated would prevent the defeat of the will of the electors by fraudulent methods hard to detect and to prove when afterwards challenged, as was the case in Hayes v. Abney, 186 Miss. 208, 188 So. 533, Briggs v. Gautier (Miss.), 15 So.2d 209. The court below committed no error in declining to reject the votes cast at either the Riverton or West Clarksdale election districts.
This brings us to the third and last of the appellant's complaints. By an amendment to his plea, which as hereinbefore stated was in the form of an answer, the appellant alleged that a large number of votes cast by named persons in several of the election districts, who had not paid their poll taxes as required by Section 241 of the Constitution, should be thrown out and if this were done it would appear that the appellant had received the greatest number of legal votes cast at the election.
The court below sustained a motion by the appellee that the appellant be required to make this portion of his plea more specific by alleging for whom these alleged illegal votes were cast and for what year the voters casting them failed to pay their poll taxes, and required the appellant "to specify in said amended answer for whom each of the alleged disqualified voters voted in the Special Election held February 1st, 1944, if he knows, and if he does not know, he shall be required to so state," and that he specify therein for what year or years the persons who cast the votes failed to pay their poll taxes.
The appellant then amended his plea by alleging "that until proof is made he is unable to say for whom said illegal votes were cast", and that the poll taxes which these voters failed to pay were for the year 1943. A demurrer to this amended plea challenged the failure of the appellant to set forth the name of the candidate for whom these alleged illegal votes were cast and the allegation therein that the alleged failure of these voters to pay their poll taxes for the year 1943 disqualified them from voting. This demurrer was overruled.
Another demurrer in the form of a motion "to strike from the said amendment all allegations with reference to the failure of certain voters to pay their poll taxes for the year 1943" on the ground "that the non-payment of the 1943 poll tax by any voter did not render his vote illegal for the reason that it was not necessary for him to pay said poll tax in order to entitle him to vote in the election which was held on the first day of February, 1944", was sustained, and the appellant did not further plead. While introducing his evidence he offered, but was not permitted, to introduce the alleged disqualified voters and ascertain from them for whom they voted.
Two questions are here presented: (1) Was it necessary for the appellant to set forth in his plea for whom these alleged illegal votes were cast; and should that question be answered in the affirmative, then (2) did the alleged failure of these voters to pay their poll taxes for 1943 disqualify them from voting in this election.
Under Section 3287, Code 1942, a person desiring to contest the election of another returned as elected to any office may file a petition therefor in the circuit court of the proper county "setting forth the grounds upon which the election is contested" from which it necessarily follows that when a contestee pleads an affirmative defense to the contest, he must also set forth the grounds upon which his defense rests. This is in accord with the general rule that in order to obtain relief from a court, a litigant must make it appear by his declaration, bill of complaint, or plea that he is entitled thereto. Unless these challenged votes were cast for the appellee, they cannot be deducted from those counted for him, and, therefore, cannot affect the result of this election. Consequently, in order to invoke the aid of the court in this particular, it is necessary for the appellant's plea to allege that these votes were cast for the appellee. 29 C.J.S. Elections, sec. 268; 18 Am. Jur. Elections, sec. 297; Kelly v. State, 79 Miss. 168, 30 So. 49. We are not troubled here, as some courts have been, by inability to compel an illegal voter to disclose for whom he voted, as will appear from Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575. If the appellant is unable, as he says, to ascertain and therefore cannot allege for whom these votes were cast, that is just his hard luck for which the appellee is in no way to blame. This difficulty not infrequently confronts a pleader but does not excuse him from alleging and proving facts necessary to warrant the court in granting him the relief sought. The appellant having failed to set forth in his plea for whom these alleged illegal votes were cast, the court below committed no error in striking therefrom all of its allegations relative thereto, and consequently it will not be necessary for us to decide the second of these questions.
Because of the fact that the court below erroneously held that the appellant had given a good excuse for not setting forth in his plea for whom these votes were cast, its judgment ordinarily would not be affirmed even if we should hold that the failure to pay their poll taxes for 1943 disqualified these voters from participating in this election, but the cause would be remanded to the court below so that the appellant might amend his plea, if he can, in this particular. But to do this here would be vain and fruitless, for the appellant says, by his plea, that he does not know and cannot ascertain for whom these votes were cast unless and until proof thereof is made at the trial.
When the votes cast for the appellant in the Mound Bayou District are deducted, as they must be, from those there counted for the appellant, it will appear that the appellee received the greatest number of legal votes cast in the election.
Affirmed.