Opinion
No. 40072.
December 5, 1955.
1. Elections — stenographic notes — motion to strike — moot question.
Where contestee in primary election contest appeal moved to strike stenographic notes and transcript of testimony taken on trial, although he had attached to his own bill of exceptions on cross-appeal a transcript of the testimony, since the Supreme Court was affirming case, motion was moot and would be dismissed. Secs. 3158-3195, Code 1942.
2. Elections — evidence — absentee voters — qualified electors.
In primary election contest involving issue of whether absentee voters were qualified electors of district, evidence supported finding that they were such electors. Secs. 3158-3195, Code 1942.
3. Elections — ballot — improperly initialed — void.
Where primary election ballot was initialed on back with the initials of the receiving manager and not of the initialing manager, ballot was not to be counted. Sec. 3164, Code 1942.
4. Elections — same — same — charged before Democratic Executive Committee.
In such case, charged by contestee before Democratic Executive Committee that ballot was not initialed by initialing officer, covered ground that ballot was initialed by receiving manager and not initialing manager. Sec. 3164, Code 1942.
5. Elections — ballot — improperly initialed — void.
In such case, there was no error in refusing to count ballots initialed on back thereof by an individual not known to the record and not shown to have been an election manager. Secs. 3164, 3274, Code 1942.
6. Elections — contest — scope of — limited to petition.
Contestant in an election contest cannot go beyond the scope of the contest made by him in his petition, and a contest is confined to the grounds set up in the protest to the executive committee. Secs. 3158-3195, Code 1942.
7. Elections — contest — ballot boxes — opening — reopening.
In such case, there was no reversible error in overruling of motion by contestant to reopen the ballot box after it had been sealed subsequent to examination of its contents by both parties at beginning of hearing.
8. Elections — absentee ballot — void.
Where voter's affidavit for absentee ballot did not designate any qualified elector to deliver his ballot, but left space blank for the naming of such person, ballot was void. Secs. 3203-05, 3203-08, Code 1942.
9. Elections — evidence — ballots.
Evidence sustained action of Special Tribunal in counting certain votes for contestant, and in refusing to count a certain vote for contestant.
10. Elections — evidence — ballots — properly identified.
Evidence sustained finding that certain ballot was not void as having been improperly identified. Sec. 3274, Code 1942.
11. Elections — absentee ballot — affidavit — sufficient.
Although voter's affidavit for absentee primary election ballot had at least two lines of the statutory affidavit transposed, ballot which had been acknowledged before an out-of-State notary public was sufficient. Sec. 3203-04, Code 1942.
12. Elections — manner of marking ballots — slight irregularities.
Where primary election ballots contained an "X" opposite candidate's name together with an additional perpendicular mark to the left of the "X", ballot was not void, since it appeared that the additional perpendicular mark was unintentionally made and not for the purpose of identification.
13. Elections — same — same.
Ballots should not be rejected as having distinguishing marks on account of slight irregularities in manner of marking.
14. Appeal — election contest — affirmed as modified.
Where on an appeal of an election contest, contestee lost one vote which was erroneously counted by Special Tribunal, and gained two votes which had been improperly denied to him, thereby netting one additional vote, decision of Special Tribunal and County Executive Committee declaring contestee as the elected candidate would thus be modified and affirmed.
Headnotes as approved by Ethridge, J.
APPEAL from a Special Tribunal in Claiborne County; S.B. THOMAS, Special Judge.
P.M. Watkins, Port Gibson; Barnett, Jones Montgomery, Jackson, for appellant and cross-appellee.
I. The Court of judicial review erred in counting the votes of Mr. and Mrs. J.A. McFatter, Sr., for the contestee, J.S. Middleton. Allen v. Funchess, 195 Miss. 486, 15 So.2d 343.
II. The Court erred in declaring Mrs. Myra Middleton Barnett to be a qualified elector of Brandywine Precinct and in counting her vote for contestee Middleton. Jones v. State, 207 Miss. 208, 42 So.2d 123; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148.
III. The Court of judicial review erred in holding that the absentee ballot of J.A. McFatter, Jr., was a legal ballot and in counting same for the contestee, J.S. Middleton. Walker v. Smith, 213 Miss. 255, 56 So. 84; Secs. 3187, 3203-05, 3205-08, Code 1942; Chap. 174, Laws 1944; Chap. 237, Laws 1950.
IV. The Court of judicial review erred in rejecting the ballot initialed "S.J.M." (Exhibit "A4") and the two ballots initialed "J.S.M." (Exhibits "A5" and "A6"), and deducting same from the vote counted for S.E. Starnes. Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432; Shaw v. Burnham, 186 Miss. 647, 191 So. 484; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Sec. 3274, Code 1942.
V. The Court erred in refusing to let the contestant, S.E. Starnes, remove from ballot box five ballots therein counted for Middleton and on the back of which were the initials "J.S.M." and offer them in evidence.
Satterfield, Shell, Williams Buford, Jackson; Berger Callon, Natchez, for appellee and cross-appellant.
I. The motion to strike the stenographic notes should be sustained. Landers v. Prather, 213 Miss. 68, 56 So.2d 32; McDonald v. Spence, 179 Miss. 342, 174 So. 54; Sec. 3185, Code 1942.
II. Motion to dismiss the appeal should be sustained. Allen v. Funchess, 195 Miss. 486, 15 So.2d 343; Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209; Carver v. State ex rel. Ruhr, 177 Miss. 54, 170 So. 643; Darnell v. Myres, 212 Miss. 767, 32 So.2d 684; Fillingane v. Breland, 212 Miss. 423, 54 So.2d 747; Hayes v. Abney, 186 Miss. 208, 188 So. 533; Hickman v. Seitzer, 186 Miss. 720, 191 So. 486; Houston v. Baldwin, 212 Miss. 380, 54 So.2d 543; Lambert v. Bristler, 222 Miss. 581, 76 So.2d 711; Landers v. Prather, supra; McDonald v. Spence, supra; Pearson v. Jordan, 186 Miss. 789, 192 So. 39; Pittman v. Forbes, 186 Miss. 783, 191 So. 490; Simons v. Crisler, 197 Miss. 547, 20 So.2d 85; Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697; Turner v. Henry, 187 Miss. 689, 193 So. 631; Walker v. Smith, 213 Miss. 255, 56 So.2d pp. 84, 166.
III. The motion to dismiss the petition for judicial review for lack of proper verification should have been sustained. Burks v. Burks, 66 Miss. 94, 6 So. 244; Coppock v. Smith, 54 Miss. 649; Darnell v. Myers, supra; Downing v. Campbell, 131 Miss. 137, 95 So. 312; Fillingane v. Breland, supra; Waller v. Shannon, 53 Miss. 500; Yazoo Delta Mortgage Co. v. Harlow, 145 Miss. 221, 110 So. 585; Sec. 3182, Code 1942; 18 Am. Jur., Sec. 274 p. 361; 29 C.J.S., Sec. 247 pp. 355-57.
IV. The Court of judicial review erred as a matter of law in counting the votes of Kenneth Brister and Yvonne Shelton Brister, both cast for contestant Starnes. Boyles v. Griffing, 84 Miss. 81, 36 So. 141; Hancock v. Reedy, 181 Miss. 830, 180 So. 81; 28 C.J.S., Sec. 12 b. (a) p. 24.
V. The vote of Helen McFatter should be counted for contestee Middleton. Darnell v. Myers, supra.
VI. The ballot marked Exhibit "A-3" cast for the contestant Starnes should not have been counted.
VII. The votes of John L. Barland and Mrs. John L. Barland should not have been counted for the contestant Starnes.
VIII. The ballot with an extra cross mark on the "X" should have been counted for the contestee Middleton. Evans v. Hood, 195 Miss. 37, 15 So.2d 37; Kelly v. State, 79 Miss. 168, 30 So. 49; Tonnar v. Wade, 153 Miss. 722, 121 So. 156.
APPELLEE IN REPLY.
I. The Court of judicial review correctly counted the votes of Judge and Mrs. J.A. McFatter, Sr., for the contestee J.S. Middleton. Bilbo v. Bilbo, 180 Miss. 536, 177 So. 772; Jones v. State, 207 Miss. 208, 42 So.2d 123; McHenry v. State ex rel. Rencher, 119 Miss. 289, 80 So. 763; Smith v. Deere, 195 Miss. 502, 16 So.2d 33; 17 Am. Jur., Sec. 96 p. 646; 28 C.J.S., Sec. 19 pp. 48-9.
II. The Court of judicial review correctly held Mrs. Myra Middleton Barnett to be a qualified elector of Brandywine Precinct and in counting her vote for contestee Middleton. Allen v. Funchess, 195 Miss. 486, 15 So.2d 343.
III. The ballot of J.A. McFatter, Jr., was properly counted. Walker v. Smith, 213 Miss. 255, 56 So.2d 84.
IV. The Court correctly rejected the five ballots introduced by the contestee Middleton which were not initialed by the initialing manager or were improperly identified. Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697; Sec. 3164, Code 1942.
V. The Court properly overruled the motion of the contestant to reopen the ballot box and remove additional ballots therefrom. Houston v. Baldwin, 212 Miss. 380, 54 So.2d 543; Tonnar v. Wade, 153 Miss. 722, 121 So. 156.
APPELLANT AND CROSS-APPELLEE IN REPLY.
I. The motion to strike the transcript of evidence should be overruled. Allen v. Funchess, 195 Miss. 486, 15 So.2d 343; Landers v. Prather, 213 Miss. 68, 56 So.2d 32; McDonald v. Spence, 179 Miss. 342, 174 So. 54; Planters Ins. Co. v. Cramer, 47 Miss. 200; 18 C.J.S., Sec. 176 p. 281.
II. Contestee's motion to dismiss the contestant's appeal should be overruled.
A. The bill of exceptions does not contain a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the points of law raised therein.
B. Contestee charges that the bill of exceptions is defective because there is no certificate by the Trial Judge certifying that the bill of exceptions is a correct statement. This ground of the motion is also without merit. Secs. 1531-1532, 3185, Code 1942.
C. Contestee moves to dismiss contestant's appeal on the ground that the petition for judicial review was not properly verified. This ground is also without merit. Chancey v. Allen, 48 Tex. Civ. App. 441, 107 S.W. 605; Fillingane v. Breland, 212 Miss. 423, 54 So.2d 747; Loeb v. Smith, 78 Ga. 504, 3 S.E. 458; Lord v. Rowse, 195 Mass. 216, 80 N.E. 822; Yazoo Delta Mortgage Co. v. Harlow, 145 Miss. 221, 110 So. 585.
III. The Court of judicial review did not err in counting the votes of Kenneth Brister and Yvonne Brister for S.E. Starnes. Dick v. Grissom, Freeman's Chy., p. 428; 67 C.J.S., Sec. 89(c) p. 816.
IV. The Trial Court did not err in holding the Helen McFatter ballot to be void and in deducting it from the vote for Middleton, for whom it was voted. Bryant v. Sovereign Camp W.O.W. (Ga.), 115 S.E. 285; Hutchins v. State, 8 Ga. App. 409, 69 S.E. 309; 2 C.J.S., Sec. 10(e) p. 934.
V. The Court of judicial review did not err in counting the ballot marked "A-3" for contestant Starnes, for whom it was voted. Evans v. Hood, 195 Miss. 37, 15 So.2d 37; Kelly v. State, 79 Miss. 168, 30 So. 49; Tonnar v. Wade, 153 Miss. 722, 121 So. 157.
VI. The Court of judicial review did not err in counting the votes of Mr. and Mrs. John L. Barland for the contestant Starnes, for whom they were cast.
VII. The Court of judicial review did not err in rejecting the ballot introduced in evidence by contestant as Exhibit "8" to contestant's evidence and marked by the court reporter as "Exhibit 8" to contestant's evidence, "L.W.S." and did not err in refusing to count same for contestee Middleton. Carver v. State ex rel. Ruhr, 177 Miss. 54, 170 So. 643; Guice v. McGehee, 155 Miss. 858, 124 So. 643, 125 So. 433.
This is a primary election contest under the Corrupt Practices Act. Miss. Code 1942, Sections 3158-3195. Appellant S.E. Starnes, contestant, and appellee J.S. Middleton, contestee, were runoff candidates in the second Democratic primary election held on August 23, 1955, for Democratic nomination for Supervisor of District No. 5 of Claiborne County, Mississippi. The tally by the managers of the election reflected that Starnes received 116 votes and Middleton 115 votes. The Claiborne County Democratic Executive Committee reached a different result, and held that Middleton had won the election by a vote of 117 to 116 ballots for Starnes.
After an unsuccessful contest before the Executive Committee, appellant Starnes filed a petition of contest in the circuit court, under Code Section 3182. A special judge was appointed to hear the petition. Section 3183. The Special Tribunal, consisting of the appointed judge and two of the three county election commissioners, (one of them being unavoidably absent) held a full hearing on Starnes' petition and contest, and on contestee Middleton's cross complaint as to certain ballots. The Special Tribunal without dissent made findings of facts as to a number of ballots. It decided that Middleton had won the election by a vote of 116 to 115 for Starnes. The result was in accord with the holding of the Democratic Executive Committee, except that the Special Tribunal reduced the vote of each of the parties by one. From that judgment of the Special Tribunal, contestant Starnes has appealed to this Court under Code Section 3185, and contestee Middleton has filed a cross appeal. Each of them prepared bills of exceptions which were signed by the trial judge, and each of the bills of exceptions ordered that the transcript of the evidence taken by the court reporter on the trial and the exhibits introduced in evidence should be made a part of the bills of exceptions and be considered a part thereof.
(Hn 1) Contestee Middleton has filed a motion to strike the stenographer's notes and transcript of the testimony taken on the trial, on the ground that such a transcript cannot be used on an appeal where members of the Special Tribunal agree. Code Section 3185. However, since the movant himself has attached to his own bill of exceptions on cross appeal a transcript of the testimony, and since we are affirming the case anyway, the motion is moot and is dismissed. Appellee has also filed a motion to dismiss the appeal. It should be and is overruled. We think that appellant's bill of exceptions was properly signed by the trial judge, and that the petition for judicial review was sufficiently verified.
(Hn 2) Appellant Starnes complains of actions of the Special Tribunal with reference to certain ballots. The lower court was correct in counting the absentee votes for contestee Middleton of Mr. and Mrs. J.A. McFatter, Sr., and of Mrs. Myra Middleton Barnett. The issues concerning them revolved around whether they were qualified electors of District No. 5. Under the authority of numerous cases, the stated rulings concerning their votes were sound and supported by substantial evidence. McHenry v. State, ex rel. Rencher, 119 Miss. 289, 80 So. 763 (1919); Hopkins v. Wilson, 212 Miss. 404, 54 So.2d 661, 924 (1951).
(Hn 3) Nor was there any error in the refusal of the Special Tribunal to count for Starnes the ballot designated as contestee's Exhibit A-4, which had initialed on the back "S.J.M." The trial court found that the initials were those of the receiving manager and not of the initialing manager, and that hence it should not be counted. Code Section 3164; Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697 (1951). (Hn 4) Appellant concedes that this ballot should not be counted if the question were properly raised by appellee in the contest before the Executive Committee. Middleton there charged that the ballot was not initialed by the initialing officer. That would manifestly encompass the above-stated grounds.
(Hn 5) There was no error in the Special Tribunal's refusal to count for Starnes two ballots designated as contestee's Exhibits A-5 and A-6. They were initialed on the back thereof "J.S.M." The Special Tribunal found that these ballots were initialed by "an individual not known to the record — not shown to be an election manager." This finding is supported by the record, so these two ballots were properly omitted from the count for Starnes because they were not initialed by the initialing manager of the election, and also because they were improperly identified. Code Section 3274.
(Hn 6) At the beginning of the hearing the ballot box of the precinct in question was opened and both sides had full opportunity to examine the ballots. After contestant had presented his extensive testimony, but before resting, he moved the court for permission to reopen the ballot box, which had previously been sealed after the examination at the beginning of the hearing. This motion was overruled by the Special Tribunal. (Hn 7) There was no reversible error in that action. The motion to reopen the ballot box was based on the statement therein that the box contained five ballots for Middleton which had written on the back thereof the initials "J.S.M." Appellant had made no allegation of improper identification or initialing of these particular ballots in his contest petition before the county executive committee, and cannot go beyond the scope of the contest made by him. A contestant is confined to the grounds set up in the protest to the executive committee. Houston v. Baldwin, 212 Miss. 380, 54 So.2d 543 (1951). Moreover, we cannot say that the action of the trial court on this motion constituted an abuse of its discretion.
(Hn 8) However, we think that the Special Tribunal erred in counting for Middleton the absentee ballot and vote of J.A. McFatter, Jr. The voter's affidavit required by Code Section 3203-04 did not designate any qualified elector to deliver the ballot, but left blank a space for the naming of such person. Hence this ballot is void and should not have been counted for Middleton. Miss. Code Sections 3203-05 and 3203-08; Walker v. Smith, 213 Miss. 255, 56 So.2d 84 (1952).
(Hn 9) By cross appeal the contestee Middleton complains of the action of the Special Tribunal in counting certain votes for Starnes and in refusing to count certain votes for Middleton. We find no error in counting for Starnes the votes of Mr. and Mrs. Kenneth Brister and of Mr. and Mrs. John L. Barland. There was more than substantial evidence to support the finding of the Special Tribunal that these people were qualified electors of the Fifth District. McHenry v. State, ex rel. Rencher, supra; Hopkins v. Wilson, supra. Nor was there any error in the count for Starnes of the ballot marked Contestee's Exhibit A-3. (Hn 10) The trial court was amply warranted in concluding that it was not improperly identified and void under Code Section 3274.
(Hn 11) However, on the cross appeal of Middleton we think that the Special Tribunal erred in refusing to count for Middleton two ballots: (1) The absentee ballot for Middleton of Helen McFatter. Although at least two of the printed lines of the affidavit required by Code Section 3203-04 are transposed, the affidavit is a substantial compliance with the statute, and the acknowledgment before a California notary public is clearly reflected by that notary's seal upon the affidavit, and is sufficient. (2) (Hn 12) Contestant's Exhibit 8 is a ballot for Middleton. Six offices were in contest. The voter marked an "X" opposite candidates for three of the other offices, and at the bottom of the ballot marked an "X" opposite Middleton's name, which, however, also contained an additional perpendicular mark to the left of the "X", but touching the horizontal line. The special tribunal held that this was an illegal ballot, and should not be counted, apparently on the ground that it was illegally identified. (Hn 13) Ballots should not be rejected as having distinguishing marks on account of slight irregularities in the manner of marking. It must be clear that the voter intended to mark for identification. The additional perpendicular mark to the left of the "X" appears to have been unintentionally made and not for the purpose of identification. The ballot should have been counted for Middleton. Kelly v. State, ex rel. Kiersky, 79 Miss. 168, 30 So. 49 (1901); Tonnar v. Wade, 153 Miss. 722, 121 So. 156 (1929).
(Hn 14) In summary, the Special Tribunal erroneously counted for Middleton the absentee ballot of J.A. McFatter, Jr. However, on the cross appeal it erroneously refused to count for Middleton the absentee ballott of Helen McFatter and the ballot with the extra perpendicular mark to the left of the cross mark. So the result is that Middleton lost one and gained two votes on this appeal, thereby netting one additional vote. He therefore was elected by a vote of 117 for Middleton to 115 for Starnes. This affirms the action of the County Democratic Executive Committee and of the Special Tribunal in holding that Middleton was the Democratic nominee. But it reverses in part on the direct and cross appeals particular actions of the Special Tribunal concerning certain ballots and the total count, and in that sense the judgment appealed from it modified.
Affirmed as modified.
Hall, Lee, Kyle and Gillespie, JJ., Concur.