State ex rel. Attorney-General v. Ratliff , 108 Miss. 242 ( 1914 )

Smith, C. J.,

delivered the opinion of the court.

Appellees Batliff and Cotton were not disqualified to succeed themselves, for the reason that the preceding board of aldermen, of which they were members, had increased the tax levy without being authorized so to do by a vote of the people. Section 3430 of the Code is plain and unambiguous, and no resort to rules of construction are necessary in order to understand its terms. It provides that, “in case of an increase in indebtedness not so authorized, the mayor and aldermen shall not succeed themselves or each other,”'and taxes levied are not a part of the indebtedness of a municipality.

The election commissioners must be presumed to have properly acted as managers of the election under section 3437 of the Code, for the reason that it does not appear from the agreed statement of facts that the municipality contained more than one election precinct.

There is no merit in the contention that the election was void because the name of C. T. Breitpaupt was not placed on the ticket as a candidate for alderman, for the reason, if no other, that it does not appear from the agreed statement of facts that the petition circulated therefor was ever filed with the election commissioners.

The voters had the right to write the name of G. G. Timberlake on the ticket as their choice for alderman. City of Jackson v. State, 102 Miss. 663, 59 So. 873.

At least twenty-eight of the thirty-two ballots on which the name of Timberlake was written should not have been rejected by the commissioners as within the condemnation of section 4156 of the Code, for the reason that it appears from the agreed statement of facts that:

‘ ‘ On thirty-two of said votes was written the name of G. G. Timberlake with pen and ink, and twenty-eight of these ballots were voted for by placing a cross opposite the written name of said Timberlake for alderman of the said town of Lucedale.”

From this we must conclude that it appeared from the ballots that the votes cast for Timberlake were for.the office of alderman. The rejection of these ballots is immaterial in so far as all of appellees other than Bailey are concerned, because it is admitted that they received a majority of all of the ballots cast. Since Bailey received only twenty-four votes, it appears that Timber-lake had a clear majority of at least four over him, and therefore he, Bailey, should not have been declared elected.

There is no merit in the contention that because Timberlake was disqualified to hold the office the votes cast for him must be rejected and the. certificate of election awarded to Bailey. Sublett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338. That “it was' a well-known fact that Timberlake had moved to' Louisiana,” and therefore that his disqualification must have been known to tbe voters is immaterial. Barnum v. Gilman, 27 Minn. 471, 8 N. W. 375, 38 Am. Rep. 304; note to Gulick v. New, 77 Am. Dec. 59.

Affirmed.