May v. Layton , 213 Miss. 129 ( 1951 )

On the Merits.

Ethridge, C.

Garfield May and Estus Layton were candidates in the Second Democratic Primary on August 28, 1951, for the office of Supervisor of District 1 of Simpson County, Mississippi. The votes as tabulated by the Simpson County Democratic Executive Committee showed 1,158 for May and 1,055 for Layton. Hence May was declared the nominee. Subsequently, Layton filed a contest with the Executive Committee with reference to five of the nine precincts (later reduced to four) and, when it was disallowed, he appealed to the Special Tribunal created and provided for by the Corrupt Practices Act, Mississippi Laws 1935, Chap. 19, Code of 1942, Secs. 3158-3159, 3182-3189. At that hearing, the Special Tribunal, consisting of the presiding judge and the three election commissioners, reversed the action of the Executive Committee, by a judgment dated October 20, 1951, declared contestant Layton the Democratic nominee for the office, and directed that his name be placed on the official ballot in the general election in November, 1951. Presumably this was done. Contestee May appealed to this court from that judgment, as authorized by Code, Sec. 3185.

The effect of the finding of facts and the judgment of the Special Tribunal was to hold that Layton was elected by a vote of 692 to 686; to hold void all ballots cast in the E'ast North Magee and Weathersby precincts, and to hold void all except eight absentee ballots in the Old Hickory precinct, and to hold void all ballots in the Sumrall precinct except one absentee vote. This action was based upon the failure of election managers to initial the regular ballots, of regular voters to sign receipt books therefor, and upon defects in the method of delivery of absentee ballots. Chinn v. Cousins, 1946, 201 Miss. 1, 27 So. (2d) 882; Hayes v. Abney, 1939; 186 Miss. 208, 188 So. 533; Code Sec. 3164; Walker v. Smith, Miss., 56 So. (2d) 84.

The primary effect of the judgment of the Special Tribunal was to exclude practically all of the votes in four of the nine precincts of the district, and to hold void 836 votes out of a total vote in the district of 2,213. There was no finding of . fraud in the handling of the election; the errors appear to have resulted solely from a misapprehension as to and failure to comply with the statutory requirements for administering a primary election. Hence the result of excluding such a large proportion of the total votes cast in the district is to make it impossible for one to reasonably say that the result arrived at by the Special Tribunal represented the will of the voters, because the votes of more than one-third of the voters of that district were held void for failure to comply with mandatory provisions of the statutes.

Upon the record before this court, whether we consider only the bill of exceptions or the testimony also (and we pretermit any question as to whether a transcript of the testimony can by agreement of the parties be made a part of the record under Code, Sec. 3185), it is manifest that these above-stated failures to comply with the mandatory provisions of the statutes require that practically all of the votes in all four of the boxes in question must be held void.

As was said in Briggs v. Gautier, 1943, 195 Miss. 472, 485, 15 So. (2d) 209, where there is a total departure from the mandatory provisions of the statute, and it is not possible to ascertain the will of the electors, because a substantial portion of the votes were void, a new election should be ordered for the purpose of ascertaining the voter’s choice. See also Chinn v. Cousins, 1946, 201 Miss. 1, 27 So. (2d) 882; Code, Sec. 3167. The judgment of the Special Tribunal is, therefore, reversed and since it is now too late for a primary election limited to the four boxes in question, it is ordered that an election be called and held for all of the boxes in the entire District No. 1 in the manner provided by Code of 1942, Sec. 3187.

Reversed and election ordered.

PER CURIAM.

The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the Special Tribunal is reversed and election ordered.