Allen v. Funchess

This is an appeal from the unanimous judgment of a Special Tribunal of a trial judge, and the three election commissioners of the county, in a primary election contest over the nomination of the office of chancery clerk of Copiah County, the election in question being the second primary held on August 24, 1943. The official returns showed a total vote in the 24 precincts of the county of 1811 votes for appellee and 1788 for appellant. In accordance with Section 7 of the Corrupt Practices Act, Chapter 19, Laws 1935, Ex. Sess., appellant obtained an examination of all the 24 boxes, which examination was conducted, after due notice, on August 31, 1943, and disclosed that for 22 of the precinct boxes the official count corresponded with the recount but that at the East Hazlehurst box there was a difference between the official count, and the count made on the said examination of 13 votes in favor of appellant and a like number against appellee, and at the West Hazlehurst box there was the same difference of 13 votes in favor of appellant and against appellee — a situation which, under the ordinary law of chances, could not have arisen at two separate precincts in one case in a thousand except as a result of some subsequent and intermediate design.

The count made on the said examination would, if recognized, convert the majority of 23 votes for appellee, as shown by the official returns, into a majority of 29 for appellant. The executive committee, on being reassembled, declined to act on the said examination and recount and adhered to its original determination that appellee was the nominee, whereupon appellant took, in due course and order, the steps necessary to have the matter submitted to a judicial review, which review having been had, a judgment as stated was rendered by the Special Tribunal in favor of the contestee, hence this appeal as first above stated.

No attack was made in appellant's petition before the executive committee, and to which his petition for a judicial review was confined, on any of the boxes except the East Hazlehurst and the West Hazlehurst boxes, and as to these no illegal voting or illegal receipt of votes was alleged, but the attack was confined to the manner in which the official counts were made immediately after the polls were closed. The answer of appellee was by way of defense as to the integrity of the official count at these two boxes, with the further averment that when the boxes, including the two attacked, were delivered to the circuit clerk, immediately after the executive committee had made its examination of the boxes on Thursday, August 26, 1943, the circuit clerk had failed to reseal the boxes and to keep a record of the seals as required by Secs. 6 and 7 of the said Corrupt Practices Act, and that therefore the boxes and their contents thereupon had lost their integrity in point of having any evidentiary value at the time the examination and recount was made on August 31st, and appellee went further and alleged that not only was an opportunity to tamper with the ballots in the two challenged boxes afforded by this failure to reseal them, but that as a matter of fact the contents of the two boxes had actually been tampered with and in the manner to produce the discrepancy between the official returns and the ballots as found in the two boxes on the subsequent examination and recount, — although appellee has completely exonerated appellant, as does the entire record as it stands before us, of any part in what happened to these boxes or that he would by word, deed or knowledge have taken any part therein. Had these boxes been sealed, as required by the statute, it is entirely probable that this unfortunate controversy would never have proceeded to the course of an expensive litigation with its residue of doubts which will inevitably linger and rankle.

What has been said has been by way of disclosing in outline what were the issues which confronted the special tribunal. The record and the briefs in the case have been presented to us during the first part of the week next before a decision must be announced on this Monday in order that the nominee may get on the official ballot for the general election on November 2d. Under our usual course of procedure in all cases, the record and briefs must be examined by not less than two judges, and on the case not less than two conferences of all the judges must be had in the detailed consideration of everything presented; wherefore, we are without the time to prepare an opinion in that detail which the case would otherwise receive, and we must of necessity resort in a large degree to outlines and summaries.

Subsection (c), Sec. 15 of the Corrupt Practices Act provides that "the special tribunal . . . shall fully hear the contest or complaint de novo and make a finding dictated to the reporter covering all controverted material issues of fact, . . . and thereupon the trial judge shall enter the judgment which the county executive committee should have entered," etc. The Special Tribunal did not "make a finding dictated to the reporter covering all controverted material issues of fact," but instead, the tribunal, as such, made no finding save as embodied in its final order which is as follows:

"The Special Tribunal, selected to hear and decide this case, now having considered all of the testimony, together with the documentary evidence, have reached a unanimous decision herein,

"And it is now ordered and considered by the court that the evidence in this case does not justify this court in overturning the decision of the legally constituted authorities who have acted heretofore, to-wit, the officers holding the election and the Democratic Executive Committee.

"It is therefore ordered by the court that H.T. Funchess be and he is declared the nominee of the Democratic party for office of chancery clerk of Copiah County, Mississippi. Four additional days are allowed for appeal and Bill of Exceptions."

The record shows that neither party requested the Special Tribunal to make the findings in the manner as pointed out by the statute. Nevertheless, the record itself raises the question whether there is anything before us on the record as it now stands upon which we are authorized to act, a full transcript of the evidence not being here, and therefore whether we should not dismiss the appeal or affirm for that reason alone. However, appellee has not raised the point, or if so he has not insisted upon it, but has proceeded to the argument as if there were implicit in the order made by the Special Tribunal the decision of the two ultimate issues: That (1) under all the evidence the contents of the boxes on August 31st had lost their integrity as having a safe and dependable evidentiary value; and that (2) the evidence as a whole is sufficient to sustain the official counts as made immediately after the close of the polls.

In the view, but to which we do not commit ourselves as a precedent, that the order of the Special Tribunal does carry the said findings as its ultimate conclusion upon the facts, then inasmuch as the order was unanimously entered, we are at once further confronted with the provision of Subsection (d) of Sec. 15 of the Corrupt Practices Act which provides that "if the findings of fact have been concurred in by all the commissioners in attendance, provided as many as two of the commissioners are and have been in attendance, the facts shall not be subject to review on appeal, and the bill of exceptions shall not set up the evidence upon which the facts have been determined." In such a case, the only recourse by an appellant would be to show that there was either (1) no evidence whatever to sustain the findings, or (2) what would amount to the same thing, that there was no substantial evidence in support of the findings.

This sends us then to the synopsis of the facts as set up in the bill of exceptions, and from this we cannot fail to see that there was introduced substantial evidence, competent and believable, in support of the findings by the Special Tribunal on the two controlling issues as stated, from which an affirmance must follow, whatever we might think of this evidence if we were permitted under the statute to make an independent finding. For reasons already stated, we are without the time or opportunity to elaborate upon the facts as disclosed by the synopsis, nor upon the several considerations which have led to the conclusion which we have herein stated; but we do add that as to East Hazlehurst box, the facts do not bring the case within Briggs v. Gautier,195 Miss. 472, 15 So.2d 209, recently decided here, and as to the West Hazlehurst box, we would call attention to the holdings in such cases as State v. Creston, etc., Co., 195 Iowa, 1368, 191 N.W. 988; Roberts v. Calvert, 98 N.C. 580, 4 S.E. 127; and Fullerton v. Smizer, 51 S.D. 320, 213 N.W. 730, cited on page 327 of 29 C.J.S., Elections, sec. 225, which cases we find upon an examination fully sustain the text.

We are satisfied with what was said and done by us in Briggs v. Gautier, as applied to the wide and vital departure from the statutory course there shown, but if we should advance that holding so as to embrace cases such as presented under all the facts in the instance now before us, primary election contests, especially as to the larger precincts, would become so common as to overbear the good that was sought to be accomplished in allowing them.

Affirmed.