Summary
In Trahan the Court cited Hayes v. Abney, supra, as authority for the proposition that where enough illegal votes were cast to change the result, or leave it in doubt, the election is void. The Court then held that the rule applied only in quo warranto proceedings but cited no authority for this conclusion.
Summary of this case from O'Neal v. SimpsonOpinion
No. 34600.
May 26, 1941.
1. ELECTIONS.
The rule that where enough illegal votes are cast to change result of election or leave it in doubt, the election is void, is applicable only where action in quo warranto is instituted in name of state to oust person obtaining office under void election, and does not apply in an election contest between the candidates involved.
2. ELECTIONS.
In an election contest, the contestant has the burden of proof and that burden is not met simply by showing that enough illegal votes were cast to change result of election or leave it in doubt.
3. ELECTIONS.
A contestant in election contest cannot place qualified voters on witness stand and show by them for whom they voted, but that exemption does not belong to an illegal voter.
4. ELECTIONS.
In election contest, illegal voters may be summoned as witnesses and compelled to disclose for whom they cast their illegal ballots, since that is often the only practicable manner by which contestant may prove his case.
5. ELECTIONS.
In election contest by defeated candidate for office of justice of the peace, court erroneously rejected contestant's offer to prove by 21 of 22 persons casting illegal ballots that they had cast their ballots for other candidate, who had received but four more votes than contestant.
APPEAL from the circuit court of Pike county, HON. J.F. GUYNES, Judge.
F.D. Hewitt, of McComb, for appellant.
The 22 people who voted were illegal voters and were not entitled to claim any secrecy of the ballot. They did did not claim it, but the defendant appellee objected and objection was sustained by the court.
Ex Parte Bullen (Ala.), 181 So. 498; McDonald v. Wood (Ala.), 24 So. 86; Const. of Miss. 1890, sec. 241; Bow v. State, 13 So. 868, 71 Miss. 1; Sproule v. Fredericks, 11 So. 472, 69 Miss. 898; Roane v. Matthews, 21 So. 665, 75 Miss. 94; State v. Laizer, 25 So. 153, 77 Miss. 146; Kelly v. State, 30 So. 49, 50, 79 Miss. 168; Guice v. McGehee, 155 Miss. 858, 864, 124 So. 643, 647, 125 So. 433.
The rule is that where enough illegal votes were cast to change the result or leave it in doubt, the election is void.
20 C.J. 182; Hayes et al. v. Abney et al., 188 So. 533, 186 Miss. 208.
B.D. Statham, of Magnolia, for appellee.
The return of the election managers raised a prima facie presumption that appellee was the duly elected officer, and this presumption remains inviolate until set aside by evidence.
Word v. Sykes, 61 Miss. 66; Pradat v. Ramsey, 47 Miss. 37; Guice v. McGehee, 124 So. 643, 155 Miss. 858.
The primary purpose of our ballot system is to maintain secrecy of the polls.
20 C.J. 140; Cooley's Constitutional Law (7 Ed.), pp. 1910-1913; 4 Wigmore on Evidence (2 Ed.), par. 2244; Code of 1930, secs. 6219, 6245.
There was no error committed by either the election managers or by the court on the question of the closing of the polls.
State v. Greer, 130 So. 482, 158 Miss. 315; Fullwood v. State, 7 So. 384, 67 Miss. 554; Shines v. Hamilton, 87 Miss. 384, 39 So. 1009; Pradat v. Ramsey, 47 Miss. 37; Hamilton v. Marshall, 282 P. 1058; 66 A.L.R. 1159.
Argued orally by F.D. Hewitt, for appellant, and by Gordon Roach, for appellee.
At a special election held in the Fifth District of Pike County on September 10, 1940, for the election of a justice of the peace to fill the vacancy caused by the death of the incumbent, the parties hereto were the only candidates, and according to the returns certified by the election commissioners appellee Simmons received 170 votes and appellant Trahan, 166 votes. Appellant contested the election by the procedure provided by law, and, on the trial, it was admitted by an agreed statement of facts, dictated into the record, that there were 22 illegal votes cast and counted in this election which were included in the totals certified by the election commissioners.
It was distinctly announced by this Court in Hayes v. Abney, 186 Miss. 208, 188 So. 533, 535, that "where enough illegal votes were cast to change the result or leave it in doubt, the election is void." The rule as stated, whatever may be its ultimate effect, is applicable, however, only when the attorney general or district attorney has, in such a case, instituted an action in quo warranto, solely in the name of the State, to oust a person who has intruded himself into office under an election void for the stated reason. It can have no application in an election contest between the candidates wherein the candidate certified as having lost seeks, not to avoid the election, but to avail of it and to show by his contest that in fact he was elected by the majority of the qualified voters who voted. In such a contest he has the burden of the proof; and manifestly this is not met simply by showing that enough illegal votes were cast to change the result or leave it in doubt.
And the contestant in making his proof cannot be allowed to place on the witness stand the qualified voters and show by them for whom they voted. Under our secret ballot system a qualified voter cannot be thus interrogated. But this exemption does not belong to an illegal voter. Such a person is not a voter, and his wrongful assertion and exercise of the privileges of a voter do not make him such. An extended examination of the authorities, many of which are noted in 20 C.J., pp. 246, 247, when read in the light of the implications in Kelly v. State, 79 Miss. 168, 30 So. 49, has convinced us that an illegal voter may be summoned as a witness and be put on the stand and compelled to disclose for whom he cast his illegal ballot.
It follows from what has been said that the manner, and ordinarily the only practicable manner, by which a contestant may show that in fact he was elected by the majority of the legal voters is to put on the stand the illegal voters, or enough of them, and to show by them, or enough of them, that their illegal ballots were cast for his opponent. Of the 22 illegal ballots cast and counted in the election now under consideration, appellant called 21 of the disqualified and illegal voters who participated therein and offered to prove by each one of them that he or she cast his ballot for appellee, the alleged successful candidate, but the court rejected the offer and declined to allow the proof.
This in our opinion, as already indicated, was error. And when it is said that such proof would not aid to make certain that which was uncertain because illegal voters could not be safely relied upon, even under oath, to state the truth as to how they voted, the reply must be (1) that, as already mentioned, such a recourse is ordinarily the only practicable method which is available under the law, and (2) the risk or danger of perjury is one which attends all litigation, and is a risk with which candidates must be encumbered, no less than other litigants, when, as was the case here, enough illegal votes have been cast to leave it in doubt as what was the will of the legal voters who participated in the election.
Reversed and remanded.