SHAW v. BURNHAM

Everett Everett, Johnson Allen, Forrest G. Cooper, and J.M. Forman, all of Indianola, for appellant.

Special tribunal is limited in authority to review of contest and protest before Executive Committee.

Section 15, Chapter 19, Laws 1935, Extraordinary Session.

The Democratic Party has acted; its officials have spoken. The will of the voters and of the Party is not to be thwarted by any court unless it clearly and positively is shown that ballots have been counted erroneously. And if a ballot is doubtful and that doubt is reasonable and the court cannot say with absolute certainty that Burnham should have the ballot or that Shaw should not have it, such ballot should be construed liberally from Saw's point of view.

Tonnar v. Wade, 121 So. 156; 20 C.J. 163; Kelly v. State, 79 Miss. 168, 30 So. 49; Guice v. McGehee, 124 So. 643; 20 C.J. 157, Sec. 187.

We call attention to the fact that there was a line underneath the names of the two candidates and while that line is mentioned in the statute and is available to the voter in the first primary, it cannot be used by the voter to vote for a third party in a second primary for the reason that Section 5868 of the Mississippi Code of 1930, and also Section 21 of the Corrupt Practices Act provides that the second primary is held after weeding out all of the candidates except the two highest and only can the two highest then run off the race in the second primary. If a voter could write in the name of a man left out in the first primary on the ballot in the second primary, he would do so in violation of the statute.

At Linn Box voting precinct, referred to in the Bill of Exceptions, as Contestants Exhibit "Y", we find a situation rather hard to untangle. Contestant's Exhibit "Y", a manilla envelope, shows there were six rejected votes at the Linn Box. It was claimed by contestant that four of these ballots were cast by four persons named "Richardson" and they were referred to as the Richardson votes. When this box was considered by the executive committee four other ballots got mixed with the original six and no one seems to know just how this all came about. At the trial of the case there were eight votes taken from Exhibit "Y", and upon an examination thereof five are for Shaw and three are for Burnham. Now, whether the five votes for Shaw include the Richardson votes, or whether the three votes for Burnham were Richardson votes no one was able to tell, for the four Richardson votes were not and could not be identified or distinguished from the other four votes in the same envelope. However, the court settled this tangle by deducting four votes from Shaw's total at this box, and no one knows whether the votes deducted were Richardson votes or not, for no one ever identified them as having been voted for Shaw. We say this action in deducting four unidentified votes from Shaw's total at the Linn Box was error, and that these four votes should be added to his total, which in addition to Hale votes would make Shaw's total 2363.

When the Doddsville box was opened during the trial there was found a sealed envelope in which the committee had placed ten (10) questioned ballots. The contestant took out seven of these ten ballots and offered them in evidence as ballots that should have been counted for Burnham, and these seven (7) ballots are marked Exhibits 1-7, inclusive, to the Doddsville box. The trial tribunal counted all of these votes for Burnham except Exhibit 4.

Exhibit 1 is a ballot which should not be counted for either Burnham or Shaw because the ballot shows on its face that it has a cross (x) mark opposite the name of each.

Exhibit 2 is a ballot which the lower court counted for Burnham and which should not be counted for either. We call particular attention to this ballot. It has a cross (x) opposite the name of both candidates.

Exhibit 3 — this vote was counted by the lower court for Burnham. We think the lower court fell into error because the cross (x) opposite Shaw's name is not quite as heavy as the cross opposite Burnham's name. Another objection to this ballot is that there is marked on the back of it the following words "Received Help — R.T.O."

Exhibit 5 has marked on the bottom of the face of the ballot the word "Helped."

Exhibit 6 has written at the top on the back of the ballot the word "Help."

Exhibit 7 has written on the bottom of the face of the ballot the word "Helped".

These last four were all counted by the lower court for Burnham. The objection of the appellant to the counting of these four ballots is that they either have distinguishing marks on them, or, if not, they do not comply with the requirements of Section 6244 of the Mississippi Code of 1930 which is as follows: "Illiterate voter to have aid. A voter who declares to the managers of the election that by reason of inability to read he is unable to mark his ballot, if the same be true, shall, upon request, have the assistance of a manager in the marking thereof; and the managers shall designate one of their number for the purpose, who shall note on the back of the ballot that it was marked by his assistance; but he shall not otherwise give information in regard to same."

At our instance the Drew box was opened.

When the Indianola Box was opened, it contained the sealed envelope containing five (5) questioned ballots. The ballots involved in this appeal is Exhibit 7 to contestee's proof, Indianola Box, which the lower court counted for Burnham over our objection. An inspection of this ballot discloses clearly that it has a complete "A" instead of a cross (x). The voter knew how to make a cross (x) as there are clear crosses (x) opposite Johnson, Wood, Causey, and Yarbrough. When the plain mandate of the statute which requires a cross (x) in ink is considered, it is clear that this voter did not make a cross (x).

The requirement of the statute to note on the Poll Book those who have voted is just as mandatory as it is to require the voter to sign the Receipt Book.

Section 4, Chapter 19, Laws of 1935.

The proper place for a defeated candidate to have errors corrected is the Democratic Executive Committee. He must give that Democratic Executive Committee the opportunity under proper pleadings to correct their errors. If they fail to correct the errors he complains about, then this special tribunal may review his complaints of the acts of the committee and correct only those acts. The special tribunal is not a substitute for the executive committee. It does not try the case de novo as the lower court seemed to think, but only de novo on the "material issues of fact".

Moody Davis and Neill Townsend, all of Indianola, for appellee.

As to the point or points of law at issue, the Bill of Exceptions should contain a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the said points of law.

But for a review of the findings upon the facts as the evidence requires the Supreme Court must have before it a transcript of the testimony, and not a synopsis thereof. Such transcript of testimony may be filed with the Bill of Exceptions, or within such short time thereafter as the Supreme Court may allow.

In other words, the record must contain the transcript of the testimony, filed with the Bill of Exceptions or within such short time thereafter as the Supreme Court may allow, and then and only then "the Supreme Court upon a review thereof may make such findings upon the facts as the evidence requires, giving only such consideration as the court may think warranted to the presumption of correctness of the conclusions of the trial judge."

Unless, therefore, a transcript of the testimony is filed with the Bill of Exceptions, or within such short time thereafter as the Supreme Court may allow, it is not a part of the record on appeal even though otherwise incorporated in the record.

McDonald v. Spence, 179 Miss. 342; 174 So. 54, 56.

Inasmuch, therefore, as a transcript of the testimony is not filed with or as a part of the Bill of Exceptions, this court is limited to a consideration of the point or points of law as to which the trial court erred and cannot on the record made by this appeal consider whether or not the court erred in its findings of fact.

The exhibits which are mentioned in paragraphs "Sixth" to "Twentieth" call in question a consideration of the testimony with reference to such exhibits and hence such exhibits cannot be considered out of relation to the testimony, a transcript of which is not filed with the Bill of Exceptions. But if you decide that it is your duty, on the Bill of Exceptions filed herein, to examine the different exhibits, copies of which are not filed with such Bill of Exceptions, then we take it that your duty limits you solely to a consideration of such exhibits, and that you cannot consider any testimony with reference to such exhibits for the transcript with reference to the same is not a part of the record of this appeal.

In the "Ninth" paragraph of the Bill of Exceptions several ballots are referred to denoted as Exhibits 1 to 7, inclusive, of the Doddsville box. This paragraph, as to Exhibits 1, 2, and 3 raises only questions of fact which as we see from the finding of the court, the court and the three members of the Committee decided without a dissent.

The Bill of Exceptions makes objection to Exhibit 7 at the Indianola box. The ballot without a doubt shows a cross mark opposite the name of Burnham and surely it shows that the voter attempted to make a cross mark. As to Exhibits 8, 9, and 10 at the Indianola box, these bear checked marks which renders them illegal.

Carver v. State, 177 Miss. 54, 170 So. 643.

The "Twentieth" paragraph raises only a question of fact as to whether a certain ballot should have been counted for Burnham. The court and all three commissioners agreed that it was a vote for Burnham.

To fully review the facts this court must have before it the record of testimony that was before the lower court. This is not before the court.

May v. Young, 164 Miss. 35; 143 So. 703; State v. Greer, 130 So. 482, 158 Miss. 315.

In Oglesby v. Sigman, 58 Miss. 502, the court held that it was the duty of the commissioners, in canvassing the returns, to cast out all ballots which appeared illegal on inspection. Certainly the same duty rests on a court who is to conduct a de novo hearing on the action of the Executive Committee as is required by the Corrupt Practices Act.

The pleadings in the case at bar were so general and broad that they of necessity brought into question the whole action of the Executive Committee and the only question was which of the parties received the greatest number of legal votes. This court has held that this is the only question to be investigated and determined.

May v. Young, 164 Miss. 35; 143 So. 703.

There are provisions of the election laws which will be treated as directory, not mandatory, if necessary, in order to ascertain the will of the electors. It is the policy of the law to give effect and validity to elections of the people when there has been a reasonably fair attempt to comply with the requirements of the law, and no fraud has been practiced. Mere technical irregularities and omissions in the performance of ministerial duties by commissioners will not be permitted to defeat the popular will where there has been an attempt to conform to the law and no injury has resulted to any one. When the will of the electors has been fairly expressed, it should control. The court will not countenance purely technical reasons for the overthrow of the result.

Pradat v. Ramsey, 47 Miss. 24; Fullwood v. State, 67 Miss. 554, 7 So. 432; Shines v. Hamilton, 87 Miss. 384, 39 So. 1008; State v. Greer, 158 Miss. 315, 130 So. 482; Wylie v. Cade, 174 Miss. 426, 164 So. 579.

Counsel may have a great deal to say concerning three ballots at the Indianola box containing a check mark opposite the name of Shaw. This court has disposed of this question in Carver v. State, 177 Miss. 54, 170 So. 643; Kelly v. State, 79 Miss. 168, 30 So. 49.

In considering the appellant's brief and the contentions therein made, the court should keep in mind that no fraud was charged by either parties. The only question for the trial court and election commissioners to determine was which of the parties received the highest number of legal votes.

The court recently held in an election contest the following: "The only question which the court below was authorized to investigate and determine was which of the parties hereto received `the greatest number of legal votes at the election.' Section 6258, Code of 1930; Pradat v. Ramsey, 47 Miss. 24; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148."

May v. Young, 164 Miss. 35, 143 So. 703.

While this had reference to a contest brought under Section 6258, Code of 1930, we think the same is applicable to any contest and more especially one brought under the Corrupt Practice Act.

In another election case this court held in substance that the fundamental inquiry is whether or not there has been a full, fair and free expression of the public will.

Hunt v. Mann, 136 Miss. 590, 101 So. 369; State v. Greer, 158 Miss. 315, 130 So. 482.