Lehman v. Porter

Cooper, C. J., delivered the opinion of the court. . The election held under § 1610 of the code to determine whether the provisions of the chapter, of which it is a part, prohibiting the sale of intoxicating liquors should be in force within the limits of Hinds county, was not an election controlled by the provisions of the constitution, nor ‘ ‘ a matter ’ ’ sub [227] mitted for determination by the electors, within the ordinance of the convention. Bew v. State, 71 Miss., 1. Oalhoon de Oreen, for the appellant, Filed a suggestion of error, wherein, along with other matters discussed, appears the following: The omission of the question from the ballot was in violation of the express provisions of the statute, as also of the scheme of elections under the Australian ballot system. The essence of that system is that the elector may express his electoral wish without the interference, aid or knowledge of anyone. It is a system of secret balloting, carefully guarded to prevent any influence being exercised over the voter. The ballots are therefore directed to be prepared so that the voter can vote alone and in secret in his booth, and, to this end, all necessary information is directed to be placed on tbe ballot. The question to be voted on is to be printed on the ballot with “yea” and ‘ ‘ nay ’ ’ opposite, so that the voter £ £ can intelligently vote his preference by making a cross mark (x) opposite the word indicating his preference.” Code of 1892, § 3651. This was not done in the case at bar. £ ‘ For the sale ’ ’ and £ 'Against the sale ’ ’ do not, per se, inform the voter of the nature and object of the election, nor of the question voted on. The fact of a local option election being held does not convey the idea of the precise question being voted on under the Australian ballot system. There is no difference, in legal contemplation, between an act done in violation of a statute and of the constitution. Bradley v. Villere, 66 Miss., 102. Hence we respectfully insist that this ballot was in violation of the statute, and therefore prohibited by § 3619 of the code from being deposited or counted. The effect of this prohibition would be to make it impossible to hold an election where only prohibited ballots were cast, as here. It takes three essentials to constitute an election. First, there must be an office and candidate, or a question to be voted for. An election could not be held without this. If there was no office or question to be voted on, there could be no election. So, too, if the candidates for office are disqualified from holding the office, the election would be void. 1 Dillon on Municipal Corporations, § 196. A fortiori, if there was no office to be filled or question to be voted on. The statute requires that the question to be voted on shall be stated on the ballot. There is no other legal form of submitting a question to be voted on. If it is absent from the ballot, the thing voted on, as in the case of a disqualified officer, is disqualified by the method of its presentation for determination. Second, there must be qualified electors. These, in the case at bar, were those declared qualified by the constitution. Ferguson v. Monroe Coimty, 71 Miss., 530. Third, there must be ‘ £ legal votes ” (§§ 1619, 1620, code of 1892), and these votes are such as are required by the constitution. Ferguson v. Monroe County, stigyra. As to what constitutes legal votes, it should not be-overlooked that, while the election ordinance itself may not apply to this election, it was conducted in violation of the statute, and was equally void, for the provisions of the ordinance are embraced in the chapter on registration and elections (ch. 113), and this chapter is made to govern £ £ dramshop ’ ’ elections ‘ ‘ as far as applicable. ” Code of 1892, §1612. This would include the official ballot required' by § 1612, and the official ballot is defined by § 3654 in the words of the ordinance. Section 1615, while requiring that the ballots shall read “For the sale” and £ £Against the sale, ’ ’ also requires them to be £ £ official ballots ’ ’ and to “conform to all the requirements of law,” and effect must be given to all the words of the statute. [227] Affirmed. Of the foregoing essentials of an election, two (the first and the third) did not exist in the case at bar. There was no question legally submitted, and there were no legal votes cast at the election. Suggestion of error overruled.