
    Ruben D. PRESCOTT v. W. M. (Chubby) ELLIS.
    No. 46720.
    Supreme Court of Mississippi.
    Dec. 20, 1971.
    Rehearing Denied Dec. 4, 1972.
    George J. Schweizer, Jr., Columbus, Gary R. Parvin, Starkville, for appellant.
    Threadgill & Smith, Columbus, for ap-pellee.
   GILLESPIE, Chief Justice:

Ruben D. Prescott and W. M. (Chubby) Ellis were candidates for Supervisor of District 2, Lowndes County, in the second Democratic Primary on August 27, 1971. The official returns indicated Ellis the winner by eleven votes, and Prescott contested the election. A hearing was held by the Democratic Executive Committee of Lowndes County and Ellis was declared the winner.

Prescott filed in the Circuit Court of Lowndes County a petition for judicial review, alleging forty-six irregularities of various kinds. The chancellor designated under Mississippi Code 1942 Annotated section 3183 heard the case and, with the concurrence of the three election commissioners in attendance, adjudged Ellis the nominee of the Democratic Party. Prescott appealed to this Court. The bill of exceptions does not include the evidence, the facts not being subject to review. Miss.Code 1942 Ann. § 3185 (1957).

The official returns showed a total of 271 votes at Box 2, V.F.W. with Ellis receiving 151, and Prescott, 120. At this box the receiving manager and the initialing manager were one and the same person. Prescott tendered proof that in thirteen other boxes the receiving manager and the initialing manager were one and the same person, although only Box 2, V.F.W., was included in Prescott’s written contest. In his answer, Ellis stated that if the Court excluded the votes in boxes where an individual was both the receiving manager and initialing manager, then it should exclude five other boxes (where Prescott received a total of 365 votes more than Ellis) where the receiving manager and the initialing manager were one and the same person. In sum, the record shows that in nearly half the boxes an individual was both receiving manager and initialing manager.

Mississippi Code 1942 Annotated section 3164 (1957) provides in part as follows:

At all primary elections the polls shall be opened at seven o’clock in the morning and be kept open until six o’clock in the evening and no longer. Upon the opening of the polls, and not before, the managers of the election shall designate one of their number, other than the manager theretofore designated to receive the blank ballots, who shall thereupon be known as the initialing manager.

In every case considered by this Court where the same person was receiving manager and the initialing manager, it has held the provision of the foregoing statute mandatory.

In Sinclair v. Fortenberry, 213 Miss. 219, 56 So.2d 697 (1951), this Court said:

There are obvious reasons why the legislature should have provided that the initialing manager shall be a person other than the manager designated to receive the blank ballots. The legislature was attempting to safeguard the integrity of the ballots and to prevent the fraudulent substitution of other ballots for the ballots marked by the voters. The initialing manager is required to place his initials on each ballot before it is deposited in the ballot box, thereby attesting the genuineness of the ballot. If the manager designated to receive the blank ballots were permitted to serve as initialing manager, he might easily substitute other ballots initialed by him for ballots marked by the voters. (213 Miss. at 231, 56 So.2d at 701-702).

See also Ulmer v. Currie, 245 Miss. 285, 147 So.2d 286 (1962).

The trial judge in the present case found no evidence of fraud but stated that he had never seen as many errors in the technicalities of holding elections. He also expressed doubt as to whom should be designated the Democratic nominee.

The invalidity of the ballots in the boxes where the same person was the initialing manager and the receiving manager requires the reversal of this case. There has been such a substantial departure from the procedures outlined in the Corrupt Practices Act that it is impossible to arrive at the will of the voters. Hayes v. Abney, 186 Miss. 208, 188 So. 533 (1939); Ulmer v. Currie, 245 Miss. 285, 147 So.2d 286 (1962).

Therefore, we declare the election for Supervisor, District 2, Lowndes County, to be void and it is cancelled and set aside. A special election shall be called and held as provided by Mississippi Code 1942 Annotated section 3187 (1957).

Reversed and rendered.

All Justices concur, except SUGG, J., who took no part.

PER CURIAM:

ON PETITION FOR REHEARING

After our decision in this case, a petition for rehearing was filed which raised several legal questions, including the contention that this case was now moot in view of the decision of the United States Court of Appeals, Fifth Circuit, in Keller v. Gilliam, 454 F.2d 55 (5th Cir. 1972). An examination of this case reveals that it was a “one man-one vote case” involving Lowndes County Board of Supervisors. The court affirmed the order of the district court ordering that the county be redistricted to comply with the one man-one vote principle, but reversed the order of the district court allowing the members of the Board of Supervisors to be elected for a four year term. The order of the court is as follows:

It is therefore ordered that upon the approval of a legally sufficient plan by the district court, and, in any event, not later than May 30, 1972, the district court shall order that a final election be held under the laws of the State of Mississippi in the five (5) respective districts (beats) of Lowndes County for the selection of a board of supervisors in compliance with the Voting Rights Act of 1965, 42 U.S.C.A. Section 1973, et seq., and in compliance with the one man-one vote mandate of the United States Constitution. Those supervisors elected pursuant to the terms of this order shall assume and hold the offices to which they are elected within thirty (30) days after such election. (454 F.2d at 57, 58).

Inasmuch as this order directed a new election be held for all the members of the Board of Supervisors of Lowndes County, we did not deem it practical for us to also order a special election. We were confronted with the question of whether a valid election could be held prior to the time the county was redistricted in accordance with the order of the federal court. Furthermore, we did not deem it practical for us to put the county to the expense of holding a special election where the person elected could only serve for a short time before another election would be had. Therefore, we decided a decision on the petition for rehearing should be held in abeyance until it was determined that a special election would be had in accordance with the order of the federal court. The county was redistricted and an election has now been held in which the appellant was a candidate. Appellant has thereby obtained the relief that he desired in this case.

After a careful consideration of the issues raised in the petition for rehearing, we are of the opinion it should be denied. However, since a special election has now been held, no mandate of this Court will issue requiring a special election. The cost of this appeal will be taxed against the appellee.

Petition for rehearing denied.  