Summary
In Tedder v. Board of Supervisors of Bolivar County, 214 Miss. 717, 59 So.2d 329 (1952), the Supreme Court of Mississippi held that under this statute a ballot is spoiled only where it is impossible to determine from the ballot the voter's choice.
Summary of this case from James v. Humphreys County Bd. of Election Com'rsOpinion
No. 38494.
June 9, 1952.
1. Appeal — schools and school districts — election for issuance of bonds.
On an appeal from the order of the board of supervisors following an election for the issuance of bonds of a school district, the question of the validity of the organization of the district could not be raised for the first time in the circuit court.
2. Schools and school districts — validity of organization — curative statutes.
Errors in the organization of school districts have been cured by numerous curative statutes. Chap. 280 Laws 1926; Chap. 288, Laws 1950.
3. Schools and school districts — bonds — preliminary order.
The preliminary resolution of the school trustees requesting the board of supervisors to call an election for a school bond issue which recites the necessary preliminary facts is not open to the objection that the order recited but did not adjudicate that the district is a legally existing district.
4. Schools and school districts — bonds — preliminary resolution.
It is not necessary that the preliminary order mentioned in the foregoing headnote shall set forth in detail the plans, specifications and costs of the proposed school improvements.
5. Elections — revision of registration.
The statute which requires the election commissioners to meet and revise the registration and poll books five days before an election is directory and not mandatory, and in the absence of prejudice or fraud a meeting three days before a bond issue election will be sufficiently effective. Sec. 3239 Code 1942.
6. Elections — statute as to managers.
The statute which requires managers of election to be selected where possible from different political parties has no application to an election for the issuance of school bonds. Sec. 3243 Code 1942.
7. Schools and school districts — election for bond issue — electors of different precincts.
Where a school district occupied territory in two election precincts and the managers of the election were furnished a map of the school district and the poll books of the two election precincts, this constituted a practical method for compliance with the statutes as to the electors who should be permitted to vote.
8. Elections — schools and school districts — bond issues — notice of election by publication.
Where the proof of publication of the notice of the election for a school bond issue is a part of the record, and the report of the election commissioners certified that said election was advertised by the clerk for the time and in the manner required by law and the board of supervisors adjudicated that all proceedings with reference to the issuance of said bonds were legal and proper, and the record further shows that the proof of publication was filed on the same day on which the report of the election commissioners was filed, there was a sufficient compliance with legal requirements as to proper notice.
9. Election — intervals between — school bond elections.
Statutes establishing intervals between succeeding elections do not apply to school bond elections, and since the particular statute which controls such elections contains no minimum interval between them, such an interval cannot be supplied by judicial legislation. Chap. 231 Laws 1950.
10. Courts — judicial districts of county — board of supervisors.
Although the school district issuing bonds was in the second judicial district of the county, the board of supervisors while in session in the first district could there validly approve the report of the election commissioners. Sec. 11, Chap. 85 Laws 1900.
11. Elections — illegal votes — burden of proof.
Parties contesting an election for the issuance of bonds, who contend that illegal votes were cast, have the burden of proving the existence of the illegal votes and that there were enough of such illegal votes cast to change the result of the election.
12. Elections — spoiled ballots — test.
Whether a ballot is so spoiled or marked as to be unacceptable, the test is whether it is impossible to determine from the ballot the voter's choice.
13. Elections — elector, temporary removal.
The temporary removal of an elector from his precinct, intending to retain therein his domicile, to which he returned when the cause of his absence was out of the way, did not disqualify him as a voter.
14. Elections — disqualified voter — not shown how he voted.
In an election contest for a school bond issue the vote of a disqualified person cannot be deducted from the number voting in the affirmative when there was no showing of how he voted.
15. Schools and school districts — district in two election precincts.
When a consolidated school district contained territory in two voting precincts the fact that the poll tax receipts of several voters showed one of the precincts as their voting precinct does not negative the fact that they lived within the territory of the school district and were thus entitled to vote in the school district election.
16. Elections — qualified electors — questions to them as to how they voted.
Where voters are qualified electors, they could not be questioned in an election contest as to how they voted.
17. Appeal — schools and school districts — contested election on bond issue.
The review of an order of the board of supervisors for the issuance of the bonds of a school district is by a bill of exceptions upon which the order of the board shall be affirmed or reversed, and if reversed, and only if reversed, the court shall render such judgment as the board ought to have rendered; so that when the order of the board was in effect affirmed, the court had no power to enter a modified judgment, and all such modifications will be eliminated.
Headnotes as revised by Ethridge, J.
APPEAL from the circuit court of Bolivar County; SEMMES LUCKETT, Special Judge.
Allen Allen, for appellants.
I. Strict compliance with all laws essential to validity of bond issue. Secs. 4316, 4341 Code 1942; Merchants Bank Trust Co. v. Scott County, 165 Miss. 91, 145 So. 909; Cook v. Taylor, (Miss.), 27 So.2d 404; Toler v. Love, Sup't., 170 Miss. 252, 154 So. 711; Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770; In re: Savannah Special Consolidated School District of Pearl River County, 208 Miss. 460, 44 So.2d 545; Barrett v. Cedar Hill Consolidated School District, 123 Miss. 370, 85 So. 125; Ashcraft v. Board of Supervisors of Hinds County, 204 Miss. 65, 36 So.2d 820; Gilbert v. Scarborough, 159 Miss. 679, 131 So. 876; In re: Validation of Bonds of McNeill Special Consolidated School District, 185 Miss. 864, 188 So. 318.
II. Organization of Boyle Consolidated School District void and subject to collateral attack here. Secs. 6274, 6295, 6373, 6375 Code 1942; Williams, et al. v. Lee, et al., 132 Miss. 499, 97 So. 14; Board of Supervisors of Marshall County v. Stephenson, et al., 160 Miss. 372, 134 So. 142; Belden Consolidated School District v. Lee County, 160 Miss. 157, 133 So. 225; Green, Sheriff, v. Sparks, 174 Miss. 71, 163 So. 895; Botts, et al. v. Prentiss County School Board, 175 Miss. 62, 166 So. 398; Leech, et al. v. Wileman, et al., 179 Miss. 836, 177 So. 12; Renfro, et al. v. Givens, et al., 207 Miss. 531, 42 So.2d 734.
III. The trustees of the Boyle Consolidated School District did not comply with the law. Boutwell v. Board of Supervisors of Jasper County, 128 Miss. 337, 91 So. 12; Broom v. Board of Supervisors of Jefferson Davis County, 171 Miss. 586, 158 So. 344; Martin, et al. v. Board of Supervisors of Winston County, 181 Miss. 363, 178 So. 315; Secs. 3675, 6307, 6385, 6386, Code 1942; West v. Town of Waynesboro, 152 Miss. 443, 119 So. 809; White v. Board of Supervisors of Pontotoc County, 192 Miss. 327, 5 So.2d 233; Nisaw v. Ellison Ridge Consolidated School District, 189 Miss. 664, 198 So. 557; Board of Supervisors of Forest County v. Clark, 163 Miss. 120, 140 So. 733; Miles v. Board of Supervisors of Scott County, (Miss.), 26 So.2d 541; Belden Consolidated School District, et al. v. Lee County, supra; Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738; Board of Supervisors of Lowndes County v. Ottley, et al., 146 Miss. 118, 112 So. 466; Sec. 2, Ch. 231, Laws 1950.
IV. The order of the board of supervisors calling this election did not adjudicate the things required so as to give them jurisdiction to act. Jackson Equipment Service Co. v. Dunlop, 172 Miss. 752, 160 So. 734; West v. Town of Waynesboro, supra; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Green, et al. v. Board of Supervisors of Adams County, 172 Miss. 573, 161 So. 139; Simpson County v. Burkett, et al., 178 Miss. 44, 172 So. 329; Brown v. Board of Supervisors of Simpson County, supra.
V. The election commissioners did not comply with the law in calling and conducting the election herein. Secs. 3113, 3239, 3243, 6433, 6441 Code 1942; Hayes v. Abney, 186 Miss. 208, 188 So. 533; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Carver v. State ex rel. Ruhr, 177 Miss. 54, 170 So. 643; Costas v. Board of Supervisors of Lauderdale County, 196 Miss. 104, 15 So.2d 365; Board of Supervisors of Simpson County v. Buckley, 85 Miss. 713, 38 So. 105.
VI. No legal notice of election given. Ch. 427, Laws 1948; Sec. 5, Ch. 231 Laws 1950; Sec. 1858 Code 1942.
VII. All elections should have some degree of finality. Ch. 435, Laws 1948; Sec. 7, Ch. 231 Laws 1950; Secs. 3666, 3770, 3769, 3772, 6274, 6448-07 Code 1942.
VIII. The election was not conducted according to law. Sec. 3170 Code 1942.
IX. "No person shall be allowed to vote at any other precinct than the one named in his receipt or certificate". Ch. 313 Laws 1948; Sec. 3161, 3163, 3212, 6372, 9750, 9752; Ch. 238 Laws 1950.
X. Action of board of supervisors invalid.
XI. Venue. Chap. 85, Laws 1900; Caruthers v. Panola County, 205 Miss. 403, 38 So.2d 902; Sec. 13, Chap. 85, Laws 1900; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292.
XII. Proceedings before the board of supervisors reflect invalidity. Watson v. Boyett, 151 Miss. 726, 118 So. 629; Bush v. Laurendine, 168 Miss. 7, 150 So. 818.
XIII. There were twenty-eight disqualified votes cast. Smith v. Deere, 195 Miss. 502, 16 So.2d 33; Tillman v. State, (Miss.), 56 So.2d 91; Guice v. McGehee, 155 Miss. 858, 125 So. 433; Ch. 237 Laws 1950; Secs. 3235, 3272, 3273 Code 1942.
XIV. There are five spoiled and marked ballots. Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Guice v. McGehee, 155 Miss. 858, 124 So. 643.
XV. The impact of enough illegal votes to change result of election. Guice v. McGehee, supra; Hayes v. Abney, supra; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575.
XVI. The final judgment of the board of supervisors appealed from was invalid.
XVII. The bill of exceptions.
XVIII. The final judgment in the circuit court. Secs. 1195, 1591 Code 1942.
Conclusion. We, therefore, conclude that before the school trustees could pass a resolution and enter an order for a bond issue, it was necessary for them to show what they intended to do with the money, to offer some plans showing how they intended to spend it; to adjudicate that there was a legally constituted school district whose lands were described and boundaries defined; that they must adjudicate the assessed valuation of the district, and the amount of outstanding bonds, if any; and they must adjudicate all these things (not just recite or conclude without any finding of fact on which to base the same); that the order so entered is entirely devoid of these judicial findings, the absence of which did not confer jurisdiction on them to act; that this second election was called too soon.
We further conclude that the county election commissioners did not act within the time nor in the manner required by law of them; nor did they meet five days before the election, nor make up and furnish the election managers with a list of the people entitled to vote in said election, nor appoint managers from both sides nor try to; that as a result of such inaction, many people were allowed to vote in the election who had no right to vote, and thereby take away another's property.
We further conclude that the law lays on each of three agencies acting in bond issue elections certain specific duties, and enjoins on each of them to perform all of those duties covering their actions before a legal bond issue election can be called; that strict adherence to all these laws is mandatory, and that all laws on the subject are in pari materia, and must be construed together, and strictly followed; that this was not done by any of the agencies, and election was void.
We further conclude that no valid election was held, and no legal notice of same was published; that in said election 28 persons were allowed to vote who were ineligible to vote, and there were 5 spoiled or marked ballots, at least two of which were so smeared with ink as to make it impossible to determine the choice of those casting them.
We further conclude that the board of Supervisors did not have sufficient information before them on the hearing to justify them to enter any judgment herein calling the election, nor did their final judgment adjudicate jurisdictional rights to confer on them the power to hear the case; that their orders did not adjudicate necessary jurisdictional matters to confer on them jurisdiction to try the case; and that their final judgment was void.
Chas. C. Jacobs, Jr., and Frank O. Wynne, Jr., for appellee.
Reply to "Organization of Boyle Consolidated School District void and subject to collateral attack here". Dye, et al. v. Brewton, Mayor, et al., 80 So. 761; Chap. 280 Laws 1926; Bullock, et al. v. Sanford Consolidated School District, 121 So. 267; Chap. 283, Laws 1924; Secs. 6232-02, 6274 Code 1942; Secs. 1-3, Chap. 286, Laws 1950.
Reply to "The trustees of the Boyle Consolidated School district did not comply with the law". Sec. 1, Chap. 231, Sec. 23, Chap. 495 Laws 1950; In re Savannah Special Consolidated School District of Pearl County, 44 So.2d 545; Secs. 1195, 3675, 6306-6309, 6385, 6386, 6532-01, 6532-02, 6532-04 Code 1942; White v. Board of Supervisors of Pontotoc County, 192 Miss. 327, 5 So.2d 233; Hisaw v. Ellison Ridge Consolidated School District, 189 Miss. 664, 198 So. 557; Miles v. Board of Supervisors of Scott County; 26 So.2d 541; Belden Consolidated School Dist. v. Lee County, 160 Miss. 157, 133 So. 225; Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738; Board of Supervisors of Quitman County v. Crisler, 38 So.2d 316.
Reply to "The order of the board of supervisors calling this election did not adjudicate things required so as to give them jurisdiction". Sec. 6532 Code 1942; West v. Town of Waynesboro, 152 Miss. 443, 119 So. 809; Miles v. Board of Supervisors of Scott County, 26 So.2d 541; Sec. 18, Chap. 231 Laws 1950; Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738.
The election commissioners sufficiently complied with the law in calling and conducting the election. Gregory v. Saunders, 15 So.2d 432; Sec. 3244 Code 1942.
Reply to "Legal notice of the election was given as required by law". Secs. 6532-01, 6532-05 Code 1942.
Reply to "Finality of elections". Secs. 2099, 2103, 3160, 3161, 3235, 6532-06, 6532-07 Code 1942.
Reply to "Venue". Sec. 11, Chap. 85, Laws 1900.
Reply to "Proceedings before the board of supervisors reflect the invalidity". Secs. 2881, 6532-07 Code 1942.
There were not twenty-eight disqualified votes cast. Smith v. Deere, 16 So.2d 33; Jones v. State, ex rel., McFarland, 42 So.2d 123; Bilbo v. Bilbo, 177 So. 773; Sec. 3272 Code 1942.
Reference to the five allegedly spoiled and marked ballots.
Reference to appellants' contentions as to the impact of enough illegal votes to change results of election. Hayes v. Abney, 186 Miss. 208, 188 So. 533; Trahan v. Simmons, 191 Miss. 353, 2 So.2d 575; Simmons v. Crisler, supra; Dye, et al. v. Brewton, Mayor et al., supra.
Reference to the judgment of the board of supervisors appealed from. Sec. 1195 Code 1942; State ex rel. Crisler v. Quitman County, 38 So.2d 314-316.
The bill of exceptions. Sec. 1195 Code 1942.
Cross-appeal. Secs. 2099-2103 Code 1942; Guice v. McGehee, 124 So. 643; East Neshoba Vocational High School Bonds v. Board of Supervisors of Neshoba County, 56 So.2d 394; Simmons v. Crisler, supra.
This is an appeal from an order of the Board of Supervisors of Bolivar County, Mississippi, adjudicating that three-fifths of the qualified electors voting had approved the issuance of $93,000 in bonds of the Boyle Consolidated School District of Bolivar County. The election was held on September 29, 1951, under the authority of Miss. Laws 1950, Ch. 231. Appellants, George Tedder and four other qualified electors of the School District, contested the report of the election commissioners to the Board of Supervisors. The Board held a hearing on the contest on October 9, 1951, at which both contestants and proponents of the bond issue introduced considerable testimony as to whether certain persons who voted were qualified electors and certain votes were legal. On October 10 the Board executed an order adjudicating the 281 qualified electors had voted, and that 170 voted in favor of the bonds and 111 against; that, therefore, more than three-fifths of the qualified electors who voted in the election had voted in favor of the issuance of the bonds, as required by Ch. 231, Sec. 7, Miss. Laws 1950.
Appellants, the contestants, appealed from that order to the Circuit Court of the Second Judicial District of Bolivar County, under Code of 1942, Sec. 1195, with a bill of exceptions as provided by that statute consisting of various documents, orders, ballots, and a certified transcript of the testimony before the Board. The special circuit judge reviewed the bill of exceptions, heard arguments, and rendered an opinion and judgment, which affirmed the end-result of the Board's order and held that the bond issue had carried.
The Boyle Consolidated School District was created by an order of the Board of Supervisors of Bolivar County on March 27, 1918. Appellants first argue that the organization of the district is void and that it is subject to collateral attack here; that the order creating the district failed to determine and describe its boundaries, does not show that there was a petition of the majority of the electors, or that an election was had to create it; that it failed to adjudicate that the district contained no less than ten square miles and other essential facts. (Hn 1) However, the question of the validity of the district was not presented to the Board of Supervisors nor raised in the bill of exceptions. This issue was first raised in the circuit court. Appellants were not then in a position to raise it. (Hn 2) Moreover, even if there were any errors in the organization of the district, which we do not consider, they have been cured by the numerous curative statutes passed by the Legislature since 1918, many of which provide substantially that all proceedings had by school districts "are hereby, approved, ratified and confirmed", and "the same are hereby declared to be valid and duly organized districts * * * regardless of any defect or omission or irregularity in the proceedings for the organizations or creation of the districts * * *." See Miss. Laws 1926, Ch. 280; Miss. Laws 1950, Ch. 288; Bullock v. Sanford Consolidated School District, 1929, 153 Miss. 476, 121 So. 267; Leech v. Wileman, 1937, 179 Miss. 836, 177 So. 12, dealt with a claimed validation under Ch. 263, Laws 1936, which expressly provided that the order creating the district must describe its boundaries, and that order did not do so. The present order of 1918 described by sections the lands incorporated in the Boyle District. And the cited validation statutes do not contain the restriction which was in the 1936 act involved in the Wileman case.
The appellants argue that the Board of Trustees of the Boyle Consolidated School District did not comply with the law in passing its resolution adjudicating that it was necessary that the bonds be issued, that the total indebtedness of the district will not exceed the statutory limit, and requesting the Board of Supervisors to call an election to pass upon the bond issue. (Hn 3) Appellants say that this resolution recites, but does not adjudicate, that the district is a legally existing district, but we cannot agree. (Hn 4) Nor is it necessary for the resolution to set forth in detail the plans, specifications, and costs of the proposed improvements to the school plant. The resolution of the Board of Trustees of the District complied with the requirements of Ch. 231, Miss. Laws 1950. And we also think that the order of the Board of Supervisors calling the election constituted a full compliance with the requirements of the cited statute.
Moreover, the record shows that the election commissioners of the county complied with the law in conducting the election. It is true that Code Sec. 3239 requires the election commissioners to meet and revise the registration and poll books five days before an election, and that the Bolivar County Commissioners met only three days before the bond election. (Hn 5) But there was no showing that appellants were prejudiced by that two-day delay, and in the absence of such a showing, although the provisions of the statute should be complied with, they are directory and not mandatory, in the sense that failure to comply literally with the act would not of itself invalidate the election. An election commissioner testified that they tried to get capable and fair people to serve as managers, that he thought they did so, that several people refused, that one manager was against the bond issue, and that the election was conducted fairly. There is no charge or proof of fraud whatever in the conducting of the election. (Hn 6) Code Sec. 3243 is not applicable to a special bond election where there are no party candidates involved.
The undisputed testimony showed that the Boyle Consolidated School District included both the Boyle precinct and six sections in the north part of the Shaw precinct. (Hn 7) The election commissioners furnished the managers with the Boyle poll books showing the qualified electors in that precinct, with a map showing the area of the entire School District, and advised the managers that anyone who offered to vote whose name was not in the Boyle precinct book should be questioned to determine whether he lived in one of the six sections of land in the Shaw precinct which were in the Boyle School District, and that if it appeared that the voter lived in one of those six sections, and if he was qualified to vote in the Shaw precinct from the Shaw poll books, he should be allowed to vote. This procedure was followed by the election managers. This was an ample compliance with the statutes under the circumstances and constituted a practical method.
(Hn 8) Appellants also say that it was necessary for the record to show affirmatively that the Cleveland newspaper in which the notice of election was published met the requirement of Ch. 427, Miss. Laws 1948. The proof of publication in the record states that the newspaper which published the notice of the election meets the requirement of that statute, and there is no evidence to the contrary. The parties agreed that the proof of publication should be a part of the bill of exceptions.
It is contended that the order of the Board of Supervisors and the record herein do not properly show proof of publication of notice of the election. The order of the Board calling the election directed the clerk of the Board to publish notice of the election in the specfic form as set out in that order. The report of the election commissioners made to the Board after the election certified "that said election was advertised by the clerk of the said board of supervisors for the time and in the form and manner as required by law." The final order of the Board of October 10, 1951, from which this appeal is taken, "adjudicated that all proceedings with reference to issuance of said bonds are legal and proper". Other than as to the specific number of votes, the Board of Supervisors necessarily approved the report of the election commissioners. And the bill of exceptions, which was approved by appellants' attorneys, contains a copy of the proof of publication of the notice of the bond election, which reflects that it was filed with the clerk of the Board on October 1, the same day on which the report of the election commissioners was filed. Under these circumstances, the record sufficiently showed the proper notice of the bond election was given, and that the Board of Supervisors so adjudicated in its order.
There was a special election on a proposed bond issue for the Boyle School District on June 2, 1951, apparently on the same proposed project. The present election was held almost four months later on September 29. Appellants say that elections should have some degree of finality; that these two elections on the same project were too close together; and that therefore this election was void. (Hn 9) Ch. 231, Miss. Laws 1950, which controls this election, does not have any provision establishing a minimum interval between succeeding bond elections, and we are not warranted in judicially legislating such an interval. Statutes establishing intervals between succeeding elections, which are cited by appellants, do not affect the present type of election. And the fact that the Legislature established such intervals for other kinds of elections and did not provide one here is persuasive that it did not intend to do so.
(Hn 10) The Boyle School District is in the Second Judicial District of Bolivar County, in which Cleveland is located. The Board of Supervisors approved the commissioners' report of the election when the Board was sitting in the first District at Rosedale. But Ch. 85, Sec. 11, Miss. Laws 1900, provides that the jurisdiction of the Board "shall extend over the entire county, just as if if were not divided into separate districts." The Circuit Court of the Second Judicial District heard this appeal. Because of the terms of the 1900 statute, and the location of the School district, the Board could act at Rosedale for the entire county, and also the proper venue of the circuit court was in the second district.
(Hn 11) Appellants also argue that there were twenty-eight illegal votes which were cast at the election, and that their exclusion would change the result of the election. Under the rule established in Dye v. Brewton, 1919, 119 Miss. 359, 374, 80 So. 761, and such recent cases as Walker v. Smith, Miss., 56 So.2d 84, suggestion of error overruled, Miss. 1952, 57 So.2d 166, the contestants, appellants, have the burden of proving both (1) the existence of illegal votes, and (2) that there were enough of such illegal votes cast for the bond issue as to change the result of the election.
There were five alleged marked and spoiled ballots cast for the bond issue. The circuit court correctly allowed four of those ballots for the bond issue and rejected one, because it was marked in pencil. Code of 1942, Sec. 3269, amended by Miss. Laws 1948, Ch. 306. (Hn 12) As to whether a ballot is so spoiled or marked as to be unacceptable, the statutory test of Code Sec. 3270 is whether it is "impossible to determine from the ballot the voter's choice".
We also think that with two exceptions the opinion of the circuit court was correct concerning the ten challenged ballots for the bond issue. Apparently the circuit court counted the ballot for the bonds of Mrs. W.W. Hazzard, but it was marked in pencil and therefore should not have been counted. However, the court erroneously refused to count the ballot for the bonds of Mr. W.W. Hazzard, so the result of the circuit court's action as to the ten challenged ballots is numerically the same. There were marks on both places on the ballot of W.W. Hazzard, but it is manifest that the voter intended to strike out his original vote against the bonds, and by his clear mark to vote for the bonds. The test, under Code Sec. 3270, and Guice v. McGehee, 1929, 155 Miss. 858, 872-873, 124 So. 643, 125 So. 433, is whether it is possible to reasonably determine from the ballot the voter's choice. The challenged ballot of William H. Allen was properly counted by the circuit court under such cases as Hopkins v. Wilson, 1951, 212 Miss. 404, 419-420, 54 So.2d 661.
With reference to the other group of challenged votes, the circuit court correctly allowed the vote for the bond issue of C.E. Franks, although it gave the wrong reason for its action. (Hn 13) C.E. Franks testified that he had lived at Boyle in the Boyle School District since 1944, "except the time I was in Hattiesburg for a while." Since 1944 he has been registered to vote in the Boyle School District, and has voted there in all elections since that time. He went to Hattiesburg in the spring of 1949 on a visit. He said he ran into a place or farm there and thought that it would be profitable to buy it; that he did not mean to stay there permanently, but just ran into a good deal, that his idea was to make a quick profit; that after a while he found he did not like it and came back to Boyle in October, 1950. He farmed the place which he had bought near Hattiesburg in 1949 and 1950. His family went down there with him, and moved back to Boyle after he sold the place. He never did move his registration from Boyle. A reasonable interpretation of his testimony is that he intended for Boyle to remain his legal domicile, and that he went to Hattiesburg only on a temporary basis. But his temporary absence from Boyle did not change his domicile. We think that he was a qualified elector. Hopkins v. Wilson, 1951, 212 Miss. 404, 419-420, 54 So.2d 661.
The same observations apply to Thedford Eugene Franks, the son of C.E. Franks. He testified that he first began to live in the Boyle School District in 1944 when he was 14 years of age; that he lived there with his family and belonged to a Boyle church; that he joined the Army in September 1948, and when he first got out a year later went to Hattiesburg to be with his father, but that he did not intend to make it his home but intended to come back to Boyle, which he did in October, 1950; that he was registered in the Boyle precinct and had voted there in the preceding general election. Manifestly this voter also was a qualified elector. Hence the circuit court correctly allowed those two votes.
(Hn 14) The circuit court ruled that Dewey Peeples was a qualified elector. Peeples did not testify, and there is no proof as to how he voted. Assuming but not deciding that he was not a qualified elector, the contestants wholly failed to meet their burden of proof which required them to show not only that he was disqualified, but that he voted for the bond issue. That proof lacking, we cannot debit the proponents with Peeples' vote. Hence in its computations the circuit court reached the same result as to this vote that we do. The same observations are pertinent to the vote of Mrs. C.P. Gilmer. She did not testify, and there is no proof as to how she voted, so contestants did not meet their burden of proof. (Hn 15) The fact that the poll tax receipts of several voters showed Shaw as their voting precinct does not negative the fact that the voters may have lived in the Boyle School District, which included six sections in the Shaw precinct. We have also considered carefully the other challenged votes which were presented to the circuit court, and the testimony with reference to them, and concur in the conclusions reached by the learned special circuit judge. (Hn 16) Where the voters were qualified electors, objections were properly sustained to questions to them as to how they voted.
(Hn 17) This appeal from the order of the Board of Supervisors was taken under Code Sec. 1195, which provides that the review shall be on a bill of exceptions, and that the circuit court "shall affirm or reverse the judgment; and if the judgment be reversed, the circuit court shall render such judgment as the board * * ought to have rendered, and certify the same to the board of supervisors * * *." The final judgment of the circuit court adjudicated that the order of the board of supervisors "is modified and the following judgment is rendered as the judgment or order which should have been rendered by said board of supervisors." The judgment then proceeded to set forth in eight pages a proposed order which the Board should have executed. The judgment then directed the clerk to certify a copy of the judgment to the Board of Supervisors "to be entered on the minutes of said board, there being included herein the judgment which ought to have been rendered by the board of supervisors in said cause." The proposed order of the Board, which the circuit court in effect directed the Board to enter on its minutes, adjudicated numerous facts which the Board probably would adjudicate prior to issuing the bonds. It also found that a total of 265 qualified electors of the School District voted, and that a total of 161 votes were cast for the bond issue and 104 case against it "if the vote of Mrs. C.P. Gilmer was cast for the bond issue." This latter must here be considered to have occurred, since contestants failed to meet their burden of proof of showing how Mrs. Gilmer voted. And the judgment adjudicated that more than three-fifths of the qualified electors voting voted in favor of issuance of the bonds, and that the Board is empowered to proceed with the issuance and sale of the bonds. We construe these adjudications to be part of the circuit court's judgment.
The quoted part of Code Sec. 1195 gives the circuit court power to render such judgment as the Board ought to have rendered only "if the judgment be reversed". But the order of the Board of Supervisors was in effect affirmed. The court correctly differed with the Board only upon factual details serving as the basis of the judgment. Hence the circuit court had no power under the statute to render a judgment or order for the Board. We therefore modify the judgment of the circuit court in so far as it directs the Board of Supervisors to enter the specified order, and in all other respects affirm the court's judgment.
Affirmed as modified.
McGehee, C.J., and Alexander, Hall, and Holmes, JJ., concur.