Loposser v. State ex rel. Gause

70 So. 345, 110 Miss. 240

Opinion

Smith, C. J.,

delivered the opinion of the court.

The ground upon which appellee seeks to oust appellant from the office to which he has been declared elected is, not that he is disqualified to hold the office or that the election was illegally held, but that the election commissioners erred in counting the votes cast at the election, so that the cause comes within section 4186 of the Code, which, under section 3439 of the Code, is applicable to code chapter municipalities. The town of Handsboro being a code chapter municipality, and the procedure for contesting an election provided by section 4186 being exclusive (Ex parte Wimberly, 57 Miss. 437), appellant’s demurrer to the petition should have been sustained.

It is true that it does not appear from the petition that Handshoro is not governed hy a special charter, but this fact is immaterial, for we judicially know that it was incorporated under the code chapter on municipalities hy proclamation of the Governor on the 13th day of March, 1899, as appears from the records of the secretary of •state. In two of the cases, Kelly v. State ex rel. Kierskey, 79 Miss. 168, 30 So. 49 and Bourgeois v. Laiser, 77 Miss 146, 25 So. 153, called to our attention in this connection, municipal elections were contested by means of a proceeding in the nature of a quo warranto, hut in neither of these cases was the question of jurisdiction raised, no ■doubt for the reason, as the fact is, that both the municipalities there involved were operating under special charters.

Reversed and dismissed.