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LUM CUMBEST, PETITIONER v. COMMISSIONERS OF ELECTION OF JACKSON COUNTY

JULY 07, 1982

LUM CUMBEST, PETITIONER
v.
COMMISSIONERS OF ELECTION OF JACKSON COUNTY, MISSISSIPPI, RESPONDENT



EN BANC

HAWKINS, JUSTICE FOR THE COURT:

On December 10, 1981, Lum Cumbest petitioned this Court for a temporary injunction restraining and prohibiting the Election Commissioners of Jackson County from holding a special election on January 5, 1982, or any other special election to fill the office of supervisor of district number one of Jackson County pending his appeal from a conviction of fraud in public office in the circuit court of Jackson County.

The respondents to this petition were the Election

 Commissioners of Jackson County, in their official capacities, and the State of Mississippi. *fn1

 A hearing was held on this petition on December 17, 1981, before a panel of three Justices of this Court, following which an order was entered denying the petition.

 On December 22, 1981, the petitioner filed a petition for rehearing with supporting brief, alleging as error the Court's refusal to enjoin the election.

 The petition for rehearing has been denied.

 The gravity of this case and the legal principles involved warrant an opinion.

 On June 23, 1981, Mr. Cumbest and Dale Coleman were indicted by the grand jury of Jackson County for fraud in public office in cause number 11,033. Mr. Cumbest was the duly elected and acting supervisor of district number one, and Mr. Coleman was a county employee of that district. Mr. Cumbest was tried and convicted of this crime while in office in November, 1981.

 Following his conviction, the Honorable Arthur B. Clark, acting as special circuit court judge, rendered judgment on November 6, 1981, removing Mr. Cumbest from public office. Following a pre-sentence investigation the circuit court, on December 4, 1981, rendered judgment sentencing both defendants to serve four years in the Mississippi Department of Corrections, with three years suspended. Mr. Cumbest has duly perfected an appeal from this conviction to this Court, which is now pending.

 On December 8, 1981, the board of supervisors of Jackson County entered an order declaring a vacancy in the office of supervisors' district number one, and appointed Gavin F. Hamilton to fill the vacancy until a successor was elected in the election designated in said order for January 5, 1982. On December 8, 1981, the board of supervisors, pursuant to Miss. Code Ann. 23-5-197 (1972), also entered an order, directed to the Election Commissioners, to hold an election on January 5, 1982, to fill the vacancy. Pursuant to this order the Election Commissioners gave public notice of the special election, as required by law.

 Following these developments Mr. Cumbest petitioned this Court to advance his appeal on our docket, and for a temporary injunction against the Jackson County Election Commissioners prohibiting the holding of the special election on January 5, 1982, or any other election for the remainder of his term pending the appeal of his case. His petition, as set forth in his brief, was based upon two cases of this Court: Jolliff v.

 State, 210 So. 2d 47 (Miss. 1968), and Jolliff v. State, 215 So. 2d 234 (Miss. 1968).

 LAW

 In Bucklew v. State, 192 So. 2d 275 (Miss. 1966), Bucklew, mayor of the city of Laurel, was convicted in the circuit court of Jones County for attempting to embezzle city funds. The judgment of conviction fined him, removed him from office, and declared the mayor's office vacant. The day after the sentence, the governing authorities of Laurel adopted a resolution declaring the office vacant, appointed an interim mayor, and ordered a special election to fill the vacancy.

 Bucklew perfected an appeal, and then filed a motion for" remedial relief "asserting that since he had perfected an appeal with supersedeas, the appeal should stay his removal from office pending appeal. He styled the motion," Motion for Stay of Removal from Office Pending Appeal. "

 In overruling this motion, this Court's opinion first quoted Section 175 of the Mississippi Constitution and the pertinent portions of the Mississippi code section authorizing this removal:

 Section 175. All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.

 Section 4053 (codified at Miss. Code Ann. 25-5-1 (Supp. 1981)) Removals from office. If any public officers, state, district, county, or municipal, shall be convicted of misconduct or misdemeanor in office, or of any felony . . . the court, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.

 The concluding rationale of the opinion merits quoting in full:

 The question is whether a pending appeal from Bucklew's conviction and removal from office, under the Constitution and statute, has the effect of superseding his removal from office. We do not think it does. Constitution section 175, without qualification, provides that" upon conviction, "

 the public officer" shall be removed from office. "Code section 4053 directs the trial court, in addition to any other prescribed punishment, to" adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant. "Here again there is no stated limitation resulting from an appeal.

 [1] Movant argues that his removal from office is an inseparable part of the entire judgment rendered by the trial court, and, considering that judgment as an entirety, the removal is suspended. Cited as authority for this proposition is Mississippi Code Annotated section 1175 (1956). However, Constitution section 175 and the statute are self-executing. They do not contain provisions for suspension of the removal pending appeal. The general rule in other jurisdictions is stated in 43 Am. Jur. Public Officers section 200 (1942):

 The mere fact that a person who has been convicted may, by means of an appeal, ultimately succeed in establishing his innocence does not necessarily ...


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