Perkins v. Henderson

Decision Date11 May 1891
CourtMississippi Supreme Court
PartiesW. H. PERKINS ET AL. v. W. H. HENDERSON

April 1891

FROM the circuit court of Monroe county, HON. LOCK E. HOUSTON Judge.

The record contains an agreed statement of facts, from which it appears that appellee, Henderson, presented his petition to the mayor and selectmen of the city of Aberdeen, praying for license to retail vinous and spirituous liquors in that city for one year. The petition was in legal form, and was duly published. It is conceded that 299 legal voters constituted a majority of those residing in said city, and the petition as filed contained the names of 333 qualified voters, being 34 in excess of the required number. A counter-petition was filed, containing among others the names of 42 of those who had signed the petition. But before it was filed or presented to the board, 9 of the 42 filed with the board their written direction and request that their names be stricken from the counter- petition and counted on the petition in favor of license. The counter- petitioners appeared before the board at its hearing of the petition and objected to the written directions being considered, but the objection was overruled.

The board of selectmen granted the license, and the case having been brought by certiorari to the circuit court, the action of the board in granting the license was affirmed. This appeal is prosecuted in behalf of the counter-petitioners.

Affirmed.

Sykes &amp Richardson, for appellants.

On the agreed transcript a single question is presented for consideration, that is, whether one having signed the counter-petition can afterwards file a written direction to the board of mayor and selectmen to have his name stricken therefrom at the hearing, and in this way recall his action in signing the counter-petition and be counted in favor of selling whiskey? If the written directions or petitions for withdrawal of names from the counter-petition are to have the effect contended for, the scheme of the statute will be defeated. The petitioner for license can get every doubtful voter who signs his petition at the same time to give a written direction to the board to take his name from the counter- petition. This paper can be concealed until the board meets, and then without notice to the opposite side be produced. Thus, counter-petitioners are powerless to meet such "counter-counter petitions."

The purpose of the law was to provide a simple method for getting at the sentiment of a community, and two instruments of writing are made the means of doing this, one, a petition alleging certain things in reference to the applicant, and the other asking that he be not granted license. The two together constitute a statutory proceeding, and no private paper should be considered. Voters cannot come off and on ad infinitum. We think this view is shown to be correct by the case of Romberger v. Board, etc., 63 Miss. 218.

E. H Bristow, for appellee.

Under section 1103, code 1880, a counter-petition is a mere private paper of no binding force, and is the property of no one, and confers no vested rights until it is filed or presented. It is analogous to a will which may be revoked, and to a deed which is inoperative until delivered, and to a bail-bond from which the surety can erase his name before it is completed and delivered. It has a still closer analogy to a vote. A man may join a political club, sign a pledge, prepare his ticket and become one of a "block of five," and yet the ticket is not a vote until deposited in the ballot-box. A free American citizen does not absolutely enslave himself by signing in a moment of enthusiasm and without consideration a mere private paper. There is a locus penitentice. Surely one who signs a counter-petition is not like that "profane person Esau," who sold his birthright, and when he would have inherited the blessing could not, and "could find no place of repentance, though he sought it carefully with tears."

The individual who circulates a counter-petition has no estate or right in it, and is not bound to file it. Romberger v Board, etc., 63 Miss. 218. It seems that the vital point in that case was that the names were erased after the counter-petition had been filed and presented. A counter-petition can be filed at any time before the board acts on the application. Rogers v. Hahn, 63 Miss. 578. Before the petition is filed the signer...

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12 cases
  • City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery
    • United States
    • Missouri Court of Appeals
    • 15 Marzo 1904
    ...has obtained recognition and has been applied. [State v. Nemaha County, 10 Neb. 32; State ex rel. v. Geib, 68 N.W. 1081; Perkins v. Henderson, 68 Miss. 631, 9 So. 897.] following apt languages justifies its citation: "A remonstrance is defined to be a petition to a court or deliberative bod......
  • Maxwell v. Terrell
    • United States
    • Idaho Supreme Court
    • 1 Octubre 1923
    ...80 N.J.L. 626, 77 A. 1033; State v. Geib, 66 Minn. 266, 68 N.W. 1081; Hoffman v. Nelson, 1 Neb. Unof. 215, 95 N.W. 347; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Eggleston v. State, 37 Kan. 426, 15 P. Sedalia v. Montgomery, 227 Mo. 1, 88 S.W. 1014, 127 S.W. 50; Newton v. Borough of Emp......
  • City of Sedalia ex rel. Gilsonite Construction Company v. Montgomery
    • United States
    • Missouri Supreme Court
    • 30 Marzo 1910
    ...or a petition (remonstrance) against it. Cases supra and State v. Nemaha Co., 10 Neb. 32; State ex rel. v. Geib, 68 N.W. 1081; Perkins v. Henderson, 68 Miss. 631; Noble v. City, 42 Ind. 130; People Sawyer, 52 N.Y. 299; State v. Ellgleston, 34 Kas. 714; Slingerland v. Norton, 59 Minn. 351; L......
  • Coleman v. Thompson
    • United States
    • Mississippi Supreme Court
    • 16 Marzo 1953
    ...or a municipality can take their names therefrom by signing a counter petition.' See also Rogers v. Hahn, 63 Miss. 578; Perkins v. Henderson, 68 Miss. 631, 9 So. 897; Ferguson v. Board of Sup'rs of Monroe County, 71 Miss. 524, 14 So. 81; Power v. Robertson, 130 Miss. 188, 93 So. 769; Miles ......
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