Adams v. Board of Sup'rs Or Union County

Decision Date23 November 1936
Docket Number32383
Citation177 Miss. 403,170 So. 684
PartiesADAMS et al. v. BOARD OF SUP'RS or UNION County
CourtMississippi Supreme Court

Division B

1. CONSTITUTIONAL LAW.

Holders of license for sale of beer and light wines held not entitled to challenge constitutionality of statute authorizing election to determine whether sales of beer and light wine should be abolished on ground that failure of statute to provide for notice constituted denial of due process in absence of showing that if statute had provided for notice that result would have been different as to holders of license (Laws 1934, chap. 171, sec. 2; Const. U.S. Amend 14).

2. CONSTITUTIONAL LAW.

Person bringing action must have ground of complaint or cause of action, and be harmed by thing of which he complains not-withstanding that action involves constitutional questions.

3. APPEAL AND ERROR.

Question not raised in trial court will not be considered on appeal.

4 CERTIORARI.

On appeal from quashing of certiorari to review proceedings of board of county commissioners in calling election to determine whether sales of beer and light wines should be abolished, Supreme Court would not determine whether statute authorizing election was unconstitutional delegation of legislative authority where question was raised for first time on appeal (Laws 1934, chap. 171, sec. 2; Const. 1890 sec. 33).

HON. T. H. MCELROY, Judge.

APPEAL from the circuit court of Union county, HON. T. H. MCELROY, Judge.

Certiorari proceeding by S. S. Adams and others to review proceedings of the Board of Supervisors of Union county in calling an election. From an order sustaining a motion to quash the writ of certiorari, the plaintiffs appeal. Affirmed.

Affirmed.

Smallwood & Darden, of New Albany, for appellants.

In determining the right of the appellants in this case there are two questions involved: (1) Whether or not the provision of section 2 of chapter 171 of the General Laws of Mississippi of 1934, in regard to the calling of an election for the purpose of voting wine and beer out of a county, contravenes any of the rights of the appellants guaranteed to them under section 1 of the Fourteenth Amendment to the Constitution of the United States and under section 14 of the Mississippi Constitution of 1890, commonly known as the Due Process Clauses; (2) That if the provisions of section 2 of chapter 171 of the Laws of 1934 do not have the effect of depriving the appellants of any constitutional guarantees, whether or not they must have any process, so that they may have their day in court, before a question involving their property rights and personal privileges can be determined in a judicial proceeding.

It has been definitely decided by this court that the entering of the order for an election under the beer act is the entering of a judgment, notwithstanding the fact that such judgment is mandatory if the required facts authorizing it exist. The finding of the necessary facts to authorize the judgment and the entering of the judgment are both judicial actions.

Mohundro v. Bd. of Supervisors, Tippah County, 174 Miss. 512, 165 So. 124.

It has, therefore, been determined by the above decision that the board of supervisors of Union county, in considering the petitions filed and entering the order for the election, were acting as a judicial body and their acts were not ministerial under the law.

It is an essential element of any judicial proceeding that the interested party or parties to any such judicial proceeding shall be notified of the pendency of the particular action that he or they have an opportunity to come in and to be heard upon questions which concern himself or themselves. It is axiomatic that every man must have his day in court, and any judicial proceeding which results in a final judgment must be predicated upon an opportunity to all parties interested to be heard on questions involving their rights of property, of liberty, and of freedom of action.

Standley v. W. J. Wheelis & Co., 46 Miss. 666; Boutwell v. Grayson, 118 Miss. 80, 79 So. 61; Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 A.L.R. 238.

Nowhere in the statute ill question is any procedure set up whereby any interested party may have notice, either actual or constructive, to come into court and to be heard upon the validity of the petition provided for the act, and as to the validity of which the board of supervisors are required under the law to take judicial action, and to enter a judgment in accordance with its judicial findings. We submit that such a procedure is a most flagrant disregard of the rights provided by the constitutions of the United States and the state of Mississippi, guaranteeing to its citizens the right to be protected in their property and liberties by due process of law.

We submit that any law which contemplates the entering of a judgment under such circumstances, as does section 2 of chapter 171 of the Laws of 1934, which makes no provision for notice or service of process either before or after judgment, is unconstitutional and void.

If it is not unconstitutional, and if there be some statute which provides for the requisite notice, still the trial court erred in sustaining the motion to quash the writ of certiorari, for the record shows that no notice was given to the appellants herein either before or after the entering of the judgment in which they were interested.

Lamar F. Easterling, of Jackson, amicus curiae.

It is my contention that chapter 171 of the Laws of 1934 is unconstitutional in so far as the same attempts to provide that by a majority vote of the qualified electors of a county such county shall come out from under the provisions of said chapter, and that the sale of light wines and beer shall not be permitted in that county.

Section 33 of the Constitution of 1890 vests the lawmaking power of the state in the Legislature, consisting of the Senate and the House of Representatives.

Of course, it is admitted that the Legislature can pass a law, the effect of some portions of which may depend upon a contingency such as the vote of the people.

Alcorn v. Hammer, 38 Miss. 653; Schulherr v. Bordeaux, 64 Miss. 59, 8 So. 201.

The Legislature may also make the operation of a statute dependent upon future contingencies.

Armond v. White, 85 Miss. 276, 37 So. 834.

But it is equally clear that the Legislature cannot delegate to the whole people, or any portion of the people, or to any other department of government, its power to make laws, or to repeal laws.

Alcorn v. Hammer, 38 Miss. 562.

In determining whether or not any act of the Legislature violates section 33 of the Constitution, the court must look to the entire act. It must be determined by the effect of such an election. If the effect of such an election is designed to prevent the sale of said beverages in any county, then it would seem that the Legislature had abdicated its power to make or repeal laws for such county, and had delegated this power to the majority vote of the county.

The effect of the vote here does not seem to be whether or not chapter 171 shall be suspended, or does not affect the time when the same shall go into effect.

Stripped of all verbiage, it seems that the Legislature, to use a slang phrase, instead of legislating for any county on this subject, attempted to "pass the buck" to the voters of the county, not as to whether or not any law of the Legislature should be suspended or might go into effect upon the happening of a contingency only, but that the voters, by a majority of vote, could prohibit that which was legal under the said act throughout the state, and come out from under the terms of said chapter 171, and resurrect and repeal other laws.

17 Am. & Eng. Enc. Law, 224, 225; Hallie v. State, 14 Tex.App. 505; State v. Geebrich, 5 Iowa 49; Turner v. Saxton, 20 P. 685; Thornton v. Territory, 3 Wash. Ter., 452.

Under the statute here, there is provision made for only one contingency, in case the people vote for sale of the beverage.

If it was the legislative idea that if the vote was against said beverages, to resurrect these laws, chapter 39 of the Code of 1930, the act is unconstitutional in delegating this power to the voters.

The Legislature cannot leave it to the people to say that any law repealed shall be brought to life, or to determine that certain acts shall be prohibited or not permitted.

It would therefore seem obvious that the Legislature attempted to delegate to the voters of any county the power to call into life the general laws providing against the sale of intoxicating liquors, the power to repeal other laws and parts of laws, the power to determine, the discretion to decide, the revival and repeal of other laws. It certainly seems plain that if the Legislature leaves it to a majority vote of the people of a county to say whether certain laws repealed should be revived or laws permitting the sale of light wines and beer, license for a certain price and for a certain time, should be repealed, that this is delegating legislative power and discretion to the voters of a county, contrary to the constitution.

The Legislature could not vest in the people the power to repeal this law or any law, or to revive any law that had been repealed.

I. C. C. v. Railroad Co., 218 U.S. 88, 44 L.Ed. 949; 12 C. J. 839, 840; State v. Watkins, 147 So. 8; Porter Coal Co. v. Davis, 165 So. 93, 231 A.L.R. 359; 17 Am. & Eng. Enc. Law, 224, 225; 76 A.L.R. 1044-1055; 6 R. C. L. 166, 164; 12 A.L.R. 1435; 44 A.L.R. 1004; 58 L.R.A. 227; 56 L.R.A. 733.

It would seem that if mistaken in the foregoing contention, and if the court should hold that the law authorizing submission of the question to the voters is constitutional, then we...

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