Aden v. Board of Sup'rs of Issaquena County

• Decision Date: 29 March 1926
• Docket Number: 25520
• Citation: 142 Miss. 696,107 So. 753
• Parties: ADEN et al. v. BOARD OF SUP'RS OF ISSAQUENA COUNTY. [*]
• Court: Mississippi Supreme Court

107 So. 753

142 Miss. 696

ADEN et al. v. BOARD OF SUP'RS OF ISSAQUENA COUNTY. ^[*]

No. 25520

Supreme Court of Mississippi

March 29, 1926

Division A

Suggestion of Error Overruled April 26, 1926.

APPEAL from circuit court of Issaquena county, HON. E. L. BRIEN Judge.

On certiorari by Mrs. Lizzie Aden and others, the circuit court confirmed the action of the board of supervisors of Issaquena county in laying out and opening a road, and petitioners appeal. Reversed and remanded.

Judgment reversed, and case remanded.

Clements & Wright, for appellants.

The record of the board of supervisors must show affirmatively every jurisdictional fact. Bolivar County v Coleman, 71 Miss. 836; Sullivan v. Board of Supervisors, 58 Miss. 790; Craft v. DeSoto Co., 79 Miss. 618; State v. Morgan, 79 Miss. 659; Lester v. Miller, 76 Miss. 309.

This record does not show affirmatively that the petition was signed by ten or more freeholders or householders interested in the road, nor does the order of the board show that this was determined by the board. The order of the board does not adjudicate the necessity for the road or that the public interest or convenience required it to be laid out.

There was no notice to landowners five days before the regular March meeting; therefore, no action could be taken on an adjourned day of that meeting. Dees v. State, 78 Miss. 254; Willsford et al. v. Meyer Kiser Corp., 104 So. 294; Leak v. Commonwealth (Pa.), 9 Watts 200, 29 C. J., p. 435, sec. 97; 15 C. J., pp. 462, 886, 11 Cyc. p. 737; 1 Words & Phrases, p. 114; Beatle v. Roberts (Ia.), 137 N.W. 1006, 1008; Green v. Town of Irvington, 73 A. 602, 81 N.J.L. 723; 7 R. C. L., p. 941, sec. 17.

No presumption will be indulged in of the correctness of the act of a court of limited jurisdictions. Bolivar County v. Coleman, 71 Miss. 836. If the board had no jurisdiction, certainly the circuit court had none. Copiah County v. Lusk, 77 Miss. 136.

The recital in the judgment would probably be sufficient to uphold the judgment if the record were otherwise silent on the service of summons. Fire Ins. Co. v. Sayle, 107 Miss. 180; Watkins Machine Co. v. Cincinnati Rubber Co., 96 Miss. 618.

Brunini & Hirsch and E. N. Scudder, for appellee.

It is well to analyze this petition and see what the complainants, the Adens, charged to avoid and nullify the action of the supervisors. Here they are:

I. That the petition of the freeholders and householders "does not show that it is signed by ten or more freeholders or householders of Issaquena county interested in this road."

On this point the petition of the freeholders and householders speaks for itself: "And your petitioners, undersigned, would show that they and each of them is interested in said road, and that the public interest and convenience require the said road to be laid out and opened as a public road or highway from said commencement to said termination, in said general course or direction as prayed for.

"The signers of this petition who owned land through which said proposed road runs, are each to give the necessary right-of-way through his land to construct and maintain the above road petitioned for.

"Petitioners would further show that they are freeholders and householders of said county of Issaquena, and desire the said road to be laid out and opened as prayed for according to law and of the necessary width."

To this petition is appended the signatures of thirty-seven freeholders and householders.

II. That said petition of the said free holders and householders, "does not show that five days' notice was given the owners of the land through which said proposed road was intended to be laid out or opened as required by the law of Mississippi." This is true. The petition does not so show. The statute does not require the petition to show it. Section 7080, Hemingway's Code as amended by chapter 282, Laws of 1924.

Note that only after the petition is presented, is it required that petitioners "shall give five days' notice, etc.;" not "shall have given five days' notice before the presentation of the petition." "Shall" denotes the future. See Merchants Gro. Co. v. Merchants Trust & Banking Co., 119 Miss. 99.

Can there be any doubt in the mind of any one, whether he be layman or lawyer, that the notice would have been good if it had been given either by the supervisors or the petitioners through the sheriff? But, as we have heretofore shown, it was given by both. May we ask what more could have been done? Was not more done than the statute required? Every single property owner was served by the sheriff on March 4, 1925, more than five days before the day fixed for the hearing of the petition.

III. The next contention of the appellants is, "that as shown by Exhibit D to this petition the board of supervisors of Issaquena county adjourned until March 11, and ordered notice to the landowners to be given to appear on that date, which said meeting on March 11 is a continuation of the regular March meeting, 1925."

All that is true. The charge, however, is simply the recital of a fact. Nowhere in the petition for certiorari will be observed a charge that those facts render the proceedings or actions of the supervisors void, but appellants in their brief so contend. Appellants say that the proceedings of the supervisors are void because the notice was not served five days prior to the first day of the March term, 1925.

The return day, or the appearance day, or the day fixed for the hearing, whatever it may be called, in all proceedings of the courts of commissions and of other bodies is purely statutory. 29 C. J. 435. In Pennsylvania a writ may be returnable to the last as well as the first day of a term. Ewing v. McNair, 2 Dall. (U.S.), 269; 1 L.Ed. 377.

Section 7080, Hemingway's Code, makes it obligatory to give five days' notice to the owners of the land, but it stops right there. It does not say five days before a meeting of the board of supervisors, but simply requires that the owners be given five days' notice.

As the statute fixed no return day, the property owners, having been given the five days' notice prescribed, to appear at a certain hour and place, have had their day in court.

IV. The next contention is, "that at said adjourned meeting, March 11, 1925, the board entered an order which is Exhibit D to this petition, which does not adjudicate, even if their notice was sufficient, that the said petition was signed by the required number of qualified petitioners as provided by the laws of Mississippi and which said order further shows that the only notice of your petitioners was to the said adjourned meeting; to-wit: March 11, 1925, and which said order does not adjudicate, nor determine, nor find any of the jurisdictional facts necessary to confer jurisdiction on the board of supervisors for the laying out of said road as provided by the laws of Mississippi, but under said order appointed a commission to view the proposed or contemplated route and report to the April meeting of the board."

This court will bear in mind that the first contention was that the petition did not show that it was signed by ten or more freeholders or householders of Issaquena county. Appellants by this last contention seem to think that the fact that the petition was signed by ten or more freeholders must not only appear in the petition, but that the supervisors had to examine the history of each person who signed the petition to know whether he was really a freeholder or householder and to spread its finding on the minutes of the board; and that the recital in the petition and the acceptance thereof by the supervisors was wholly insufficient in that a finding on the subject should appear in the minutes.

In this case the petition itself was recorded on the minutes and the statute nowhere puts upon the supervisors the duty to make their finding or adjudication that the petitioners were actually freeholders or householders, appear upon their minutes.

Now, in reference to the jurisdictional facts, appellants, no doubt have confused in their minds the law on this point. The authorities all hold that the jurisdictional facts, must appear in the "record," not in the "minutes." It is sufficient if the jurisdictional facts appear in the "record" and commencing with the...