Board of Election Com'rs of Rankin County v. Davis

• Decision Date: 28 October 1912
• Docket Number: 16,181
• Citation: 102 Miss. 497,59 So. 811
• Court: Mississippi Supreme Court
• Parties: BOARD OF ELECTION COMMISSIONERS OF RANKIN COUNTY v. H. L. DAVIS

59 So. 811

102 Miss. 497

BOARD OF ELECTION COMMISSIONERS OF RANKIN COUNTY v. H. L. DAVIS

No. 16,181

Supreme Court of Mississippi

October 28, 1912

APPEAL from the chancery court of Rankin county, HON. SAM WHITMAN JR., Chancellor.

Suit by Mrs. H. L. Davis against the Board of Election Commissioners of Rankin County. From a decree overruling a demurrer to the bill, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and bill dismissed.

Robert B. Mayes, W. E. McIntyre and Frank Johnston, assistant attorney-general, for appellant.

Green &amp Green, for appellee.

No brief of counsel on either side found in the record.

OPINION

COOK, J.

Several interesting questions are presented by this record, but we have concluded to pretermit discussion of all save one. It is always of prime importance to settle all constitutional questions touching the powers of the legislative department of the state as speedily as may be, and especially is this true where the validity of public statutes dealing with purely governmental functions are assailed.

Mrs. H L. Davis, appellee, filed a bill in equity against the board of election commissioners of Rankin county to enjoin the execution of a statute passed by the legislature at its 1912 session, entitled "An act to amend the act of 1910, creating the office of county prosecuting attorney." A demurrer to the bill was overruled. The board of election commissioners had passed an order calling an election in said county for the purpose of submitting to the electors thereof whether said county should, or should not, elect to "come from under" the provisions of the act of the legislature of 1912, entitled "An act to amend chapter 112 of the Acts of the Legislature of 1910, entitled 'An act creating the office of county prosecuting attorney, prescribing his qualifications, duties and compensation,' so as to make the office of prosecuting attorney optional with the different counties of the state." This order was made in obedience to section 2 of the said act, and the bill of complaint prayed that the chancery court enjoin the holding of this election, because sections 33, 87, 90, and 91 of the Constitution are violated by the act, under the provisions of which the board of election commissioners had ordered the election.

Section 33 of the Constitution is as follows: "The legislative power of this state shall be vested in the legislature, which shall consist of a senate and house of representatives." The bill of complaint alleges this section "received judicial exposition" in the case of Alcorn v. Hamer, 38 Miss. 652; the court in the case mentioned having under review an act of the legislature passed in 1858, which the court analyzed and stated thus: "The first section of which declares 'that there shall be and is hereby levied and assessed a uniform tax of ten cents an acre on each and every acre of land in this state lying' within the boundaries of the levee district as therein created, 'except lands held by the state in trust or otherwise, and school land now exempt from taxation, which tax shall be continued for the period of five years, and shall be payable annually, on or before the first day of April in each and every year, from the first of April, 1859, to the first of April, 1863, inclusive,' etc.: Provided, however, that the said tax proposed to be levied and collected in the said counties of De Soto,' etc., 'shall first be submitted to the legal voters in the district of country proposed to be taxed, on the first Monday in January, 1859, which said election shall be conducted in the same manner, and upon the same notice as other elections, and if a majority of the legal voters, residing in the district of country proposed to be taxed, vote against the said tax, then the same shall not be levied or collected.'"

The case of Alcorn v. Hamer, supra, is taken as the text of eminent counsel representing appellee, and by its authority they seek to destroy the act now under review. They have selected the doctrines announced in that case as the true rule for the guidance of this court in the decision of the present case, and it is therefore important to examine the utterances of the court to ascertain the scope of the decision, and just what the court did decide and announce as the rule in this state. On page 753 the court said: "The power to enact a law of necessity includes the right to determine the conditions upon which, in a given case, the law is to come into operation. Hence, when there has been no attempt to surrender the legislative function, or to associate another power in the enactment of a law, it would, at the least, be absurd to hold that an act was invalid, for the reason that its operation was to be defeated or suspended by the happening of the prescribed contingency. The right conferred upon the electors of the district to determine that one of its provisions should not be carried into effect was as clearly ascertained, and as much fixed by the will of the lawmaking power, as any provision contained in the act. It seems, hence, too clear for controversy that the act did not delegate to the electors the right to pass or even approve it. On the contrary, the vote of a majority against the collection of the tax can only be regarded in the nature of a condition subsequent, which might defeat, but which was never intended to confer upon the act validity, as an expression of the legislative will. It was the act itself which made the vote, and prescribed the consequences to result from it."

The court, in the case of Alcorn v. Hamer upheld the statute there assailed as violative of section 33 of the Constitution. Just here we may note that a narrow construction of section 33 of the Constitution has not met with much favor in the supreme court of this state in any case coming under our observation. The act construed in Alcorn v. Hamer did not repeal the law enacted, but it did create a condition subsequent by which the law might be made inoperative. It must be conceded that the legislature had the power, in the first instance, to have made, as a condition subsequent to the operation of the original statute creating the office of county attorney, the exact contingencies provided for by the act of 1912. This is the precise point decided in ...