Board of Supervisors of Madison County v. Powell

• Decision Date: 18 April 1898
• Court: Mississippi Supreme Court
• Parties: BOARD OF SUPERVISORS OF MADISON COUNTY v. WILLIAM H. POWELL ET AL

23 So. 425

75 Miss. 762

BOARD OF SUPERVISORS OF MADISON COUNTY v. WILLIAM H. POWELL ET AL

Supreme Court of Mississippi

April 18, 1898

March 1898

FROM the circuit court of Madison county HON. ROBERT POWELL Judge.

The appeal in this case brought under review the validity of an election held under the code provision regulating local option elections. The board of supervisors held that the petition was subscribed by the requisite number of qualified electors, and ordered the election as prayed. The appellees citizens of the county who had resisted the making of the order for the election, prepared and had signed by the president of the board a bill of exceptions, and prosecuted an appeal to the next term of the circuit court. In that court it was held that the decision of the board of supervisors was erroneous, and that the petition for the election should have been rejected, and a judgment was entered vacating the judgment of the board of supervisors and dismissing the petition. From that judgment this appeal was prosecuted.

The questions discussed in the supreme court were:

1. Whether the board had jurisdiction to enter upon an investigation on the face of the petition.

2. Whether it sufficiently appeared that the petition for the election was signed by one-third of the qualified electors of the county.

3. Whether the board, in investigating the question last mentioned, committed any error in the admission or rejection of evidence, or in certain of its rulings and decisions, of such character as to require the circuit court, on the appeal of contestants, to vacate its judgment ordering the election and,

4. Whether the board was warranted in refusing to adjourn the hearing to a subsequent day in order that the contestants might be afforded an opportunity to introduce evidence to disprove the signatures appearing upon the petition, and in closing the investigation under the circumstances stated in the opinion of the court.

In a suggestion of error, which was overruled by the supreme court, it was also contended that an appeal did not lie from the decision of the board of supervisors.

Affirmed.

Cooper & Waddell, for the appellant.

It appears by the bill of exceptions that at eleven o'clock Thursday night, one hour before the term would expire by operation of law, the contestants seemed first to have turned their attention to the real merits of the controversy. Then it was that, for the first time, they proposed to show that ''names upon the local option petition were not the genuine signatures of the persons purporting to have signed the same, and that many names appeared upon the petition which were placed there without the authority of the parties purporting to have signed the same." At eleven-thirty o'clock P.M. the board declined to hear further proof in the matter, as the term allotted by law was about to expire, unless the contestants would point out to the board and make affidavit that, in their opinion, the signatures were not genuine, and, in such designated cases, the board proposed to hear evidence.

We ask the court to note the response which was made by the contestants to this requirement of the board. They stated that they had no sufficient personal knowledge of the subject to justify them in making an affidavit. In other words, when put to the test, these contestants admitted that they had no personal knowledge that a single name upon the petition was not the genuine name of the party, and that they had no such sufficient knowledge on the subject as to form "an opinion as to the genuineness of the signatures." It will be noticed by the court that the board did not require an affidavit of personal and conclusive knowledge by the contestants that the signatures were not genuine; all that was required was that the contestants should make affidavit that they had no such information touching particular names as would warrant them in forming an opinion adverse to the genuineness of the signatures. In effect, the board said, that in the short time left, mere general objections and fishing examinations of witnesses would not be tolerated, It required the contestants to point out those names which they had some reasonable ground to believe were not genuine, and to make affidavits that, in their opinion, the names were not genuine, as evidence of the good faith of the contestants in challenging the names. The court will remember that this bill of exceptions is the bill of exceptions of the contestants, and it is fair to conclude that it states their case as fully and favorably as the truth will Permit. And just here we desire to call the attention of the court to the fact that it is not suggested in the bill of exceptions that the contestants, in the proof which they had offered from eleven o'clock to eleven-thirty, had successfully assailed a single name appearing on the petition.

The record does show that the contestants were allowed to proceed in the introduction of evidence for a half hour, but what that evidence was, whether it supported or tended to support the contention of the contestants, that some names were improperly on the petition, is sedulously and carefully omitted. Because the record does not state what this proof was, or that a single name on the petition was sufficiently challenged to give rise to a claim by the contestants that it ought to be stricken from the petition, we are justified in asserting, that in all the evidence introduced, no suspicion was cast -- as to a single name -- upon the legality and integrity of the petition.

We have this far reviewed the action of the board for the purpose of showing that all reasonable opportunity was afforded to the contestants to object to the validity of the petition; to introduce evidence touching the genuineness of the signatures, and to participate in the investigation of the question as to the number of qualified electors in the county. And we respectfully submit that if it be the law that the board might treat the petition as prima facie evidence of its genuineness, no shadow of error is shown or suggested in the proceedings of the board, and that no just ground of complaint may be made; that the hearing was not postponed to a future term. The contestants were before the board, pending the whole examination, they were alert and fertile in objections; they were parties to, and participants in, the whole investigation, which covered many days, and in all that time, as far as the record shows, failed to interpose a single substantial or plausible exception to the proceedings and rulings of the board.

There stands out upon every page of the record a manifest and clear purpose on the part of these objectors to delay and protract the hearing, to defeat the call of the election by hook or crook, to make a case as they went along by procuring the withdrawal of names from the petition, pending the investigation.

The bill of exceptions is the bill of contestants. It states their own case as strongly, we may be sure, as it could possibly have been stated. It shows, as we have seen, an effort to entrap the board, by making a motion which implies, by necessary inference, that the board had excluded from the list of qualified voters of the county, the names of certain persons, because they had not paid their taxes on or before the preceding February. This the board, as the bill of exceptions states, had not done, and it is impossible to conceive how the motion could have been made in good faith and for an honest purpose. We respectfully submit that no error was committed by the board in any of its proceedings which we have noticed, and that, with entire propriety and a just regard of the rights of all parties, it closed the investigation, and made its final order when the time at which the term would end was within a few minutes of its expiration.

The petition was prima facie evidence of its own legality. The error into which we think counsel for the appellant and the court below fell, was in assuming that this was a cause pending in court, to which the ordinary rules of evidence and procedure were applicable. We think it demonstrable upon reason and authority, that such is not the character of this statutory proceeding. The whole subject partakes of the nature of a police regulation, and the requirement is made that a designated proportion of the qualified voters of the county shall petition for the election, in order that the public may be protected against the expense and excitement incident to such contests, unless there is a well-formed public sentiment, which ought to be afforded an opportunity for expression, and the lawmakers very justly assumed that when one-third of the qualified electors of the county desire the question of sale or no sale of intoxicating liquors to be submitted to a popular vote, that there exists a definite and settled public opinion, which ought to be heard, and which ought to determine whether or not sales should be permitted. Williams v. Citizens, 40 Ark., 290; Giddings v. Wells, 99 Mich. 221; Crews v. Coffman, 36 Neb., 822.

Chrisman & Howell, on same side.

Section 278 of the code provides that the sessions of the board shall not exceed four days, except for the transaction of revenue business. There may be called terms at the expense of the members, but which they are not bound to call, and not bound to hold, and are not more likely to call or to hold than are other courts, when they can avoid it, especially when they are not allowed pay. We ask the court to note that the local option law is so framed that it does not admit of a continuance of the case from one term to the next; for it provides that the election, if ordered, must take place in forty days after the filing of the petition. Section 1610. A...