Carter v. Harrison County Election Commission, 43972

• Decision Date: 28 February 1966
• Docket Number: No. 43972,43972
• Citation: 183 So.2d 630
• Parties: Walter M. CARTER et al. v. HARRISON COUNTY ELECTION COMMISSION et al.
• Court: Mississippi Supreme Court

Page 630

183 So.2d 630

Walter M. CARTER et al. v. HARRISON COUNTY ELECTION COMMISSION et al.

No. 43972.

Supreme Court of Mississippi.

Feb. 28, 1966.

Blass & Smith, Upton Sisson, Gulfport, for appellants.

Thomas J. Wiltz, Jacob D. Guice, Albert S. Johnston, Jr., Biloxi, for appellees.

RODGERS, Justice:

The appellants here were the complainants in the original action filed in the Chancery Court of Harrison County, Mississippi, to enjoin the defendants from holding an election to determine whether or not a separate judicial district should be created of Beat One of Harrison County, Mississippi. The election and acts of appellees in establishing a separate judicial district were in pursuance to the provisions of Mississippi Code Annotated sections 2910-03 to 2910-24 (Supp.1964); Mississippi Laws, Chapter 257 (1962). The appellants, taxpayers, not only sought to enjoin the holding of the election provided for in the foregoing legislative enactment, but also sought to prevent appellees from carrying into effect the law creating the separate judicial district in Harrison County.

The appellees filed a demurrer to the original bill and it was overruled; however, the chancellor denied appellants' application for a temporary injunction to prevent the holding of an election. The appellants submitted an application for a temporary injunction to the Chief Justice of the Supreme Court of Mississippi, and again they were denied a temporary injunction. The election was held to determine the issue in Beat One of Harrison County on Tuesday, December 8, 1964, and it carried in favor of the law creating a new judicial district. There were 3,977 votes cast in the election, of which 3,164 favored the proposition and 813 opposed it. Thus, more than a three-fifths majority of the qualified electors participating in the election assented to and approved the legislative act establishing a separate judicial district in Supervisors' District Number One of Harrison County, Mississippi. After the election, the Election Commissioners made their report to the Board of Supervisors of Harrison County, in which they reported that the election had carried in favor of the law creating the separate judicial district. The report was duly spread upon the minutes of the Board of Supervisors in compliance with the law establishing the new judicial district, and the Board of Supervisors of Harrison County Mississippi, ordered that it 'do now proceed with the implementation and doing of all things necessary, requisite and proper to the establishing and setting up of said judicial district as provided for in said Act, and including the borrowing of money and the issuance of bonds. * * *' Thereafter, on February 2, 1965, the trial in the chancery court upon the original bill, answer and amendments thereto, was heard by the chancellor, on oral and documentary evidence. The chancery court entered a decree denying the relief sought by the complainants and dismissing the original bill. From this decree, this cause has been appealed to this Court.

Appellants contend that the chancery court erred in holding that the separate judicial district was properly formed, and also contend that the relief sought by appellants should have been granted for the following reasons.

I

Appellants contend that Mississippi Laws chapter 257 (1962) is unconstitutional, in that it violates Mississippi Constitution 1890 Article 3, section 14, and the fourteenth amendment to the Constitution of the United States. It is said that the Act permits the creation of a separate judicial district in Harrison County, Mississippi, 'if the election is favorable'; that the Act does not create the new district within itself; that the electors of the county, other than those in supervisors' district number one, were not permitted to vote on the proposed district, and although the first district was required to bear and expense of building a new courthouse and other county facilities incident to carrying into effect the new judicial district, nevertheless, the people in the other three districts will be called upon to pay taxes for the future maintenance of the facilities, and thus appellants will be taxed without representation. On the other hand, it is argued, if the act is construed to require the future maintenance of the separate judicial district to be paid only by the taxpayers in district number one, the Act is unconstitutional because it exempts other taxpayers of the county from bearing their fair share of the cost of the county business. It is said that either way the act is construed, as to who bears the future cost of operation and maintenance, it is unconstitutional. Appellants insist that the Act denies equal protection of law, and cite several cases wherein the United States Supreme Court has held that the constitutional provision requiring equal protection means that no state agency, including the Legislature, can deny anyone equal protection of the law. We are of the opinion, however, that these cases are not applicable to the facts in the instant case. Moreover, the objection raised here, that the taxpayers and electors of the other three Supervisors' Districts of Harrison County were entitled to vote upon the issue as to whether or not a new judicial district should be formed of Supervisors' Beat One, has been determied by this Court in a similar situation, adverse to their contention.

In the case of Hatten v. Bond, 112 Miss. 590, 73 So. 612 (1917), in which it was contended that Mississippi Constitution 1890, section 260, prevented the formation of a county out of another county unless all electors in the county were permitted to vote on the issue, this Court said:

'In this case, Stone County was carved wholly out of Harrison County, and the question of the creation of the county could properly be determined only by a majority of the qualified electors voting in that part of the county proposed to be dismembered and embraced in the new county. Certainly it does not mena, an contended by counsel for appellants, that this question of creating the new county should have been voted on by the qualified electors in the territory of the proposed new county and also by the qualified electors in the territory of the old, or remaining, county of Harrison. Such a construction would be erroneous and violent, indeed. Conner v. Gray, 88 Miss. 489, 41 So. 186, 9 Ann.Cas. 120.' 112 Miss. at 602-603, 73 So. at 613.

The contention that since the appellants, taxpayers, will be required to pay taxes to support the new judicial district, and will thus be taxed without being permitted to vote on this issue, and, in effect, will be taxed without representation has been heretofore determined. This Court held in Turner v. Cochran, 89 Miss. 206, 42 So. 876 (1907) that Mississippi Laws chapter 168 (p. 197) (1906), wherein Jasper County was divided into two judicial districts, and the expense of building the courthouse and allied facilities was imposed upon the new district, was not unconstitutional. The Court said:

'By section 21 of the act, the Legislature saw fit to saddle the expenditures for these objects on the new district, for whose convenience it was organized, and to empower the board of supervisors to borrow money on the bonds of that district.

'The very able argument of counsel for appellants fails to convince me that these provisions are 'ultra vires.' Section 112 of the Constitution is, as I think, not violated, because, as uniformly held, it is not prohibitive of local assessments for local convenience, and as to the locality the assessment is equal and uniform, and, as well all agree, the act in fact makes a new county for court purposes.' 89 Miss. at 213, 42 So. at 877.

The argument that the legislative act here involved is unconstitutional because the qualified electors of the entire area of Harrison County were not permitted to vote on the issue, and the Act, in effect, permits taxation without representation, overlooks two important factors; First, the Legislature could have established a new judicial district without having submitted to the electors the contingency as to whether or not the Act should become operative. Second, the taxpayers were in fact represented in the Legislature at the time the Act was enacted.

We hold, therefore, that the Act does not violate Mississippi Constitution 1890 section 14 or the fourteenth amendment to the Constitution of the United States.

II

Appellants next contend that the Act, here involved, is an unconstitutional delegation of legislative power given by the Legislature to the Board of Supervisors of Harrison County; that the Act was not a complete, workable law, as it was finally enacted by the Legislature. Various sections of the Act, Mississippi Laws chapter 257 (1962) are challenged by appellants as being unconstitutional. For example: It is said that Mississippi Laws chapter 257 (1962), Mississippi Code Annotated section 2910-19 (Supp.1964), required the board of supervisors to provide a land abstract for use in the chancery clerk's office of the separate judicial district, but that the time designated in the Act to provide the abstract had passed. It is pointed out that the Act requires that 'said abstract shall be provided for within six (6) months from the time this act goes into effect'; and that the Act also provides that it shall take effect from and after its passage, and since the Act was passed on June 1, 1962, the board of supervisors does not now have the authority to provide the land abstract.

Again, it is said that section 3 of the Act (Miss.Code Sec. 2910-03) provides that the board of supervisors shall hold an election on the creation of a separate judicial district on being presented with a petition of fifteen per cent of the qualified voters of 'a supervisors district in such county', (emphasis supplied), and that therefore an election could be held in any of the Supervisors' Districts of Harrison County...