Conner v. Gray

• Decision Date: 11 June 1906
• Citation: 88 Miss. 489,41 So. 186
• Court: Mississippi Supreme Court
• Parties: OWEN W. CONNER ET AL. v. LUKE W. GRAY ET AL

41 So. 186

88 Miss. 489

OWEN W. CONNER ET AL. v. LUKE W. GRAY ET AL

Supreme Court of Mississippi

June 11, 1906

FROM the chancery court of Covington county, HON. THADDEUS A WOOD, Chancellor.

Conner and others, appellants, were complainants in the court below Gray and others, appellees, were defendants there. From a decree dissolving a preliminary injunction the complainants appealed to the supreme court.

The suit was in the chancery court, and was instituted by certain citizens and taxpayers of Lawrence and Covington counties one of them a justice of the peace of Lawrence county, to restrain the holding of an election by the election commissioners appointed by the governor under an act of the legislature of 1906 providing for the creation of a new county, to be called, if created, Jefferson Davis. The point most relied on was that the act of the legislature was unconstitutional, in that it incorporated into the proposed new county the territory of two old counties and provided for the selection of county officers for the new county, thereby if the vote in favor of the new county carried, vacating certain offices in the old counties held by residents of the portions of the dismembered counties which are to be included in the new county, alleging that one of the complainants, who was a justice of the peace and elected to hold office for a term of four years, would be deprived of his office by having his district included in the new county. The temporary injunction granted did not restrain the election commissioners from holding the election, but enjoined them from making the returns thereof to the secretary of state.

The defendants made a motion to dissolve the injunction on the ground that the chancery court had no power to interfere with a political election; that the remedy, if any, lay in quo warranto proceedings, and that no rights existed in any officer of either Lawrence or Covington county which could warrant the court to adjudge the act of the legislature unconstitutional.

Cause affirmed and bill dismissed.

Longino Willing & Wilson, for appellants.

The chancery court has jurisdiction and power to restrain by injunction any violation of the constitution in the organization of new counties. Simpson Co. v. Buckley, 85 Miss. 713 (38 So. 104); Hinton v. Perry Co., 84 Miss. 536 (36 So. 565); Maury Co. v. Lewis Co., 1 Swan (Tenn.), 236; Ford v. Farmer, 9 Humph. (Tenn.), 152; Humphreys Co. v. Houston Co., 4 Bax. (Tenn.), 593; Bridgenor v. Rodgers, 1 Cold. (Tenn.), 259; Bradley v. Commissioners, 2 Humph. (Tenn.), 428 (37 Am. Dec., 563); Layton v. Mayor, 50 La. Ann., 121 (23 So. 99); Mayor v. Hughes, 110 Ga. 795 (36 S.E. 247); Railroad Company v. Commissioners, 108 N.C. 56 (12 S.E. 952); State v. Eggleston, 34 Kan. 714 (10 P. 3); State v. Cunningham, 81 Wis. 440 (51 N.W. 724; 15 L. R. A., 561); Solomon v. Fleming, 34 Neb. 40 (51 N.W. 304); 7 Am. & Eng. Ency. Law (2d ed.), 912; 2 High on Injunctions (4th ed.), 1260.

The act creating Jefferson Davis county is unconstitutional. Gibbs v. McIntosh, 78 Miss. 648 (29 So. 465); Gibbs v. Green, 54 Miss. 612; Warren Mills v. New Orleans Seed Co., 65 Miss. 391 (4 So. 298; 7 Am. St. Rep., 671); Illinois Central Railroad Co. v. Garrison, 81 Miss. 257 (32 So. 996; 95 Am. St. Rep., 469); Crawford v. Railroad Co., 83 Miss. 708 (36 So. 82; 102 Am. St. Rep., 476); Runnels v. State, Walk., 146; Hyde v. State, 52 Miss. 665; Lehman, Ex parte, 60 Miss. 967; Newsom v. Cocke, 44 Miss. 352 (7 Am. St. Rep., 686); Fant v. Gibbs, 54 Miss. 396; Holder v. Sykes, 77 Miss. 64 (24 So. 261); Bittle v. Stuart, 34 Ark. 224.

R. D. Cooper, on the same side.

McIntosh Bros.; Alexander & Alexander, and Geo. B. Power, for appellees.

Equity has no power to enjoin holding of elections. McCrary on Elections, secs. 220, 318, 340; Dickey v. Reed, 78 Ill. 261; Peck v. Weddell, 17 Ohio St. 271; Sanders v. Metcalf, 1 Tenn. Chy., 419; Willeford v. State, 43 Ark. 67; 15 Cyc., 394, and citations; 18 Cent. Dig., 245, 251; 10 Am. & Eng. Ency. Law (2d ed.), 817; Harris v. Schryock, 82 Ill. 119; Smith v. McCarthy, 56 Pa. 359; Darst v. People, 62 Ill. 306; Guebelle v. Epley, 1 Col. App., 199 (28 P. 89); Walton v. Develing, 61 Ill. 201; Hardesty v. Taft, 23 Md. 512 (87 Am. Dec., 584); 27 Cent. Dig., sec. 151.

The power to alter the territorial jurisdiction of a justice of the peace necessarily arises from the constitutional power vested in the legislature to create new counties. Ex parte McCollum, 1 Cow. (N. Y.), 450; Portwood v. Montgomery County, 52 Miss. 525.

Every presumption is in favor of the constitutionality of a statute, and the judicial department will be justified in pronouncing it unconstitutional only when it is a manifest usurpation of power. 6 Am. & Eng. Ency. Law (2d ed.), 1086; Newsom v. Cocke, 44 Miss. 352 (7 Am. St. Rep., 686); People v. Allen, 42 N.Y. 381; Macomber v. Mayor, 17 Abb. Prac. (N. Y.), 35; People v. Supervisors, 17 N.Y. 241; Van Dyck case, 27 N.Y. 460.

Part of a statute may be unconstitutional, and the residue constitutional and valid. 20 Am. & Eng. Ency. Law (2d ed.), 570; Marshall Field & Co. v. Clark, U. S. Inspector Customs, 143 U.S. 676 (12 S.Ct. 495; 36 L. ed., 294); Cronly v. Tucson (Ariz.), 56 P. 876.

OPINION

MAYES, J.

It seems to us that the jurisdiction of the chancery court to enjoin the holding of an election, which is in violation of the constitution and laws of the state, is well sustained on authority. On the other hand, the courts will not interfere in any election where it is not called in violation of the constitution and laws of the state. In all the cases cited by counsel for appellant, where the chancery court has enjoined, without a single exception, it has been in cases where the election was attempted to be held under authority void under the constitution and laws of the state. Where the authority which conferred the right to hold the election is itself unconstitutional and void, it is unquestioned that the chancery court has the power to enjoin it at the instance of any suitor who shows that a direct injury will be inflicted upon him by the holding of such an election. In support of the proposition that under such circumstances the court can enjoin, we refer to the cases cited by counsel for appellants. Thus, in the case of Simpson County v. Buckley, 81 Miss. 474 (33 So. 650), it was decided that any citizen or taxpayer had the right to invoke the aid of chancery to prevent a violation of the constitution. In the case of Maury County v. Lewis County, 1 Swan 236, the right of the chancery court to enjoin the officers of the new county from exercising jurisdiction within its limits was enjoined upon the ground that the creation of a new county was unconstitutional and void. So it was in the case of Ford v. Farmer, 9 Hum. (Tenn.) 152, and Humphreys County v. Houston County, 4 Bax. (Tenn.) 593, and in fact it is put upon this ground in every case cited by counsel for appellants where the right to enjoin has been sustained.

On the other hand, in the authorities cited by counsel for appellees, where the courts have denied this right, it has been in cases where the authority providing for the holding of the election was, in itself, not violative of the constitution and laws of the state. We refer to the authorities cited in the brief of counsel on each side as authority for these propositions. As was said in the case of Humphreys County v. Houston County, supra, "the creation of a new county is a legislative and not a judicial function, but the chancery court has jurisdiction to prevent a violation of the constitution and laws in fixing the boundaries of new counties or in securing to the old counties out of which the new one is carved so much of their territory as is declared inviolable, or by protecting such other rights as are guaranteed by the organic law." This announcement of the law is in no way in conflict with the law as announced in the case of Gibbs et al. v. McIntosh et al., 78 Miss. 648 (29 So. 465). We reannounce what is said in that case, that "it is not the policy of this state to have elections and other political matters of government reserved to legislative discretion interfered with by the judges and officers of the judicial department of the government," and it will only be done in a case where the legislature has not the power to authorize the holding of an election under the constitution, or where, having the power, they have exercised it in a way which is in plain violation of the constitution of the state, but in both instances it must appear from the act itself that it is unconstitutional.

With this announcement as to the circumstances under which the chancery court will entertain jurisdiction to enjoin elections, we proceed now to a discussion of the particular case before us. Section 260 of the constitution expressly gives the power to the legislature to form new counties subject only to the restriction that it shall be submitted to the vote of the qualified electors in each part of the county or counties proposed to be dismembered and embraced in a new county, and that it shall not be formed unless a majority of the qualified electors voting in each part of the county or counties proposed to be dismembered and embraced in a new county shall separately vote therefor, and subject to the further restriction that no new county shall contain less than 400 square miles, nor shall any existing county be reduced below that size. Thus we see that by express provision of the constitution itself authority is given to the legislature to create a new county by calling an election for that purpose and submitting it to the electors specified in the section. This they did in an act which upon its face in every way conformed to the...