Donnelly v. Scarborough

• Decision Date: 18 May 1908
• Court: Mississippi Supreme Court
• Parties: GEORGE T. DONNELLY ET AL. v. JOHN SCARBOROUGH ET AL

46 So. 404

91 Miss. 584

GEORGE T. DONNELLY ET AL. v. JOHN SCARBOROUGH ET AL

Supreme Court of Mississippi

May 18, 1908

October 1907

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Donnelly and others, appellants, were plaintiffs in the court below Scarborough and others, appellees, members of the board of supervisors of Harrison county, were defendants there. The object of the suit was to compel, by mandamus, the defendants, as members of the board of supervisors of the county, to canvas the returns of an election held under an act of the Legislature, approved April 18, 1906 (Laws 1906 p. 185, ch. 167), looking to the division of Harrison county into two circuit and chancery court districts, and to promulgate the result, the board of supervisors having failed and neglected, if in fact it had not refused, to act in the premises. The court below denied the mandamus and dismissed the suit and the plaintiffs, December 16, 1907, appealed to the supreme court.

Afterwards, in March, 1908, the Legislature passed an act (Laws 1908, ch. 214, p. 216) repealing the statute under which the election was held.

Two other suits, one arising from the same election and the other an incident of this case, are reported, Native Lumber Co. v. Board of Supervisors, 89 Miss. 171; s.c., 42 So. 665, and McHenry v. State, ante, 562, s.c., 44 So. 831.

Case affirmed.

E. M. Barber, for appellants.

The court below erred in declining to do what this court plainly stated in the case of McHenry v. State, ante, 562 44 So. 831, it should have done.

This court in unmistakable language stated in the Native Lumber Co. v. Board of Supervisors, 89 Miss. 171; s.c., 44 So. 831, that the board of supervisors had no function to perform relative to the establishment of the second district further than to declare the district created, upon the coming in of the report of the election commissioners and in the case of McHenry, supra, that a mandamus suit generally moves along a very narrow groove at best, and this particular mandamus suit moves perhaps in as narrow a groove as any suit in mandamus could possibly move, which declarations of this court ought to have been, but were not, respected in the court below.

There is a new feature, however, that this court will have to take into consideration, and that is, the attempt of the Legislature of 1908 to repeal ch. 167, Laws 1906, under which the second district of Harrison county was created.

If there had been two judicial districts established in Harrison county before the passage of the act of 1908, could the act of 1908 as it stands repeal either one of said districts, and if so, which one?

Under the act of 1906 and the opinions of this court, McHenry is as truly the county seat of the second district of Harrison county as Gulfport is the county seat of the first district. The Legislature could not change the boundaries of a judicial district within a county, and if it cannot do this it certainly cannot abolish the district without submitting the question to the voters of the district. A county may exist although its government had not been established; it may be created although not organized. 7 Am. & Eng. Ency. Law (2d ed.), 905, and the authorities there cited, and 11 Cyc., 345, and citations for the doctrine that it is not a prerequisite to the creation or existence of a county that the officers be elected.

It is a well-settled rule that the right of a successful candidate to an office, is not dependent on the certificate of election but is dependent upon the actual result of the election.

The certificate of an election is only prima facie evidence of the result. 14 Ency. Law and Proc., 387, and citations.

As this court has said relative to the second district of Harrison county that the report of the elections commissioners was final and conclusive as to the result, does this not settle the question of the second judicial district of Harrison county?

The duty of the board of supervisors as this court had already said, being merely ministerial, could the failure of their performance of a ministerial duty enable the Legislature to repeal the act under which the election was held, with any more degree of certainty than it could have done had the board of supervisors promptly declared the result and built a courthouse at McHenry?

Had the board of supervisors declared the result, on the presentation of the report by the election commissioners and proceeded at once to build the courthouse at McHenry, counsel would not contend that the Legislature could have repealed the act under which the election was held and the courthouse built and thereby abolish the second district.

The repealing act of 1908 is unconstitutional by virtue of § 260 of the Constitution of 1890 if the district was established although it has not been organized.

Alexander & Alexander, on same side.

Except as the recent act of the Legislature repealing the former act under the second district was created is involved, the case presented on this appeal is in no respect different from that presented in two former appeals to this court. It merely presents a case of a recalcitrant judge of an inferior court who refuses to acknowledge the authority or acquiescence in the decision of the highest tribunal of the state. We decline to thresh old straw. That the report of the commissioners which the law did not require to be sworn to was signed by them and filed with the board of supervisors is not denied. It was shown by the report itself, by the order of the board of supervisors and by the clerk.

We pass at once to the question of the validity of repealing act.

The power of the Legislature to create or abolish counties or judicial districts which would otherwise be plenary is limited by § 260, Constitution 1890, which provides, among other things, that the boundary of any judicial district in a county shall not be changed unless at an election held for that purpose, two-thirds of those voting assent thereto. In view of this positive prohibition, there can arise but one question in this case, viz., had two judicial districts in Harrison county been created before the passage of this repealing act? If what was done under the act of 1905 amounted to the creation of the second district, it is obvious that the district cannot under § 260 of the Constitution be changed without an election held for that purpose. There can be no doubt, as we shall hereafter show, that the entire abrogation of a district is a change of its boundaries within the meaning of this section. If without the vote the Legislature cannot change the boundaries, it certainly cannot abolish the district including the boundaries of each. The determining question therefore is whether the second district had in fact been created, and that involves a construction of the chapter, acts 1906, providing for the division of the county.

It is well settled that a county or a district in a county may exist although its government has not been established; it may be created and yet not organized. 7 Am. & Eng. Ency. Law, 905; Carleton v. People, 10 Mich. 250; State v. Blasdell, 6 Nev., 40; Merchants National Bank v. McKinnery, 6 S. D., 106.

An election of officers for a county is not a prerequisite to the creation and existence of a county. 11 Cyc., 345.

At what period of time and on the happening of what event was the second district of Harrison county created? The act itself and the decisions of the supreme court construing it have put this beyond doubt.

In Native Lumber Company v. Harrison County, 89 Miss. 171, and the very recent case of McHenry v. State, ante, 562, 44 So. this court has decided that the board of supervisors had no discretion given them in this matter. To quote the language of the last opinion: "No testimony of any imaginable kind was needed in order to discharge promptly its ministerial duty. . . . The board had nothing in the world to try. Their duty was instant obedience to the direction of the statute, to meet and declare the result as stated."

It is a well recognized rule in regard to elections that the right of a successful candidate to office is dependent on the actual result of the election and not on the issuance of the certificate of election. 14 Cyc., 387.

Certificates of election are usually only prima facie evidence, but under this act, as the supreme court has held, report of the commissioners is final and conclusive as to the result. The mere ministerial act of the board of supervisors in declaring the district created is of no efficacy in creating the district. Its declaration is not even analogous to an ordinary certificate of election. Surely the refusal of the board to perform this mere ministerial act will not be held to destroy the district if created in fact by a majority vote of the qualified electors.

Certainly the total removal of a line is a removal or a change thereof. Abolition of a district, once formed and organized, would result in a total removal or abolition of a county seat, the abandonment of a courthouse, the disrupting of settled conditions, and the destruction of values; in all of which the people are supposed to have a direct and vital interest. On the other hand, a slight change of the boundary line, if that be all that is meant by § 260, is a change that would scarcely be felt except by a few who live or own property in the zone between the old and new lines. While courts cannot sit in judgment on the wisdom or reasonableness of a statute of constitution, yet it is always proper in ascertaining the true meaning thereof to look to all the cognate provisions and ascertain the intent in the light of these and all the evils to be remedied and the purpose in view. It is manifest that ...