Edwards v. Board of Sup'rs of Bolivar County

• Decision Date: 14 February 1921
• Docket Number: 21541
• Citation: 124 Miss. 165,87 So. 8
• Parties: EDWARDS ET AL. v. BOARD OF SUP'RS OF BOLIVAR COUNTY
• Court: Mississippi Supreme Court

87 So. 8

124 Miss. 165

EDWARDS ET AL. v. BOARD OF SUP'RS OF BOLIVAR COUNTY

No. 21541

Supreme Court of Mississippi

February 14, 1921

SCHOOLS AND SCHOOL DISTRICTS. Bond election void if held at place not designated by statute.

Under chapter 194, Laws of 1916 (Hemingway's Code, section 4004), an election to determine the issuance of bonds to erect a schoolhouse in a consolidated school district is void if held at a place not designated by the statute notwithstanding all electors had due notice.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Bolivar county, HON. G. E. WILLIAMS Chancellor.

Suit by L. E. Edwards and others against the Board of Supervisors of Bolivar County for an injunction. From a decree dissolving the injunction and dismissing the bill, complainants appeal. Reversed and rendered.

Decree reversed.

Roberts & Hallam, for appellants.

The Mississippi legislature thought the matter of the place of holding election in consolidated school districts of sufficient importance to require the enactment of an independent and special law governing the mater, and in the exercise of its wisdom and unquestioned rights in the year 1914 it enacted a law, the first section of which reads in part as follows:

"Be it enacted by the legislature of the state of Mississippi that in any case where it becomes necessary to hold an election affecting any question to be submitted to the qualified electors in any consolidated school district in this state as now provided by the laws of the state forming such consolidated school district, that such election shall be held at the schoolhouse of such district." Chapter 184, Laws 1914.

The language of this act is simple, plain and unambiguous. It means what it says: "Perceiving that instances might arise in which elections could not be held in a consolidated school district because of the absence therein of a schoolhouse, and considering the matter of sufficient importance, the legislature further considered the matter with reference to the place of holding elections in such districts, and in 1916, amended the former act so as to make it read as follows:

"'That in any case where it becomes necessary to hold an election affecting any question to be submitted to the qualified electors in any consolidated school district in this state, as now provided by the laws of the state forming such consolidated school districts, that such election shall be held at the schoolhouse of said district, or if there is no such house, the election shall be held at a convenient place designated by the trustees of the school.'" Chapter 194, Laws 1916, Hem. Code, sec. 4004.

The legislature thus again acted in no uncertain manner. It made the place of holding an election in such a district, and the mode and medium of designating such a place, jurisdictional, as it were, vital, the sine qua non to the validity of any election held in such district. And in Barrett v. Cedar Hill, 85 So. 125, this court has so held. Harris v. State, 72 Miss. 960, 18 So. 387, 33 L. R. A. 85; Johnson v. Futch, 57 Miss. 73; Lewis v. Bank, 64 Miss. 727, 2 So. 243; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Kibbe v. Benson, 17 Wall. 624; Kibbe v. Benson, 17 Wall. 624, 21 L.Ed. 741.

This decision settles the case at bar. No other authority is necessary to entitle the appellants to a reversal of the decree of the lower court and to a final decree here in their favor. The statute in the case at bar was as flagrantly violated as it was in the Barrett case. The election was not held at the proper or right place. There were two schoolhouses in the district, one at Gunnison the place fixed by the school board as the site of the schoolhouse, and one at Deeson. The election was held in neither. And if we should concede for the argument that these schoolhouses are not the schoolhouses contemplated by the statute, but that the legislature in passing the statute had in mind a schoolhouse adopted or used as the consolidated schoolhouse, yet, in case there is no such schoolhouse in the district, the statute provides that, the election shall be held at a convenient place designated by the trustees of the school," and as the trustees designated no place, and as in fact, no place was ever designated by anybody, the order of the board of supervisors and the notice of election given by the election commissioners, neither of whom had authority to designate a place, merely reciting that the election would be held "ill the towns of Gunnison, Deeson and Round Lake," The election was not held, "at the right place" as commanded by the statute. The statute commands that the election shall be held at "a convenient place," and not at three places as was done in the instant case. And the evidence shows that the election was held, not at a public place, but in the case of Gunnison, "in the drug store of E. H. Key" "private place where this court says, an elector might be disinclined to go at all, or might be intimated or overreached if he did go." It has been intimated that as the trustees of the school had not fixed the place at which the election should be held, the board of supervisors of the election commissioners had the right to fix it and did so. They had the right if the statute is to be disregarded; otherwise not. But it is a misconception to say that the board of the commissioners ever fixed a place; they did no such thing. To say that the election would be held, "in the towns of Gunnison, Deeson and Round Lake" does not fix a place such as the statute contemplates, a place other than a schoolhouse. The statute provides that the place should be fixed "by the trustees of the school" and, therefore, necessarily means that it should be fixed by no other agency. It provides that the election shall be held at the place so designated by the trustees, and necessarily means that it shall be held at no other place. In general elections the time and place is usually fixed by law and the electors are charged with notice thereof, but in special elections as a rule neither the time, nor the place is fixed; but the fixing of the time and the designation of the place are left to some authority named in the statute. This is true of the election in the case at bar. And in such cases it is the rule that no other agency has the power to control these matters. Thus, is it said:

"In Special Elections:--When the time and place of holding the election are not fixed by law, but the election is only to be called and the time and place to be fixed by some authority named in the Statute, after happening of some condition precedent, it is essential to the validity of such an election that it be called, and the time and place of holding it be fixed by the very agency designated by law, and by none other." 15 Cyc. 322, and note 59. "So also the place of holding an election must either be fixed by law or appointed by legally authorized officials; and votes cast at a different place will avail nothing. 15 Cyc. 343, citing numerous authorities.

Sillers, Elmore, Clark & Sillers, for appellee.

Appellants rely on the case of Barrett et al. v. Cedar Hill Consolidated School District, 85 So. 125, as their best and most apt authority. In our judgment, that case went to the extreme limit in insisting on the designated place for holding an election as an absolute essential to the validity of the election, without regard to the character of the change of place and without any regard whatever to whether any harm resulted from the change of place.

We do know that there is at least one kind of a change of place which will not void and nullify an election. Change of place was the subject of complaint in Steele v. Calhoun, 61 Miss. 556. Appellants say there was no change of place in that case, because the election was held in the Dogwood Flat Church Building, though the building had been moved a half mile away; that according to the law of physics there may have been, indeed there was, a change of place, but under the law of elections it is a misconception of the facts, to assert that there was a change of place.

The briefs of the attorneys in that case who were contending for the validity of the election indicate that they did not rely on such a distinction. Their argument was that the change was of a character which worked no injury. We think the true rationale of that decision is this: There was undoubtedly some sort of a change of place in that case, but it was such a change as worked no sort of injury, or rather, to follow the opinion closely, it was not shown. "It does not appear, that any injury resulted." In other words, that kind of change of place which in reality does not appear to have affected the election should not in law void and nullify the election.

The Cedar Hill consolidated school case was argued and decided on the issue of the effect of a change of place. In the Cedar Hill consolidated school case, the place of election was designated. Such is not the issue in the present case.

It seems clear, under the circumstances in this case, the statute in and of itself designated no schoolhouse in the Gunnison consolidated school district as the polling place, and that if the election commissioners had given notice that the election would be held at the school-district house of the Gunnison consolidated school district, infinite confusion would have resulted.

There being no schoolhouse, it was the duty of the trustees to designate a convenient place. But the great fact is that the trustees did not designate a place of any kind.

The case, therefore, reduces itself to this: Not whether an election can be held at a place other than the properly designated place to which question so many of the authorities referred to in appellant's brief...