Ferguson v. Board of Supervisors of Monroe County

• Decision Date: 18 December 1893
• Citation: 71 Miss. 524,14 So. 81
• Court: Mississippi Supreme Court
• Parties: Z. A. FERGUSON ET AL. v. BOARD OF SUPERVISORS OF MONROE COUNTY

14 So. 81

71 Miss. 524

Z. A. FERGUSON ET AL. v. BOARD OF SUPERVISORS OF MONROE COUNTY

Supreme Court of Mississippi

December 18, 1893

October 1893

FROM the circuit court of Monroe county, HON. NEWNAN CAYCE, Judge.

On August 7, 1893, a petition was presented to the board of supervisors of Monroe county for an election under § 1610, code 1892, to determine whether intoxicating liquors should be sold in said county. Appellant, Z. A. Ferguson, and others, qualified electors and tax-payers in said county appeared before the board and protested, in writing, against the ordering of the election, on the ground that the petition was not signed by the requisite one-third of the qualified electors of the county. The objectors offered to prove that a great many names on the petition were not signed by the parties purporting to have signed the same, and that some of the signers were dead; that still others were not qualified electors, because they had not, before February 1, 1893, paid the taxes due by them for the two preceding years. The board of supervisors refused to go into an investigation of these several matters of objection, and held that it could not go outside of the registration books in determining the number of qualified electors in the county. The board also refused to disregard names not signed by the petitioners themselves but signed by their authority. The objectors offered evidence to show that several hundred names appearing on the petition did not appear on the registration list, and that many names appeared upon the petition more than once. The board although declining to hear evidence as to this, announced that it would for itself investigate the matter, and make comparison of the petition with the registration lists, and also determine for itself whether there were names repeated.

The protestants further filed a written petition of about twenty persons, who had signed the petition, asking that their names be taken therefrom and not counted. The record does not show that any action was taken by the board in this regard. The facts offered to be shown by the objectors, if established, would have reduced the number of qualified electors on the petition below the requisite two-thirds. The board ordered the election, and to this decision the objectors excepted, tendered a bill of exceptions, which was signed by the president of the board in open session, and prosecuted this appeal to the next succeeding term of the circuit court.

The board of supervisors moved to dismiss the appeal, on the ground that chapter 37, code 1892, did not provide for any appeal from a decision of the hoard ordering an election. This motion was overruled, and the court, after hearing the cause on the bill of exceptions, rendered judgment affirming the decision of the board of supervisors, and from this judgment the protestants appeal.

Judgment reversed and cause remanded.

Houston & Reynolds, for appellants.

Section 1610, code 1892, defines the boundary, scope and limit of the power of the board as to ordering the election, and any departure from its requirements renders its action illegal. That the petition contained one-third of the qualified electors was affirmative matter, to be shown as a fact. Hawkins v. Carroll County, 50 Miss. 735; Tally v. Grider, 66 Ala. 119; Gould v. Sterling, 23 N.Y. 456.

The words "qualified electors," within the meaning of the statute, must mean those possessing the qualifications prescribed by § 241, const. 1890. From this section we see that registration is but one of many essential qualifications for voting. Surely it cannot be that one is a qualified elector for the purpose of securing or calling an election, and yet, at the very election which he has been instrumental in calling, he is not qualified to vote.

It was the duty of the board to hear the evidence offered to show that a large number of parties on the petition had not paid their taxes. The registration books are not conclusive or even prima facie evidence of the right to vote. Bew v. State, ante, p. 1.

Names appearing on the petition more than once should not have been counted. It was error to refuse to disregard names not signed by the petitioners themselves or by their proper marks.

An appeal from a decision of the board ordering an election lies under § 79, code 1592, and the court rightly refused to dismiss the appeal. The objectors were qualified electors and tax-payers of the county, and, as such, were "aggrieved persons," and had a right of appeal. McCreary v. Rhodes, 68 Miss. 308; Wilson v. Wallace, 64 Ib., 13; Lemon v. Peyton, Ib., 161. The order for the election is clearly such a decision as can be appealed from under § 79, code 1892. Deberry v. Holly Springs, 35 Miss. 385.

The chapter on dram-shops must be considered with the rest of the code, both in determining who are qualified electors and whether a right of appeal lies. We submit that an appeal is the only remedy. It was held that the right of prohibition directed to the commissioners of the election could not call into question the propriety of the rulings of the board of supervisors or the hearing of a petition. Lemon v. Peyton, supra. As a matter of public policy, there must be some method of having the supreme court pass upon the legality of an order like this.

W. B. Walker, for appellee.

The board of supervisors was bound by the registration books. The law presumes that the registrar, in placing names on that record, has performed his duty, and the board must act on that presumption. The managers of the election at the polls are the only judges of the eligibility of those whose names appear on the registration books. The chapter on dram-shops provides for commissioners of election, with power to revise the registration rolls. It cannot be contended that the board of supervisors can also assume that duty.

The circuit court should have dismissed the appeal. None is granted by chapter 37 from a decision ordering an election. It being a purely statutory proceeding, and the statute not providing for an appeal, none can be taken. Parker v. Willis, 27 Miss. 766; Bridges v. Supervisors, 57 Ib., 252; 1 Am. & Eng. Enc. L., 616; Powell on App. Pro., 104. Section 79, code 1892, does not apply, for, if an appeal be allowable under that section, appellants have no rights which have been injured by the decision, and hence cannot prosecute the appeal. Powell on App. Pro., 47, 131; 11 Am. & Eng. Enc. L., 624; 26 Miss. 166.

Gilleylen & Leftwich, on the same side.

An appeal is not a matter of right. Pickett v. Pickett, 1 How., 267; Carmichael v. Trustee, 3 Ib., 84; Hardaway v. Biles, 1 Smed. & M., 657; Parker v. Willis, 27 Miss. 766; Bridges v. Board of Supervisors, 57 Ib., 252.

In calling the election, the board discharges the mere ministerial function of counting the names of the petitioners and comparing the total with the registration list. Their action has no semblance of a judicial act, from which an appeal might lie under § 79, code 1892. Appellants were not parties to the record. The dram-shop chapter makes no provision for counter petitions in cases of this sort. Appellants are without standing in any court. See Miller v. Keith, 26 Miss. 166; 1 Am. & Eng. Enc. of L., 619.

It does not appear that appellants were aggrieved by the decision. The courts are not ordained to settle mere political grievances, but matters of personal and constitutional right. The board rightly refused to go behind the registration books to see if those registered had paid their taxes. Even if a signer were in default when he signed, he still had the right to pay his taxes before the election, and a ruling that would render the construction of the law different at different periods of the year would be anomalous.

The bill of exceptions shows that the board rejected names signed more than once, and names of persons who had died. The presumption is that the board performed its duty. It must be presumed that, as to all matters in pais, it acted correctly, unless the contrary appears. Surely, it cannot be contended that it was the duty of the board to examine and take testimony as to every name on the registration list, and do the same as to every petitioner. It is not true that the appellants are without remedy save by appeal. If the order for the election be invalid, and an election be held, it can be ignored by any applicant for license.

Houston & Sykes, on the same side.

Only the board of registrars can qualify an elector. If one be denied registration, he can appeal to the commissioners. Code 1892, §§ 3623-3627.

The board of supervisors can neither add to nor take from the list of registered voters. They cannot revise the list. The question of being qualified to vote can be made only (1) by appeal direct to the commissioners, (2) by the board of registrars revising and purging the registration books, and (3) by challenge at the polls. The duty of the board was merely to decide whether a third of the registered voters were on the petition. No provision is made for a counter petition or for an appeal from its decision. The jurisdiction of the board is limited, and its powers strictly construed. We submit that the judgment of the court below is correct.

OPINION

CAMPBELL, C. J.

The circuit court rightly refused to dismiss the appeal. Code 1892, § 79; Deberry v. Holly Springs 35 Miss. 385; Wilson v. Wallace, 64 Miss. 13, 8 So. 128. The argument that, because § 1581 of the code gives an appeal from a grant of license, the right of appeal on a totally different question must be assumed to be denied, on the principle expressio unius exclusio alterius, is not sound. An appeal from a grant of license is given, and one from refusal of license is not given, because granting or...