Ferguson v. Seward

• Citation: 111 So. 596,146 Miss. 613
• Decision Date: 07 March 1927
• Docket Number: 26288
• Court: United States State Supreme Court of Mississippi
• Parties: FERGUSON v. SEWARD et al. [*]

111 So. 596

146 Miss. 613

FERGUSON v. SEWARD et al. ^[*]

No. 26288

Supreme Court of Mississippi

March 7, 1927

Division A

APPEAL from circuit court of Wilkinson county, HON. R. L. CORBAN Judge.

Application for certiorari by J. B. Ferguson to review proceedings of board of supervisors of Wilkinson county, wherein Mrs. S. J Seward and other landowners, as well as the board of supervisors, were made parties defendant. From a judgment granting a motion by Wilkinson county to dismiss the writ petitioner appeals. Reversed and remanded.

Judgment reversed and cause remanded.

A. H. Jones and George Butler, for appellant.

I. The principal question in the case at bar is the validity of the proceeding establishing the road and the consequent action of the lower court in upholding that proceeding. Sections 90 and 91, Code of 1906, provide for a review of the proceedings of inferior tribunals for matters of law arising or appearing on the face of the record and proceedings, whether an appeal be provided or not. It was under the two last-mentioned sections that the review was sought for the errors appearing on the face of the record. The same procedure was followed in this case as was followed in Aden v. Board of Sup'rs, 107 So. 753. The board in the case at bar was exercising a special and limited jurisdiction and it was, therefore, requisite that the jurisdictional facts be found to exist and be recited in the orders of the board. Craft v. DeSoto County, 79 Miss. 618; Hinton v. Perry County, 84 Miss. 546; Adams v. Bank, 103 Miss. 744; Aden v. Board of Sup'rs, 107 So. 753 (Miss).

If it be contended that section 4, chapter 278, Laws of 1924, requires the application for the condemnation of the land to be made by the state highway department, the facts are that no such application was filed and the board made no adjudication on any such application. On the other hand, if the proceeding is under section 4400, Code of 1906, it was essential that the board adjudicate and recite in its order that the petition was presented by ten or more freeholders or householders; and this it failed to do. Aden v. Board of Sup'rs, 107 So. 753.

The record contains (improperly, as we shall undertake to show) an order which indicates clearly that the board recognized that the proceeding in laying out the road was also void, for by that order, entered long after the certiorari was served, they undertook to adjudicate the jurisdictional facts. This order, of course, was void because, first, it was entered after the certiorari proceeding had been served and the jurisdiction of the board entirely suspended by the supersedeas, and, second, this court has held in Board of Sup'rs v. Parks, 132 Miss. 752, that the board of supervisors cannot enter an order as of a former term and thereby give it the effect it would have had, had it been entered at such former term.

II. The court should have stricken from the return the proceedings and orders of the board made after the service of the writ of certiorari. Sections 90 and 91, Code of 1906, provide that the writ of certiorari shall operate as a supersedeas upon the party applying therefor giving bond with security, to be approved, etc., and the bond was duly given in this case. Under the statute the granting of the writ and the giving of the bond ipso facto operated as a supersedeas. Moreover, at common law, where no bond or security was required, except as a condition to the issuance of the writ, the issuance of the writ prio vigore operated as a supersedeas and suspended further proceedings in the inferior board. 4 Encl. Pl. & Pr. 184; 11 C. J. 158; 4 Encl. Pl. & Pr. 205-6; 20 Encl. Pl. & Pr. 1212; 11 C. J. 170. So both at common law and under the statute, when the bond is given, the writ when issued operates as a supersedeas. See R. R. Co. v. Adams, 85 Miss. 772 at 794-95; 4 Am. Encl. Pl. & Pr. 10; 11 C. J. 88-89; 2 Encl. Pl. & Pr. 205.

It is manifest that the proceedings of the board subsequent to the service of the writ were had without jurisdiction and constituted no part of the record and are not to be considered on this appeal.

III. It was error for the court to eliminate Mrs. Seward and other petitioners for the road as parties to the suit. The petitioners were parties plaintiff before this board under section 4400, Code of 1906, for laying out and changing the road. That section requires that ten or more freeholders or householders of the county interested in the road, shall sign the petition. Unless they are interested in the road, they are not proper signers of the petition. Section 90, Code of 1906, provides that the clerk of the court on the issuance of a certificate shall issue a summons for the party to be effected thereby. 4 Encl. Pl. & Pr. 183; 11 C. J. 142.

On proceedings to set aside a municipal contract because awarded before the ordinance providing for it went into effect, the contractors are necessary parties. State v. Wildwood, 60 N.J.L. 365, 38 A. 22. Petitioners for the annexation of territory to a town, on certiorari, should be made parties. Black v. Brinkley, 54 Ark. 372, 14 S.W. 1030. Where a certiorari is in aid of an ejectment suit, the present owner of the land should be made a party to it. State v. West Hoboken Tp., 39 N.J.L. 421.

The petitioners for the change in the road and the owners of the land through which the road was to run were the plaintiffs and defendants respectively. I. C. R. R. Co. v. Miller, 141 Miss. 213.

This case should be reversed and the proceeding dismissed.

D. C. Bramlette, for appellees.

This case is a remarkable and unusual proceeding. For the first time in the history of jurisprudence in Mississippi, insofar as the reported cases reveal, the objecting landowner has ignored the county authorities and the county and proceeded solely in his appeal against the initial signers of the petition for the laying out of this road.

I. The writ of prohibition. The writ of prohibition procured by opposing counsel to hold up the construction of this highway on appellant's initial costs bond for two hundred dollars was dismissed by the court below as authorized by Wynne v. I. C. R. R. Co., 105 Miss. 784.

Section 7085, Hemingway's Code (section 4405, Code of 1906) is the only source of authority had by appellant for having the condemnation proceedings of the board of supervisors of Wilkinson county reviewed by the circuit court and that law makes as a condition of such an appeal the giving of bond for costs not exceeding two hundred dollars and payable to the county. This requirement of the law appellant utterly ignored and has not yet executed a bond of any character whatsoever payable to Wilkinson county.

II. This court is without jurisdiction. This court in deciding the present appeal will never reach the question of regularity or irregularity in the minutes of the board of supervisors in laying out this road, but the sole question before this court is the validity vel non of the appeal by appellant from the condemnation proceedings of the board of supervisors to the circuit court. Consequently, there is no point made or any authority discussed in the brief of opposing counsel that touches the issues on which the present appeal will be decided or that appellees are called upon to answer.

This court is without jurisdiction of this case because the appeal from the board of supervisors to the circuit court was premature. The court will note that the review authorized by section 7085, Hemingway's Code, is the laying out, altering or changing of any public road, and assessing damages therefor. Appellant amends the law in substance by appealing before the assessment of damages and takes the position that the wording of the law in effect should be that he would have the right of appeal from the laying out, altering, or changing of any public road. Appellant's position would eliminate from this statute the phrase "and assessing damages therefor."

In Wilkinson County v. Foster Creek Lbr. & Mfg. Co., 135 Miss. 616, this court voluntarily without the point being made, dismissed as premature an appeal that was taken directly as authorized by the wording of section 10, chapter 323, Laws of 1920.

In the case before the court the statute provides only one stage at which an appeal in the condemnation of this road proceeding may be reviewed and that is after the assessment of damages therefor. See Y. & M. V. R. R. Co. v. McNeely, 121 Miss. 803. Statutes for condemnation of a public highway are to be considered as a unit as this court held in Hinds County v. Johnson, 133 Miss. 591, 98 So. 95, citing Joslin v. Providence, 263 U.S. 68, 43 S.Ct. 684, 67 L.Ed. 1167.

III. Appeal bond payable to county. The only legal authority conferring the right of appeal on appellant from the board of supervisors requires that appellant executed a bond "payable to the county," which is section 7085, Hemingway's Code (section 4405, Code of 1906). This court has held that such a bond which is not made payable to the county is void and is insufficient to maintain an appeal. Evans v. Sharkey, 89 Miss. 302.

IV. Parties. The fact that section 7085, Hemingway's Code (section 4405, Code of 1906) requires that the appeal bond be made payable to the county emphasizes that the law contemplates this to be a proceeding or should be a proceeding by the county. The individual signers to the initial petition are clothed with no power of eminent domain or to condemn land for a public highway; they have no vital interest in the proceedings one way or the other; they merely filed the initial petition asking the board of supervisors in its discretion to open up and lay out a new road; and its exact location, if located at all, is by the board of supervisors.

Opposing counsel cites no authority in...