Gill v. Woods, 45423

• Decision Date: 06 October 1969
• Docket Number: No. 45423,45423
• Citation: 226 So.2d 912
• Parties: Bessie GILL and Gwen Ann Reynold J. P. WOODS, President of the Board of Supervisors of Marshall County.
• Court: Mississippi Supreme Court

Page 912

226 So.2d 912

Bessie GILL and Gwen Ann Reynold

J. P. WOODS, President of the Board of Supervisors of Marshall County.

No. 45423.

Supreme Court of Mississippi.

Oct. 6, 1969.

John L. Maxey, Holly Springs, George M. Strickler, Jr., New Orleans, La., James A. Lewis, Jackson, for appellants.

Wall Doxey, Jr., Holly Springs, for appellee.

RODGERS, Justice.

This is an appeal from a judgment of the Circuit Court of Marshall County, Mississippi, which sustained a decision of the Board of Supervisors to disregard a petition filed by citizens of that County requesting the Board to hold a second countywide election to determine whether or not Marshall County would continue the Food Stamp Program in cooperation with the United States Department of Agriculture.

The following re sume gives the essential facts and circumstances leading up to this appeal.

The Congress of the United States authorized the Secretary of Agriculture (by Public Law 88-525, 78 Stat. 703) under what is known as the 'Food Stamp Act of 1964' to issue coupons to be used to purchase food at private stores. Prior to January 1, 1968, Marshall County, acting through its Board of Supervisors, had cooperated with the Federal Government in administering this program for the benefit of the poor people of Marshall County, Mississippi. In 1967 the recipients of the coupons were advised that the program was about to be discontinued. In order to forestall this contingency, many of the food stamp recipients and qualified electors filed a petition with the Board of Supervisors of Marshall County, Mississippi, requesting the Board to either immediately enter an order continuing the Food Stamp Program for so long as the program is made available by the United States Government, and appropriating the necessary funds for the continuance of said program, or to immediately enter an order setting an election pursuant to Section 3018, Mississippi Code 1942 Annotated (1956), (Mississippi Laws 1922, Chapter 290).

Thereafter, on May 13, 1968, the Board passed the following order:

'RESOLUTION AND ORDER OF THE BOARD OF SUPERVISORS OF MARSHALL COUNTY

'WHEREAS, the Board of Supervisors have met with Merchants and concerned citizens in regard to the Food Stamp Program. And,

'WHEREAS, there is no money in the General County Fund, or any other fund to pay the expense of the Food Stamp Program. And,

'WHEREAS, there have been petitions filed with the Board of Supervisors requesting that the Board call an Election to put a tax on all of the taxable property of Marshall County for the year of 1968 to pay for the expense of the operation of the Food Stamp Program.

'It is hereby ordered that the Clerk of the Board give a copy of this order to the Circuit Clerk and Circuit Clerk shall have the necessary ballots printed, said ballots shall be furnished by the Circuit Clerk to the Election holders June 4, 1968. And on the ballot it shall contain the following wording:

"We the qualified voters of Marshall County vote and request that if a majority of the people vote in favor of the Food Stamp Program that the Board of Supervisors shall put a tax not to exceed two mills on all taxable property in Marshall County for the year of 1968 as authorized in Section 7352 of the Mississippi Code to pay for the expense of the said program.'

'FOR

"I vote to put a tax on all taxable property to pay for the Food Stamp Program.'

'AGAINST

"I am opposed to putting a tax on all taxable property to pay for the Food Stamp Program.'

'So ordered this the 13th day of May, 1968 with the following Supervisors voting for the Resolution and Order, J. C. Totten, E. L. Bolden, J. P. Woods, Odell Wilson and C. R. Pipkin.

'Voting against said resolution and order: None.

'J. P. WOODS,

'President

'(R. 9, 10).'

Notice of the election was published in the South Reporter of Holly Springs, a qualified newspaper circulated in Marshall County, on May 23, and May 30, 1968. The election was duly held in compliance with the order of the Board of Supervisors and it is alleged that the proposition submitted to the electorate failed to carry.

Thereafter, on June 11, 1968, the appellants filed an application for a hearing before the Board so that they could submit objection to the method used in carrying out the election.

On July 1, the Board of Supervisors granted a hearing to the petitioners, at which time they pointed out to the Board that the election was void, because (1) the voters of the county were not given the necessary thirty days' notice required by Section 3018, Mississippi Code 1942 Annotated (1956) and (2) the wording of the proposition required to be printed on the ballot was not a 'substantial synopsis of the proposition petitioned for' as required by Section 3019, Mississippi Code 1942 Annotated (1956), in that two propositions were combined on the ballot.

The Board heard these objections to the election and later, the attorney for the Board of Supervisors notified the attorney for the petitioners that the Board of Supervisors intended to abide by the results of the election and voice of the citizens of Marshall County and that 'the Board will not take any further action relative to the Food Stamp Program.'

No order was entered upon the minutes of the Board of Supervisors as required by law (Section 2886, Mississippi Code 1942 Annotated (Supp.1968)).

The foregoing facts were duly incorporated in a proper bill of exceptions in the form and manner contemplated by Section 1195, Mississippi Code 1942 Annotated (Supp.1968).

The bill of exceptions was presented to Mr. J. P. Woods, President of the Board of Supervisors, and he was requested to sign the bill on July 9, 1968. Mr. Woods refused to sign or amend the bill 'on advice of counsel.' The President of the Board made no objection to the form or contents of the bill of exceptions. The appellants then filed the unsigned bill of exceptions in the Circuit Court in an effort to perfect an appeal to that court.

Subsequently, on July 12, 1968, the appellants filed their motion in the circuit court requesting the circuit court to issue a writ of mandamus commanding J. P. Woods to sign the bill of exceptions previously presented to him. The circuit court combined these two petitions; whereupon, the Board of Supervisors and J. P. Woods made a motion requesting the court to dismiss the petition for writ of mandamus because, it is said, (1) Section 1195, Mississippi Code 1942 Annotated (Supp.1968), is inapplicable for the reason the legality of an election is not determined under this section. Therefore, it contended, the circuit court had no jurisdiction of the matter in either case before the court. The President of the Board of Supervisors did not allege in an answer that the facts stated in the bill of exceptions were incorrect in any respect. Whereupon, the circuit court dismissed both the petition for an appeal upon the unsigned bill of exceptions, and also the petition requesting the circuit court to issue writ of mandamus commanding the President of the Board of Supervisors to sign the bill of exceptions.

The reasons given by the trial judge for this action in dismissing appellants' petitions were (1) action on the petition filed by the qualified electors before the Board of Supervisors was a matter wholly within the sound discretion of the Board of Supervisors; (2) that Section 1195, Mississippi Code 1942 Annotated (Supp.1968), which was relied upon for an appeal, did not apply, because of the discretionary power of the Board of Supervisors that was sought to be reviewed.

We have given this case a careful study and we have reached the conclusion that the learned trial judge was in error in dismissing the petition and that this case must be reversed for the following reasons:

The undenied allegations in the bill of exceptions show that an election was called by the Board of Supervisors in compliance with the petition of certain 'merchants and concerned citizens' to determine whether or not the Food Stamp Program would be continued in Marshall County, Mississippi. This order to call an election was a result of the petition of 'concerned citizens' and was held under the authority of Section 3018, Mississippi Code 1942 Annotated (1956).

This Code section is in the following language:

'Elections for county purposes may be ordered by petition of qualified electors.

'Unless otherwise specifically required by law, the board of supervisors of any county shall upon the filing of a petition touching any matter affecting the entire county and over which it has jurisdiction, signed by twenty-five per cent. of the qualified electors of the county, either pass an order putting said proposition in force and effect or immediately submit the same to a vote of the qualified electors of the county, after giving thirty days' notice of said election, said notice to contain a statement of the proposition to be voted on at said election. If said election shall result in favor of the proposition petitioned for, the board of supervisors, shall pass the necessary order, to put the said proposition in force and effect. In the event the election shall result against the proposition submitted, no other election shall be held on the same, or substaintially the same proposition within twelve months of the date of the prior election: Provided that this section shall not apply to the creation of taxing districts.'

The Board of Supervisors contends on appeal that the election was called to 'feel the pulse of the county' and was 'not intended by the Board as a formal notice nor a formal election.' We reject this contention because the Board of Supervisors may not call an election at county expense to determine by an unofficial vote (straw vote) the will of the electorate 'just for thier information.' Howe v. State, 53 Miss. 57 (1876). Further the statute is mandatory and no discretion is in the Board except to determine which of the two courses shall be followed, provided the...