Greene v. Village of Rienzi

• Decision Date: 12 February 1906
• Citation: 87 Miss. 463,40 So. 17
• Court: Mississippi Supreme Court
• Parties: ELIHU J. GREENE ET AL. v. VILLAGE OF RIENZI ET AL

40 So. 17

87 Miss. 463

ELIHU J. GREENE ET AL. v. VILLAGE OF RIENZI ET AL

Supreme Court of Mississippi

February 12, 1906

November 1905

FROM the chancery court of Alcorn county, HON. A. J. MCINTYRE Special Chancellor.

Greene and others, the appellants, were complainants in the court below; the village of Rienzi and others, officers of the municipality, the appellees, were defendants there. From a decree sustaining the demurrer of defendants to the bill the complainants appealed to the supreme court. The facts are stated in the opinion of the court.

Decree reversed and cause remanded.

Candler & Candler, for appellants.

The constitution of Mississippi, sec. 241, defines a qualified voter; and sec. 243 requires the legislature to provide for his registration; and sec. 245 says electors in municipal elections shall possess all the qualifications prescribed for state and county voters, and such additional qualifications as may be provided by law.

Code 1892, § 3028, says:

"Every person who is a qualified elector of the county, who has resided within the corporate limits of the village for one year before he offers to register, and who is not in default for taxes due the municipality for the two preceding years shall be entitled to register and vote at all municipal elections."

Section 249 of the constitution of Mississippi says:

"No one shall be allowed to vote for members of the legislature or other officers who shall not have been duly registered under the constitution and laws of the state by an officer legally authorized to register the voters, and registration under the constitution and laws of the state by the proper officer is hereby declared to be an essential and necessary qualification to vote at any and all elections."

W. J Lamb, for appellees.

The bill shows that the board of mayor and aldermen were performing all the functions and duties that come within their scope as such officers; and whether they were legally elected or not, they were de facto officers, and as such officers their acts and doings were legal and binding.

We agree that a failure to comply with the sections of the constitution and the code touching registration would render an election void if those sections apply. Those sections of the constitution and code apply only to such elections as were intended by the framers of the constitution and the legislature; such an election as the one mentioned in this cause was never contemplated by the framers of the constitution or the legislature, and only such elections were contemplated as are usually incident to the election of officers, or such matters as pertain directly to the municipal government. Bew v. State, 71 Miss. 1 (S.C., 13 So. 868).

It has been repeatedly held by the different courts of last resort that registration and election laws apply only to elections that the framers of the constitution and the legislature contemplated when said laws were passed, and not to elections that were contemplated by the laws of the constitution. As was said in the Bew case above, the election to determine whether this village would issue bonds or not "is a special device," and the same is applicable to this class of elections; and unless the appellants can show that, because of a failure to have a registration, fraud was perpetrated and thereby caused the election to be carried in favor of the issuance of bonds, they are not entitled to relief. 10 Am. & Eng. Ency. Law (2d ed.), 618.

OPINION

TRULY, J.

The case made by the bill and exhibits on the only points we deem it necessary to discuss is this: The village of Rienzi is governed by the code chapter on "Municipalities." The de facto board of mayor and aldermen of the village decided to issue municipal bonds to the amount of $ 1,500 for the purpose of purchasing land and erecting a schoolhouse. A petition signed by a sufficient number of taxpayers having been presented, protesting against the issuance, an election was ordered, submitting the question to a vote. The election commissioners reported that thirteen votes were cast in favor of the issue and eight against it. Thereupon the board advertised for proposals to purchase the bonds; but before the bonds were actually negotiated, issued, and delivered, injunction was issued on the bill of complaint herein, and the sale and delivery of the bonds restrained. The bill states two grounds on which appellants seek to prevent the issuance of the bonds: (1) That the board of mayor and aldermen of the village of Rienzi are not a legal board, because they were never elected according to law, and hence all their actions in the premises were illegal and void; (2) that at the election at which the question of the issuance of the bonds was submitted "none of those voting were registered voters of said village, and some of those who voted were not qualified voters of the county of Alcorn, state of Mississippi, being delinquent for taxes due state and county, and some had not resided in said village for twelve months." The bill further charges that prior to said election no registration was ever had of the qualified voters of said village. A demurrer to the bill was sustained, the injunction dissolved, and the bill dismissed; and upon appeal this action of the court is assigned as error.

As to the first ground relied on by appellants, we content ourselves by reaffirming the established doctrine that the law attaches validity to the acts of de facto officers. Powers v. State, 83 Miss. 691 (36 So. 6). It is admitted that the board of mayor and aldermen are actually clothed with the insignia of office and exercising its powers and functions. Their official acts are therefore valid and binding, however questionable their legal title to the office may be. Norton v. Shelby County, 118 U.S. 425 (6 S.Ct. 1121; 30 L.Ed. 178).

The second ground on which the bill of complaint seeks to prevent the issuance of the bonds is that there was no duly qualified electorate in the village of Rienzi, and that none of those who participated in the bond election were registered voters. To this it is replied by appellees that no registration is necessary for such election; that it is, in truth, not an election at all, in the sense in which that term is used in the...