Hamilton v. Long

• Decision Date: 25 April 1938
• Docket Number: 33170
• Citation: 181 Miss. 627,180 So. 615
• Court: Mississippi Supreme Court
• Parties: HAMILTON v. LONG et al

180 So. 615

181 Miss. 627

HAMILTON v. LONG et al

No. 33170

Supreme Court of Mississippi

April 25, 1938

Division A

1 CERTIORARI.

Where an application is made for writ of certiorari, all facts essential to establish the right of the applicant thereto must be shown.

2 CERTIORARI.

On certiorari, only such errors or defects as appear on the face of the record can be considered.

3 CERTIORARI.

Where petition for writ of certiorari to review an order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county has been filed, it is only where ground for reversal appears from the record that the court can grant a hearing on the merits in the circuit court (Laws 1934, chapter 171; Code 1930, sections 72, 73)

4 CERTIORARI.

Where petition for certiorari is presented for review of an order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county, the averments of exhibits attached to the petition control (Laws 1934, chapter 171; Code 1930, sections 72, 73).

5. CERTIORARI.

Writ of certiorari to review order of board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county was improvidently issued, where exhibits attached to petition for the writ recited all the necessary jurisdictional facts entitling the board to order the election (Laws 1934, chapter 171; Code 1930, sections 72, 73).

6. CERTIORARI.

A writ of certiorari issued for purpose of reviewing an order of the board of supervisors ordering an election on question of prohibiting sale and distribution of wine and beer in county, although improperly issued because of failure to show good cause, was not void where the judge issuing the writ had jurisdiction to issue it (Laws 1934, chapter 171; Code 1930; sections 72, 73, 742).

7. MANDAMUS.

A permanent writ of mandamus cannot be issued until the clerk of the circuit court has issued a summons which has been served and returned as required in other actions (Code 1930, section 2351).

8. PROHIBITION.

A permanent writ of prohibition cannot be issued until the clerk of the circuit court has issued a summons which has been served and returned as required In other actions (Code 1930, section 2358).

9. PROHIBITION.

A writ of prohibition, issued in vacation without notice by clerk of circuit court on order of circuit judge of another district, prohibiting board of supervisors from conducting an election on question of prohibiting sale and distribution of wine and beer in county was void and did not affect the holding of the election (Laws 1934, chapter 171; Code 1930, sections 742, 2351, 2352, 2357, 2358, 3074).

10. MANDAMUS.

A writ of mandamus should not be issued where there is a plain, adequate, and speedy remedy in ordinary course of law (Code 1930, section et seq.).

11. PROHIBITION.

A writ of prohibition should not be issued where there is a plain, adequate, and speedy remedy in the ordinary course of law, especially where it is sought to prevent the holding of an election (Code 1930, section et seq.).

12. PROHIBITION.

Where writ prohibiting the holding of an election on question of prohibiting sale and distribution of wine and beer in county was void, the party obtaining the writ could not complain of order vacating the writ of prohibition on ground that judge did not have authority to vacate the writ in vacation (Laws 1934, chapter 171; Code 1930, section 2354).

13. CERTIORARI.

Where election on question of prohibiting sale and distribution of wine and beer in county had been held pursuant to order of board of supervisors while certiorari proceeding to review board's order was pending, the court properly affirmed the board's order calling the election, in absence of error appearing on face of record existing at time of issuance of the writ of certiorari (Laws 1934, chapter 171; Code 1930, sections 72, 73).

14. CERTIORARI.

In certiorari proceeding to review order of board of supervisors calling an election on question of prohibiting sale and distribution of wine and beer in county, refusing to allow amendment to pleadings whereby it was sought to have registration books, poll books, and other records brought up for examination to ascertain what percentage of qualified electors had signed petition for election was not error (Laws 1934, chapter 171; Code 1930, sections 72, 73).

15. CERTIORARI.

Evidence and testimony considered by an inferior tribunal are no part of the record on certiorari.

16. CERTIORARI.

In certiorari proceeding to review order of board of supervisors calling an election on question of prohibiting sale and distribution of wine and beer in county, the facts regarding election and the report thereof by election commissioners occurring subsequent to issuance of writ of certiorari were not part of record proper on hearing in circuit court, but court's consideration thereof did not harm party seeking the writ, where no error appeared in the entire proceedings before the board up to and including the report of the election commissioners (Laws 1934, chapter 171).

HON. THOMAS H. JOHNSTON, Judge.

APPEAL from the circuit court of Tishomingo county, HON. THOMAS H. JOHNSTON, Judge.

Proceeding by A. G. Hamilton against A. B. Long and others for writ of certiorari with supersedeas and writ of prohibition to prevent holding of an election to determine whether transportation, storage, sale, and distribution of wine and beer should be excluded and prohibited in county. From an adverse judgment, A. G. Hamilton appeals. Affirmed.

Affirmed.

E. C. Sharp, of Booneville, for appellant.

The election held on the 13th day of November was void. The order ordering the election had been superseded by the writ of certiorari and supersedeas and the order of the Circuit Judge in vacation vacating the supersedeas was a nullity. Section 72, Code 1930, authorizes the issuance of writs of certiorari with supersedeas and when this writ is issued and bond given as required by law the entire matter is transferred to the Circuit Court and the case cannot be heard except in term time.

Grayson v. Harris, 102 Miss. 57, 58 So. 775; Buckley v. George, 71 Miss. 580, 15 So. 46; Ferguson v. Seward, 146 Miss. 613, 111 So. 596.

The only authority the election commissioners had to hold the election in question was the order of the board of supervisors entered at the October meeting calling the election. This order having been superseded by order of the court any further action on said order or pertaining thereto was suspended and any authority theretofore granted by the order was suspended until a final determination of the ease. An appeal or certiorari with supersedeas would be useless if the proceedings could be continued or the judgment, decree or order carried out with a supersedeas in effect. To so hold would completely nullify Section 73, Code of 1930, and the ruling in the Grayson and Buckley cases, supra, and is in direct conflict with the rule announced in Runyon v. Bennett, 4 Dana (Ky.) 598.

Appellees attempt to justify the holding of the election and sustain its validity by relying upon the order of the judge vacating the supersedeas in vacation, which order was entered on one day's notice at a place more than one hundred miles from the residence of appellant.

Writ of certiorari can be heard on the return day of the writ, but, unless by consent, not before.

11 C. J. 191; Brown v. Smith, 24 Ga. 418; Ewing v. Thompson, 43 Pa. 372; Busby v. State, 177 Miss. 68, 170 So. 140.

We presume that it will be contended by appellees that the case was not heard on its merits at that time and therefore that the above authorities do not apply. This position is not tenable for by Section 72 of Code 1930, if a proper petition is presented within the time allowed by law and the writ is authorized by the judge, it operates as an appeal, and where the fiat of the judge has been issued the writ has served its purpose and is to be considered no further.

Board of Supervisors v. Melton, 123 Miss. 615, 86 So. 369.

The court erred in quashing the writ of prohibition.

Sections 2357, 2358, 3074, Chapter 48, Code of 1930.

None of the requirements of Section 3074 were complied with and appellant herein was denied an appeal with supersedeas. Can the court disregard all requirements of the statute, as was done in this case, and still hold that the election in this case was legal or that the actions of the board of supervisors and election commissioners should be affirmed and upheld? Regardless of what may be said for or against the sale of beer a licensed dealer has a right to his day in court and to an orderly hearing and determination of his cause according to recognized and statutory rules of procedure.

If the court erred in the judgment rendered on the 11th day of November, in vacation on one day's notice, then the election was held without authority of law and is illegal and void.

W. C. Sweat, of Corinth, for appellees.

Our first contention is that the writ of prohibition issued by Judge T. H. McElroy, judge of the third judicial circuit, was absolutely void. The election commissioners of Tishomingo County could have ignored this writ and proceeded to hold the election notwithstanding the same. As a matter of fact it was really unnecessary to have the writ quashed by Judge Johnston, the circuit judge of the first district; but if it should be held that Judge Johnston had no right to vacate and discharge the writ of prohibition it could avail appellant nothing because the writ in the first instance was void.

Sections 2358, 2349, Code of 1930.

This court has held that a writ of prohibition can...