Hatten v. Bond

• Decision Date: 15 January 1917
• Docket Number: 19444
• Citation: 112 Miss. 590,73 So. 612
• Court: Mississippi Supreme Court
• Parties: HATTEN ET AL v. BOND ET AL

73 So. 612

112 Miss. 590

HATTEN ET AL v. BOND ET AL

No. 19444

Supreme Court of Mississippi

January 15, 1917

Division A

APPEAL from the chancery court of Harrison County, HON. W. M. DENNY Chancellor.

Bill by P. L. Hatten and another against A. W. Bond and others. From an order sustaining a demurrer to the bill complainants appeal.

The facts are fully stated in the opinion of the court.

Decree affirmed.

Mixe &amp Mixe, for appellant.

The act creating Stone county is a special statute, and the rule, as we understand, is that all the requirements of a special statute have to be complied with or there can be no legal effect to anything done or created under it. What does this special statute provide? Section 3 provides that, upon the approval of the act by the govenor, within ten days after the 22nd day of March, 1916, the governor should appoint three commissioners from the territory proposed to be taken from Harrison county who should be residents of said territory and that said commissioners should provide and hold an election as thereinafter provided. This section specially provides that there should be three commissioners appointed to hold an election to determine the creation of Stone county and that these commissioners should hold said election as thereinafter provided in said act. One of the sections "thereinafter providing" the requirements of said election is section 15 of said act, pp. 15, 16, which precisely provides that the commissioners appointed under section 3 of said act shall do two things: first, "shall divide into convenient voting precincts the territory embraced in Stone county," and, second, "shall also provide for the registration of the qualified electors in said territory at least ten days before said election." The bill of complaint alleges that the commissoners appointed under said section 3 failed to do either one of these things and we say that it is essential to a valid election that they should have complied with said provisions. 26 American & English Enc. of Law, p. 665.

The act creating Stone county is a special statute delegating powers to the three commissioners to be appointed by the governor, and every power delegated to them would have to be exercised and complied with and in the manner designated by the statute before any act of theirs under such statute would be valid. Garrigus et al v. Board of Commissioners of Parke County, 39 Ind. 67.

The letter of the act creating Stone county was that the commissioners, before election, should divide the territory into convenient voting precincts and provide for registration of the qualified electors of said territory at least ten days before the election, and these things were not done. Dickson v. Hill, 75 Ga. 369; Marsales v. Garrison, 27 S.W. 929; Dudley v. Mayhew (N. Y. Appeals), Comstock, 9; State v. Coleman, Sec'y State 13 N. J. Rep. 98.

In the instant case, if the true meaning of a majority of the qualified electors of the territory embraced in Stone county has been found, by majority of seventy-nine votes, that they desired the creation of Stone county, yet it has not been reached in the manner required by law, on account of the failure of the commissioners to divide the said territory into convenient voting precincts and to provide for the registration of the qualified voters in said territory at least ten days before the election.

We submit that, under the foregoing authorities, each and every step set out in the act creating Stone county should have been, by the commissioners, taken in the manner directed by said act. It has always been our understanding, from law-student days, that a special act authorizing anything to be done or created under said act must be specifically followed and every step specified must be taken and in the manner prescribed or the thing done or created is null.

Our next complaint is that the act creating Stone county violates section 260 of the constitution of Mississippi. We have been unable, after diligent search of the provisions of constitutions somewhat similar of sister states to find any construction of a provision like this one with reference to the point urged. The governor, when he signed this act, had before him the opinion of the attorney-general of Mississippi that the act was unconstitutional because it violated this section, and we herewith append as exhibit "A" to this brief a copy of said letter. So we submit that our construction of this provision is the correct one.

Appellants contend further that the act creating Stone county is null and void because of the following provision in section 14 of said act, to-wit: "That all contracts heretofore entered into by the county of Harrisson, as far as the same affects the said Stone county shall be executed and completed by Stone county.

This violates section 16 of the Constitution of the state of Mississippi and article, 1, subdivision 10, of the Constitution of the United States, in that it impairs the obligation of contract. Gunn v. Barry, 15 Wallace, 610; White v. Hart, 13 Wall. 646.

Appellants contend that said act creating Stone county is further unconstitutional because section 16 of said act violates section 26 of the Constitution of Mississippi, in that it prohibits a man charged with crime from being tried in the county where the crime was committed, as said section 16 of said act provides that all criminal cases pending at the time of its passages in the circuit court of Harrison county should be tried in Harrison county. A man has the right to be tried in the county where the crime was committed, and therefore a person charged with crime committed in the territory embraced in Stone county should be tried in Stone county, and this is prevented by said section 16 of said act.

We submit that the court erred in not granting the injunction prayed for by appellants and in dismissing their bill of complaint, and that this court should reverse this cause therefor.

U. B. Parker and W. G. Evans, for appellee.

Coming to the first question raised in the bill of complaint, appellants contend that the law creating Stone county violates section 260 of the Constitution of the state of Mississippi, in that each dismembered part of Harrison county was not allowed to vote in the election to determine whether or not Stone county should be created.

Section 260 of the Constitution of the state of Mississippi reads as follows: "No new county shall be formed unless a majority of the qualified electors voting in each part of the county or counties proposed to be dismembered and embraced in the new county, shall separately vote therefor; nor shall the boundary of any judicial district in a county be changed, unless, at an election held for that purpose, two-thirds of those voting assent thereto. The elections provided for in this and the section next preceeding shall not be held in any county oftener than once in four years. No new county shall contain less than four hundred square miles; nor shall any existing county be reduced below that size."

It does look to the pleader that the conclusion attempted to be drawn by appellants as to the provisions of this section are absurd. Conner v. Gray, 88 Miss. 489.

The next question raised in the bill of complaint is that the law is unconstitutional because section 16 of said act violates section 26 of the Constitution of the state of Mississippi in that it prohibits one charged with crime from being tried in the county in which the crime was committed. Section 16 of the law provides that all indictments found prior to the passage of the act and crimes committed in the territory taken from Harrison county shall remain to be disposed of in Harrison county.

Appellants do not especially press this contention as will be seen from their brief, and we are of the opinion that in order for them to have pressed this issue it would necessitate their trying to handle the county lines like marking off section 260 of the Constitution which suits them. All indictments found in Harrison county prior to the passage of the act were certainly found in the county where the crimes were committed, and had it not been for this action no one can certainly contend that the case would not have been tried in the county where the indictment was found and the crime committed. Again, the general statute provides for the removal of causes to the proper jurisdictions.

Last but not least, as it was said in the case of Conner v. Gray, supra, no persons affected are making complaints, and certainly the appellants here cannot be interested in the affairs of others.

Next, appellants complain that section 14 of said act providing for the disposition of contracts is violative of section 16 of the Constitution of the state of Mississippi and of the Constitution of the United States. In the original bill of complaint no mention was made of the contract had with Proffessor Huff, but the amended bill of complaint complains at great length that Professor Huff had a contract with Harrison county to teach the Agricultural High School, which had been by the creation of Stone County left therein.

Professor Huff is not a party to this litigation, and the court will of course not hear him nor hear complainants in his behalf.

Next we come to section 15 of the law providing that the registration books of the county of Harrison shall be the registration books for the purpose of the election to be held in the territory to be embraced in the county of Stone and also provides for the registration of qualified electors in said territory at least ten days before said election. The court will notice that section 15 continues to read: "The polling places now established in the county of Harrison and embraced in Stone county shall be the same...