Henry v. Board of Sup'rs of Sunflower County

• Decision Date: 15 May 1916
• Docket Number: 17578
• Citation: 71 So. 742,111 Miss. 434
• Court: Mississippi Supreme Court
• Parties: HENRY ET AL. v. BOARD OF SUPERVISORS OF SUNFLOWER COUNTY

71 So. 742

111 Miss. 434

HENRY ET AL. v. BOARD OF SUPERVISORS OF SUNFLOWER COUNTY

No. 17578

Supreme Court of Mississippi

May 15, 1916

APPEAL from the circuit court of Sunflower County, HON. MONROE MCCLURG, Judge.

Certiorari by J. A. Henry and others against the Board of Supervisors of Sunflower County. From a judgment for defendant, petitioners appeal.

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

Case reversed.

S. F Davis, for appellants.

In establishing a stock law in a county, or any part of a county, the board of supervisors exercise a special and limited jurisdiction, and their acts are absolutely null and void, unless all of the facts necessary to give them jurisdiction to declare the stock law to be in force affirmatively appears on their records. See Garner v. Webster County, reported in 76 Miss. 565, and the numerous cases cited in the opinion of the court in that case.

The judgments, or order of a court of limited and special jurisdiction, exercisable in a certain manner, are not, in and of themselves, evidence of jurisdiction, and its lawful exercise. In all cases of this character, the jurisdictional facts must be shown on the face of the records. See Bolivar County v. Coleman et al., reported in 15 So. 107; also Lester v. Miller, 24 So. 193 and 76 Miss. 309.

In order for the board of supervisors to have passed a valid order putting in force the stock law in this case, their records must affirmatively show:

First that the territory, as it is less than the whole county includes (a) one or more townships; (b) a part of two or more townships, not less than thirty-six square miles; (c) a part or parts of the county separated by natural boundaries;

Second that an order of the board for an election has been entered on their minutes at which election all of the resident freeholders or leaseholders for a term of three or more years of the territory to be effected were to be given an opportunity to vote;

Third their records must show that an election was held in this territory in pursuance to this order and that it resulted in a two-thirds majority of those voting, voting in favor of the stock law;

Fourth, their records must show that an order was entered on their minutes declaring the stock law to be in force in said territory four months after the date of said order.

All of these facts are jurisdictional and must affirmatively appear of record before an act of the board in cases of this kind can have any validity whatever, and as Exhibit 1, 2, and 3, filed with appellant's petition in this case, is admitted by all parties to this action to be a true and correct transcript of the record of the board of supervisors of Sunflower county, in this case, a casual perusal of these exhibits will disclose to the court that they fall far short of furnishing all of these jurisdictional facts necessary to have given the board of supervisors jurisdiction over the matter in question.

The court will notice that the record in this case is silent as to the size or topography of the territory sought to be placed under the stock law, further than to describe it as district No. 2. of Sunflower county. It does not show that the said territory is one or more townships; a part of two or more townships, not less than thirty-six square miles; or that it is a part, or parts of the county separated by natural boundaries. This nor any other court can take judicial notice of the size and topography of district No. 2 of Sunflower county. It is true, that the courts do take judicial notice of the political division of the state, such as counties, cities or villages and townships and their boundaries in so far as they are prescribed by public statutes, but no further. See 16 Cyc. page 859, and the authorities therein cited.

As a matter of course, all divisions, and subdivisions, of the state established by a public statute, are matters of judicial notice the same as any other public statute, and the court will take judicial notice of the fact that there is a district No. 2 in each county in the state, but no further. The boundaries of the several supervisors' districts of the state are not established by any public statute, but on the contrary, they are all fixed by a private ordinance of the board of supervisors of the different counties. Section 291 of the Code of 1906, merely provides that each county shall be divided into five districts, with due regard to the equality of the population and convenience of situation, for the election of members of the board of supervisors; and it further empowers the board of supervisors to alter or change the boundaries of these districts at any time they see fit by simply entering an order on their minutes to that effect, and there is no law so far as I know, that requires a supervisor's district to have any certain number of square miles in it, but to the contrary, it was clearly the intention of the legislature to divide the representation on the board of supervisors as nearly equal among the inhabitants of each county as possible without regard to the size of the territory occupied by them. If the legislature had seen fit to fix the boundary lines of the several supervisors' district in each county in the state, then their boundaries and size would be a matter of judicial notice, but I submit to the court, that as the law now stands, no court can judicially or otherwise know how many square miles there is in district No. 2 of Sunflower county until it has been proven to them in the manner required by law.

Geo. Ethridge, Assistant Attorney-General, for appellees.

It is contended that the board of supervisors exercises a special and limited jurisdiction and that their acts are absolutely null and void, unless all the facts necessary to give them jurisdiction affirmatively appear on the record. It seems to be the chief point of contention on the part of the appellants that it is void because it does not appear in the record as to whether district No. 2 contained as much as thirty-six square miles of territory, and that it is necessary for it to so show in order for them to declare the stock law in force. I agree that it is necessary in the board's proceedings to show all the facts necessary to confer jurisdiction. The general rule, however, of proceedings before inferior courts of special and limited jurisdiction does not apply in this case because this is not a judicial proceeding but is a legislative enactment by the board of supervisors and when the jurisdiction of the board once exists all other proceedings are presumed to be regular and in accordance with law. Under the law in question, if the board proceeds without an election, it must affirmatively appear that two thirds of the voters and lease-holders have petitioned for such action, but where the board proceeds to order an election, it has jurisdiction to institute proceedings, ordering an election on its own initiative and motion. All...