Hinton v. Perry County

• Decision Date: 11 April 1904
• Citation: Hinton v. Perry County, 84 Miss. 536, 36 So. 565 (Miss. 1904)
• Court: Mississippi Supreme Court
• Parties: JESSEE HINTON v. PERRY COUNTY

36 So. 565

84 Miss. 536

JESSEE HINTON v. PERRY COUNTY

Supreme Court of Mississippi

April 11, 1904

FROM the chancery court of, first district, Perry county. HON STONE DEAVOURS, Chancellor.

Hinton appellant, was complainant, and Perry county, appellee defendant in the court below. From a decree in defendant's favor the complainant appealed to the supreme court.

In February, 1902, the legislature passed an act authorizing the board of supervisors of Perry county to order an election upon the question of removal of the seat of justice from Augusta to some point on the Mobile, Jackson & Kansas City Railroad, providing that the board should make an order submitting the question to the legal voters of the county upon a petition being filed, asking therefor, signed by two hundred qualified electors of the county. The petition having been filed, the board of supervisors, at the September meeting, 1902, ordered an election to be held in the county upon the question of the removal of the seat of justice. At the election Augusta and two other towns were placed on the ticket to be voted on for the seat of justice. There was a large majority of the votes cast for the removal of the courthouse, and a town called Augusta Depot received a large majority of the votes as the place to which the county seat should be removed. The election commissioners reported the result of the election to the board of supervisors; reporting that the question of removal had carried, and that Augusta Depot had received a majority of the votes east for the new courthouse seat. Upon receiving this report the board of supervisors made an order declaring Augusta Depot to be the county seat of the first district of Perry county, and that the court should be held there as soon as the courthouse could be built, and proceeded to raise funds with which to erect there a courthouse and jail. No appeal was taken from this order. In December, 1902, Hinton, the appellant, filed the bill in this case praying for an injunction restraining the board of supervisors from removing the county seat from Augusta to Augusta Depot. A preliminary injunction was granted by the chancellor. The bill alleged that the order of the board of supervisors directing the election to be held was void on its face, because the petition on which it was based was not signed by two hundred qualified electors of Perry county; that the election commissioners, when they declared the result of the election, did not know whether the removal was toward the center of the first judicial district or not, and they could not determine whether the removal had carried until they were informed whether the removal was toward the center of the district; that the board of supervisors had no authority to adjudge that the removal was toward the center, a prerequisite to be ascertained by the election commissioners before declaring the result of the election, and the failure of the commissioners to so ascertain and adjudge before declaring the result of the election was fatal to the right of the supervisors to order the removal; that the board of supervisors and the election commissioners had no power to determine whether the removal was toward the center of the district or not, because no survey of the district had been made, and there was no way provided by law to ascertain where the center of the district was, and therefore the result of the election could not be determined; that in fact the removal was not toward the center of the county, and the election did not result in favor of the removal; that the board of supervisors and the election commissioners decided that the removal was toward the center of the first judicial district, whereas, under the law, it was necessary that the removal should be toward the center of the county; that Laws 1902, p. 172, ch. 123, under which the election was held, was void and in Violation of secs. 259 and 260 of the constitution of 1890. The defendant answered the bill, denying all the material allegations thereof. The answer alleged that the findings of the board of supervisors and the election commissioners were final, unless appealed from to the circuit court, and that no appeal had been taken, and the order of the board of supervisors was res adjudicata, and that the chancery court had no jurisdiction. The defendant made a motion to dissolve the injunction. The motion was sustained, the injunction was dissolved, and complainant taxed with the costs and attorney's fees.

Affirmed.

Ellis & Sullivan, for appellant.

All the orders and judgments of a court of limited and special jurisdiction are void, unless the jurisdiction appears on the face of the record, and nothing is presumed in favor of such jurisdiction, but it must affirmatively appear from the record. Where is the evidence of this investigation and finding of the board to rest? It must rest in the record. The record must recite that the investigation was made and the facts which give jurisdiction, found to exist. This record does not show any investigation or finding from hearing evidence. The record shows that the board obtained its information from the petition itself. The record distinctly so declares. The very language of the order shows this. 4 Am. & Eng. Ency. Law, 386; Rhodes v. Davis, 2 Ind., 53; Johnson v. Eureka Co., 11 Nev., 28; Rosenthal v. Madison P. R. Co., 10 Ind., 359; Fayette Co. v. Chitwood, 8 Ind., 504; Plummer v. Waterville, 32 Me., 566; Byrd v. State, 1 How. (Miss.), 163; Root v. McFerrin, 37 Miss. 17; Bolivar Co. v. Coleman, 71 Miss. 832; Lester v. Miller, 76 Miss. 309; McCreary v. Rhodes, 63 Miss. 308; McGee v. Beall, 63 Miss. 455; Garner v. Webster Co., 79 Miss. 565; Craft v. DeSoto Co., 79 Miss. 618; State v. Morgan, 79 Miss. 659; Ferguson v. Monroe Co., 71 Miss. 524. The board cannot look to the petition alone, or at all, for "the necessary jurisdictional facts."

The bill raises the question that there were not two hundred qualified electors on the petitions. It may be that this question is res adjudicata if the record of the board is found sufficient to show the jurisdictional facts, but if it is not res adjudicata and we are permitted to go behind the record, then we submit that the competent evidence shows that there were not two hundred qualified electors on the petitions. Under this view the chancellor erred in overruling the exceptions of complainant to defendant's amended answer.

It was never legally and properly determined that the election had resulted in favor of removal of the county seat to Augusta Depot; the board of supervisors had no authority to order the removal, and their order for removal was illegal and void. The commissioners could not declare that the result of the election was in favor of removal to Augusta Depot until they knew from the proper evidence, and so adjudged in their finding, that Augusta Depot was nearer the center of the district (county) than Augusta, because if it was not nearer the center of the district (county) it would require two-thirds of all the qualified electors in the county, voting therefor, to carry the election.

Passing over the other points raised by the bill, without intending to waive anything therein alleged, we come to the allegation in the last amendment to the bill, in which it is charged that ch. 123, Laws 1902, under which the election was held is in violation of secs. 259 and 260 of the constitution of 1890. A casual reading of this law will show that it was written for the purpose of forcing the removal of the county seat from Augusta, where it has been since the county was created. It will be noticed (1) that the law separates removal from the place or places competing for the new location, and the voter shall vote for "Removal" or "No removal," and at the same time he may designate the point to which he wishes removal. The object in this plan of separation was to induce the electors to vote for removal by inspiring the hope that the several places competing for the location would have a chance to get the prize. It did not leave the voters free to decide that the county seat should be left at the old place or removed to a designated place. In other words, it was not a choice between Augusta and Augusta Depot, for instance, but it was a choice between Augusta and as many other places as the board of supervisors might see proper to put in nomination. (2) If "removal" carries, but no place receives the votes necessary to a choice under sec. 259 of the constitution, then the board of supervisors shall order another election and give ten days notice for the purpose of determining the point of location only, and if no place receives the necessary vote, the board shall continue to order elections until some place is selected. The purpose seems to be to get the county seat cut loose from its old location, like an inflated balloon when the lines are detached, and while it is soaring in the elements with no place to alight, to force upon the people every ten days, without peace or rest, an election, until they choose an alighting place, and then the county seat, which was "removed" some time before, and which had been wandering, no one knows where, shall be drawn by some invisible power to the place selected and shall peacefully settle down upon it. Under this law the county seat could be removed and never be relocated, notwithstanding an election to locate a place might be held every ten days to the end of time. But as this law contemplated forcing a removal, it is probable that the board of supervisors would continue to inflict the people with elections, until in their despair they would choose a place. In the meantime where would the courthouse be? It was removed some time ago. If the board of supervisors should continue to bombard the...