Lester v. Miller

• Decision Date: 12 December 1898
• Citation: 24 So. 193,76 Miss. 309
• Court: Mississippi Supreme Court
• Parties: WILLIAM DAVID LESTER v. R. P. MILLER, SHERIFF, ETC

24 So. 193

76 Miss. 309

WILLIAM DAVID LESTER v. R. P. MILLER, SHERIFF, ETC

Supreme Court of Mississippi

December 12, 1898

November 1898

FROM the circuit court of Sunflower county, HON. F. A. MONTGOMERY Judge.

Lester the appellant, was plaintiff in the court below. The case arose from the following facts: In 1893 a petition for a local option election, signed by a goodly number of the qualified electors of Sunflower county, was presented to the board of supervisors of that county; the election was ordered; commissioners to hold the same appointed; the election held, resulting "against the sale" of intoxicating liquors. This result was duly returned and properly recorded. In 1898 appellant, Lester, presented a petition for license to sell liquors in regular form to the municipal authorities of the village of Baird, in said county, and, having secured such license, in so far as the village authorities were authorized to grant it, presented the same to the sheriff, tendering the amount necessary to be paid; but the sheriff refused to accept the money and issue the privilege tax license, on the ground that an election had been held and resulted "against the sale." Whereupon Lester filed a petition for mandamus to compel the sheriff to issue the license, showing that nowhere in the proceedings leading to and resulting in the local option election does it appear that one-third of the qualified electors of the county had petitioned for the election, or that the supervisors had adjudged such to be the fact, and he contended that the election was therefore void. Mandamus was denied and Lester appealed.

Reversed and remanded.

Baker &amp Moody and Mc Willie & Thompson, for appellant.

This case, in our judgment, presents but one question, and, we think, no matter what the decisions of other courts may be, and without reference to the original force of the argument of our adversary, that a determination of that question against appellant will involve the overruling of several decisions of this court. The doctrine of stare decisis forbids this, and is stronger than any argument adverse to us that can be made in the cause. The question is whether the record of the proceedings of the board of supervisors, ordering a local option election, under the code, is void if it does not show that the petition, upon which the election was ordered, was signed by one-third of the qualified voters of the county. Code 1892, § 1610.

The appellant affirms that such a record is void; that an election ordered thereon did not and could not put the local option law in force, and that the proceeding by mandamus to compel the sheriff to act upon his grant of license to sell intoxicating liquors, as the law requires that officer to do had no election been held, is regular and authorized by law. In maintenance of this position, we advance the following propositions:

1. The board of supervisors, in ordering a local option election, exercises a limited and special jurisdiction, and is not a court of general jurisdiction. Its general jurisdiction is defined by sec. 170, const. 1890, and by statute, § 289, code 1892. The board did not act, in ordering the election, under the above cited sections, but it did act under § 1610 et seq., code 1892, and was, therefore, as has been several times decided by this court, exercising a limited and special power. McGee v. Beall, 63 Miss. 455; McCreary v. Rhodes, 63 Miss. 308; Ferguson v. Monroe Co., 71 Miss. 524-535; 12 Enc. Plead. & Prac., p. 176, and notes; Ib., 177.

2. An order of the board of supervisors, in the exercise of a special and limited power, is void unless the record of the proceedings shows the existence of the necessary jurisdictional facts, or that they were established, to the satisfaction of the court, on the hearing of the allegation and proofs submitted to it. Root v. McFerrin, 37 Miss. 17-47; Bolivar County v. Coleman, 71 Miss. 832; Marks v. McElroy, 67 Miss. 545-547.

3. A local option election has no force unless the order authorizing it to be held be valid. Harris v. State, 72 Miss. 960; Madison County v. Powell, 75 Miss. 762.

4. If the order on which the election was held was void, like any other void judgment, it may be disregarded even collaterally; does not derive any validity from a failure, even for several years, to have it vacated. McComb v. Ellett, 8 Smed. & M., 505; Kramer v. Holster, 55 Miss. 243; Harris v. State, 72 Miss. 960; 12 Enc. Pl. & Pr. 201, 202, 204, 213.

If the foregoing propositions be correct, it follows that the judgment appealed from should be reversed. This conclusion is incontestable under the authority of Harris v. State, 72 Miss. 960. That case, like this one, was a proceeding by mandamus against the sheriff to compel the issuance of a license to sell intoxicating liquors. There the order upon which a local option election was held was void; here the order is void, not merely irregular or voidable, if the cases cited are not to be overruled.

The first point made in the brief of our adversaries, that the rule that the order of the board is void, unless it shows affirmatively the necessary jurisdictional facts, has no application if the board is authorized by the statute to ascertain and determine their existence, is supported by decisions in other states, but it is contrary to our own case of Bolivar County v. Coleman, 71 Miss. 832, for the statute there construed gave affirmatively the power to make the investigation and determination, and in these particulars is exactly like § 1610, code 1892.

The second point made for appellee, that the doctrine has no application in a private suit, where the complainant seeks a mere privilege, etc., is conclusively answered by the authority of Harris v. State, 72 Miss. 960.

The public nature of the election is no reason for withholding a reversal. The fear that some other litigant may hereafter so mismanage his suit as to bring about variant decisions ought not and will not deter this court from a correct determination of a purely legal question.

Campbell & Starling, for appellee.

We recognize the rule, as applied in numerous cases in this state, and elsewhere, to inferior courts, and courts exercising statutory powers not according to the course of the common law, that the jurisdictional facts must be shown upon the face of their proceedings or records, and, if not, that their judgments will be void and may be collaterally attacked. But this rule, so far as our researches have extended, has always been applied to judgments inter partes or where merely private interests of the litigants were involved. It has not been applied, and does not apply, in statutory proceedings, to such jurisdictional facts as the tribunal in which the proceedings are had is authorized by the statute to ascertain and determine before it can act; and it should not be applied, we respectfully submit, in favor of a party who, in a private suit, seeks to enforce a mere privilege in opposition to the will of the public as expressed at the polls. Section 1610, code of 1892, requires the board of supervisors of any county to order an election, upon application of one-third of the qualified electors of the county, by petition in writing, signed by them. It does not require the petition to recite, nor the record of the board to show, that the petitioners constitute one-third of the qualified electors, but, whether or not the petition has been signed by the requisite number, and whether or not the signers are qualified electors of the county, are facts to be ascertained and determined by the board of supervisors. Ferguson v. Monroe County, 71 Miss. 524.

It is the petition in writing that gives the board jurisdiction to take the first step in the matter, and the first step is to ascertain and determine the fact that it is signed by the requisite number of qualified electors, and if, on investigation, it appear to the board that one-third of the qualified electors of the county had signed the petition, the election should be ordered. Ferguson v. Monroe County, ubi supra. This fact must exist to authorize the board to proceed further, to be sure, but its existence need not be made to appear on the records of the board. If the election prayed for in the petition be ordered by the board, it will be presumed, in a collateral proceeding, that the petition was signed by the requisite number of electors.

In Freeman on Judgments, section 523, we find this statement "Statutes are in force in many of the states under which boards of supervisors or other local...