Martin v. Board of Supervisors of Winston County

• Decision Date: 24 January 1938
• Docket Number: 32966
• Citation: 178 So. 315,181 Miss. 363
• Court: Mississippi Supreme Court
• Parties: MARTIN et al. v. BOARD OF SUPERVISORS OF WINSTON COUNTY

178 So. 315

181 Miss. 363

MARTIN et al. v. BOARD OF SUPERVISORS OF WINSTON COUNTY

No. 32966

Supreme Court of Mississippi

January 24, 1938

Division B

Suggestion Of Error Overruled March 7, 1938.

APPEAL from the circuit court of Winston county HON. JOHN F. ALLEN Judge.

Proceeding by Luther B. Martin and others against the Board of Supervisors of Winston County, attacking the action of the Board of Supervisors on a petition to prohibit the sale of beer and wine and the vote of the people to prohibit such sale. From a judgment affirming the action of the board Luther B. Martin appeals. Affirmed.

Affirmed.

Z. A. Brantley, of Louisville, and L. F. Easterling, of Jackson, for appellant.

We take the position that the order of the board calling the election was but a preliminary step to the holding of the election, and that, whereas it is true, as held in the Mohundro case, 165 So. 124, that any taxpayer could have appealed from the order of the board calling the election, still they did not have to do so, but could wait until the election was held and then, at a meeting of the board which attempted to declare the result of the election and to put the proposition in force in the county, that all questions on the consideration of this matter could be brought up before, the board to show that it had acted without jurisdiction, and that the necessary facts upon which the jurisdiction was attempted to be exercised for calling the election did not, in fact, exist. In other words, to show that twenty per cent of the qualified electors of said county had not signed the petition.

Bryant v. Board of Supervisors, 133 Miss. 714, 98 So. 148.

It will be observed that the order of the board ordering the election, of date March 4, 1937, does not sufficiently show on its face the jurisdictional facts prerequisite to the order of the election.

We contend that this court will take judicial notice of the votes polled in the 1935 primary election for officers, as contained in the reports of the Secretary of State, in Jackson, Mississippi. The information given to us by the Secretary of State on this question shows that on candidates for Governor for the first primary for Winston County the votes amounted to 6,064, and on the second primary to 5,993. As we counted the signers on these petitions in the record, there appear to be 1,205 signers. We think it is manifest from a consideration of the evidence of the circuit clerk before the board of supervisors that the board did not consider all of the names signed in the same handwriting.

We further call the court's attention to the fact that the board does not attempt in said order to find from evidence, such as the poll books of the county, the registration books and the sheriff's books; how many were qualified to vote in Winston County and how many qualified electors had signed the petitions in their own handwriting. The board can only act as a board upon the evidence brought before them or acquired by them jointly in an examination of the records to determine these necessary jurisdictional facts. Their mere ordering "that the said petition is properly signed by twenty per centum or more of the qualified electors" in our opinion on the face of the order is not sufficient, and for that reason the order is null and void.

Simpson County v. Burkett, 172 So. 329; Lowndes County v. Ottley, 112 So. 466, 146 Miss. 118; Ferguson v. Monroe County, 71 Miss. 524.

It is the policy of the law that the fullest hearing may be had on all questions and especially, as said in the Monroe case supra, where the effect of the election would be so momentous as to make that illegal which had been legal before, and to deprive petitioners who were licensed of their rights under their licenses and under the law to sell their products, the fullest inquiry should have been allowed by the board of supervisors; and, if it was determined that the petitions were not signed by the requisite twenty per cent of the qualified electors, all of the proceedings of the board should be vacated, and set aside and held for naught.

We think it cannot be questioned and will not be denied that no person can sign the names of other persons to said petition, with or without their consent.

Ferguson case, 71 Miss. 536.

The notice of election in this case purported to have been given by the board of supervisors and the chancery clerk, and not by the election commissioners.

Either it was necessary for the board of supervisors, under Section 310 of the Code of 1930, to prescribe the notice, give the notice and hold the election, or for the board to adjudge the jurisdictional facts, and order the election, and issue a writ of election to the election commissioners, who, under the general law (registration and election), are required to give the notice of the election and to hold the election and report the election as required by the general law.

Burkett case, 172 So. 329.

In the instant case, the board followed neither Sections 310 and 311, nor Section 6265, nor 6263 and other cognate statutes under Chapter 157, on Registration and Election, of the Code of 1930.

James v. Wilkinson County, 150 Miss. 489, 117 So. 111.

Giving weight to that part of Chapter 171 of the Laws of 1934 "that, if any county, in an election held for that purpose under the general election laws of the state," and provided further that an election to determine whether such transportation, etc., of such beverages shall be excluded from any county in the state shall, on a petition of twenty per centum (20%) of the duly qualified voters in such county, be ordered by the board of supervisors thereof for such county only. It would, therefore, appear that it was the Legislature's intention and purpose that the election to be held under such section was to be held and conducted under the election laws of the state. These are set out under the head of "Registration and Election," Chapter 157 of the Code of 1930.

It seems apparent that the board of supervisors should order the election, issue the writ of election, and prescribe the form of the ballot, and, of course, receive the report of the election and pass the necessary order putting the proposition into operation in the county.

The board of supervisors did not find the jurisdictional facts. The board of supervisors did not issue that writ of election to the election commissioners, and did not provide that a certified copy of the order be delivered to the election commissioners. The board directed the clerk of the board to give the notice, instead of requiring the notice to be given by the proper officials, to-wit, the election commissioners.

Green v. Board of Suprs., Adams County, 161 So. 139, 172 Miss. 573.

The board did not prescribe the form of the ballot, as provided for by Section 311 of the Code of 1930.

The fact that the notice attempted to be given is attempted to be signed by the board of supervisors of Winston County by Claude Richardson, president of the board of supervisors, would add no validity thereto, because not shown on the minutes that the form of the notice was prepared, adopted, and shown on the minutes as the notice of the board to be given by the board; and, therefore, on this theory the order would be null and void.

Sections 310 and 6256, Code of 1930.

Section 310 is silent as to the kind of notice. The order of the board is silent as to the kind of notice to be given by the clerk. Therefore, we claim that, since the election on the beer question was to be held under the general election laws of the state, it was the intent and purpose of the Legislature that the voters should have all the notice possible, so that they might intelligently prepare themselves to ballot on the question, and that the Legislature in its wisdom contemplated that writ of election should be given under the election laws to the election commissioners, and that they, the election commissioners, should give the notice of the election as prescribed in Section 6265, as that best calculated to give the qualified electors of each precinct notice of the matter to be presented to them, "posting notice at the courthouse and at each election district in the county for as near thirty days as may be practicable; and the election shall be prepared for and held as in the case of a general election."

Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Cameron v. Whittington, 120 Miss. 595, 82 So. 311.

The board failed to issue a writ of election as contemplated by Section 6265 of the Code of 1930. The order of May 4, 1937, attempting to declare the 181 results of the election and to exclude said beverages from said county is null and void, because said order shows on its face that the said election was not ordered, held, conducted, and notice thereof given for the time and in the manner required by law.

Laying aside the question that might be raised that the power to tax and raise revenue, vested in the Legislature by the people, cannot be delegated back to the people, or defeated by any vote of the people, which it seems to us is a serious question, we still say that, inasmuch as some of the exceptors had state licenses for the sale of such beverages, issued under a different law of the Legislature imposing such privilege licenses, the Legislature itself could not delegate to the people of a county the right to abrogate or repeal any act of the Legislature.

Therefore, it necessarily follows, as the day follows the night, that the said act is unconstitutional, in that it attempts to vest in the qualified electors of a county the right and power to repeal another act, to-wit, the act imposing the privilege tax for the sale of the beverages.

State v. Harvey, 170 So. 154.

The point we are making here...