Mohundro v. Board of Sup'rs of Tippah County

• Decision Date: 13 January 1936
• Docket Number: 32002
• Citation: 165 So. 124,174 Miss. 512
• Parties: MOHUNDRO et al. v. BOARD OF SUP'RS OF TIPPAH COUNTY
• Court: Mississippi Supreme Court

165 So. 124

174 Miss. 512

MOHUNDRO et al. v. BOARD OF SUP'RS OF TIPPAH COUNTY

No. 32002

Supreme Court of Mississippi

January 13, 1936

Division B

1. INTOXICATING LIQUORS.

Action of county board of supervisors, in ordering election to determine whether sales of beer and light wines should be abolished, held appealable by certiorari, as against contention that action was not judicial but merely ministerial (Laws 1934, chapter 171, section 2).

2 JUDGMENT.

Trial courts can enter only certain judgment where facts are undisputed or found to be a certain way, and, in finding of facts, courts act judicially as well as in entering their judgments.

3. INTOXICATING LIQUORS.

Order of county board of supervisors providing for election to determine whether sales of beer and light wines should be abolished held appealable by certiorari as against contention that only remedy was by appeal by means of bill of exceptions; remedy by appeal not being exclusive (Laws 1934 chapter 171; Code 1930, sections 61, 72, 73).

HON. T H. McELROY, Judge.

APPEAL from the circuit court of Tippah county HON. T. H. MCELROY, Judge.

J. F. Mohundro and others prosecuted an appeal by certiorari from an order of the Board of Supervisors of Tippah county providing for an election and, from a judgment quashing the writ of certiorari and dismissing the cause, J. F. Mohundro and others appeal. Reversed and remanded.

Reversed and remanded.

B. N. Knox, of New Albany, for appellants.

When the petitions were filed it became the duty of the board of supervisors to determine whether or not the conditions imposed had been met and if the legal petitions contained more than twenty per cent of the qualified electors of said county.

Power v. Robertson, 93 So. 769, 773.

In 11 C. J., page 122, it is stated that an act affecting property rights of private persons is clearly judicial and it is obvious that the fact that no right of appeal is given has no bearing on the question whether the proceedings are judicial in their nature.

Section 73, Code of 1930.

Certiorari is a great corrective writ by which the superior courts exercise a supervisory power over inferior courts, tribunals, and boards which exercise judicial functions, and by which their records and proceedings are brought under review.

R. R. Co. v. Adams, 85 Miss. 794; Robinson v. Mhoon, 68 Miss. 712.

It has been held that the determination of a board of supervisors as to the remonstrances to a petition to remove a county seat and the number of names signed thereto is a judicial act.

11 C. J. 122; Herrick v. Carpenter, 54 Iowa 340, 6 N.W. 574; Western Union Tel. Co. v. Kennedy, 110 Miss. 73, 69 So. 674; R. R. Co. v. Adams, 85 Miss. 772, 38 So. 348.

There cannot be any doubt about the board of supervisors being an "inferior tribunal" from whose action a writ of certiorari will lie. Of course, some of their acts are purely administrative and from those acts, certiorari would not lie, but where the board of supervisors are called upon to adjudicate and determine whether a petition meets certain jurisdictional questions, and where the future course of the matters petitioned for depends upon the determination and adjudication by the board, I submit that the act of adjudication is a judicial act.

If the board of supervisors, acting judicially, made a mistaken finding of fact which was induced by an error of law, the circuit court should correct the error. The lower court should have accepted jurisdiction and heard the cause, and its failure so to do constitutes, it is respectfully submitted, reversible error.

Fred B. Smith and Orbrey Street, both of Ripley, for appellee.

It is generally recognized and conceded that under the provisions of section 72, Code of 1930, for certiorari to lie upon the acts of an inferior tribunal the action of the tribunal must have been judicial in its nature, and if it is in its nature merely administrative or ministerial, then certiorari will not lie.

The first question to determine is as to the nature of the act of the board of supervisors in calling the election in this matter. In making this determination, the language of the statute under which the election was called becomes pertinent to the issue.

Section 2, chapter 171, Laws of 1934.

It will be noted that absolutely no discretion is vested in the board of supervisors relative to this matter, the language of the statute is mandatory, that is, the board of supervisors "shall" on a petition of twenty per centum of the qualified electors of the court order the election. The board of supervisors has no discretion in determining who is a qualified elector.

The statute left absolutely nothing to their discretion, and absolutely nothing that required judicial determination.

34 C. J. 1179; State v. Hathaway, 115 Mo. 36, 21 S.W. 1081; Lorenzino v. State, 18 N. M. 240, 135 P. 1172; State ex rel. Perea v. De Baca County, 25 N. M. 338, 182 P. 865; Louisville & Nashville R. R. Co. v. Garrett, 231 U.S. 298, 58 L.Ed. 229.

It is true in this case that the board of supervisors made some investigation of the poll books, and a calculation to determine whether or not the precedent conditions existed requiring it to call the election, but in the calling of the election the board had no discretion under the statute, there was no room for the exercise of judgment.

The act of the board of supervisors in this case was not judicial in its nature.

Section 61, Code of 1930; Board of Supervisors v. Pidgeon-Thomas Iron Co., 75 So. 177; Amite County School Board v. Reese, 108 So. 439; Board of Supervisors v. Stephenson, 130 So. 686.

OPINION

Anderson, J.

Appellants, who under the authority of chapter 171, Laws 1934, were engaged in the sale of beer and light wines in Tippah county, undertook to prosecute an appeal by certiorari from an order of the board of supervisors of the county, providing for an election by the qualified electors of the county to determine whether such sales should be abolished. The election was held, resulting in the abolition of such sales. On motion of appellee the circuit court quashed the writ of certiorari and entered a judgment dismissing the cause. From that judgment appellants prosecute this appeal.

In the early part of December, 1934, there were filed with the clerk of the board of supervisors thirty-seven petitions asking the board to order an election submitting to the qualified electors of the county the question as to whether the sale of beer and light wines should be discontinued. At the February, 1935, meeting of the board an order was entered on its minutes providing for the election as prayed for to be held on the 10th day of April of the same year. Appellants, who had license to sell, and were engaged in the sale of, beer and light wines in the county, applied for and obtained an appeal from the order by writ of certiorari without supersedeas. The election was held as ordered, and resulted against the further sale of those beverages.

The day after the election, the circuit judge issued a writ of supersedeas upon the appellants giving the bond required. The cause was heard at the next term of the circuit court on the motion to quash the writ and dismiss the cause.

Section 2 of chapter 171, Laws 1934, provides, among other things, that an election to...