Monroe County v. Minga

• Court: Mississippi Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Monroe County v. Minga, 127 Miss. 702, 90 So. 443 (Miss. 1922)
• Decision Date: 23 January 1922
• Docket Number: 22357
• Parties: MONROE COUNTY, to Use of SPLUNGE CONSOL. SCHOOL DIST., v. MINGA et al

90 So. 443

127 Miss. 702

MONROE COUNTY, to Use of SPLUNGE CONSOL. SCHOOL DIST., v. MINGA et al

No. 22357

Supreme Court of Mississippi

January 23, 1922

APPEAL from chancery court of Monroe county, HON. A. J. MCINTYRE Chancellor.

Proceedings by Monroe county, to the use of the Splunge Consolidated School District, to validate a bond issue, wherein J. E. Minga and others filed objections. Decree holding the bonds illegal, and the County appeals. Affirmed.

Case affirmed.

Young & Coleman, and Leftwich & Tubb, for appellant.

We shall not undertake in this brief to argue any other question than that raised in the third objection to the validation of the bonds which was sustained by the chancellor, to-wit "That the notice of the election given by the Election Commissioners was insufficient. The objections overruled we deem it unnecessary to notice.

The case accordingly turns upon the construction of the first one-half of section 2 chapter 207, of the Laws of Mississippi of 1920, which for convenience we will here copy.

Sec. 2. Before issuing said bonds, the board of supervisors, shall by resolution, spread upon its minutes, declare its intention of issuing said bonds fixing the maximum amount thereof, and the purpose for which they are to be issued and fix in said resolution the date upon which an election shall be held in said county or consolidated school district, or separate school district or separate road district, as the case may be, whereupon the county election commissioners shall give not less than three weeks notice of such election by publication of a notice thereof in a newspaper published in the county once a week for three weeks preceeding the same or if no newspaper is published in the county, then by posting such notice for three weeks preceding said election at three public places in the county or districts as the case may be.

It is not pretended in the hearing of the case, or by the objectors to the validation of the bonds, that any voters qualified to vote at said election were by any defect in the notice kept away from the election, nor was it pretended in the final hearing and determination of the case, in the final contention of the objectors that there was any unfairness in the election; but it finally turns upon the language used by the legislature providing: "that the election commissioners shall give not less than three weeks notice of such election by publication of a notice thereof in a newspaper published in the county once a week for three weeks preceding the same." The court will observe that the learned chancellor construed the words three weeks preceding the same, as meaning three weeks next preceding. In other words, the court in its conclusion amended the acts of the legislature and read into the acts, the word "next" and in doing so, no doubt followed the cases of Planters Mercantile Co. v. Braxton, 120 Miss 470; Morris v. Lindsay, 124 Miss. 742. These two cases construe Section 2772, Code of 1906. This section of the Code deals with sales in pais out of court, conducted by the creditor himself and courts have always, dealt with great strictness and have used also any loop hole to invalidate the sale. In fact, the last two sentences of the section provides: "No sale of lands under a deed of trust or mortgage shall be valid unless such sale shall have been advertised as herein provided for, regardless of any contract to the contrary. An error in the mode of sale such as makes the sale void will not be cured by any statute of limitations, except as to the ten-year statute of adverse possession.

The strictness with which every word of this statute must be complied, is illustrated by the cause of Sharpley v. Plant, 79 Miss. 175; Fauntleroy v. Mardis, 123 Miss. 355. And many other cases annotating this section set out in Hemingway's Annotated Code both in the original and supplementary volumes, the last just published. Yet, in this attitude this court doubtless under the mandate of literal construction imposed by the legislature itself, two of the justices dissent in the case of Maris v. Lindsay, the chief justice was disqualified, and so we have but these two cases which seem to have been influential with the learned chancellor as indicated by the last paragraph of his opinion.

We submit that these cases construing the law for trustee sales are not controlling authority in the instant case.

A series of statutes more analogous and the constructions more controlling in the case at hand are found in the statute for the construction of bonded roads, known as the Anderson Act Laws, of 1910, chapter 149, section 2 as to the advertisement in the original act, the language of the statute was that the notice of the proposal to issue bonds should be published, for three weeks next preceding the meeting at which the board proposes to issue such bonds. This same language was retained in the amended act in chapter 145, Laws of 1912 and likewise in the Laws of 1914, chapter 176.

In the case of Lay v. Shores, 112 Miss. 140, decided at the October Term 1916 construing this act, as theretofore written by the legislature this court dealt with the requirement as to the publication of the notice, the language of this court in the short opinion rendered is as follows in part: "The statute requires the notice shall be published for three weeks next preceding the meeting at which the board proposes to issue such bonds. The notice for the three weeks nearest to the time the board of supervisors proposed to issue the bonds was not given, more than one week intervened between the last publication and the day fixed for the proposed action of the board. This complication could have been avoided by the legislature, but we are not permitted to inquire the reason prompting the legislature to require the publication of the notice for three weeks next preceding the meeting, we know that it is so, and the record shows that the notice does not square with the legislative requirements."

It will thus be seen that this court protested that the narrow construction which it seems to have been compelled to make held the publication insufficient simply and only because of absolute legislative requirements.

The same act is Reinacted Laws of 1920, chapter 277. The admonition to the legislature plainly made by this court, in Lay v. Shores, was observed by the legislature and the language touching the publication of the notice of the purpose to issue bonds provided that the publication shall be made for three successive weeks which said election should be held and be conducted according to the provisions of the chapter on registration and election of the Code of 1906, so far as applicable. In this new statute, when it shall be construed, it is impossible to think that this court will still adhere to the drastic rule laid down in Lay v. Shores, supra. This provision for the publication has not yet been construed by this court so far as we know.

The act now under discussion, which was the guide for the issuance of the bonds in consolidated school districts is found in chapter 207, Acts of 1920, and in this act in section 2, the language for the period of publication is as follows: "Whereupon the county election commissioners shall give not less than three weeks' notice of such election by publication of a notice thereof in a newspaper published in the county once a week for three weeks preceding the same."

It will be seen from this statute, that the legislature don't even require three successive weeks, nor three weeks preceding the election, nor for three weeks next preceding the election. It must follow, it seems, after examining the history of legislation on the subject and the plain and deliberate purpose of the legislature to omit the words next and preceding and thus abandon the very narrow course theretofore taken. The procedure in the instant case is not only lawful but strictly in accordance with the statute. Johnson v. Yazoo County, 123 Miss. 435.

It will be observed that the only point in controversy here touches the publication of the notice of election. The territory was very small, the election was in all particulars regular. There is no proof that a single voter was deprived of his vote or that there was any substantial irregularity in the matter of conducting the election. The notice of the election did its perfect work and brought the electors to the ballot box. A large majority of them voted for the bonds and now when they come down and object, they make a very technical and narrow assault on the notice of the election which performed every office that it was expected to perform and say that the notice should have been published in another issue of the paper, of October 29th. This objection is so highly technical that if sustained, it will render the issuance of bonds, in the noteworthy and essential object of building schoolhouses difficult and endanger the sale in the open market.

The court will not fail to observe that in the matter of elections where the people cast their ballot, our court has been unusually liberal and the policy of the state has been in no instance to interfere with elections where they were fairly conducted and where the voters were not deprived of their right of choice. Gibbs v. McIntosh, 78 Miss. 648; Perkins v. Connaway, 59 Miss. 222; Board of Supervisors of Desoto County v. Dean, 82 So. 257; Thomas v. Lee County, 98 Miss. 260; Johnson v. Yazoo County, 113 Miss. 435.

We respectfully submit that the objections submitted to these bonds by the voters of the consolidated school district is very much like the objections of a defendant in a civil suit who is summoned into court and appears there to make objection to the process for some supposed irregularity. There is not one...